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Professional and Ethical Dilemmas in Litigation

Professional and Ethical Dilemmas in Litigation. David N. Lefkowitz The Lefkowitz Firm, LLC 330 Peters Street, Suite 104 Atlanta, Georgia 30313 404-658-5000 dnl@lefkowitzfirm.com. Session One.

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Professional and Ethical Dilemmas in Litigation

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  1. Professional and Ethical Dilemmas in Litigation David N. Lefkowitz The Lefkowitz Firm, LLC 330 Peters Street, Suite 104 Atlanta, Georgia 30313 404-658-5000 dnl@lefkowitzfirm.com

  2. Session One • While representing a client in civil litigation, you are conducting depositions in a conference room at your office. Opposing counsel asks to use an empty office during a break to return phone calls, and you oblige. After the depositions are finished for the day, you realize that your opposing counsel left a document in the empty office, and after glancing at it, you realize it is a status memorandum to the insurance adjuster on the case. • What do you do? • What should you do? Rule 3.4 ABA Formal Opinion 06-440 (Unsolicited Receipt of Privilege or Confidential Materials: Withdrawal of Formal Opinion 94-382) ABA Formal Opinion 05-437 (Inadvertent Disclosure of Confidential Materials: Withdrawal of Formal Opinion 92-368) Work Product Attorney-Client Privilege

  3. Session One 2. Your law-school classmate, an extremely successful civil litigator, was recently suspended by the State Bar for 6-months. (The suspension arose from your friend having provided financial assistance to a near-destitute personal injury client while her case was pending, a violation of Bar Rule 1.8(e).) Your friend asks if he can work in your office as a legal assistant until the suspension is over. • Can you hire your friend as a paralegal? • If so, what limitations must you put on the paralegal? Rule 5.3(d) (Responsibilities Regarding Non-Lawyer Assistants) In re Gaff, 272 Ga. 7, 524 S.E.2d 728 (2000) In the Matter of Thomson, 266 Ga. 157, 464 S.E.2d 818 (1996)

  4. Session One 3. During the course of litigation, you feel that your opposing counsel has engaged in various ethical violations which have created an unfair advantage for the opposing side. The perceived ethical violations are: destroying documents, lying about witness whereabouts and coaching witnesses at depositions. • When you become entirely fed up, may you threaten a bar complaint to gain leverage in settlement negotiations? • Must you report any of the above conduct to the State Bar? Rule 8.3 (Reporting Professional Misconduct) Rule 9.2 (Settlement of Claims) ABA Formal Opinion 04-433 (A lawyer having knowledge of the professional misconduct of another licensed lawyer, including a non-practicing lawyer, is obligated under Model Rule 8.3 to report such misconduct if it raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer. The professional misconduct must be reported even if it involves activity completely removed from the practice of law. If the report would require revealing the confidential information of a client, the lawyer must obtain the client's informed consent before making the report.)

  5. Session One 4.A lawyer at a firm has decided to leave the firm and start his own practice. He wants to take his existing clients with him. Consider the following: • May the lawyer call his clients, tell them he is leaving and ask the clients to hire his new firm? • Must the lawyer let the law firm handle the communication with the client? • May the lawyer or the firm insist that the communication be made jointly? • What if there is a pressing deadline in one of the client’s cases. Should that disclosure be handled differently than with a client in which there are no deadlines pending? • Are any of the answers different if the lawyer is a partner at the law firm? Rule 1.3 (Diligence) Rule 1.16 (d) (Declining or Terminating Representation) Rule 8.4 (a) (4) (Misconduct) Rule 7.1 (a) (Communications Concerning a Lawyer’s Service) Rule 7.3 (b) (Direct Contact with Prospective Clients) GEORGIA FORMAL ADVISORY OPINION NO. 97-3

  6. Session One 5. You filed a Motion for Summary Judgment 11 months ago and have not received a ruling from the Court. Your client wants you to contact the judge and find out when the ruling will be made. • What should you do? O.C.G.A. §15-6-21 (Within what time superior, state and city court judges shall decide motions; filing decisions; ground for impeachment) Rule 1.3 (Diligence) Rule 3.2 (Expediting Litigation) Hipple v. Brick 202 Ga. App. 571 (1992)

