How not to practice law: be insulting, use foul language, curse... and make sure you put it all in writing!

When a motion filed in a case ends with "In a collective 75 years of legal practice, Allstate’s counsel have never seen behavior that even comes close to that of [opposing counsel] here. It is unlikely that the Court has either...." you know the motion will make for some interesting reading.  And it does.  You won't believe the language used by the lawyer in this case.  You can read the motion that explains it here.   Above the Law has more information here.

Florida Supreme Court adopts new rules addressing collaborative law practice

The Florida Supreme Court has adopted new rules addressing collaborative family law practice.  You can read the details here.

A recently launched company helps consumers find lawyers based on their win rates

Law Sites has a story and a critique of a recently launched company helps consumers find lawyers based on their win rates.  The ABA Journal also has the story here.  Although I believe the company is genuinely trying to provide access to lawyers for people who don't necessarily know how to find a good lawyer, I think this approach is, to put it mildly, dumb.  Maybe with some major changes they can come up with something that will provide better information for consumers, but the initial idea does not make much sense to me.

The first time the idea was discussed, about a year ago, when a different company proposed the same approach, it was received with negative reviews and the company abandoned the idea.

There are many reasons why using "winning records" as a measure of attorney quality.  First, not all legal services can be measured in terms of wins and losses.  Second, the vast, VAST, majority of cases don't go to trial, so any win-loss records based on trial results only measures a minimally small number of litigated cases.  Third, in those cases that settle, both clients can easily feel they got a "win" when their lawyers exceed their expectations as to the terms of the settlement.  An approach to measuring skill based on winning records does not take into account negotiation skills which, needless to say, are important in litigation. A defendant's lawyer who gets a settlement that saves the client a lot of money may be much more skilled than a plaintiff's lawyer who claims to have "won" the settlement. Simply stated "winning" or "losing" if it can be identified as an actual result to begin with, is not a reliable measure of lawyering skill. Providing consumers with such limited and misleading information may actually be counterproductive. 

Illinois Appelate court on whether there is a duty to disclose death of client during settlement negotiations -- UPDATED, again

Back in February, 2015 I posted a story about an Illinois appellate court's opinion on whether an attorney has a duty to disclose the death of a client when the attorney is negotiating a settlement in litigation. The case is called Robison v. Orthotic & Prosthetic Lab, Inc and it is available here.  I later updated the story with the news that a disciplinary action had been filed against the attorney.  Today I am updating the story again to report that the Illinois Supreme Court has censured the lawyer. Go to the bottom of the post for the most recent update.


Original Story (February 2015)

About ten days ago, the Illinois appellate court issued a good opinion that deals with several issues we cover in class. The first one is whether an attorney has a duty to disclose the death of his client when the attorney is negotiating a settlement in litigation. The case is called Robison v. Orthotic & Prosthetic Lab, Inc and it is available here.

In this case, the plaintiff, Randy Robison, filed a product liability action against the defendant, Orthotic & Prosthetic Lab, Inc. in 2008.   In January, 2013, while the case was still ongoing, the plaintiff died but the plaintiff’s lawyers did not alert the court or the attorneys for the defendant.

In September 2013, the attorneys for both sides began settlement negotiations and reached an agreement on September 24. To finalize it, the attorney for the plaintiff sent an e-mail to the attorney for the defendant in which he stated “My client has instructed me to accept . . . in full and final settlement of this matter. Please provide an appropriate release and I will present it to my client for review and approval.”

The plaintiff's lawyer did not notify the defendant's lawyer of the plaintiff's death until after the defendant had submitted the settlement agreement, and he did so when he sent an amended version of the proposed release in which he asked the defendant's lawyer to agree to substituting the plaintiff's son as plaintiff in the case.  The defendant's lawyer refused and asked how come he had not been informed of the plaintiff's death, to which the plaintiff's lawyer replied that he had researched the issue and determined that he had no affirmative duty to disclose the information because it was against his clients' interests and he had a duty to protect his clients' interests within the bounds of the rules of professional responsibility.

The defendant refused to follow through on the settlement agreement claiming it was not valid, and the plaintiff moved to enforce the settlement.  Eventually, the lower court granted the motion and the defendant appealed.

