Published By: Maxwell S. Kennerly, Esquire

Legal Ethics

Subscribe to Legal Ethics via RSS

Two weeks ago, I attended the Pennsylvania Bar Institute’s Federal Bench-Bar Conference, which featured a panel discussion on “Ethical Issues During Depositions: Hypothetical Scenarios.” The panel included two federal judges and two Fellows of the American College of Trial Lawyers.

The panel raised a number of interesting issues. It also tried to tackle the vexing questions of how, exactly, you stop an opponent from obstructing your deposition and how you identify and prevent manipulation of a witness’s testimony. Deposition misconduct and discovery obstructionism are subjects I’m keenly interested in (and subjects I’ve spoken on as part of an ABA panel), so I had to go.

Before we get into the substance, let’s discuss a bit of background. Most of my writings on the subject are gathered in this post on deposition preparation, along with links to others’ reactions. An ABA article (“Ethical Preparation of Witnesses for Deposition and Trial”) a few years ago summarized the general ethical considerations at play:

A lawyer has a duty to prepare a witness to testify. This preparation may include discussion concerning the application of law to the events in issue. But “[a]n attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” Geders v. United States, 425 U.S. 80, 90 n.3(1976); Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993). Thus, the prohibition of counseling or assisting a witness to testify falsely also applies to the influence that an attorney may have on the substance of a witness’s testimony in the preparation process.” An attorney enjoys extensive leeway in preparing a witness to testify truthfully, but the attorney crosses a line when she influences the witness to alter testimony in a false or misleading way.” Ibarrav. Baker, 338 F. App’x 457, 465 (5th Cir. 2009) (citing John S. Applegate, Witness Preparation, 68 Tex. L. Rev. 277(1989)).

Now, let’s get back to the substance of the panel. The most interesting part to me was the discussion over when a lawyer can stop a deposition, despite a pending question, to speak with their client. We’ll call this a “witness conference.” 
Continue Reading Can A Lawyer Interrupt A Deposition For A “Conference” With A Witness?

Vanity Fair has a profile of Federal Judge Denise Cote (of the Southern District of New York) that revolves around her involvement in the Apple–Amazon e-books antitrust brouhaha. The article is helpfully titled “The Judge That Apple Hates” for anyone who didn’t know how the case turned out.

I wrote about that case when the Department of Justice first filed it, voicing my support for the DOJ’s claims. Whatever one thinks of Amazon’s impact on the book publishing world, it’s hard to dispute that Apple and the publishers entered into a collusive agreement for the purpose of raising prices — the primary evil our antitrust laws are designed to prevent. In the end, all the book publishers settled, and the DOJ went to trial against Apple alone. Judge Cote ruled in favor of the DOJ, and the case is now on appeal.

Vanity Fair’s description of the opening statements at the trial caught my eye:

Only 10 days [before trial] Cote … had shared a “tentative view” on the merits of the case with the lawyers, just as she had done in many other cases and as she said she would do here if both sides consented. Stressing it was tentative—as she noted, she had only reviewed the court papers and had yet to hear the testimony and arguments—she said she believed the government would be able to prove that Apple “knowingly participated in and facilitated a conspiracy to raise prices of e-books.”

So now, playing a clearly losing hand in Cote’s courtroom, [Apple’s lawyer Orin] Snyder chose to meet Cote head-on—and challenge her fairness. To a judge who prides herself on her scrupulousness, it was a declaration of war. “No party, big or small, whether the biggest company in the world or an individual defendant, should start trial with the deck stacked against it,” he pleaded. “So we respectfully and humbly ask this Court to erase, hit the delete button on any tentative view that might exist in the Court’s mind today.”

