UC-Berkeley School of Law
Law 210; Sec. 1; Fall 2014
John Steele
Course Materials
ABOUT THE INSTRUCTOR: John Steele is a solo practitioner, representing clients on
matters of legal ethics, professional liability, risk management, and the law of lawyering. For
over fifteen years, he served as the top internal ethics lawyer at an AmLaw 100 firm, where he
was Special Counsel for Ethics, and at an AmLaw 200 firm, where he was a trial lawyer and
litigation partner. He has taught professional responsibility for over thirty semesters at UCBerkeley School of Law, Stanford Law School, Santa Clara University, Golden Gate University,
and Indiana University – Maurer School of Law. The Second Circuit recently cited and relied
upon a law review article authored by Mr. Steele in a case of first impression on an important
conflict of interest issue. (GSI Commerce Solutions v. BabyCenter, LLC, 618 F.3d 204 (2nd Cir.
2010)) He has served on a variety of professional committees, including the State Bar of
California’s standing Committee on Professional Responsibility and Conduct (COPRAC), and
serves an arbitrator in fee disputes. He speaks widely to professional audiences, including
providing CLE credits, on issues of legal ethics and risk management, elimination of bias in the
legal profession, substance abuse, and law practice management, and is a co-founder of a leading
blog on legal ethics, LEGAL ETHICS FORUM (www.legalethicsforum.com).
TABLE OF CONTENTS
LESSON 1: CREATING AND ENDING ATTORNEY CLIENT RELATIONSHIPS ............. 1-1
1.1.
Togstad v. Vesely, Otto, Miller & Keefe .................................................................... 1-5
1.2.
Example: Reject Letters to Prospective Client ........................................................ 1-10
1.3.
Example: Am I your lawyer if you don’t want me? ................................................ 1-12
1.4.
Example: Terminating a Client? .............................................................................. 1-26
LESSON 2: CLIENT IDENTITY AND SCOPE OF REPRESENTATION .............................. 2-1
2.1
Example: Trusts & Estates: Who is the Client........................................................... 2-3
2.2
Example: Silicon Valley Start-Up ............................................................................. 2-6
2.3
Example: Domestic Violence Lawyer ....................................................................... 2-6
2.4
In-House Corporate Lawyer (Prior Exam Question) ................................................. 2-7
2.5
Government Lawyer-Whistleblower (Cindy Ossias)................................................. 2-8
2.6
Examples from the News and Case Law ................................................................. 2-11
LESSON 3: COMPETENCE & DILIGENCE ............................................................................ 3-1
3.1
Example: Motion Warriors (Stephanie Francis Cahill), ABA Journal, Nov. 2002. .. 3-4
3.2
Example: Criminal Defense Work? Me? Seriously? ............................................... 3-13
3.3
Example: Quick Self-Assessments .......................................................................... 3-13
3.4
Example: The Case of John Monroe ........................................................................ 3-15
3.5
Example: From 3L to 401(k): Seasons of an Attorney’s Life (Sirkin) .................... 3-19
LESSON 4: ABIDE, CONSULT, AND COMMUNICATE ....................................................... 4-1
4.1
Tram Nguyen’s Case (former exam question) ........................................................... 4-3
4.2
Undue Influence ......................................................................................................... 4-4
4.3
Defending the Unabomber ......................................................................................... 4-7
4.4
Settlement Talks....................................................................................................... 4-21
4.5
Death Row Volunteer (former exam question) ........................................................ 4-21
i
4.6
Lawyers Representing Mass Killers ........................................................................ 4-22
4.7
Traumatized Persons in the Legal System ............................................................... 4-24
4.8
Overview of Autonomy ........................................................................................... 4-26
LESSON 5: CONFIDENTIALITY ............................................................................................. 5-1
5.1
Example: Spaulding v. Zimmerman ........................................................................... 5-3
5.2
Example: The Case of Alton Logan........................................................................... 5-9
5.3
Example: Confidential? Privileged? .......................................................................... 5-9
5.4
Example: Let a Smile Be Your Umbrella ................................................................ 5-10
5.5
Example: Loose Lips Sink Ships (Hoppin and Sandburg) ...................................... 5-10
5.6
Example: Confidentiality and Privilege in Electronic Discovery-- New Rule 502
to Protect Against Privilege Waiver .................................................................................... 5-12
5.7
Example: Our Web Site .......................................................................................... 5-16
5.8
Example: Amy A. v. Cooper House (Former Exam Question) .............................. 5-16
5.9
Examples from the News ......................................................................................... 5-18
LESSON 6: LOYALTY .............................................................................................................. 6-1
6.1
Example: Walking through the Rules ...................................................................... 6-10
6.2
Example: MR 1.7 Current Client Basics.................................................................. 6-10
6.3
Example: MR 1.8 Transactions/Conflicts Basics .................................................... 6-10
6.4
Example: A&A and B&B (Former Exam Question) ............................................... 6-10
6.5
Example: Not Much of a Conflict (Former Exam Question) .................................. 6-11
6.6
Example: Sandy’s Business Reincorporates ............................................................ 6-13
6.7
Example: Sandy’s Business Grows ......................................................................... 6-13
6.8
Example: Sandy’s Business Gets Bought Out ......................................................... 6-13
6.9
Example: Image Technical v. Eastman Kodak ........................................................ 6-14
6.10
McKesson and Duane Morris .................................................................................. 6-21
LESSON 7: LOYALTY .............................................................................................................. 7-1
ii
7.1
Example: Macy’s Inc. v. J.C. Penny Corp., Inc. ........................................................ 7-6
iii
BOALT: LEGAL PROFESSION
LESSON 1: CREATING AND ENDING ATTORNEY CLIENT RELATIONSHIPS
AUGUST 26, 2014
This box will tell you what you need to prepare for each class.
FAQ’s
All Students Read
Online Talks
1.1, 1.2, 1.3
Optional
Outline LGL
§§ IV(A)-(E) & (H)(I)
All read
Rules
Scope, cmt. [17];
1.16; 1.18
All read
1.1
Togstad Case
All read; Students in
Group 1 are on call
1.2
Reject Letter to
Prospective Client
All read; Group 2 On
Call
1.3
The Defense Will Not
Rest
All read; Group 3 on
call
1.4
Firing a Client
All read; Group 4 on
call
Objectives:
By the end of this lesson, you should be able to:
1.
Describe the “attorney client relationship lifecycle.”
2.
