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RESPECT IS THE ANSWER, ISN'T IT? [Part 2]
As Senator Bill Bradley once said, we do not predict or foresee major changes 20 years hence very well in this country, but when they occur, we must deal with the new reality. The new reality today is not a positive one for our jury trial system and its participants--us.
The
public will never totally appreciate our role as trial lawyers because, as we
know, there is almost always a dissatisfied party at the end of litigation. Even given those problems there
are things we can do....
Read the rest of this thoughtful article
This is part 2 of a 3 part series.
You can read the earlier part
1 here.
Next month, John proposes four specific actions for attorneys. |
Articles: Conflict Issues Arising from Joint Defense Agreements. Ethics of eDiscovery. Meet and Confer, but First Know. |
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Massachusetts makes it a strong national trend: privilege is not waived by sharing information between attorneys for co-parties (the “Common Interest Doctrine"). Key states have now adopted 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 even has gone further, making it clear that oral or written agreements before the information exchange are not necessary to invoke the common interest doctrine. Read More». | |||
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Attorney Poole’s accounting was untidy, and his client Matson was upset. In May Poole sent a letter to Matson containing an acknowledgment to his client that the client's account carried a zero balance as of that date. In October Poole wanted to support his position that he had properly credited the client account with money received and that the client’s balance in May was zero, and the client owed nothing. The court specifically found: “Matson suffered no actual injury as a result of Poole's dishonest conduct.” In the Matter of the Disciplinary Proceeding Against Jeffrey G. Poole, 2006 Wash. Lexis 1. What then is the problem the Court saw? ““For whatever reason, either because of a technical error, as he asserts, or because none was ever created, as the Bar charges, he was unable to locate an invoice. He then created one.” . . . When Poole created the May 28 invoice in October he was not simply acting carelessly, but rather he purposefully created a new document and assigned it a false date..”. For the fabricated evidence which accurately showed the true accounting and injured no one, Poole received a license suspension of six months followed by two years probation and periodic audits of his trust account. P. S. The case is instructive about what e-discovery evidence can do, if you ever think no one will find out. |
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'We're 90 days away from trial on our products case, and the other side has designated an expert witness who once was a client of ours for a home purchase. 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 ...Read More. |
Frequent "News" contributors have included: Freivogel on Conflicts, and Corporate-Ethics.US You may want to visit them for other articles on current professional or business ethics topics of interest. |
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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. Read More». | ||||
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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 underlying products liability suit. Expert, in turn, claimed indemnity from the trial attorneys in the underlying suit. Held, yes, Expert can sue for being inadequately prepared by the Attorney....Read More » | ||||
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Where are our legal heroes of courage to the press and public today who are
defending the values of the system as we know it? 
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Three Point Short Course: Preventing Legal Malpractice.
You would think that lawyers would learn! Almost every year,
the most common grievances filed against attorneys are allegations of: #1.
Neglect, Self-protection against these types of malpractice claims is not difficult. Let’s review ABA standards, and look at a few practical tips. # 1. Neglect: the different worlds in which we think we
live. We all tend to make decisions based on the world in which we think we
live — which may not be the world in which the client and other lawyers live.
One lawyer's "reasonable diligence and promptness" is another lawyer's "sloth,
conscious disregard, and untimely responsiveness.” As a result of the different
worlds in which we think we live, the ABA’s Model Rule on the subject is wimpy
and ineffectual as a teaching device........ Read
Full Article |
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 CONFLICT
ISSUES ARISING FROM JOINT DEFENSE AGREEMENTS
By David Hricik Joint defense arrangements are common in civil litigation. Typically, multiple defendants whose first line of defense is "none of us did it," may work together to produce a united front. In true joint defense arrangements, each client retains its own counsel, but counsel communicate among themselves to further the joint defense. (This should not be confused with the "shared counsel" arrangement, where several clients will retain one lawyer to represent all of them.) Joint defense arrangements present unusual issues
in disqualification proceedings. Foremost, the lawyer representing one client
does not by that fact alone have an attorney-client relationship with the
co-defendants. Indeed, each client has its own counsel because the interests of
the group, though largely common, do differ. For example, it may be that each
defendant has cross-claims against each other for contribution or indemnity. |
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Ethics of eDiscovery. Meet and Confer, but First Know. The amendments to the Federal Rules of Civil Procedure have made the meet and confer process harder for you. You are now to discuss, with your adversary, at an early stage of the litigation, how your own client will treat electronically stored information (ESI) information with regard to preservation, production and cost shifting. To properly discuss the required items you should determine how much discoverable ESI your own client has, whether it is reasonably accessible, and how much time and money is needed to collect, restore, review and produce the information. All the clients' concerns related to preservation, costs, or burden should be addressed during the meet and confer conference with adverse counsel. Go back and read how many times the word "should" is in the last paragraphs above. "Should" is a word used in ethics as well as in procedural standard operating procedures. The focus in the legal profession has been on minimums of work required by law. But eDiscovery, with its affirmative duty to discuss items relating to client costs, brings with it the ethical duty to learn enough about your client's ESI so that you can suggest the ways to cut discovery costs for your client. Think about it. |
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Neoethics results because of the
public's merging of two dictionary definitions of ethics. Neoethics – a new word for the new world of legal and corporate ethics - is the combination of legal rules and moral philosophy.
Neoethics is evolving in the legislatures, the courts, and the 21st Century
public ethos. The public and government now demand that the rules
governing lawyers respond to the public perception of the moral choices
lawyers and corporate officers should make. . . .
Read the Full Article
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The Neoethics Notes and articles by the editor
explore both traditional legal ethics and also Neoethics. | ||||
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Need a fast track to an answer to an ethics question? The ABA's ETHICsearch may be the quickest way to your answer. To find this ABA resource you should Read Here. | |||||
By
Leonard Bucklin |
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