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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 1. You are defense counsel in a products liability case, and you are attending a mediation. Your highly qualified expert (who you previously identified to opposing counsel), has recently informed you that he is no longer willing to testify in the case. The expert is extremely well qualified and would provide a significant advantage 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.)

  3. Session One 2. 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)

  4. Session One 3. You are asked to represent the head of a local chapter of the KKK (or other controversial, potentially undesirable client) who is charged with a crime. While this is a prospective client who you ordinarily would decline to represent, you agree to meet with him and listen to his request for representation. The representation will be complex and occupy a large amount of your time. Your first inclination is to decline the representation, but the skinhead tells you that he will pay you 3x your normal hourly rate and pay you a large non-refundable retainer. You are still hesitant, and he points out that his story, and the trial, will create national headlines, and he tells you that he will give you exclusive publication rights. When he sees that you still are wavering, he offers to buy you a nice car as a gift. He then tells you that all the bills will be paid by an anonymous individual who supports “the cause” but does not want his name known. Are there any problems with this proposal? Rule 1.2 (Scope of Representation) Rule 1.5 (Fees) Rule 1.8 (Conflict of Interest: Prohibited Transactions) Rule 1.16 (Declining or Terminating Representation) GEORGIA FORMAL ADVISORY OPINION NO. 03-1

  5. Session One 4. 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)

  6. Session One 5. 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)

  7. Session One 6. 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”

  8. Session One 7. 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)

  9. Session One 8. You represent a pesticide manufacturer in litigation in several states. The claims all involve damage to crops on farms. During the course of the representation the chief engineer of the corporation tells you, in confidence, that his in-house chemists have recently concluded that the chemicals can cause harm to humans, but the data required to prove that damage is not in the public domain and further, the executives at the company believe that it will take 15 years for anyone to figure out what is making the people sick. The chief engineer tells you that they are going to continue using the chemicals until they are “forced to stop.” Can you reveal the confidences and secrets of the client in order to prevent injury to humans? Rule 1.2 (d) (Scope of Representation) Rule 1.2, Comment 7 Rule 1.6 (Confidentiality of Information) Rule 1.6 (Comment 8)

  10. Session One 9. 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)

  11. Session One 10. 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.

  12. Session Two 11. 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.

  13. Session Two 12. 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

  14. Session Two 13. 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)

  15. Session Two 14. 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

  16. Session Two 15. As a lawyer, you have earned a juris doctor degree. -Can you identify yourself in advertisements as “Dr. Brogdon?” -What if you handle medical malpractice cases? -As a sole practitioner, can you name your firm “Brogdon & Associates?” -What if you are a two-person firm (with one partner and one associate)? -Can a sole practitioner name his firm “The Brogdon Law Group?” -How about “The Brogdon Law Firm?” -Can Gino have a firm named “Pitbull Lawyers, LLC?” -How about Brogdon Pitbull Lawyers, LLC?” -How about Brogdon Better Than The Rest, LLC?” -Can Gino identify himself as a specialist in a particular practice area? -Can three friends who share office space and facilities call themselves Smith, Jones & Johnson if they are not in any type of actual partnership relationship? Rule 7.1 (Communications Concerning a Lawyer’s Services) Rule 7.4 (Communication of Fields of Practice) Rule 7.5 (Firm Names and Letterheads)

  17. “SPECIALIST” • RULE 7.4 COMMUNICATION OF FIELDS OF PRACTICE • A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer who is a specialist in a particular field of law by experience, specialized training or education, or is certified by a recognized and bona fide professional entity, may communicate such specialty or certification so long as the statement is not false or misleading.The maximum penalty for a violation of this Rule is a public reprimand.Comment[1] This Rule permits a lawyer to indicate areas of practice in communications about the lawyer's services. If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted to so indicate.[2] A lawyer may truthfully communicate the fact that the lawyer is a specialist or is certified in a particular field of law by experience or as a result of having been certified as a "specialist" by successfully completing a particular program of legal specialization. An example of a proper use of the term would be "Certified as a Civil Trial Specialist by XYZ Institute" provided such was in fact the case, such statement would not be false or misleading and provided further that the Civil Trial Specialist program of XYZ Institute is a recognized and bona fide professional entity.

  18. Session Two 16. 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.)

  19. DUTY TO REPORT • RULE 8.3 REPORTING PROFESSIONAL MISCONDUCT • (a) A lawyer having knowledge that another lawyer has committed a violation of the Georgia Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, should inform the appropriate professional authority.(b) A lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office should inform the appropriate authority.There is no disciplinary penalty for a violation of this Rule.Comment[1] Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigations when they know of a violation of the Georgia Rules of Professional Conduct. Lawyers have a similar obligation with respect to judicial misconduct. An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.

  20. Session Two 17.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

  21. Session Two 18. 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

  22. Session Two 19. As a bitterly fought case approaches trial, the defense counsel offers a settlement which includes a substantial and seemingly fair cash payment to the plaintiff. The defendant insists, however, that plaintiff’s counsel agree not to represent any more clients in suits against said defendant. Recognizing that the plaintiff’s lawyer will thus be required to decline other cases, the corporation agrees to retain the lawyer for future work for a $75,000.00 per year retainer for a minimum of 5 years. May the attorney recommend such a settlement to his client? Rule 1.7 (Conflict of Interest: General Rule) Rule 1.8 (Conflict of Interest: Prohibited Transactions) Rule 5.6 (b) (Restrictions on Right to Practice)

  23. Session Two 20. 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

  24. 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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