Explain what lawyerly duties might arise even before the attorney client
relationship (ACR) is formed and which duties might survive the ACR.
3.
Offer examples of lawyers who have frequent turnover of clients and ones who
don’t.
4.
Explain why the meeting with prospective clients raises risk for the lawyer and
for the potential clients.
5.
Offer some practical guidance on how lawyers should manage interactions with
prospective clients.
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6.
Apply the various tests (contract, tort, reasonable expectations) that might be used
to define the start of an attorney client relationship.
7.
Articulate some common circumstances when an ACR is formed even if the client
may not consent to the formation.
8.
Identify the two categories of withdrawal described in the ethics rules and explain
how some of those situations might arise.
The Attorney Client Relationship Lifecycle (Q&A)
This section is about the attorney client relationship lifecycle. Lawyers’ failure to grasp
the basics of that lifecycle is the cause of countless errors: unhappy clients, unhappy attorneys,
malpractice suits, and disciplinary actions. Unfortunately, the rules don’t have enough coverage
of these issues. Read Scope, Comment [17]; MR 1.18, and whatever rules are mentioned at the
start of the examples.
FAQs
(Q 1.1) What is an attorney-client relationship (ACR)?
(Q 1.2) What kinds of attorney-client relationships are forbidden, permitted, encouraged, or
mandatory?
(Q 1.3) Do any lawyerly duties arise even before the attorney-client relationship is created?
(Q 1.4) What is the legal test for the existence of an ACR?
(Q 1.5) What is the effect of the creation of an ACR?
(Q 1.6) What are the elements that define any particular ACR?
(Q 1.7) Under what conditions must or may a lawyer terminate an ACR?
(Q 1.8) What is the legal test for the end of an ACR?
(Q 1.9) What duties do lawyers owe after the termination of the ACR?
QUESTIONS
(Q 1.1) What is an attorney-client relationship (ACR)?
The attorney-client relationship is a fiduciary relationship between a principal (the client)
and an agent (the lawyer) in which the lawyer represents the client’s legal interests to some
person or some social system (e.g., the courts or the market).
(Q 1.2) What kinds of attorney-client relationships are forbidden, permitted, encouraged, or
mandatory?
1-2
Some ACRs are forbidden. Lawyers cannot counsel or assist a client in the furtherance of
a crime or fraud. (MR 1.2(d)) (On the other hand, an attorney may counsel a client about legal
consequences of proposed courses of conduct and about the validity, scope, meaning, and
application of the law. MR 1.2(d)) Lawyers cannot commence or continue an ACR that would
entail breaches of the rules of professional conduct.
Some ACRs are encouraged. Lawyers should aspire to perform pro bono public service
by providing legal representation to those who cannot afford to pay for it. (MR 6.1) Lawyers
should aspire to represent the defenseless, the friendless, and the oppressed. (See, Cal. Bus. &
Prof. Code § 6068(h); Lawyers Oath (appended to the 1908 Model Code of Professional
Conduct))
Some ACRs are mandatory. Courts retain their historical power to appoint lawyers to
represent clients. (MR 6.2, 1.16(c)) (Such appointments, however, are rare since the advent of
public defender offices.) In some countries other than the USA, the so-called cab-rank rule
required a lawyer to represent any paying client. In the USA, lawyers have far more discretion of
whom they will represent.
Some ACRs are permitted. If a proposed representation would not further a crime or
fraud, and if the objectives of the representation are lawful, the lawyer can exercise her personal
discretion about whether she wishes to enter into the ACR. That is, under most circumstances
commencing an ACR is at the discretion of both client and lawyer. (Note: there can be
significant restrictions on a lawyer’s ability to terminate an ACR.) Under MR 1.2, a lawyer’s
decision to enter into an ACR is not to be understood as endorsing the client or the client’s
objectives. (However, many people morally judge lawyers by their choice of clients.)
(Q 1.3) Do any lawyerly duties arise even before the attorney client relationship is created?
When meeting with a prospective client about the possibility of entering into an ACR, the
duty of confidentiality already applies, as does attorney client privilege. (MR 1.18) Meetings
with prospective clients raise ethical risks such as confusion over whether an ACR exists,
whether the lawyer already has a conflict adverse to the prospective client, and whether the
lawyer will protect the prospective client’s confidences.
(Q 1.4) What is the legal test for the existence of an ACR?
The ethical codes and regulatory statutes say little about the legal test for the creation of
the attorney client relationships. We are left to common law approaches. The law could be
clearer regarding what, exactly, suffices to create the relationship. Some states use a contract
analysis. Some use a tort analysis. Some examine the reasonable expectations of the putative
client. Some states ask if the putative client reposed trust and confidence in the lawyer. Here is
the test from §14 of the Restatement (Third) Law Governing Lawyers. Notice how it combines a
contract test, a tort test, and the notion of judicial appointments.
FORMATION OF ATTORNEY-CLIENT RELATIONSHIP: A relationship of
client and lawyer arises when:
1-3
(1)
(2)
a person manifests to a lawyer the person’s intent that the lawyer provide
legal services for the person; and either:
(a)
the lawyer manifests to the person consent to do so; or
(b)
the lawyer fails to manifest lack of consent to do so, and the lawyer
knows or reasonably should know that the person reasonably relies
up the lawyer to provide the services; or
a tribunal with power to do so appoints the lawyer to provide the services.
In some states and under some circumstances, the relationship is required to be
memorialized in a written agreement. (See, e.g., Cal. Bus. & Prof. Code §§ 6146-49) But failure
to obtain the agreement does not preclude someone from proving that you were his or her
lawyer. For purposes of this semester, including the exam, assume that the sole legal test for the
existence of an attorney-client relationship is the reasonable expectations of the putative client.
(Q 1.5) What is the effect of the creation of an ACR?
When the ACR is created, fiduciary duties run from the lawyer to the client (e.g., the
fiduciary duties of communication, loyalty, competence, confidentiality, diligence, safeguarding
the client’s property). The client may have contractual duties to the lawyer, if the lawyer
properly contracted for those duties (e.g., fees, liens, etc.). Additionally, the creation of the ACR
creates a framework for decision-making authority: the client determines the lawful objectives of
the representation, while the attorney determines the means in consultation with the client.