  7. Session One 6. You are handling a professional liability case, and the case is on a trial calendar, scheduled to be tried in 3 weeks. There has been no Scheduling Order entered, and the judge has informed you that the Pre-Trial Order will be entered on the first morning of the trial. A week before the trial, your opposing counsel identifies a new expert who lives out-of-state. • What should you do? • What should the court do? • Are the answers different if a Scheduling Order had been issued or if the Pre-Trial Order had already been signed by the judge? Rule 1.3 (Diligence) Rule 3.2 (Expediting Litigation) Rule 3.3 (Candor towards the tribunal) Rule 3.4 (Fairness to Opposing Party and Counsel) Nygaard v. Matheny 273 Ga. App. 565 (2005) Hunter v. Nissan Motor Co. of Japan, 229 Ga. App. 729 (1997) O.C.G.A. §9-11-26

  8. Session One 7. You are plaintiff’s counsel in a case which has recently settled. Your client was badly injured in the incident giving rise to the lawsuit. She cannot work and will be faced with significant medical bills for years to come. While the case was pending, your client was treated by a physician who agreed to wait until the case was settled to be paid. You verbally agreed to pay the medical bills when the case settled. A health insurer also claims to be owed money. Medicare also claims to have a lien. Your spouse’s ex-husband also is owed money for child support. • What are your obligations? Rule 1.15 (1)(b) Rule 1.7 Proposed Formal Advisory Opinion 05-R6 O.C.G.A. §18-2-40 (Right of Debtor to Prefer Creditors)

  9. Session One 8. One of your recent legal engagements involved incorporating a small business. After the business is incorporated, the sole proprietor calls you up and asks you out for a date. Assuming the personal interest is mutual: • May you enter into a dating relationship with the client? • What if your legal work is not complete? • What if the incorporation is complete, but you would like to continue representing the client? • Does it matter if the relationship is sexual? Rule 1.9 ABA Rule 1.8(j) (prohibits sexual relationships between lawyer and client “unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”) Flashdance

  10. Session One 9. A husband and wife visit your office to discuss a medical malpractice claim. The husband was a victim of medical malpractice 3 years ago. The husband and wife had retained a lawyer to review the claim a few months after the malpractice occurred. Two weeks before the statute of limitations expired, the lawyer told the husband and wife that he could not find an expert witness and would not be filing the lawsuit. The husband was unable to find other counsel to review his file because of the short deadline. The lawyer provided the medical records to the husband and wife, but he kept his notes and correspondence. What advice should you give the husband and wife regarding: • The husband’s claim • The wife’s claim Formal Advisory Opinion of the State Bar of Georgia No. 87-5 Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571 (2003) O.C.G.A. §9-11-33 O.C.G.A. §9-11-34 O.C.G.A. §9-11-9.1

  11. Session One 10. During the course of your handling a case, you have a telephone conversation with an important witness: • May you tape record the phone call? • Does it matter where the witness is located? • If the witness changes his story at deposition or trial, may you use the tape recording at a deposition or trial to cross examine the witness? • Must you provide a copy of the tape to opposing counsel? • Must you provide a copy of the tape to the witness? • What if you did not record the call, but instead took detailed notes of the conversation: • Must you produce your notes to the witness? • Must you produce your notes to opposing counsel? • May you use your notes to cross examine the witness at deposition or trial? Rule 3.7 (Lawyer as Witness) Rule 4.3 (Dealing with Unrepresented Person) O.C.G.A. §16-11-66 (Consent to record a telephone call) ABA Formal Opinion 01-422 (A lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules. ABA Formal Opinion 337 (1974) is withdrawn. A lawyer may not, however, record conversations in violation of the law in a jurisdiction that forbids such conduct without the consent of all parties, nor falsely represent that a conversation is not being recorded.