Has corporate America and its lawyers become so accustomed to winning in the courts, so self-assured by judicial recognition of their “right” to manipulate elections and to quash consumer lawsuits with arbitration agreements and insurmountable legal standards, that one of the most profitable and valuable corporations in the world feels ‘the deck is stacked against it’ if a judge fails to give their self-serving assertions a round of applause? 
Continue Reading Judge Cote And The Pre-Trial Preview In The Apple–Amazon e-Books Case

A year ago, CareerBliss reviewed 65,000 employee-generated reviews and concluded that the “least happy job” in the country was “associate attorney.” A couple naysayers jumped in this as proof that the younger generations of lawyers are entitled complainers, but, truth is, if you ask enough lawyers of any age how they feel about their jobs, the description of life in the law begins to sound like Nabokov’s translation of the Russian word toska:

“At its deepest and most painful, it is a sensation of great spiritual anguish, often without any specific cause. At less morbid levels it is a dull ache of the soul, a longing with nothing to long for, a sick pining, a vague restlessness, mental throes, yearning. In particular cases it may be the desire for somebody of something specific, nostalgia, love-sickness. At the lowest level it grades into ennui, boredom.”

The close relationship between misery and the law isn’t anything new. Consider the law review article from fifteen years ago, “On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession,” 52 VAND. L. REV. 871, 874 (1999), written by Patrick J. Schiltz, who is now a federal judge. It’s such a good read, and still so relevant, that it seems to vanish from every location it has been posted in the past; the best I could find was this abridged and unformatted version, and this scan of a printout of an online article that Schiltz published a year later, summarizing many of his arguments.
Continue Reading Finding Happiness As A Lawyer

The 1908 ABA Canons of Professional Ethics required lawyers to pursue their client’s objectives with “warm zeal,” whatever that meant. These days, practicing attorneys and scholars routinely throw around the term “zealous advocacy” to describe a lawyer’s duties to their client, but “zealous advocacy” is not actually required. As Sylvia E. Stevens of the Oregon Bar noted almost a decade ago:

No [ABA Model] rule requires zealous representation. Rather, the emphasis is on competent and diligent representation. The term “zeal” appears in the preamble, both times in reference to litigation, and in the comment to Model Rule 1.3. The rule itself requires that a lawyer act with reasonable diligence and promptness in representing a client. Comment (1) explains that “(a) lawyer must also act with commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf.” That suggestion is at the same time diluted by the next sentence: “A lawyer is not bound, however, to press for every advantage that might be realized for a client.”

The focus of the Rules, then, is on competence, diligence, and communication, not on the degree of “zeal” felt or exercised by the lawyer.

That’s how it should be: one of the essential precepts of the law is the recognition that “reasonable minds can differ” on a wide variety of subjects, including on the most effective way to represent a particular client and whether zeal or caution is warranted in a given situation. The phrase “discretion is the better part of valor” is now commonly used to indicate the wisdom of proceeding with caution, despite it being originally used for comedic effect (as “the better part of valour is discretion,” so “discretion” is the punch line) by a coward.

Truth is, for all the fear that the law will be “commoditized” like fast food, most legal work still involves a skilled professional making a judgment call. If it was something that didn’t require a judgment call, you wouldn’t need or ask a lawyer to do it.

So if lawyers aren’t required to engage in “zealous advocacy,” nor “to press for every advantage that might be realized for a client,” then where is the line drawn between arguments that a lawyer must make (to have performed competently) and arguments that they can make (within the bounds of zealous advocacy)? 
Continue Reading Is A Lawyer Ever Required To Present An Argument They Don’t Believe?

[Update, August 26, 2013: After some further bickering and litigation in the Haeger case, the Court granted the plaintiff’s motion for attorney’s fees, then ordered “judgment in favor Plaintiffs and against Graeme Hancock in the amount of $548,240.23 and against Basil J. Musnuff and the Goodyear Tire and Rubber Co. in the amount of $2,192,960.93.”]

Over at Safety Research, Sean Kane details a recent order from the federal court in Arizona entering sanctions against Goodyear and its lawyers for concealing testing data in a tire failure case. As every product liability lawyer knows well, the concealment of evidence by tire manufacturers and car companies is pretty much routine these days. It doesn’t matter how specific your request is, how many times you ask, or if you have several court hearings or court orders on your side: the car and tire companies will tell you that they have no safety testing or crash investigations that relate in any way to the products involved in your case. That is, of course, until you retain an expert to point out that the company apparently didn’t do any safety testing of its own products — at which point you will have thousands of studies and investigations dumped on your lap, but none involving the product at issue in your case. It’s a funny coincidence that way.