Does that mean that in the discharge of her duties the lawyer owes duties only to the
client—that the lawyer can completely disregard the legal rights of third parties? No. Although
the lawyer’s fiduciary duties rarely extend beyond clients, the lawyer’s duties to the client are
bounded by pre-existing duties such as the duty not to commit fraud on third parties, the duty not
to provide false evidence to tribunals, and the duty not to commit crimes. That is, while fulfilling
those fiduciary duties to the client, the lawyer also owes duties to the courts, legal system,
adversaries, opposing counsel, witnesses, and others. Exactly where to place that boundary
between client-duties and social-duties is a highly contested question.
(Q 1.6) What are the elements that define any particular ACR?
You haven’t defined the ACR until you’ve defined (1) who is the client; (2) who is not
the client; (3) what is within the scope of the representation; and (4) what is outside the scope of
the representation.
The second and fourth elements seem redundant, but experience has shown that they are
critical to the proper definition of an ACR.
Lawyers may limit the scope of the representation if the criteria of MR 1.2 are met. There
is currently a movement toward permitting unbundled or limited representations, especially in
family courts. At the high end of the market, clients are disaggregating the legal work into
functional tasks and are assigning each task to a particular service provider. (For example, in a
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large litigation, the client might have the document review done by non-lawyers in India, the ediscovery done by a specialty boutique, and the bulk of the litigation done by a highly-leveraged,
expensive, “big law” firm.
(Q 1.7) Under what conditions must or may a lawyer terminate an ACR?
Lawyers often speak of mandatory withdrawals and permissive withdrawals. Lawyers
must seek to terminate ACRs that are unlawful, seek forbidden objectives, or entail ethical
breaches. (MR 1.16.) Lawyers may seek to terminate ACRs on a variety of other grounds, such
as when there is a breakdown in the ACR relationship or when the client won’t pay the bill. (See
MR 1.16.) If the lawyer has made an appearance before a tribunal, termination of the ACR
requires the tribunal’s permission and may be denied if, for example, the lawyer seeks to
withdraw on the eve of the trial.
(Q 1.8) What is the legal test for the end of an ACR?
For purposes of this semester, assume that the reasonable expectations test governs.
(Q 1.9) What duties do lawyers owe after the termination of the ACR?
Post-ACR, lawyers still owe the duty of confidentiality, and they owe a limited, negative
duty of loyalty tied to the subject matter of the terminated representation. That is, the lawyer
cannot take on matters adverse to former clients if the matters are the same or substantially
related as the matter the lawyer formerly handled for the former client. (MR 1.9) There may be
additional limitations on a lawyer’s ability to attack the work product of his prior representation.
Additionally, lawyers must return the client file, papers, property, and any unearned fees and also
must assist in the transfer of the matter to new counsel.
1.1.
Togstad v. Vesely, Otto, Miller & Keefe
Read this case and consider whether or not an attorney-client relationship was created.
Do the client and attorney have different understandings of what was being said? If so, why?
While the appellate court’s legal analysis is important, please try to see the fact pattern through
the eyes of the client and then through the eyes of the lawyer.
Togstad, v. Vesely, Otto, Miller & Keefe,
291 N.W.2d 686
OPINION BY: PER CURIAM
OPINION: This is an appeal by the defendants from a judgment of the Hennepin County
District Court involving an action for legal malpractice. The jury found that the defendant
attorney Jerre Miller was negligent and that, as a direct result of such negligence, plaintiff John
Togstad sustained damages in the amount of $610,500 and his wife, plaintiff Joan Togstad, in the
amount of $39,000. Defendants (Miller and his law firm) appeal to this court from the denial of
their motion for judgment notwithstanding the verdict or, alternatively, for a new trial. We
affirm.
1-5
In August 1971, John Togstad began to experience severe headaches and on August 16,
1971, was admitted to Methodist Hospital where tests disclosed that the headaches were caused
by a large aneurism on the left internal carotid artery. The attending physician, Dr. Paul Blake, a
neurological surgeon, treated the problem by applying a Selverstone clamp to the left common
carotid artery. The clamp was surgically implanted on August 27, 1971, in Togstad's neck to
allow the gradual closure of the artery over a period of days.
The treatment was designed to eventually cut off the blood supply through the artery and
thus relieve the pressure on the aneurism, allowing the aneurism to heal. It was anticipated that
other arteries, as well as the brain's collateral or cross-arterial system would supply the required
blood to the portion of the brain which would ordinarily have been provided by the left carotid
artery. The greatest risk associated with this procedure is that the patient may become paralyzed
if the brain does not receive an adequate flow of blood. In the event the supply of blood becomes
so low as to endanger the health of the patient, the adjustable clamp can be opened to establish
the proper blood circulation.
In the early morning hours of August 29, 1971, a nurse observed that Togstad was unable
to speak or move. At the time, the clamp was one-half (50%) closed. Upon discovering Togstad's
condition, the nurse called a resident physician, who did not adjust the clamp. Dr. Blake was also
immediately informed of Togstad's condition and arrived about an hour later, at which time he
opened the clamp. Togstad is now severely paralyzed in his right arm and leg, and is unable to
speak.
About 14 months after her husband's hospitalization began, plaintiff Joan Togstad met
with attorney Jerre Miller regarding her husband's condition. Neither she nor her husband was
personally acquainted with Miller or his law firm prior to that time. John Togstad's former work
supervisor, Ted Bucholz, made the appointment and accompanied Mrs. Togstad to Miller's
office. Bucholz was present when Mrs. Togstad and Miller discussed the case.
Mrs. Togstad had become suspicious of the circumstances surrounding her husband's
tragic condition due to the conduct and statements of the hospital nurses shortly after the
paralysis occurred. One nurse told Mrs. Togstad that she had checked Mr. Togstad at 2 a.m. and
he was fine; that when she returned at 3 a.m., by mistake, to give him someone else's medication,
he was unable to move or speak; and that if she hadn't accidentally entered the room no one
would have discovered his condition until morning. Mrs. Togstad also noticed that the other
nurses were upset and crying, and that Mr. Togstad's condition was a topic of conversation.
Mrs. Togstad testified that she told Miller "everything that happened at the hospital,"
including the nurses' statements and conduct which had raised a question in her mind. She stated
that she "believed" she had told Miller "about the procedure and what was undertaken, what was
done, and what happened." She brought no records with her. Miller took notes and asked
questions during the meeting, which lasted 45 minutes to an hour. At its conclusion, according to
Mrs. Togstad, Miller said that "he did not think we had a legal case, however, he was going to
discuss this with his partner." She understood that if Miller changed his mind after talking to his
partner, he would call her. Mrs. Togstad "gave it" a few days and, since she did not hear from
Miller, decided "that they had come to the conclusion that there wasn't a case." No fee
1-6
arrangements were discussed, no medical authorizations were requested, nor was Mrs. Togstad
billed for the interview.