In a short and well written opinion, the Court of Appeals reversed holding that the agreement was not valid and suggesting that the conduct of the attorney for the plaintiff in not disclosing the death of the client was unethical.  Interestingly, it also suggested that the conduct of the defendant's lawyer was unethical in not reporting the conduct of the plaintiff's lawyer.  Here are the most important paragraphs of the opinion:

... The defendant further argued that the settlement was invalid because the death of the plaintiff was a material fact that had been concealed from the defendant prior to and during settlement negotiations. ...

....

Settlement negotiations commenced in September 2013, and an agreement was ostensibly reached on September 24, 2013. The defendant, however, had no knowledge about the plaintiff's death or the appointment of a personal representative throughout the period of settlement negotiations. [These facts were not disclosed until] weeks after the settlement was reached and months after the plaintiff's death. [The plaintiff's lawyer acknowledged that] the disclosure of the plaintiff's death would have adversely impacted the settlement value of the case. He stated that he believed that the decision to withhold the information was in his clients' best interest and was in keeping with the rules of professional responsibility. We strongly disagree. We find that the arguments expressed by [the plaintiff's lawyer] are specious and incredible, and we are concerned about his professional judgment in this case. In failing to disclose the fact of the plaintiff's death, [the plaintiffs lawyer] intentionally concealed a material fact that would have reduced the overall value of the claim for damages. In addition, and equally troubling, [he] led the defendant to believe that he had authority to negotiate a settlement of the litigation on behalf of the party plaintiff, when the action was without a plaintiff as the plaintiff had died and a representative had not been substituted. Given [these] intentional misrepresentations and material omissions prior to and during the settlement negotiations, we conclude that the settlement agreement is invalid and unenforceable, and that the trial court erred in granting the motion to enforce it. 

In my opinion, this is the correct approach to the issue, but it needs to be explained a bit further.  Although it is well known that a lawyer does not have a general duty to volunteer adverse facts to an opponent in litigation,  Rule 4.1 has been interpreted to imply an exception which requires the disclosure of a client's death.  The most cited case holding this proposition is Virzi v. Grand Trunk, 571 F. Supp. 507 (E.D. Mich. 1983), which approaches the issue from the perspective of a duty to the court because in that case the attorney did not disclose the death of the client until after the court had entered an order. However, the court does go on to say that just as the lawyer owes a duty to the court, he or she also owes the same duty to opposing counsel.  Based on this view, at least two courts (one in Ohio and one in Kentucky) have imposed sanctions on attorneys for failing to disclose their client's death. In Robison, the court did not discuss rule 4.1 but emphasized the attorney's general duty of honesty under rule 8.4, which is presumably owed to everyone.

Interestingly, the court did not stop there and also took up the fact that counsel for the defendant did not report the misconduct under rule 8.3:

Finally, we believe that we have a profound responsibility to comment on the conduct of the attorneys in this case.  ... Rule 8.4(c) of the RPC states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. ...   Rule 8.3 requires a lawyer to report unprivileged knowledge of misconduct involving fraud, dishonesty, or deceit, or misrepresentation by another lawyer to the Illinois Attorney Registration and Disciplinary Commission (ARDC). ...

In this case, we believe that the material omissions and misrepresentations ... constitute serious violations of Rule 8.4. We also believe that defense counsel possessed sufficient knowledge to trigger a duty to report [the plaintiff's lawyer's] misconduct to the ARDC, and that the failure to report the misconduct constitutes a potential violation of Rule 8.3.

UPDATE 10/26/15:  About ten days ago, a formal disciplinary complaint was filed against the lawyer who did not report the death of the client.  You can read the complaint here.  (Thanks to the Legal Profession blog for the update.)  It remains to be seen if there will be a complaint against the lawyer who did not report the misconduct.  Given the language in the opinion, it seems to me it would be inconsistent, to say the least, if the administrator did not do so.

UPDATE 12/14/15:  The attorney has now filed an answer to the disciplinary complaint (available here) in which he argues that he researched the issue and discussed the matter with his partners and concluded that the death of his client was confidential information which he had a duty not to disclose under Rule 1.6(a). 

UPDATE 5/27/16:   The Illinois Supreme Court has imposed a censure on the lawyer for settling the case without informing court or opposing counsel of the client’s death.  The case is In the Matter of: Anthony Patrick Gilbreth, No. 6289576, Commission No. 2015PR00100 (Ill. SC May 18, 2016).   Lawyer Ethics Alert Blog has more information here.

California Bar Ethics Committee issues opinion on acceptable "puffing" during negotiations

The California Bar's Ethics Committee recently issued an opinion on whether an attorney negotiating for a client can engage in some forms of “exaggeration, posturing or puffing,” such as overstating the client's “bottom line” settlement number.  See Formal Op. 2015-194.

