When does rude conduct become unethical conduct?

Mike Frisch (Ethics Counsel for Georgetown Law Center) of the Legal Profession Blog has an interesting comment on this as it relates to a case in which the Illinois Administrator filed a complaint alleging, among other things, that an attorney "engaged in misconduct toward an opposing party."

This vague conclusion apparently refers to conduct that was, quite simply, rude. The complaint states that as the attorney and the opposing party left the courtroom, the attorney said to the opposing party "have a nice day, you piece of shit."

This comment was cited as a violation of two ethics rules: (1) using means that have no substantial purpose other than to embarrass, humiliate or burden a third person, and (2) conduct prejudicial to the administration of justice.

Mike Frisch then concludes:

"I predict that the Administrator will lose on both counts. The comment displayed a lack of civility and professionalism, but anyone who cannot handle being called the "s" word cannot function in modern society. I doubt that a finder of fact will find this conduct sufficiently humiliating or burdensome to violate the rule. And prejudicial to the administration of justice? It was not said in open court on the record before a judge."

I am not so sure that I agree. If the comment had been made to opposing cousel, maybe ...., but the comment was made by a male attorney to a female opposing party (a grandmother) who had appeared in court without a lawyer. Also the attorney was representing a man who had violated the terms of a protective order to stay away from the woman and her grandson. The attorney had no business talking to her without counsel present to begin with, let alone to be rude (and possibly intimidating) in that manner. I don't think it is a stretch to say that under the circumstances, the conduct is prejudicial to the administration of justice.

The complaint is available here.

UPDATE: A note about this case has generated a short debate over at the Legal Ethics Forum (here).

UPDATE 10/3/10: The Australian Professional Responsibility blog has posted a comment on the issue here.

European Court Limits Attorney-Client Privilege for In-House Counsel

In a blow to multinational businesses and their in-house counsel, the European Court of Justice on Tuesday held that communications between company management and in-house lawyers are not protected from disclosure or discovery in competition law cases or investigations by the European Commission. Go here for the full story.

Court reverses conviction because of Judge's comments making fun of attorney

Law.com is reporting that a unanimous appeals panel in New York reversed a robbery conviction and remanded the case to be tried before a different judge after it found that the trial judge ridiculed a defense attorney and criticized his arguments in front of the jury by using loaded words such as "clown," "silly," "outrageous" and "comedy." This is the fourth time in about a month I have seen news of a conviction getting reversed because of comments by a trial participant. Go here for the full story. For the other two recent cases, go here and here.

How not to practice law: have sex with client's wife

Continuing our on-going list of things you should not do while practicing law, here is a report on two cases in different states reported on the same day last week involving attorneys having sex with their clients' wives.

In one of the cases, the South Carolina Supreme Court found that the circumstances came "dangerously close to an outright conflict of interest" holding that "Respondent's actions, at the very least, created a "significant risk" that his representation of Client could be compromised due to his personal interest and interaction with Wife. Indeed, that significant risk was realized in this case when Client objected to the relationship between Wife and Respondent, and Respondent ended the attorney/client relationship."

How this description of the case is not a per se conflict of interest is beyond me! The court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a lawyer from finding himself in a situation where his representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.

It seems obvious to me that the moment the attorney began his relationship with the client's wife, the representation of the client was in danger, and the lawyer was operating under a conflict. And this is just the "legal" analysis. Add to that the notion of the betrayal of the client's trust and it seems to me an anonymous admonition is a bad joke.

Interestingly, the court then goes on to hold that from now on a sexual relationship with the spouse of a current client will be considered per se violation of Rule 1.7 (on conflicts), "as it creates the significant risk that the representation of the client will be limited by the personal interests of the attorney."

If that's the case, I don't see why the court could not have held the same thing in this case and imposed a harsher sanction. The court made a point of saying the anonymous lawyer had always been "upstanding member of the bar" up to this point. I wonder who he is? Oh, yeah, I don't know because the order was anonymous! See the order here.

In contrast, in the other case, the Michigan Attorney Discipline Board suspended the attorney for three years while a dissenting opinion argued for disbarment. See the ruling here

In this case, the client was suspicious that his spouse was having an affair and sought his attorney's advice. The attorney, not surprisingly perhaps, did not tell the client it was him (the attorney) who was sleeping with the client's wife.

Eventually, the client discovered the affair and demanded a refund of the fees he had paid to the attorney. The attorney refused, "stating that he had worked on the case and had earned his fees" !! He also earned a suspension.

Thanks to the Legal Profession blog for the information and links.