Mrs. Togstad denied that Miller had told her his firm did not have expertise in the
medical malpractice field, urged her to see another attorney, or related to her that the statute of
limitations for medical malpractice actions was two years. She did not consult another attorney
until one year after she talked to Miller. Mrs. Togstad indicated that she did not confer with
another attorney earlier because of her reliance on Miller's "legal advice" that they "did not have
a case."
On cross-examination, Mrs. Togstad was asked whether she went to Miller's office "to
see if he would take the case of [her] husband * * *." She replied, "Well, I guess it was to go for
legal advice, what to do, where shall we go from here? That is what we went for." Again in
response to defense counsel's questions, Mrs. Togstad testified as follows:
Q:
And it was clear to you, was it not, that what was taking place was a
preliminary discussion between a prospective client and lawyer as to
whether or not they wanted to enter into an attorney-client relationship?
A:
I am not sure how to answer that. It was for legal advice as to what to do.
Q:
And Mr. Miller was discussing with you your problem and indicating
whether he, as a lawyer, wished to take the case, isn't that true?
A:
Yes.
On re-direct examination, Mrs. Togstad acknowledged that when she left Miller's office
she understood that she had been given a "qualified, quality legal opinion that [she and her
husband] did not have a malpractice case."
Miller's testimony was different in some respects from that of Mrs. Togstad. Like Mrs.
Togstad, Miller testified that Mr. Bucholz arranged and was present at the meeting, which lasted
about 45 minutes. According to Miller, Mrs. Togstad described the hospital incident, including
the conduct of the nurses. He asked her questions, to which she responded. Miller testified that
"the only thing I told her [Mrs. Togstad] after we had pretty much finished the conversation was
that there was nothing related in her factual circumstances that told me that she had a case that
our firm would be interested in undertaking."
Miller also claimed he related to Mrs. Togstad "that because of the grievous nature of the
injuries sustained by her husband, that this was only my opinion and she was encouraged to ask
another attorney if she wished for another opinion" and "she ought to do so promptly." He
testified that he informed Mrs. Togstad that his firm "was not engaged as experts" in the area of
medical malpractice, and that they associated with the Charles Hvass firm in cases of that nature.
Miller stated that at the end of the conference he told Mrs. Togstad that he would consult with
Charles Hvass and if Hvass's opinion differed from his, Miller would so inform her. Miller
recollected that he called Hvass a "couple days" later and discussed the case with him. It was
Miller's impression that Hvass thought there was no liability for malpractice in the case.
Consequently, Miller did not communicate with Mrs. Togstad further.
1-7
On cross-examination, Miller testified as follows:
Q:
Now, so there is no misunderstanding, and I am reading from your
deposition, you understood that she was consulting with you as a lawyer,
isn't that correct?
A:
That's correct.
Q:
That she was seeking legal advice from a professional attorney licensed to
practice in this state and in this community?
A:
I think you and I did have another interpretation or use of the term
"Advice". She was there to see whether or not she had a case and whether
the firm would accept it.
Q:
We have two aspects; number one, your legal opinion concerning liability
of a case for malpractice; number two, whether there was or wasn't
liability, whether you would accept it, your firm, two separate elements,
right?
A:
I would say so.
Q:
Were you asked on page 6 in the deposition, folio 14, "And you
understood that she was seeking legal advice at the time that she was in
your office, that is correct also, isn't it?" And did you give this answer, "I
don't want to engage in semantics with you, but my impression was that
she and Mr. Bucholz were asking my opinion after having related the
incident that I referred to." The next question, "Your legal opinion?" Your
answer, "Yes." Were those questions asked and were they given?
MR. COLLINS: Objection to this, Your Honor. It is not impeachment.
THE COURT: Overruled.
THE WITNESS: Yes, I gave those answers. Certainly, she was seeking my
opinion as an attorney in the sense of whether or not there was a case that the firm
would be interested in undertaking.
Kenneth Green, a Minneapolis attorney, was called as an expert by plaintiffs. He stated
that in rendering legal advice regarding a claim of medical malpractice, the minimum an attorney
should do would be to request medical authorizations from the client, review the hospital
records, and consult with an expert in the field. John McNulty, a Minneapolis attorney, and
Charles Hvass testified as experts on behalf of the defendants. McNulty stated that when an
attorney is consulted as to whether he will take a case, the lawyer's only responsibility in refusing
it is to so inform the party. He testified, however, that when a lawyer is asked his legal opinion
on the merits of a medical malpractice claim, community standards require that the attorney
check hospital records and consult with an expert before rendering his opinion.
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Hvass stated that he had no recollection of Miller's calling him in October 1972 relative
to the Togstad matter. He testified that:
A * * * when a person comes in to me about a medical malpractice action, based upon
what the individual has told me, I have to make a decision as to whether or not there probably is
or probably is not, based upon that information, medical malpractice. And if, in my judgment,
based upon what the client has told me, there is not medical malpractice, I will so inform the
client.
Hvass stated, however, that he would never render a "categorical" opinion. In addition,
Hvass acknowledged that if he were consulted for a "legal opinion" regarding medical
malpractice and 14 months had expired since the incident in question, "ordinary care and
diligence" would require him to inform the party of the two-year statute of limitations applicable
to that type of action.
This case was submitted to the jury by way of a special verdict form. The jury found that
Dr. Blake and the hospital were negligent and that Dr. Blake's negligence (but not the hospital's)
was a direct cause of the injuries sustained by John Togstad; that there was an attorney-client
contractual relationship between Mrs. Togstad and Miller; that Miller was negligent in rendering
advice regarding the possible claims of Mr. and Mrs. Togstad; that, but for Miller's negligence,
plaintiffs would have been successful in the prosecution of a legal action against Dr. Blake; and
that neither Mr. nor Mrs. Togstad was negligent in pursuing their claims against Dr. Blake. The
jury awarded damages to Mr. Togstad of $610,500 and to Mrs. Togstad of $39,000.
On appeal, defendants raise the following issues:
(1)
Did the trial court err in denying defendants' motion for judgment notwithstanding
the jury verdict?
(2)
Does the evidence reasonably support the jury's award of damages to Mrs.
Togstad in the amount of $39,000?