The Committee concluded that exaggeration, posturing and ‘puffing’ are acceptable but that  statements that constitute misrepresentations of material fact upon which the opposing party is intended to rely are impermissible.

According to a report in the BNA/ABA Lawyer’s Manual on Professional Conduct, the committee generally embraced the analysis the ABA ethics committee used in its 2006 opinion on the subject, ABA Formal Ethics Op. 06-439.  You can read the report here.

Can lawyers lie during negotiations?

Can a lawyer lie during negotiations? 

The Comment to Model Rule 4.1 (Truthfulness in statements to others) states that the duty not to make false statements of material facts refers only to "statements of fact" and that under "generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact."  But what does that really mean?

To help us understand, Professor Ron Rotunda has published a short review of the issues here.

Another opinion on the duty to disclose client's death

Last month I posted a comment on a recent Illinois case on whether an attorney has a duty to disclose the death of his client when the attorney is negotiating a settlement in litigation.

About ten days ago, the Legal Profession blog reported on another opinion on the same subject.  In this one, an attorney who had failed to disclose his client's death prior to settling an employment claim was suspended for one year.  The case is called Matter of Rosner and it is available here.

U.S. Department of Justice prohibits ineffective assistance of counsel waivers as part of plea bargains in federal criminal prosecutions

About two months ago I reported (here) that the Kentucky Supreme Court issued a very important opinion concluding that the use of ineffective assistance of counsel waivers in plea bargain agreements "(1) creates a non- waivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."

Now comes news that four days ago the Justice Department officially decided that federal prosecutors are prohibited from requiring criminal defendants to waive their right to claim ineffective assistance of counsel a condition of a plea. Attorney General Eric H. Holder said the “policy is an attempt to ensure that all individuals who face criminal charges are ably represented. ‘Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel…(u)nder this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.’”

Here is a copy of the memo sent to all federal prosecutors.  The Lawyer Ethics Alert blog has more details here.

Kentucky Supreme Court finds that it is unethical to require a defendant to waive right to claim of ineffective assistance of counsel as part of plea bargaining

As you probably know, it is not uncommon for convicted criminal defendants to challenge their convictions alleging that their lawyers did not provide effective assistance of counsel, and that sometimes the ineffective assistance related to the attorneys' inadequate counseling on whether the defendant should agree to a plea offer.  However, apparently prosecutors in federal court often require defendants to give up that right in order to have a favorable plea bargain.  In other words, it has been reported that often the plea offer is conditioned on the defendant waiving the right to challenge the attorney's performance as ineffective as part of attempts to seek post conviction relief.

Yesterday, the Kentucky Supreme Court issued a very important opinion concluding that the use of ineffective assistance of counsel waivers in plea bargain agreements "(1) creates a non- waivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."

The opinion was the result of a request by the prosecutors of the office of the United States Attorneys for the Eastern and Western Districts of Kentucky to review the merits of an advisory ethics opinion by the Kentucky Bar Association (Ethics Opinion E-435), an ethics advisory which held that the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.  After a very well reasoned discussion of the opinion, the Court concluded that it agrees with the Bar Association and that it is unethical for prosecutors to include a waiver as a condition to a plea agreement and for defense lawyers to advise clients about it.

The case is called US v Kentucky Bar Association and the opinion is available here.  For comments go to The Legal Ethics Forum, Behavioral Legal Ethics, The Legal Profession Blog, and a ;ublic defender.

Thank you very much to Grace Giesel (Univ of Lousville) for sending me the news!

New ISBA opinions

In its January meeting, the Illinois State Bar Association's Board of Governors approved three ethics opinions addressing probate fees, conflicts of interest in representing partnerships, and Unauthorized practice of law.

Opinion No. 13-01: Fees and Expenses; Court Obligations

It is not ethically permissible for a lawyer for a representative of a decedent's estate to enter into a fee agreement, or to collect a fee, for an amount in excess of the amount of fees allowed by a probate court as reasonable.

Opinion No. 13-02: Arbitration and Mediation; Conflict of Interest; and Multiple Representation

A lawyer ordinarily represents a partnership as an entity for conflicts of interest purposes. Where a lawyer has represented a partnership and all individual partners in various matters in a common representation, and one partner subsequently files an arbitration matter against another partner, whether the lawyer may represent the defending partner with informed consent will depend on the circumstances. Similarly, whether the lawyer can continue to represent the partnership or any of the partners in other matters with informed consent will depend on the circumstances.

