eDicta
Home
 

Ethics News to Use - The Full Stories
Scroll down to the news item you want.
This is a page which has our present news articles
and some (we've picked which ones) of our past News To Use.

Click here to back to the Home Page

Massachusetts now joins several other states in adopting the common interest doctrine described in Section 76(1) of the Restatement (Third) of the Law Governing Lawyers.  That section creates an exception to the waiver of the attorney-client privilege where two or more clients with a “common interest” agree to exchange privileged information between their respective counsel. Elements needed:(1) the communications are made in the course of a joint litigation effort, (2) the statements are designed to further the effort, and (3) the privilege has not otherwise been waived.  (Some courts have gone on to say the sharing of such privileged information could take place either in the litigation context, or in the course of obtaining legal advice for a non-litigated matter.) The Massachusetts Court also made it clear that oral or written agreements are not necessary to invoke the common interest doctrine.

In Hanover Insur. Co. v. Rapo & Jepson Insur. Serv., Inc., 449 Mass. 609, 870 N.E.2d 1105 (2007) the Court reasoned that the principle articulated in section 76(1) was consistent with the law of privilege in the Commonwealth, which places the seal of secrecy on communications between attorney and client in the interest of encouraging those in need of legal assistance to obtain such aid “free from the consequences or the apprehension of disclosure.”  The Court noted that the privilege had already been extended to “necessary agents of the attorney or the client,” such as experts, and that joint defense arrangements had been used in criminal trials in Massachusetts for a substantial period of time. 

Where defendants allege a common legal interest, such as a joint effort to establish a common litigation strategy, the Court wrote that they need only prove that “(1) the communications were made in the course of a joint defense effort, (2) the statements were designed to further the efforts, and (3) the privilege has not been waived.”  Notably, the Court stated that no writing is required to establish the requisite “joint defense effort.”  Hanover argued that the parties involved did not share “identical” interests in the suit, and did not share a common legal interest.  The Court reasoned that “when courts consider whether parties share a common legal interest, the determination should focus on the general purpose for which the communication is shared.”  The Court stated that identical interests are not required for co-defendants to assert that the common interest doctrine protects shared privileged information among counsel.

The Supreme Judicial Court’s adoption of the common interest doctrine in Hanover now brings the law of attorney-client privilege in Massachusetts into line with several other states, including Florida, California, Illinois, and New York.

"Go out and interview the plaintiff's former vice president, so we don't have to take his deposition.  He may want to get even with them for his forced early retirement."

The Wisconsin ethics committee, in Wis. Op. E-07-01 (July 1, 2007) adopted a new view of contacting agents of represented organizations. It includes an important statement that "Consent of the organization’s lawyer is not required for contact with a former constituent of the organization, regardless of the constituent’s former position." The importance of the Wisconsin opinion to you, even if you are not in Wisconsin, is that it may show you a way to proceed if your own state ethics committee or court has not yet definitively ruled on an easy way to gather information without expensive depositions.

"When an organization is represented in a matter, SCR 20:4.2 prohibits a lawyer representing a client adverse to the organization in the matter from contacting constituents who direct, supervise or regularly consult with the organization’s lawyer concerning the matter, who have the authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. All other constituents may be contacted without consent of the organization’s lawyer. Consent of the organization’s lawyer is not required for contact with a former constituent of the organization, regardless of the constituent’s former position. When contacting a current or former constituent of a represented organization, a lawyer must state their role in the matter, must avoid inquiry into privileged matters and must not give the unrepresented constituent legal advice. The mere fact, however, that a current or former constituent may possess privileged information does not in itself prohibit a lawyer adverse to the organization from contacting the constituent. A lawyer representing an organization may not assert blanket representation of all constituents and may request, but not require, that current constituents refrain from giving information to a lawyer representing a client adverse to the organization. The mere fact that an organization has in-house counsel does not render the organization automatically represented with respect to all matters. Former Opinions E-82-10 and E-91-01 are withdrawn."

'You mean that expert who flunked out on us at the deposition is suing us for legal malpractice?"

The plaintiff in a products liability case who had lost a summary judgment motion, and thus his case, brought a negligence suit against his expert witness, claiming inadequate testimony by Expert in Plaintiff’s unsuccessful products liability case. Expert, in turn, claimed indemnity from the trial attorneys in the underlying suit.

In the underlying suit, Expert's failure to account for certain safety standards in his report and deposition resulted in an adverse summary judgment against the client. Plaintiff did not sue his trial attorney for malpractice. Expert asserted a third party claim for equitable indemnity against Trial Attorney. Expert asserted that Expert was entitled to equitable indemnity for the Trial Attorney’s negligence in failing to adequately inform and prepare Expert.