(3)
Should plaintiffs' damages be reduced by the amount of attorney fees they would
have paid had Miller successfully prosecuted the action against Dr. Blake?
(4)
Were certain comments of plaintiffs' counsel to the jury improper and, if so, were
defendants entitled to a new trial?
In a legal malpractice action of the type involved here, four elements must be shown: (1)
that an attorney-client relationship existed; (2) that defendant acted negligently or in breach of
contract; (3) that such acts were the proximate cause of the plaintiffs' damages; (4) that but for
defendant's conduct the plaintiffs would have been successful in the prosecution of their medical
malpractice claim. See, Christy v. Saliterman, 288 Minn. 144, 179 N.W.2d 288 (1970).
This court first dealt with the element of lawyer-client relationship in the decision of
Ryan v. Long, 35 Minn. 394, 29 N.W. 51 (1886). The Ryan case involved a claim of legal
malpractice and on appeal it was argued that no attorney-client relation existed. This court,
1-9
without stating whether its conclusion was based on contract principles or a tort theory,
disagreed:
It sufficiently appears that plaintiff, for himself, called upon defendant, as an attorney at
law, for "legal advice," and that defendant assumed to give him a professional opinion in
reference to the matter as to which plaintiff consulted him. Upon this state of facts the defendant
must be taken to have acted as plaintiff's legal adviser, at plaintiff's request, and so as to establish
between them the relation of attorney and client.
Id. (citation omitted). More recent opinions of this court, although not involving a
detailed discussion, have analyzed the attorney-client consideration in contractual terms. See,
Ronnigen v. Hertogs, 294 Minn. 7, 199 N.W.2d 420 (1972); Christy v. Saliterman, supra. For
example, the Ronnigen court, in affirming a directed verdict for the defendant attorney, reasoned
that "under the fundamental rules applicable to contracts of employment * * * the evidence
would not sustain a finding that defendant either expressly or impliedly promised or agreed to
represent plaintiff * * *." 294 Minn. at 11, 199 N.W.2d at 422. The trial court here, in apparent
reliance upon the contract approach utilized in Ronnigen and Christy, supra, applied a contract
analysis in ruling on the attorney-client relationship question. This has prompted a discussion by
the Minnesota Law Review, wherein it is suggested that the more appropriate mode of analysis,
at least in this case, would be to apply principles of negligence, i.e., whether defendant owed
plaintiffs a duty to act with due care. 63 Minn. L. Rev. 751 (1979).
We believe it is unnecessary to decide whether a tort or contract theory is preferable for
resolving the attorney-client relationship question raised by this appeal. The tort and contract
analyses are very similar in a case such as the instant one, and we conclude that under either
theory the evidence shows that a lawyer-client relationship is present here. The thrust of Mrs.
Togstad's testimony is that she went to Miller for legal advice, was told there wasn't a case, and
relied upon this advice in failing to pursue the claim for medical malpractice. In addition,
according to Mrs. Togstad, Miller did not qualify his legal opinion by urging her to seek advice
from another attorney, nor did Miller inform her that he lacked expertise in the medical
malpractice area. Assuming this testimony is true, as this court must do, see, Cofran v. Swanman,
225 Minn. 40, 29 N.W.2d 448 (1947), we believe a jury could properly find that Mrs. Togstad
sought and received legal advice from Miller under circumstances which made it reasonably
foreseeable to Miller that Mrs. Togstad would be injured if the advice were negligently given.
Thus, under either a tort or contract analysis, there is sufficient evidence in the record to support
the existence of an attorney-client relationship.
Affirmed.
1.2.
Example: Reject Letters to Prospective Client
Following are two letters a plaintiff’s legal malpractice attorney sends when he decides
not to take on a matter for a prospective client. Analyze and evaluate the letters sentence-bysentence and paragraph-by-paragraph.
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Name
1-10
Address
Re:
Possible Legal Malpractice Claim
Dear :
Based upon your telephone conference of [enter date] with my Legal Assistant [or
reference correspondence if letter sent], and upon careful consideration of your claim, this is to
advise you that I cannot proceed with your malpractice claim.
While this decision is final on my part, it may well be that another attorney can represent
you. My decision is not and should not be construed by you to be an opinion as to the merits of
your case. I advise you to contact other legal counsel at once.
You have only one year from the date you learned of or should have learned of an alleged
act of legal malpractice within which to commence an action against the parties responsible for
the loss. There are also additional complex requirements which must be met in a timely fashion.
Failure to meet these requirements will forever bar you from your claim against the responsible
parties.
There are certain circumstances which may extend the Statute of Limitations, or possibly
restrict the time in which you must file a claim. I do not have sufficient information to render an
opinion as to whether any of these circumstances apply in your case.
You may wish to recontact [referring attorney/source], the attorney/person who referred
you to my office, or utilize the Lawyer Referral Service of the Santa Clara County (or county
where they reside) Bar Association to obtain a reference
Thank you for your trust and confidence. I regret that I cannot be of service to
Very truly yours,
cc:
Referring Attorney/Source
*****
Date
Attorney Name
Firm Address City
Re:
CLAIMS OF (name of person contacting your office) FOR LEGAL
MALPRACTICE
Dear Attorney/Source:
1-11
Thank you for referring [person seeking attorney services] to my office. At this time it is
not feasible for me to proceed further with his/her case.
I have enclosed a copy of the letter I have sent to him/her for your review.
I deeply appreciate the trust and confidence you have placed in me by referring [person
seeking attorney services]. If there is any way I can be of service to you or your firm in the
future, please do not hesitate to call.
Very truly yours,
/Signature/
Enclosure
Hard Drive: Desktop Folder: Claim Letter
1.3.
Example: Am I your lawyer if you don’t want me?
THE DEFENSE WILL NOT REST.
Two U.S. military officers are jeopardizing their careers to protect the legal rights of those held
at Guantánamo Bay. The way they see it, justice should be blind—for everyone.
By Sean Flynn
William Kuebler, a navy lieutenant with clippered hair and a round face, sat in his crisp
summer whites at a heavy wooden table in the courtroom at Guantánamo Bay. To his left, at the
other end of the table, was a young Saudi named Ghassan Abdullah al Sharbi, who was reputed
to be one of the most dangerous terrorists on the planet. Al Sharbi was about to be tried for war
crimes, and Kuebler was supposed to defend him.
The problem was, al Sharbi did not want to be defended. Kuebler knew that, of course:
Al Sharbi had refused to even meet with him for the past five months, finally acquiescing only
four days earlier and then only long enough to tell Kuebler to go away. And really, who could
blame him?