  12. Session One 11. You have been approached by a wealthy individual to file a claim arising out of a property dispute. The client believes he has a very strong case and has lost $1.5 million. After a careful review of the facts, you conclude that the case is very strong and that the defendant has the assets to pay a settlement or a judgment. Your client wants to engage you on a contingency fee: • Is there a limit to the % you may charge? • May you offer the client the option of paying a large non-refundable retainer in return for a lower contingency fee? • May you offer the client the option of paying a large refundable retainer in return for a lower contingency fee? • Assume you have agreed to a 40% contingency fee. If you recover the full 1.5million dollars after sending one demand letter and spending 4 hours on the file, may you collect a $600,000 fee? • What if you are handling a criminal matter…may you charge a $50,000 flat fee for representation that results in the dismissal of all charges after 4 hours of work? Rule 1.5 (Fees) Rule 1.16(d) (Declining or Terminating Representation) Formal Advisory Opinion of the State Bar of Georgia No. 03-1

  13. Session Two 12. You are plaintiff’s counsel in a products liability case, and you are attending a mediation. Your highly qualified expert, who also is a former employee of the defendant (and who you previously identified to opposing counsel), has recently informed you that he is no longer willing to testify in the case. The expert has ‘inside information’ regarding liability issues, and defense counsel is fearful of his testimony at trial. • Can you tell defense counsel, at mediation, that the expert is still on board? • What if the expert has informed you that he will not testify, but it’s because of a conflict, rather than a change of opinion? • May you still inform defense counsel that the expert will testify at trial? • What if the mediation is being handled by the judge before whom the case will be tried; can you tell the judge that the expert is going to testify? Rule 3.3 (Candor Toward the Tribunal) Rule 4.1 (Truthfulness in Statements to Others) ABA Formal Opinion 06-439 (Lawyer’s Obligation of Truthfulness When Representing a Client in Negotiation: Application to Caucused Mediation--Under Model Rule 4.1, in the context of a negotiation, including a caucused mediation, a lawyer representing a client may not make a false statement of material fact to a third person. However, statements regarding a party’s negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation “puffing,” ordinarily are not considered “false statements of material fact” within the meaning of the Model Rules.)

  14. Session Two 13. A grievance is filed against you with the State Bar of Georgia, citing a Bar Rule which could potentially lead to the maximum punishment of disbarment. After the Office of General Counsel sends the matter to the Investigative Panel of the State Disciplinary Board and the Panel’s investigation leads to a finding of probable cause, the Investigative Panel issues a Notice of Discipline recommending a review panel reprimand. • Since you are willing to accept the reprimand to conclude the matter, do you need to take any action? Bar Rule 4-208.1 - Notice of Discipline Bar Rule 4-208.3 - Rejection of Notice of Discipline Bar Rule 4-227 - Petition for Voluntary Discipline In the Matter of Brown, 280 Ga. 500, 629 S.E.2d 813 (2006)

  15. Session Two 14. Your opposing counsel calls you a day after his interrogatory responses are due, and he asks for an extension. • What should you do? • What if the discovery responses which are overdue are Requests to Admit which may be dispositive of the liability issue in your case? Rule 1.3 (Diligence) Rule 1.4 (Communication) • What if YOU are the attorney who has failed to respond to Interrogatories or Requests to Admit. • What must you tell your client? • When must you tell your client that you have missed a deadline? • Can you tell your errors and omissions carrier before you tell your client? Rule 1.1 (Competence) Rule 1.3 (Diligence) Rule 1.4 (Communication) Rule 1.7 (Conflict of Interest)

  16. Session Two 15. You represent a criminal defendant accused of murder. During the debriefing of your client, he tells you of separate incidents where he murdered 3 other individuals. The client tells you where he dumped the bodies of his other victims. • After confirming your client’s story where the remains of these other victims were left, can you advise the authorities, or family members of the victims, of this information? Rule 1.2 (d) (Scope of Representation) Rule 1.2, Comment 7 Rule 1.6 (Confidentiality of Information) Rule 1.6 (Comment 8) People v Belge, 372 NYS2d 798 (1975)

  17. Session Two 16. May your firm place the following language on its invoices or other communications with clients: • If you disagree with anything set forth in this communication or the way we have represented you to date, please notify us by certified mail at the address set forth herein immediately. If we do not hear from you, it shall be an acknowledgment by you per our agreement that you are satisfied with my representation of you to date and you agree with my statements in this communication. May your firm place the following language in its retainer agreement: • The statements you receive from the firm will describe the services rendered and will summarize the expense charges. You agree to raise any question or objection to any statement in writing within twenty (20) days of the date of each invoice. If you do not raise an objection within that time period, you agree to pay the statement according to its terms. Rule 1.8 (h) (Conflict of Interest: Prohibited Transactions) GEORGIA FORMAL ADVISORY OPINION NO. 05-8 Loveless v. Sun Steel, Inc., 206 Ga. App. 247, 424 S.E.2d 887 (1992)

