Presenters : Nicole Billings, Mediation Specialist Elizabeth Covington, Ph.D.

1. People Say the Darnest Things About Legal EthicsWhat Lawyers and Judges Can Learn About Legal Ethics from Non-Lawyers Presenters: Nicole Billings, Mediation Specialist Elizabeth Covington, Ph.D. Danny Brandon, Mediation Specialist Eric Fenstemaker, Ph.D., Program CoordinatorMadeline Shelly, Mediation Specialist

2. Moderators: Judge Allen Phillips Judge Thomas Wyatt Panelists: Nicole Billings, BA Elizabeth Covington, Ph.D. Danny Brandon, J.D. Eric Fenstemaker, Ph.D. Madeline Shelly, MPA People Say the Darnedest Things about Legal EthicsWhat Lawyers and Judges Can Learn About Legal Ethics from Non-Lawyers

3. General Principles of Legal Ethics • Section 10 of the Preamble to Rule 8 of the Rules of the Tennessee Supreme Court (Rules of Professional Conduct) provides: • In the nature of law practice, conflicting responsibilities are encountered. • Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system, and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. • Such issues must be resolved through the exercise of sensitive, professional, and moral judgment guided by the basic principles underlying the Rules of Professional Conduct. • These principles include the lawyer’s obligation to zealously protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous, and civil attitude toward all persons involved in the legal system.

4. General Principles of Judicial Ethics • Sections 1 and 2 of the Preamble to Rule 10 of the Rules of the Tennessee Supreme Court (Code of Judicial Conduct) provide: • An independent, fair, and impartial judiciary is indispensable to our system of justice. • Judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system. • Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives.  • They should aspire, at all times, to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.

5. Question 1 • Can a lawyer provide the other side false information during settlement negotiations to obtain the best result for a client? • Rules of Professional Conduct 1.2(d)—A lawyer shall not counsel or assist a client in conduct the lawyer reasonably should know to be fraudulent. • Rules of Professional Conduct 3.4(b)—A lawyer shall not falsify evidence or counsel or assist a client in offering false or misleading testimony.

6. Question 2 • Can a lawyer represent two clients in the same case? • For instance, can a lawyer represent the driver and a passenger in the same car in a collision case? • What if the other driver claims the collision was caused by the lawyer’s client/driver? • Rules of Professional Conduct 1.7—A lawyer shall not represent a client if the representation of one client will be directly adverse to another client. But, the lawyer can represent two clients in the same case if the lawyer believes he or she can provide competent and diligent representation to both clients and both clients give informed consent in writing.

7. Question 3 • During closing arguments, can a lawyer make comments such as, “Some people just want to live on workers’ comp instead of working,” or “Cases like this are why workers’ comp premiums are so high?” • Rules of Professional Conduct 3.4(e)(1),(2),(3)—In trial, a lawyer shall not allude to irrelevant matters that are not supported by admissible evidence, assert personal knowledge of facts, and/or state a personal opinion as to the justness of a cause, the credibility of a witness, or the liability of a party.

8. Question 4 • A party whose case is before a judge brings the judge’s staff members a cake with the inscription “thank you for your service.” • Can the staff accept it if they don’t tell the judge? • Can the judge eat a slice of the cake that doesn’t have any of the inscription on it? • Rules of Judicial Conduct 2.4—A judge shall not permit family, social, financial, or other interests or relationships to influence his or her decisions or conduct, and shall not allow a person or organization to convey the impression of influence with the judge. • Rules of Judicial Conduct 3.13(A)—A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. • But see Rules of Judicial Conduct 3.13(B)(1),(3)—A lawyer may accept items of little intrinsic value, such as plaques, certifications, trophies, or greeting cards, and may accept ordinary social hospitality.

9. Question 5 • An employer tells his workers’ comp defense lawyer, “The employee lives paycheck-to-paycheck. He’ll give up soon if you drag this case out.” Can the lawyer do this to help his client? • Rules of Professional Conduct 1.3—A lawyer shall exercise reasonable diligence and promptness in representing a client. • Rules of Professional Conduct 3.2—A lawyer shall make reasonable efforts to expedite litigation. • Rules of Professional Conduct 4.4(a)(1)—A lawyer shall not use means in representing a client that have no substantial purpose other than for delay.

10. Question 6 • An employee tells his workers’ comp lawyer, “Tell the employer to settle my case for top dollar and I won’t turn him in for using illegal employees.” Can the lawyer do this? • Rules of Professional Conduct 4.4(2)—A lawyer shall not, in representing a client, threaten to present a criminal or lawyer-disciplinary charge for the purpose of obtaining an advantage in a civil matter.

11. Question 7 • An employer tells his workers’ compensation defense attorney that he’s heard the employee, who is represented by a lawyer, was bragging at a bar about laying out of work to stay on workers’ compensation. However, his source refuses to testify. The employer suggests the attorney send an investigator to the employee’s favorite bar to strike up a conversation with him. Can the attorney send an investigator to the bar to just listen or seek to record the employee? • Rule of Professional Conduct 4.2—In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter without consent of the other lawyer or authorization from the court. • Rules of Professional Conduct 5.5(b),(c)—A lawyer with direct supervisory authority over a non-lawyer shall make reasonable efforts to ensure that the non-lawyer’s conduct is compatible with the lawyer’s professional obligations, and a lawyer is responsible for violations of the Rules of Professional Conduct if the lawyer orders or knows about the non-lawyer’s unethical conduct.

12. Question 8 • Can a judge talk to, or read written communication from, a party or attorney after a trial if the information is really important to the judge’s decision? • What if the information leads to only one just conclusion in the case? • Canon 2 to the Rules of Judicial Conduct—A judge shall not perform the duties of judicial office with bias or prejudice. • Rule of Judicial Conduct 2.9—A judge shall not permit or consider ex parte communications or other communications that occur outside parties’ counsel in a claim before the judge.

13. Question 9 • Can a judge investigate the facts of a claim on his or her own (by going on Facebook or the internet or by going to the accident scene)? • Rules of Judicial Conduct 2.9(C)—A judge shall not independently investigate facts in a matter, and shall consider only the evidence presented in court and any facts that may properly be judicially noticed.

14. Questions?

15. THANK YOU!