By April 2006, al Sharbi had already been locked up for almost four years at
Guantánamo, where the military had declared him an “enemy combatant.” President Bush had
claimed the authority to continue holding him—along with hundreds of men already in custody,
as well as any other foreign national he might decide was an enemy combatant—until the end of
the war on terror, a sentence that worked out to somewhere between indefinite and forever. His
cell was eight feet long and not quite seven feet wide, with a bunk and a sink and, on the floor, a
hole for a toilet and a painted arrow pointing toward Mecca. The lights were kept on around the
clock, and he was allowed out only in shackles to shower and exercise for a half hour a few days
a week. Al Sharbi had also almost certainly been subjected to “enhanced interrogation
techniques,” some of which until recently were considered torture and, according to the State
Department, still are when practiced by Iran, Libya, Turkey, or any of a dozen other countries.
1-12
The only thing that made al Sharbi exceptional was that he was one of only a few
Guantánamo detainees who’d actually been charged with a crime, albeit a novel one in the annals
of international-warfare law: conspiracy to commit, among other things, murder by an
unprivileged belligerent—which basically means he thought about killing American soldiers he
believed he was at war with. (He was never accused of killing, or even trying to kill, anyone.) He
would be prosecuted by the men at the table on the other side of the room, an Air Force captain
and a Navy Reserve lieutenant, who would be allowed to present their case using evidence the
military considered so sensitive that al Sharbi would not be allowed to see it, let alone contest it.
The judge, who was known in the proceedings as the presiding officer, was a navy captain. The
jurors would also be military officers.
All things considered, al Sharbi preferred not to be defended by an American military
officer. He wanted to speak for himself.
Bill Kuebler did not find that to be an unreasonable position.
Nor was it a tenuous one, legally speaking: The right to self-representation had been a
codified tenet of American law for 217 years. Under established rules, whether a man can
competently defend himself is irrelevant; he need only be competent to make the decision to
represent himself. Kuebler believed al Sharbi was. Therefore, Kuebler believed he had an ethical
obligation to step aside. A lawyer can’t force himself upon an unwilling client, and no credible
court would ever allow such a thing. To do so would be to replace a vigorous defender with a
prop, an actor in a charade that only mimicked a proper trial.
Kuebler sat quietly at the defense table while the presiding officer asked al Sharbi if he
wanted the lieutenant to be his lawyer.
No.
Did he want a different military lawyer?
No. “To me,” al Sharbi said, “it’s the same circus, different clown.”
Did he want an American civilian lawyer?
No.
The presiding officer asked about al Sharbi’s education (a bachelor’s degree from EmbryRiddle Aeronautical University in Arizona), about his experience as a lawyer (none), whether
he’d read and understood the various orders and rules governing the military commissions (not
yet), and whether he would abide by those rules.
“I’m not going to be violent or cause troubles or cause commotions,” al Sharbi said.
“That’s what I’m telling you.”
The presiding officer explained, in great detail, why he thought it would be unwise for al
Sharbi to proceed without an attorney. If convicted of the single conspiracy charge against him,
he would face what the presiding officer called “prolonged confinement,” which was another
1-13
way of saying life in prison. Al Sharbi, in turn, argued that the commission was illegitimate and
that accepting a military lawyer would make him complicit in that illegitimacy. As it would
Kuebler, too. “I would have maximum respect for him if he stayed out of the whole process,” al
Sharbi said. “Just as a person to a person.”
The presiding officer called a short recess to decide whether he would permit al Sharbi to
represent himself. Fifteen minutes later, he announced his findings.
“I find that you are a fluent English speaker.…”
Kuebler brightened. A good start.
“I also find that you are well educated.…”
Oh, my God, Kuebler thought, is he actually going to let al Sharbi represent himself?
“However, I also find that you are not familiar with the Commission Law and rules.…”
How could he be familiar with rules he just said he hadn’t read yet?
“I also find that you are not qualified to have access to classified information and that you
would not be permitted to be present during closed sessions of these proceedings.” In other
words, al Sharbi could be excluded from parts of his own trial. “Therefore,” the presiding officer
continued, “I find that if you do have a right to represent yourself, that you are not qualified to do
so.”
And finally: “I also find that MCO 1”—the first military-commissions order—“explicitly
requires that you be represented at all times by detailed defense counsel.” He glanced at Kuebler.
“So with that, Lieutenant, you are directed to fulfill your responsibility as detailed defense
counsel in this matter.”
Kuebler was pissed. Yes, he knew the rules; but he’d also hoped those rules might bend
under the weight of such a fundamental right, especially when argued by a clearly competent
defendant. Why else would the presiding officer have gone through the motions—so
convincingly that Kuebler believed, if only for a moment, that al Sharbi had actually won?
Because it was all part of the show. They were never going to let al Sharbi represent
himself, Kuebler realized, because the rules say he can’t represent himself. All the questions and
answers, the talk about risks and consequences and who should represent whom—mere
stagecraft, a recitation of a predetermined script. A show.
And he was being forced to play a role, that of the zealous defender in his crisp summer
whites.
*****
“It took me a while to figure out the system is rigged,” Bill Kuebler was saying one day
last spring, more than a year after he’d been ordered to defend a man against his will. “When it
1-14
hit me how ridiculous and unjust and farcical this is? That was it. That was the moment I realized
it was all a sham.”
Kuebler is not a radical or a gadfly or even a liberal. He is, rather, a conservative
Republican and devout Christian, a husband and father, who left a lucrative career as a civil
litigator to join the navy and serve his country at the relatively late age of 28. When he’s not in
uniform he favors buttoned-up polo shirts and khakis, which make him look like an office
manager or perhaps an insurance adjuster. And when he speaks—when he accuses his
government of rigging military tribunals to the point of farce, of mocking the basic rule of law he
swore to uphold—he does so with all the passion of an office manager discussing, say, the
supply of ink cartridges and paper clips: drily and succinctly, as if he is making statements of
fact no more or less obvious than the color of the sky.
When President Bush announced, in November 2001, that a new class of foreign
fighters—what the administration would call enemy combatants—would be subjected to trial by
military commissions, Bill Kuebler did not find the idea objectionable. Quite the opposite: He
believed the attacks of September 11—an act of war committed by men who were not soldiers of
a recognized army yet who clearly were more organized and dangerous than common
criminals—marked a “paradigm shift,” an event so traumatic that it required modifying the rules
of detention and perhaps even those of warfare itself. “Without giving it any thought, I generally
accepted the concept of enemy combatants,” he says. If America truly faced a new kind of
enemy, then America would need new policies to deal with those enemies.