I’ve written before about the national scandal of tire failures, in which old and otherwise defective tires kill people every day. Tires are more than just rubber — numerous compounds are woven and glued together — but, when all is said and done, the tire is only as strong as its weakest link, and that weakest link is often a rubber compound or an adhesive. In hotter temperatures, and at higher speeds, the temperature of the tire goes up, making failure more likely. Simple chemistry.

Simple, but still too much for Goodyear. The deadly Goodyear G159 tire is well-known among trial lawyers. The tire was first designed for use on regional delivery trucks, which typically don’t travel at high speeds and which often stop. As baby-boomers began to age into their fifties in the 1990s, the Recreational Vehicle market grew rapidly, and Goodyear wanted to capitalize on it, so they re-branded the G159 as an RV tire, and it was adopted as the standard tire on several Fleetwood and Monaco RVs.

Problem was, the G159 wasn’t meant to withstand the weight of an RV at high interstate speeds (and sometimes in high temperatures in the South and the Southwest) for long durations. The tires began to fail at an alarming rate, prompting a wave of litigation, but no recall — and plenty of G159 tires are still out there, some as spares, getting older and even less reliable as the rubber and glue compounds dry out over time.

The Haeger case is thus almost routine by product liability standards: back in 2003, a husband and wife were seriously injured when the Goodyear G159 tires on their motor home failed while they were driving on the interstate. In the Haeger lawsuit, Goodyear was asked to produce a variety of high temperature and high speed testing, but didn’t, and repeatedly told the Court and the plaintiff’s lawyers otherwise. The case settled on the eve of trial; nearly a year later, the plaintiff’s lawyer was reading about another G159 case that went to trial and resulted in a $5.6 million verdict. The newspaper article mentioned the plaintiffs there had used at trial “Goodyear documents including internal heat and speed testing and 13 failure rate data” — the same studies Goodyear and its lawyers said didn’t exist in the Haeger lawsuit.

The plaintiff’s lawyer was, shall we say, upset, and wrote to Goodyear’s lawyer, who promptly admitted they hadn’t produced the studies, and claimed everyone — Court included — knew it! Unsurprisingly, the plaintiff’s lawyer disagreed, and so filed for sanctions.  Sean Kane’s post includes the sanction order itself, and I must admit it’s comforting to see, in a court order, confirmation of what product liability plaintiff’s lawyers like me say all the time: corporations routinely conceal evidence. As the Court dug up while considering the sanctions motion, Goodyear’s lawyers didn’t disclose evidence as required by court rules and court orders; instead, their internal emails showed they only produced what, they said, “serves our best interest to produce.”

But I don’t want to dwell on those details. 
Continue Reading Discovery Sharing By Plaintiff’s Lawyers (Or, The Dog Ate Goodyear’s Homework)

“Referral fee” can mean a lot of different things in the law. The plainly unethical version involves lawyers paying non-lawyers (like doctors or tow truck drivers or union bosses) to send them potential cases, but, when plaintiff’s lawyers use the term “referral fee,” they usually mean: the part of a damages award or settlement that one lawyer takes from the overall contingent attorney’s fees for sending a potential client to another lawyer. Perhaps the most common is the “third of a third,” in which the client is represented on a one-third contingent fee (i.e., the lawyer takes one-third of any settlement or verdict), and then that fee is split between the lawyers so that the referring lawyer takes one-third of the fee while the lawyer who litigated the case takes two-thirds of the fee. If the underlying fee agreement with the client seeks 40%, then often the referral fee will be 40% of that fee.

Referral fees are the lifeblood of the injury, malpractice, and product liability world. Sure, the litigating attorneys frequently grumble about paying such a sizable fee given that the referring attorney “did no work” and “didn’t pay any costs.” But those same attorneys, when they’re the referring attorney, don’t hesitate to point out that the litigating attorney wouldn’t have the case at all without the referral fee, and that the referring attorney could have just as easily run with the case as co-counsel. (Indeed, referral attorneys often do stay around as “co-counsel” on the case, even if they do only nominal work, a point we’ll return to in a moment.)