Opinion No. 13-03: Arbitration and Mediation; and Unauthorized Practice of Law

A nonlawyer’s representation of parties to a FINRA arbitration generally constitutes the unauthorized practice of law.

Tips for settlement talks

Injured has a short post with some common sense advice on settlement talks here.

Excellent comments on discovery practice and litigation management

Over at the Litigation and Trial blog, Max Kennerly has published two excellent comments on issues related to discovery and litigation management.  In the first one (here), he concludes that "when courts forbid plaintiffs’ lawyers from sharing relevant discovery evidence amongst themselves, they inadvertently enable the defendants to engage in discovery fraud by cherry-picking which evidence they produce in each case."  In the second article (here), he reviews a new article by the federal judge (and the special masters he appointed) who oversaw the 9/11 Responders litigation which reveals another critical component of a successful and fair resolution of high-stakes litigation: judges need to make sure the cases move forward.   Professional Responsibility:  A Contemporary Approach also has a comment on the article here.

Comment on issues created by triangular relationship and the appointment of independent counsel to represent an insured

The New York Personal Injury Law blog has a good short comment on the duties of an attorney hired by an insurance company to represent one of several insured parties involved in a medical malpractice claim.  The case scenario discussed in the comment is not uncommon.  The plaintiff sued two physicians (an "attending" and a "resident") for injuries during a procedure but it is not clear which one of them actually caused the injury.  They both want to claim it was the other, but their actions are covered by one same insurance policy.  The insurance company assigns the case to two separate attorneys to represent each individual defendant separately.  Also, and again not unusual, the insurance company retains the right to agree to the terms of any settlement.  What happens when the insurance company wants to agree to a settlement that includes placing the blame on only one of the doctors?  How can it determine which one to blame and what are the rights of that doctor in the negotiating process?  What happens if the insurance company does not invite the attorney for one of the doctors to participate in the negotiation of a settlement?  These are some of the issues discussed.  You can read the comment here.

I think the comment is correct in the end - the bottom line being that the attorney assigned to represent the insured has a duty to demand to be part of all negotiations and a duty to defend the client's interests even if they are contrary to those of the insurance company.  The comment argues that even if the client does not have a financial interest at issue in the negotiation of the settlement, there are other interests at stake that require that he or she be represented fully.

I agree with the bottom line.  However, I think the comment is not entirely accurate in one small point.  It starts from the premise that the resident does not have a financial interest in the settlement negotiations "because the hospital has vicarious liability for its resident."   In other words, according to the premise, the insurance company justifies not inviting the attorney for the resident doctor to participate in the settlement process because the resident does not have to contribute to the settlement from her own funds," or because he or she "has no out-of-pocket responsibility to pay any part of the settlement amount."

It is true the resident doctor has no responsibility to contribute to the settlement amount, but that does not mean that he or she does not have a financial interest at stake.   The fact that there is vicarious liability allows the plaintiff to recover the full amount of compensation from the employer but it does not relieve the actor/tortfeasor from his or her liability to the employer.  The employer has the right to be indemnified in full.  The fact that employers rarely, if ever, decide to exercise that right does not mean the right does not exist.

Thus, unless the employer has agreed beforehand to waive the right to indemnity, the resident does have a duty to repay the employer for what the employer pays in the settlement.  And, for this reason, I would say that the resident can clearly argue that he or she does have a financial interest in participating in the negotiation. 

In other words, I agree there is duty on the attorney to represent the interests of the insured in the negotiation but that duty is based not only on the insured's personal interests but also on his or her financial interests at stake.

Op-ed on right to effective assistance of counsel at the plea bargaining stage

In a recent Op-ed piece in the ABA Journal, Erwin Chemerinsky (dean of the Univ of California - Irvine law school) writes that "it is important to not lose sight of two [Supreme Court] cases that are likely to have a dramatic effect on lawyers and judges. In Missouri v. Frye and Lefler v. Cooper, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel applies at the plea bargaining stage. Because about 95 percent of all criminal convictions are gained via guilty pleas, these cases will have a significant effect on the practice of law and also likely will lead to a large number of challenges by individuals seeking to have their pleas overturned."  You can read the full article here.


Thanks to the Legal Ethics Forum for the link.

What should the judge do when an attorney claims he settled a case without consent from the client?