Kuebler assumed those policies would resemble established military law, that the
commissions would be a form of court-martial conducted on or near the battlefield. “If you’d
asked me in November 2001,” he says, “I would have thought there’d be a bunch of JAGs in
fatigues in Afghanistan going through four, five, 800 files of enemy combatants, and they’d deal
with them.”
Instead, the Bush administration, in January 2002, opened the prison camp at
Guantánamo Bay and eventually stocked it with more than 700 men and boys whom former
Secretary of Defense Donald Rumsfeld described as “among the most dangerous, best-trained
vicious killers on the face of the earth” and whom President Bush called “the worst of the worst.”
And yet after almost four years, not a single one had been tried for any crime by a military
commission; only ten had even been charged with anything, and none of those could be
considered terrorist masterminds. (“They’re really nobodies,” Kuebler says. “I guess I suspected
there’d be a little more punch.”) The rest were designated as enemy combatants who could be
locked away until the war on terror was finally declared over.
And still, even by late 2005, Kuebler had no howling objection. If anything, he was
intrigued by the commissions, which were loosely based— very loosely, and mostly in name
only—on a military trial system that had last been used more than sixty years before, during
World War II. “It was fascinating, cutting-edge law,” he says. “And to be involved in this new
system, this new paradigm for dealing with terrorism, was historical.”
He asked to be transferred from his role as legal adviser at the naval base in Groton,
Connecticut, to defend detainees before the commissions. He wasn’t choosing sides—that is, he
1-15
wasn’t aligning himself with alleged terrorists he suspected had been wrongly accused—but
rather volunteering for a necessary and honorable role. If the commissions were going to be fair,
the accused would require a proper defense. That is a concept so basic that it’s beyond debate.
Even the Nazis had lawyers at Nuremberg. “I didn’t come to this anti-Bush or anti-war on terror
or anti anything,” Kuebler says. “I approached it with the idea of affording the system a
presumption of legitimacy.”
Kuebler’s request was granted, and in November 2005 he flew to Guantánamo to meet
his assigned client—only to be told that al Sharbi did not want to see him.
*****
As it happened, Kuebler flew to Guantánamo on the same plane as another military
defense lawyer whose client also did not want to see him. Tom Fleener is a major in the Army
Reserve, 40 years old and still army trim, with brush-cut black hair and thick eyebrows that hop
and twitch with the inflections in his voice. He’s an Iowa boy who joined the infantry out of
Ames High School, went to college and law school, and then spent eight years as a JAG before
mustering out in 2003.
Unlike Kuebler, Fleener was fully aware before he got on the plane that Ali Hamza
Ahmad Sulayman al Bahlul did not want an American military officer defending him before a
military tribunal. In fact, al Bahlul had demanded to represent himself more than a year before,
in the summer of 2004, when he was initially charged with a war crime. His request was denied
for the same reason al Sharbi’s eventually would be: It was against the rules.
At the time, Fleener was an assistant federal public defender in Wyoming, a job he liked
in a place he liked. He paid only casual attention to Guantánamo, following the news accounts
with not much more than a professional curiosity. But then some buddies in the JAG Corps
briefed him on the commissions and, more important, on al Bahlul. By mid-2005, Fleener was
studying more intently, poring through Department of Defense memorandums and presidential
orders and the commission regulations. He was shocked by what he found: The rules really did
require defendants to accept a pro bono military lawyer.
“The concept of compelled representation has always bothered the crap out of me,”
Fleener says. “You just don’t force lawyers on people. You don’t represent someone against his
will. It’s never, ever, ever done.”
The reason it’s never done is that it undermines the concept of a fair trial. When a man’s
life or liberty is at stake, he gets to decide who will speak for him. That’s the way American
courts work, have always worked. To eliminate that right is to begin to transform a trial into a
pageant. And the other commission regulations—the use of secret evidence and third-hand
hearsay, excluding defendants from parts of their own trials, charging them with invented crimes
after they’d been interrogated in isolation for years—only further that transformation.
“I hated the fact, still hate the fact, that we were making up a trial system to convict
people after we’d already decided they’re guilty,” Fleener says. “I hated that as a country, we
were doing that. I didn’t like the fact that we were violating the rule of law, and that what we
were doing as a country was just…wrong.”
1-16
Fleener hated it enough to return to active duty—specifically, to represent al Bahlul. Or
more accurately, to be the lawyer al Bahlul would try to fire, the proxy through which an alleged
terrorist could attempt to preserve the right to choose his own counsel. (“That’s the irony,”
Fleener says. “I took a job knowing I’d be trying not to work.”)
So he flew to Guantánamo, where al Bahlul refused to meet him and al Sharbi refused to
meet Kuebler, and then the two lawyers spent a few days in the sun, talking about the law and
the commissions and their peculiar problem. They became friends and, during the following
weeks and months, legal partners, two officers trying to figure out how to not represent men
they’d volunteered to defend because that—getting fired—was the right and proper thing to do.
Fleener was still officially al Bahlul’s lawyer when he finally met him on January 11,
2006. Al Bahlul is a Yemeni national with a long beard and a slight build who is reputed to have
been a bodyguard and propagandist for Osama bin Laden, and he had a hearing that morning on
a charge of conspiracy identical to al Sharbi’s. He spoke with Fleener briefly beforehand, just
long enough to tell him he didn’t want his assistance and to explain why. Then he went into the
courtroom and sat at the defense table.
Fleener sat behind him and to his right, in a chair just inside the bar rail. The distance was
deliberate. If they actually want to force a lawyer on a guy, he told himself, they’re going to have
to make it look like they’re forcing a lawyer on a guy.
Al Bahlul spoke through a translator to the presiding officer, explaining for the second
time in seventeen months that he wanted to represent himself. How could he possibly trust a U.S.
military officer to defend him? He’d been imprisoned by the military for four years already, and
he claimed to have been mistreated—tortured, depending on who’s defining the term—during
interrogations. Why, for that matter, would he want any American speaking for him? “I regard
them as enemies,” he told the presiding officer.
His request was denied, and then the presiding officer, army colonel Peter E. Brownback
III, motioned toward Fleener. “Major Fleener,” he said, “please move up to the counsel table.”