The existence of referral fees creates a marketplace among lawyers for injury claims, and thus a marketplace for good lawyers. Take a look at the top plaintiff’s law firms in a given city and I can guarantee you that not one of them was built on television commercials, or Yellow Pages (yes, they still exist), or Avvo reviews, or search engine optimization — they were built on reputation and referral fees. Those lawyers proved themselves in court, and, as their good reputation grew, more and more cases were referred to them, providing stronger and larger cases and allowing them to be more selective, and the virtuous cycle continued.

Tort reformers press for an alternative to this system, one in which referral fees are banned.  If they get their way, the prohibition on referral fees would remove the incentive that drives “large net” advertising, which can be annoying but serves the purpose of connecting injuries people with appropriate legal counsel. Without referral fees, the lawyers with the inclination and the budgets to advertise won’t send clients to the lawyers who are best able to handle the client’s claim. That, in turn, would encourage lawyers who are not the best suited for a particular claim to “give it a shot” and to try to litigate the case themselves — to the detriment of the client.

Which brings us to the Law Offices of Catalano & Plache v. Brustin case reported by the New York Law Journal. I’m not familiar with Catalano & Plache, which, according to the NYLJ, “had an ongoing relationships with the Ramapough Tribe, which has a presence in Bergen County, N.J., and Rockland County, N.Y., and had represented the tribe’s interests for more than 17 years.” But I am familiar with the defendants, Neufeld Scheck & Brustin and Emery Celli Brinckerhoff & Abady, two of the most prominent civil rights law firms in New York City. You might be, too: the “Neufeld” and “Scheck” are the co-founders of the Innocence Project. 
Continue Reading On The Legality of Referral Fees: The NJ Civil Rights Attorney’s Fee Fight

Few insults draw the ire of personal injury lawyers like “ambulance chaser.” Unlike “trial lawyer,” which business interests have been trying to turn into a slur for years — despite the fact that the term means little to non-lawyers and, among lawyers, can be a compliment for both plaintiff’s and defendant’s counsel — “ambulance chaser” is unambiguously derogatory, implying a mixture of greed, desperation, and exploitation.

The term is doubly insulting because it strikes at the part of our work that is the most emotionally challenging and is the source of our greatest pride: the fact that we are trying to help injured people. In the last week I spoke with a woman who cannot work or even stand anymore because of the pain from titanium clips left inside her by an incompetent physician, and I prepared discovery in a case so tragic that, in every conversation — whether with a doctor, an expert, or even the defense lawyers — there will be a moment of stunned silence in which empathy instinctively forces us to consider that, every day, we do the same thing that family did, and that we have been spared their fate by sheer luck. Mention the word “ambulance,” and I will think of how, inside many ambulances, there is a very hurt person with a sad story that could or should have been prevented, a person that may end up in my office and on my mind every day for years to come. Like it’s my fault that Ethicon makes defective hernia mesh and Bayer’s Essure is a disaster?

Yet, as an amateur etymologist, the term bothers me for another reason: there’s no clear definition. Ask Wikipedia, and it equates “ambulance chasing” with barratry (“barratry can refer to a lawyer seeking clients at a disaster site, which is also known as ambulance chasing”), but there are two problems with that. First, barratry is a notoriously difficult term to define — just ask the Supreme Court, which has been trying for nearly two centuries to define it in the maritime context, see Patapsco Ins. Co. v. Coulter, 28 U.S. 222 (1830)(“It cannot be denied, that what with adjudged cases and elementary opinions, this doctrine has got into a great deal of confusion.”) — and, second, the legal usage of “barratry” usually refers to stirring up groundless litigation.

