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
1. 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.
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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
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.
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Can you hire your friend as a paralegal?
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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)
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.
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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.)
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:
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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
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.
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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)
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.
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What should you do?
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What should the court do?
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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
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.
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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)
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:
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May you enter into a dating relationship with the client?
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What if your legal work is not complete?
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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
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:
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The husband’s claim
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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
Session One
10. During the course of your handling a case, you have a telephone conversation with an
important witness:
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May you tape record the phone call?
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Does it matter where the witness is located?
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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?
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Must you provide a copy of the tape to opposing counsel?
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Must you provide a copy of the tape to the witness?
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What if you did not record the call, but instead took detailed notes of the
conversation:
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Must you produce your notes to the witness?
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Must you produce your notes to opposing counsel?
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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.
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:
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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
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.
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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.)
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.
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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)
Session Two
14. Your opposing counsel calls you a day after his interrogatory responses are due,
and he asks for an extension.
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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)
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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)
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.
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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)
Session Two
16. May your firm place the following language on its invoices or other
communications with clients:
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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:
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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)
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)
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.
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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”
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:
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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:
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Recover in quantum meruit the reasonable value of the time you have spent on the case?
May you:
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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)
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.
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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)
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.
David N. Lefkowitz
The Lefkowitz Firm, LLC
330 Peters Street, Suite 104
Atlanta, Georgia 30313
404-658-5000
dnl@lefkowitzfirm.com