In Forensis Group, Inc.v. Frantz, Townsend & Foldenauer, 29 Cal.Rptr.3d 622, 624-25 (Cal. Ct. App. 2005) Expert was allowed to make the claim against Trial Attorney.

The court noted that there is a general prohibition on claims for equitable indemnity when a client sues a former attorney for malpractice and the former attorney seeks equitable indemnity from a successor attorney. This general prohibition is to protect the client from the danger that the successor law firm might have to breach either its duty of loyalty or its confidentiality to the client to properly defend a claim of malpractice by claiming lack of merit of the case.

However, in Forensis Group, the California court went on to hold that allowing the equitable indemnity claim between the expert and the law firm would not create that danger. Trial Attorney, in defending against the equitable indemnity claim, would not be required to show that Plaintiff’s case lacked merit or divulge any confidential client communications; rather, Trial Attorney would only have to show that it satisfied the standards of care in preparing Expert.

'We're 120 days away from trial and now the other side has designated an expert witness who once was a client of ours on a house deal.  Now they say we have to withdraw?"

Read L.A. County Op. 513 (7/18/05) which lays out when a lawyer may try a case, in which a former client will testify as an expert. The lawyer may do it if the lawyer does not have any information about the former client that is relevant to the case. If the lawyer does have such information, the answer turns on chronology. If the expert has been designated before the lawyer appears, he must turn down the representation. If the expert is designated after the lawyer appears, the opinion states the following:

[T]he attorney may ethically seek an appropriate order from the court, which could include that the expert be precluded from testifying if another expert is available to the opposing party; that the former client’s decision to serve as an expert constitutes a waiver of the privilege; or that the former client may not serve as an expert witness unless the former client agrees to a limited waiver of any duty of confidentiality as it pertains to the pending case.

For a more in depth discussion: Bill Freivogel has a great discussion page on this subject at http://www.freivogelonconflicts.com

 MULTIPLE REPRESENTATION: Michigan Court Enforces Advance Agreement Allowing Lawyer to Drop Employee, While Continuing to Defend Employer. Employee sued Employer and Employer's Manager for sexual harassment. Employer asked Manager if Manager would like Employer's Law Firm to represent Manager. Manager signed an engagement agreement allowing Employer's Law Firm to represent both. The joint engagement agreement further provided that, if a conflict arose, Law Firm could drop Manager and continue to represent Employer -- even though Law Firm may have received confidential information from Manager during the representation of Manager. During the litigation, Law Firm and Employer learned that Employee (the plaintiff) and Manager had been running a side business together on Employer's time, sometimes using Employer's other employees when they were on Employer's time. Law Firm dropped Manager as a client in the sexual harassment case. It then brought an action on behalf of Employer against Manager based upon the operation of the side business. Manager moved to disqualify Law Firm, which the trial court granted. The appellate court reversed, in Rymal v. Baergen, 2004 Mich. App. LEXIS 1403 (Mich. Ct. App. June 8, 2004), giving force to the engagement letter, which said that Law Firm could do just what it did. The opinion, however, did not discuss the efficacy of the provision, which said Law Firm could continue representing Employer even though it had Manager's confidences. In fact, the court based its decision in part on the fact that Law Firm had not obtained such information from Manager during its "brief" representation of Manager. Note to Users at Home: This is one of those rare decisions that recognizes an agreement giving a lawyer the right to drop one joint client and continue on behalf of the other. This case is not much different from Zador Corp. v. Kwan, 37 Cal. Rptr. 2d 754 (Cal. App. 1995), an oft-cited case on such agreements, except that the court in Zador implied that the firm could use the dropped client's confidences; here, the court seemed not to approve of using the dropped client's confidences. Rymal v. Baergen, 2004 Mich. App. LEXIS 1403 (Mich. Ct. App. June 8, 2004).

"Whoops, it looks like I blew the date. Wonder whether I should tell the client or just try to fix it and hope for the best."

CONFLICTS OF INTEREST: Oregon Court Explores When Lawyer Mistake Creates Conflict Requiring Consent. Two May 2004 Oregon Supreme Court cases consider the duties of a lawyer who believes he has made a mistake under conflict-of-interest rules. In In re Obert, 89 P.3d 1173 (Ore. 2004), the lawyer had made a filing error. He then began to attempt to correct it. At some point, he concluded that the error was fatal. At that point, he stopped working on the matter. One of the issues the court considered was whether the lawyer had a conflict of interest under Oregon DR 5-101(A), Oregon's version of ABA Model Rule 1.7(a)(2) (the lawyer's "own interest" provision). Once the lawyer had made the mistake, should he have obtained the client's consent to continue working on the case? In Obert, the court said no. The court found that the lawyer was perfectly capable of continuing. However, once the lawyer found that he was going to lose, he stopped working on the matter. Had he continued, the court said then the rule would have been implicated. In re Conduct of Obert, 336 Ore. 640 (Or., 2004).