Should a lawyer be allowed to change his mind about a settlement agreement after realizing that the jury would have given his client more money than he agreed to settle the case for?  My guess is that your quick answer would be something along the lines of  "No. A deal is a deal and if you make a bad deal you have to live with the consequences."

OK, but what if the lawyer argues that he settled the case without authorization from this client (thus, by the way, admitting to unethical conduct)?  Hmm. Well, in that case, you'd think that the client should not suffer the negative consequences of the lawyer's unethical conduct.  But, even then, can't you argue that the deal is valid and that the client's claim has to be against his own lawyer for breach of fiduciary duty? 

These questions were presented to a judge in California based on the following facts (as reported in The Recorder).

The plaintiff in the case was to be transported from a Los Angeles hospital to a psychiatric facility in San Diego.  Once loaded into the ambulance, the EMTs buckled him onto a gurney but allowed his left arm to remain free because, they said, he was not being combative.  After a few minutes, the plaintiff had taken off the restraints and jumped out of the moving vehicle onto the freeway.  He filed a claim alleging ”severe, permanent brain injury” and seeking $21 million in damages.  After a full trial, the jury came back with a verdict after four hours of deliberations.

Apparently, the lawyer for the plaintiff thought a four hour deliberation meant that the jury would return a verdict for the defense and he requested a recess to suggest a last-minute settlement negotiation with defense counsel.  The parties conferred in the hallway, with their clients present, and agreed to settle for $350,000.  The parties returned to the courtroom and after they announced they’d reached a settlement, the judge dismissed the jury.

At that point, instead of entering the terms of the settlement into the record, the plaintiff's attorney went to poll some of the dismissed jurors.  The terms of the settlement were not officially entered into the record by the defendant's counsel either.

When plaintiff's lawyer learned that the jury’s verdict would have favored the plaintiff with a damages award of $9 million, he went back into the courtroom and argued that he had made a mistake and that he did not have his client's consent to agree to the settlement.

Some have argued that the claim is ridiculous because the client was present during the settlement negotiation.  I don't necessarily agree with this.  The fact that the client is present, in and of itself, does not mean the client agreed to what the lawyer did.  But the argument does raise a number of questions.  If it is true that this particular client had diminished capacity and had brain damage the attorney may very well have acted without authority. If the client had diminished capacity why didn't he have a guardian or a representative helping make decisions?  On the other hand, if the client had enough capacity to make decisions up to the point of settlement, how come the lawyer now claims he didn't?   Either way, the lawyer seems to have acted improperly.

In a post trial motion, the attorney for the defendant argued that "If plaintiff is allowed to get away with such gamesmanship in this case there is nothing to prevent any plaintiff's counsel from testing the waters with one jury, settling the case without authority from the client, interviewing the jurors to see which way they actually were leaning, and then repudiating the settlement and seeking a retrial."

After listening to arguments, the judge decided to order a new trial.  The lawyer either acted unethically or falsely admitted to unethical conduct in order to get out of a settlement he had agreed to (which is unethical itself because it is dishonest), and may have committed malpractice, but the judge has given him a second chance.

What do you think of the judge's decision?

Is There an Ethical Duty to Convey Offers to Mediate?

Is There an Ethical Duty to Convey Offers to Mediate?   I think so....Discuss... here. 

ABA Committee on Professional Responsibility issues new formal opinion

The ABA Standing Committee on Professional Responsibility has issued a new Formal Opinion (No. 11-461 August 4, 2011) in which it discusses whether an attorney violates the "no contact rule" by helping a client communicate directly with another party that is represented by counsel.

The bottom line is essentially this:  A lawyer may not communicate with a person the lawyer knows is represented by counsel unless that person’s counsel has consented to the communication or the communication is authorized by law or court order, and a lawyer may not use an intermediary to communicate directly with a represented person in violation of the “no contact” rule.  On the other hand, it sometimes is desirable for parties to a litigation or transactional matter to communicate directly with each other even though they are represented by counsel.  For this reason, since parties to a legal matter have the right to communicate directly with each other, a lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. Such assistance may not, however, result in overreaching by the lawyer.

The full text of the opinion is available at the ABA's Center for Professional Responsibility website here or here.

Podcast on the ethics of structured settlements

Here is a link (also here) to an episode of the radio show Ringler Radio in which hosts Larry Cohen and Teddy Snyder talk to Seth J. Davis, a private mediator, about the ethics of structured settlements for lawyers and mediators.