  18. Session Two 17. You are a partner in a mid-size law firm. While attending a cocktail party at your golf club, you overhear a conversation and learn that a local corporation has fired its litigation counsel and is looking to retain a new law firm. What efforts may you make to obtain the litigation business of this corporation? Is the answer different if the corporation has in-house counsel and that is the only individual you desire to contact? Rule 7.1 (Communications Concerning a Lawyer’s Service) Rule 7.2 (Advertising) Rule 7.3 (Direct Contact with Prospective Clients) Rule 7.4 (Communication of Fields of Practice)

  19. Session Two 18. While investigating a potential claim against a manufacturer, you desire to contact a former employee to discuss facts pertaining to the claim. When you call the former employee, she states that she does not mind talking to you, but she wants to call the Human Resources department at her former company to find out if they object. You then receive a phone call from local counsel for the corporation, and he tells you that he represents the former employee and you are not allowed to speak with her. • What would you do? Rule 4.2 (Communication with Person Represented by Counsel) Rule 4.3 (Dealing with Unrepresented Person) Rule 4.4 (Respect for Rights of Third Persons) GEORGIA FORMAL ADVISORY OPINION NO. 94-3 “COURTESY REPRESENTATION”

  20. Session Two 19. Halfway through a case, your client fires you and accuses you of procrastinating, not returning phone calls and being rude. You feel you have provided excellent legal services to the client. The client owes you significant attorney’s fees. May you: • Refuse to provide the file to the client until he pays the outstanding fees? • Disclose the basis for the disagreement with your client to opposing counsel when she asks you why you were fired? • Disclose privileged attorney-client information to an attorney-friend of yours who handles bar matters? What if you realize that your procrastination might have affected your client’s case, and you think that subsequent counsel might recognize that and discuss it with your former client.? May you: • Recover in quantum meruit the reasonable value of the time you have spent on the case? May you: • Disclose privileged attorney-client information to an attorney with whom you are consulting regarding a potential legal malpractice claim or the bar complaint? • What if a bar complaint or civil claim is, in fact, filed. Would the answers be different? O.C.G.A. §15-19-14 (a). (Lien on client’s file) Formal Advisory Opinion of the State Bar of Georgia No. 87-5 Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571 (2003) Rule 1.6 (b) (iii) (Fees) Rule 1.7 (Conflict of Interest)

  21. Session Two 20. You are approached by in-house counsel for an out-of-state corporation doing business in Georgia. The in-house counsel asks if you would be willing to represent it in defending a personal injury suit involving disputed liability and damages. Based on the telephone call, you feel that the case may involve complex medical/damages issues. The in-house counsel asks if you will agree to represent the corporation for a flat-fee (including attorney’s fees and expenses), regardless of whether the case settles or goes to trial. • What should you consider before agreeing to accept the representation? • What if the phone call you receive is from an insurance carrier who wants you to represent its insured? Rule 1.2 (Scope of Representation) Rule 1.7 (Conflict of Interest) Rule 1.8 (f) (Conflict of Interest: Prohibited Transactions) Rule 5.4 (Restrictions on Right to Practice)

  22. Session Two 21. You represent 15 families who were injured while riding a MARTA bus. Defense counsel offers a lump sum amount and tells you that the defendant does not care how the proceeds of the settlement are distributed. What considerations should guide how you respond and under what circumstances, if any, may you pursue such a settlement? Rule 1.4 (Communication) Rule 1.7 (Conflict of Interest: General Rule) Rule 1.8 (g) (Conflict of Interest: Prohibited Transactions) American Bar Association Formal Opinion 06-438 In seeking to obtain the informed consent of multiple clients to make or accept an offer of an aggregate settlement or aggregated agreement of their claims as required under Model Rule 1.8(g), a lawyer must advise each client of the total amount or result of the settlement or agreement, the amount and nature of every client’s participation in the settlement or agreement, the fees and costs to be paid to the lawyer from the proceeds or by an opposing party or parties, and the method by which the costs are to be apportioned to each client.

  23. David N. Lefkowitz The Lefkowitz Firm, LLC 330 Peters Street, Suite 104 Atlanta, Georgia 30313 404-658-5000 dnl@lefkowitzfirm.com

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