It certainly would be wrong for a lawyer to chase an ambulance, peddle their services, and then convince the injured person to file a baseless suit, but is that really what is meant by the term “ambulance chaser?” Or does it also refer to lawyers who improperly solicit clients with meritorious cases? 
Continue Reading The Lawyer As Ambulance Chaser

The legal blogosphere spent a good deal of time discussing Horace F. Hunter last October, when the Virginia State Bar sanctioned him for the terrible ethical violation of truthfully describing his own successes — which were all a matter of public record — on his blog. Said the Washington Post:

Bar authorities contend the blog constitutes advertisement and should include a disclaimer saying it’s an ad. Hunter argues the blog is news and commentary, and the bar’s attempt to get him to tack on a disclaimer is a violation of his First Amendment rights.

At least that’s what all of us, including Carolyn Elefant, thought it was about, but when it came time for the actual hearing the bar apparently shifted (according to Horace Hunter) its focus from the lack of a disclaimer to the failure to obtain client consent before re-publicizing the matters that were already on public records. Hunter lost, then appealed, and according to Bob Ambrogi just won his appeal on the client consent issue but lost it on the disclaimer. So we’re back where we started: a strict application of the disclaimer rule. If a lawyer in Virginia mentions one of their cases, they need to follow the rule to the letter.

I’m not a fan of the disclaimers, and I don’t think Hunter should have been sanctioned. As I wrote in the comments on Carolyn’s site back in October: 
Continue Reading Horace Hunter And The Sham Lawyer Advertising Disclaimer

Sometimes, a legal blogger has to hunt for topics to write about. And sometimes they’re delivered through the philly.com RSS news feed:

Q: I am an attorney. Several years ago I had a case in which my “adversary” was a nice, very attractive woman. … At present I have several cases with her and we have spoken on the phone a couple of times. Although we only talk business, from my perspective we get along well.

I would like to ask her out, but there is a twofold problem.

The first is whether she is in a relationship. And the second is that if she doesn’t want to go out with me, it could make for a very uncomfortable situation going forward professionally.

How can I ask her out, or even speak with her in a nonbusiness setting to see if she has any interest?

I’m not in the business of giving out relationship advice, but I can give a handful of pointers relating to protocol in the legal world. I’d recommend against asking her out in the time before or after a deposition or a hearing — many lawyers in courtroom situations are at work and cannot easily shift gears — but other than that you can stick to the basics: call her and ask her out to lunch or dinner at a nice sit-down restaurant. Consume, at most, just under two drinks. Then be yourself, just like mom always said.

But Steve and Mia, the Daily News advice columnists, skipped over the relationship advice and went right to legal ethics:

Steve: The ask-out part is easy; the legal issues are not. Case law and ethics require you to disclose to your client and the court any relationship you might have with opposing counsel. Might be best to avoid that mess until all your cases with her are completed. Then, simply ask her out for coffee and find out her relationship status. If she’s interested in you, she’ll let you know.

Mia: Steve’s right. Don’t make a move until your legal dealings are finished. Until then, lay off the Facebook stalking, or you’ll end up at the top of her friends list, which is a big giveaway that you’ve been creeping on her page.

Shucks; depending on the type of work, if they have “several cases” together that could take years before the “legal dealings are finished.” Said The Bard of Avon, “the course of true love never did run smooth.”

No worries, young man, we’re going to work through this one together.

There’s no professional responsibility rule or case law that says whether you can or can’t go on a date with opposing counsel, and no rule or case that tells you at what point you need to disclose the relationship to the client. The comments to ABA Model Rule 1.7, includes this distinguishable passage:

[11] When lawyers representing different clients in the same matter or in substantially related matters are closely related by blood or marriage, there may be a significant risk that client confidences will be revealed and that the lawyer’s family relationship will interfere with both loyalty and independent professional judgment. As a result, each client is entitled to know of the existence and implications of the relationship between the lawyers before the lawyer agrees to undertake the representation. Thus, a lawyer related to another lawyer, e.g., as parent, child, sibling or spouse, ordinarily may not represent a client in a matter where that lawyer is representing another party, unless each client gives informed consent. The disqualification arising from a close family relationship is personal and ordinarily is not imputed to members of firms with whom the lawyers are associated. See Rule 1.10.