In a decision rendered by the same Oregon Supreme Court two weeks later, In re Knappenberger, 90 P.3d 614 (Ore. 2004), the focus was different. The court was still dealing the extent to which a lawyer's mistake triggers the notice and consent requirement of Oregon DR 5-101(A). The issue was whether every mistake, no matter how trivial, triggers compliance with that rule. The court held that not every mistake requires compliance, saying:

Rather, the Bar must show by clear and convincing evidence that the lawyer's error, and the pending or potential liability arising from that error, will or reasonably may affect the lawyer's professional judgment.

In re Knappenberger, 337 Ore. 15 (Or. 2004).

"How can we call it a joint defense agreement if we're just doing a deal?"

ATTORNEY-CLIENT PRIVILEGE/WORK PRODUCT: Court Recognizes "Common Interest Doctrine" in Transactional Context.  A and B entered into a series of transactions. They also entered into a "joint defense agreement," in which they acknowledged that they would be exchanging privileged documents with the expectation that the documents would remain confidential and privileged. After the transaction, a third party, C, sued A, claiming the transactions in question impaired C's rights. In the suit, C sought discovery of the documents. In a long opinion in OXY Resources California LLC v. Superior Court, 115 Cal. App. 4th 874 (Cal. Ct. App. 2004), the court made a number of significant points. The court held that many of the document could be withheld under the "common interest doctrine," which the court seems to treat as the same as the "joint defense doctrine." The court also held that the trial court might have to examine the documents in camera to determine what should be turned over and what withheld. The court did make an important distinction: it held that the common interest doctrine, standing alone, did not protect documents from discovery. The court said that such documents first had to be privileged or subject to the work product doctrine. Only then would the common interest doctrine kick in to prevent the exchange of the documents from being deemed a waiver of the privilege or work product doctrine. OXY Resources California LLC v. Superior Court, 115 Cal. App. 4th 874 (Cal. Ct. App. 2004)

"Be Nice on Extensions of Time on Answers -- Or Else"

SANCTIONS: Minnesota District Court Imposes Sanctions for Baselessly Opposing Routine Extension.  Say what you will about the lore that Minnesota folks are nice, but here's an opinion that many courts and lawyers should study. A Minnesota federal district court imposed approximately $1,000 in sanctions on a lawyer for refusing to consent to a routine extension to answer, instead demanding as a quid pro quo essentially the relief sought in the complaint, and then informing the court that he did not intend to respond to the extension request. Schaffhausen v. Bank of America, 2004 U.S. Dist. LEXIS 1773 (D. Minn. Feb. 2, 2004). The Moral: Be nice. Or else. (One of your authors has several lawyers he plans to share this opinion with in the near future.)

"Alright, just give me an answer:  Can I talk to that witness or not?"

CONTACT WITH REPRESENTED PERSON: California Court Pens Splendid Tutorial on Types of Employees Covered by Rule 4.2. Snider v. Superior Court, 2003 Cal. App. LEXIS 1790 (Cal. App. Dec. 3, 2003), involves a lawyer who talked to several current employees of the other side. He and his firm avoided disqualification, but there is much more to this opinion.  The court did an exhaustive analysis of what kinds of employees should be off-limits. The court discussed the changes in the California rules over the years and the ethics opinions and cases in California on this subject. The court also compared cases from around the country, including the Supreme Court's Upjohn decision. The opinion also traces the evolution of the Comment to ABA Model Rule 4.2, culminating in the ABA's adoption of the recent Ethics 2000 recommendation. It's a must-read opinion for California lawyers, but lawyers elsewhere grappling with issues raised by contacting employees of the other side will find it very helpful. Snider v. Superior Court, 2003 Cal. App. LEXIS 1790 (Cal. App. Dec. 3, 2003).

"My god; but that was seventeen years ago!"

FORMER CLIENT CONFLICTS: Despite 17 Years and Attorney Loss of Memory, Lawyer Disqualified in Substantially Related Matter.  A partner in the firm acted as local counsel for the defendant once, when he was with another firm. That was in 1986, seventeen years ago. He claims to remember nothing about it, and he is not working on the matter now. Quiz questions: How far back does your conflict system go? And how much historical information do you plug in for lateral hires?

As the name suggests, HealthNet, Inc. v. Health Net, Inc., 2003 U.S. Dist. LEXIS 19708 (S.D. W. Va. Nov. 5, 2003), is a trademark case. A partner in the firm acted as local counsel for the defendant once, when he was with another firm, and advised the plaintiff on the trademark implications of its name. That was in 1986, seventeen years ago. He claims to remember nothing about it, and he is not working on the matter now. Nevertheless, the court ordered his firm disqualified. The court, expressing skepticism about screens generally, found that the firm's attempt to screen the lawyer was deficient. The court also said that the plaintiff's waiting five months to make its motion was not an implied waiver of the conflict. Quiz questions: How far back does your conflict system go? And how much historical information do you plug in for lateral hires? Call us when your head stops hurting.