Podcast on med mal in California touches on effects of regulation of attorney's fees on litigation

Go here for a podcast on California's medical malpractice laws featuring Doug Merritt, a lawyer from San Francisco and Jeffrey S. Mitchell, partner with the firm, Bostwick, Peterson & Mitchell LLP. They discuss the Medical Injury Compensation Reform Act (MICRA) and California’s current political climate, the defense and plaintiff perspective of medical malpractice cases and how structured settlements have impacted clients.

Of interest to readers of this blog is the fact that the beginning of the discussion touches on the possible effects of the regulation of attorney's fees on access to legal representation and the conduct of lawyers in the process of litigation and negotiation.

Reviews of "Outlaw"

The Abnormal Use blog has posted a review of the tv show Outlaw, about which I wrote yesterday. You can read the full review here. It concludes that "the premise of the show is absurd" and that "the absurdity of the premise will likely mean the end of the show." I have to agree. The show is heavy on the rhetoric and weak on logic, acting and storytelling.

You can find more reviews here and here. Not surprisingly, it looks like they are all negative. I wonder if the show will last longer than "The Deep End." Anyone remember that one?!

I will continue to update this post with more links if I see more reviews during the day...in case you are interested.

UPDATE: here is the review from the Blog of the Legal Times. It concludes that "[t]he show in every way seemed to fulfill most critics' expectations, which were that 'Outlaw' is a stinker that won't and shouldn't last longer than it takes to say non compos mentis."

New TV "courtroom drama" preview tonight

Back in June, I posted the comment that appears below about three new TV shows expected to start this fall. One of them - Outlaw - previews tonight on NBC and I have seen commercials for one of the others - "The Defenders". But I have not heard anything at all about the third one.

Unfortunately, although as I expected, the (p)reviews for Outlaw are not good. The Washington Post wrote that "the show is so ludicrously dumb that your eyeballs will hurt from rolling so much." See the full review here. It concludes the show "should be dismissed." Go here for more on the story.

The Blog of the Legal Times said it will blog on the show tomorrow.

Here is my post from last June:

With the recent demise of the original "Law & Order" and "Raising the Bar," the major networks are apparently feeling the need to introduce new law related shows. Here are the trailers. One is called "Outlaw" about a Supreme Court Justice who decides to retire and go into private practice. Another is called "The Defenders" and is about a pair of criminal defense lawyers. The third one is "Harry's Law" about people brought together by fate to form a law firm.

I enjoy watching law related shows and movies and reading "legal thrillers" as much as anyone, but I often wish they were much better than what they usually are. I will give all of these a chance but from what I can see in these trailers at least two of them appear to be based on tired old stereotypes: either every client is innocent (Outlaw) or criminal defense lawyers are sleazy (The Defenders), aside from the fact that apparently all lawyers are young, beautiful, fit, sexy and have lots of sex in the office and law libraries. Outlaw also seems to have the stereotypical "team" of characters (common to so many "heist" type movies): the outlaw, the rebel, the intellectual, the smartass, the computer genius, etc. If they add a demolitions expert maybe they could compete with the A-team. The Defenders looks like it might be more of a comedy "detective" show; more about trying to figure out "who did it" than about legal issues.

Harry's Law seems to escape the mold - or at least part of it. This one is produced by David E. Kelley, producer of three relatively successful law related shows. The trailer has some pretty funny lines and Kathy Bates is always entertaining. But, given that I didn't like any of the three previous David E. Kelley shows, I will have to wait and see...

But I am getting way ahead of myself. Let's give them all a chance.... Maybe they will last longer than the last few attempts ... Does anybody remember "Shark" or "Eli Stone"?

Most Illegal Immigrants Don’t Get Legal Representation

According to a survey by the Chicago-based National Immigration Justice Center, thousands of people in immigration detention facilities are held without ready access to legal representation because of geographically-isolated facilities, government restrictions on phone contacts, and inadequately funded legal information programs. For the story go to the Wall Street Journal, the Los Angeles Times and the Blog of the Legal Times.

Unauthorized practice of law is a problem in Texas

Officials with the Supreme Court of Texas Unauthorized Practice of Law Committee (UPLC) say complaints about immigration consulting businesses run by nonlawyers are a problem in Texas. Many people who use such services do not speak English. They are unaware that the people who run the businesses may not be attorneys and that their immigration issues might be mishandled by nonlawyers, officials say. Go here for the full story.

Arbitrator rules Toyota former attorney can use arguably privileged documents in litigation against Toyota

The ABA Journal.com is reporting that an arbitrator has ruled that a former in-house lawyer for Toyota may use documents that otherwise would be protected by attorney-client privilege because he has made a prima facie showing that a crime-fraud exception applies. Go here for the full story. Go here for the text of the arbitrator's ruling.