Notice that it generally refers to “the existence and implications of the relationship between the lawyers,” which would seem to speak broadly, but then limits itself with a description limited to close family members. Indeed, as far as I’ve seen, the rule is construed narrowly, at least in terms of whether or not an ethical violation is found, but it is construed a bit more broadly in terms of whether the client is entitled to post-trial relief for undisclosed relationships. See, e.g., State v. Sheika, 766 A. 2d 1151, 1161-1162 (N.J. App. Div. 2001)(finding no violation where criminal defense lawyer’s daughter was an assistant prosecutor in the office that prosecuted defendant but played no role in prosecution, but also remanding for findings on claims of ineffective assistance of counsel). 
Continue Reading The Legal Ethics Of Going On A Date With Opposing Counsel

SCOTUSBlog, the premier media source — internet, newspaper, anywhere — for Supreme Court news, has just undergone a revision, including sponsorship by Bloomberg Law. Scott Greenfield, the premier source for complaints about legal blogging, thinks something was lost in translation:

Most disturbing is the resort to the formulaic approach of “ask the expert,” and the expert invariably being someone with scholarly credentials so that their every utterance comes with built-in academic credibility. We see it in newspaper articles and on television news, the lawprof opining about things he’s never personally touched and only seen from afar. We were knee deep in ideas from people who have never actually done the things they speak about with such refined expertise. Now we’ll be neck-deep.

For those of us who have long appreciated SCOTUSBlog being there, being the first resource for Supreme Court decisions, briefs, reports, it seems unfair and unappreciative to question Tom Goldstein’s effort to make money off his blog and further his career as a Supreme Court litigator. And yet, I can’t help feeling that we’ve lost a trusted friend, a reliable neighbor, who is moving from the ‘hood to the corporate bigtime. And that our comments will be deemed too stupid and unworthy to make it onto the small screen.

Bob Ambrogi is more sanguine:

I believe that Bloomberg’s sponsorship will prove to be a benefit to readers of SCOTUSblog. For several years now, this blog has moved closer and closer to becoming a serious — dare I say “mainstream” — news site, particularly since bringing aboard Lyle Denniston. Now it will be able to devote more staff and resources to that task, which can only make it all that much better.

And before anyone bemoans the blog for “selling out,” keep in mind that this new sponsor is, itself, a professional, global news organization, one that already has a strong legal news component. As a matter of fact, I would say that this sponsorship will be better for the blog’s readers than was the blog’s longtime affiliation with a major law firm, Akin Gump.

The rebirth of SCOTUSBlog as more a form of SOCUTSNews was unavoidable and has been a long time coming. You don’t get very far as a Supreme Court litigator by pointing out how unprincipled and political many of the Court’s decisions are. You also don’t become a major media source for commentary by pointing out that the court’s key opinions are loaded with rank hypocrisy — consider how often the five “Federalist” judges these days use ambiguous federal statutes to pave over state-created rights — or that their poorly-reasoned opinions often raise more questions than they answer.

Truth is, as a blog gets more popular, it tends to get more “mainstream” and less provocative. That’s not necessarily a bad thing; SCOTUSBlog was never particularly edgy, and there are plenty of people around more than happy to criticize our robed overlords. I couldn’t be happier that SCOTUSBlog has a bright and secure future as the primary source for plain-vanilla apolitical analysis of the Supreme Court; it’s the first place I go for information about the Court. No offense to the New York Times or NPR, but, when they report on the latest opinions, they simplify matters for their non-lawyer audiences, and they don’t helpfully link to the lower court opinions and the merits briefs.

The SCOTUSBlog revision puts into perspective some trends I’ve seen in the universe of practicing lawyer blogs. (Put aside the legal academic blogs and media ventures unaffiliated with firms; they have separate trends.) It seems the practicing lawyer blogs are separating into three general classes of blogs, which I’ll call the mainstream, the personalities, and the marketers.
Continue Reading The Three Types Of Practicing Lawyer Blogs