"You mean we're disqualified from the Ajax case work I'm doing?  You turned away that that guy wanting a lawyer, because I do the Ajax work.  So what's the problem?"

PROSPECTIVE CLIENTS: New North Carolina Opinion Construes New Model Rule 1.18 The Tar Heel State was the first in the nation to adopt the Ethics 2000 revisions to the ABA Model Rules of Professional Conduct, so it's not surprising that the North Carolina State Bar would issue the first ethics opinion construing Model Rule 1.18, the brand-new rule bringing together in one place most of our duties to prospective clients. North Carolina State Bar Ethics Committee Formal Opinion 2003-8 (Oct. 24, 2003). It's worth a read.  North Carolina State Bar Ethics Committee Formal Opinion 2003-8 (Oct. 24, 2003.

"You're a Lawyer, Do you think I have a claim?"

PROSPECTIVE CLIENTS: California Committee Offers Lawyers Cocktail-Party Advice. A man walks into a cocktail party...and, as soon as he hears you're a lawyer, he assaults you with the excruciatingly complicated facts of his legal problems. What do you do? Helpfully, the California bar has issued an interesting opinion that points up the pitfalls of responding in a meaningful fashion - including possible confidentiality obligations, potential creation of an attorney-client relationship, and possible conflicts of interest - by exploring three fairly real-world scenarios. The opinion doesn't give you a script for politely disengaging, but it surely gives you the reasons to do so. State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Op. 2003-161. Available in the archives at http://www.ethicsandlawyering.com

"Verify pleadings? Do you really want to do what ethics allows you to do?"

A new Arizona opinion carefully opines that a lawyer may ethically verify a pleading, but leaves open the question of whether the lawyer might thereby become a witness and subject to disqualification. Memo to self: don't do this. See State Bar of Arizona Opinion 03-01 (Jan. 2003).

"Is getting killer evidence and getting us a huge attorney fee a generally accepted societal good?"

Two summers ago, the ABA reversed its 1974 position that lawyers may not secretly tape. What the ABA thought was deceit and misrepresentation after the Nixon administration became truth-seeking behavior after the Clinton administration. Or something like that. Well, two new opinions have generally followed the ABA's new, more permissive approach.

Alaska has recently taken the position, as did the ABA in Formal Opinion 01-422 (June 24, 2001), that surreptitious recording of a conversation does not, in and of itself, constitute deceit or misrepresentation in violation of Rule 8.4(c). Alaska Bar Ass'n, Ethics Op. No. 2003-1. The Association of the Bar of the City of New York has taken a tentative step down the same analytical path. Maybe. Ass'n of the Bar of the City of New York, Formal Op. 2003-2. Calling the ABA change of heart "an overcorrection," the Association asserts that secret taping "smacks of trickery and is improper as a routine practice." When do they say that a New York lawyer may secretly tape? When "the lawyer has a reasonable basis for believing that disclosure of the taping would significantly impair pursuit of a generally accepted societal good." Well, I'm sure New York lawyers can easily figure out when that would be. See Alaska Bar Ass'n, Ethics Op. No. 2003-1; and Ass'n of the Bar of the City of New York, Formal Op. 2003-2

"Look, if no lawyer was involved, who can they come after, anyway?"

Delaware managing partners have "enhanced obligations" under Delaware rules to ensure that their firms comply with the ethics rules, especially including rules governing trust accounts. So held the Delaware Supreme Court in In re Bailey, 821 A.2d 851 (May 2, 2003), anticipating by weeks the effective date of its new Ethics 2000-based rules codifying such personal responsibility in its new Rules 5.1 and 5.3. Bailey was the managing partner of his firm and was suspended for six months based on six trust account transfers totaling $27,000 over a six-month period by a former firm bookkeeper. The testimony was disputed, and the court used circumstantial evidence to affirm Bailey's knowing violation of the rules, but Bailey denied any knowledge of these transfers and was remorseful concerning the obvious disarray of the accounting for the firm's trust account. Delaware's professional responsibility board rejected a lower agreed sanction proposed by Bailey and disciplinary counsel, and the high court agreed. The court, whose chief chaired Ethics 2000, wanted to send a message, and did. Available in the archives at http://www.ethicsandlawyering.com

Terms of Use: By clicking on any hyperlink on this website, except the "Terms" page hyperlink, you agree to the Terms of Use set out on the Terms page. EDICTA is published as an Internet Zine by the Tort Trial & Insurance Practice Section of the American Bar Association. ISSN 1525-4593
ABA Copyright Statement  ABA Privacy Statement  © November, 2007 eDICTA.org all rights reserved.

.....