Fleener stood. “Sir, is this an order?” he asked. “Should I consider it an order?”
“Do you need an order?”
“I believe I do, sir,” he said.
*****
From one perspective, allowing these two particular alleged terrorists to represent
themselves would eliminate a lot of headaches for the government: Neither would be difficult to
convict because neither would present an actual defense. Al Sharbi, if allowed, would become a
martyr. “To be honest with you, I did not come here to defend myself,” he announced at his last
hearing. “I came here to tell you that I did what I did and I’m willing to pay the price no matter
how much you sentence me, even if I spend hundreds of years in jail. In fact, it’s going to be an
honor, a medal of honor to me.” Al Bahlul would be even less ambitious: He promised to boycott
his trial—a point he made by holding up a sheet of paper with boycott scripted in Arabic—and
1-17
let Allah sort it all out later. “You are going to be ruling in this life, this earth,” he told
Brownback, “and God will rule based on justice.”
Yet who speaks for the defendants matters greatly to the government, because the
commission trials are meant, in part, to justify Guantánamo itself.
Which is extremely difficult at this point. The prison camp at Guantánamo has been an
international scandal since it opened in early 2002. Hundreds of men, most captured far from any
physical battlefield, have been held without charges, without access to courts, and most radically,
without the protections of the Geneva Conventions, one of the governing laws of war by which
every civilized nation for more than fifty years has agreed to abide. They have also been
subjected to interrogation techniques—sleep and sensory deprivation, extreme heat and cold,
sexual humiliation, prolonged confinement in painful positions, threats of physical harm—that, if
not outright torture, would be criminal if attempted on American soil.
This is why enemy combatants are held at Guantánamo. The base is a legal no-man’sland, a spit of sand leased from Cuba that is under U.S. control but is not sovereign territory. As
such, the Bush administration maintains that neither the Constitution nor the writ of habeas
corpus—the centuries-old foundation of Western law that allows a person to contest his
detention before a legitimate court—applies to foreign nationals imprisoned there. Guantánamo,
then, has—from its inception—been intended not primarily as a place to hold illegal fighters off
the battlefield (any old prison could accomplish that) but as a place where men without rights
could be interrogated without judicial oversight. “Everything about it, from where it was placed
to its day-to-day operations to the rules that were put in place, reveal that its principal purpose
was to be the ideal interrogation chamber,” says Joseph Margulies, an attorney with the
MacArthur Justice Center at Northwestern University School of Law who has represented
detainees and who wrote Guantánamo and the Abuse of Presidential Power. “And what they
believed is that in order to extract information, you needed to create an environment of anxiety,
of fear, of disorientation, of dread. That’s not the environment that typically prevailed in prior
armed conflicts.”
Five years in, there is also ample evidence that many of the Guantánamo detainees are
not, in truth, “the worst of the worst.” While there are surely some dangerous men there—
including Khalid Sheikh Mohammed, the reputed architect of September 11, who was transferred
there last September from a secret prison overseas—Guantánamo has also hosted a sizable
contingent of Taliban conscripts, low-level jihadis, and a collection of peasants, farmers,
students, and businessmen swept up by mistake. Only 8 percent were considered Al Qaeda
fighters, and 55 percent hadn’t done anything hostile to the United States or its allies, according
to a 2006 analysis of detainee files by researchers at Seton Hall University School of Law. Only
5 percent were captured by U.S. forces, whereas 86 percent were either captured by Pakistanis
(including al Sharbi) or grabbed by the Northern Alliance when the United States was papering
Afghanistan with bounty notices. “Get wealth and power beyond your dreams,” one promised.
“You can receive millions of dollars for helping the Anti-Taliban Force catch Al-Qaida and
Taliban murderers.” With an incentive like that, it is not inconceivable that the people rounded
up would be the easiest prey instead of the most vicious, especially when a confederation of
warlords is doing the hunting. The relative danger of a detainee could also be mitigated by his
citizenship: Every enemy combatant with a British passport, for example, has been released at
1-18
the request of the United Kingdom, which preferred even its alleged terrorists not be detained
and interrogated indefinitely without charge.
Still, if the administration is going to maintain that the men it has held for years truly are
among “the most vicious killers on the face of the earth,” it seems only right that the United
States should prove as much. International decorum, to say nothing of the nation’s presumed
moral stature, demands at least a token few be tried before a fair tribunal.
That’s where the commissions come in. It’s extremely unlikely that anyone held at
Guantánamo could be convicted in federal court (to which the administration says they have no
access anyway) or in something closer to a regular court-martial “because of the way we’ve
collected evidence and other things,” says Brigadier General Thomas Hemingway, the former
legal adviser to the commissions. Even generously assuming no evidence has been obtained
through abusive interrogations (which would almost certainly be barred from any criminal
court), each defendant has been questioned for years without the benefit of counsel, which in
itself would be considered impermissible. And perhaps certain evidence—statements from a
Taliban mole, say, or a few bits of data from a laptop an Al Qaeda cell doesn’t know is
missing—would compromise national security if it were revealed in an open hearing.
But let’s be realistic. The interrogations, whether abusive or merely aggressive, are the
primary problem. And the government anticipated as much: The commission system was
established before Guantánamo opened, in preparation for what would happen there.
Which is why the commissions were designed to appear to be fair. The rules required
each defendant to be provided a JAG officer who would be bound by personal and professional
honor to present as robust a defense as possible. It would all look very proper, but the outcome
would be preordained, the defendant utterly doomed, because of all the other rules.
The main problem with the commission system is that it would try men already
considered guilty: Every defendant would have been ruled an enemy combatant, first by the mere
fact of his detention, then by a separate board, a Combatant Status Review Tribunal—and he
would be charged with a crime only an enemy combatant could commit. (“Conspiracy to commit
murder by an unprivileged belligerent” is just a clunkier way of calling a man an unlawful enemy
combatant.) The charge would only reinforce what had already been decided; the presumption of
innocence would be completely reversed.
The trial procedures were no better. Defendants wouldn’t see classified evidence against
them, including anything that fell under the broad rubric of “sources and methods”—or, more
simply, how statements were gathered and from whom. That obviously could include the benign,
such as protecting the identity of an informant, yet it also clearly suggested that evidence derived
from torture could be allowed while the actual torturing would be kept secret. If, for example,
John Doe had been waterboarded until he claimed that Mike Smith was a terrorist, Mike Smith
would know only that “a source” had positively identified him, though not who or under what
conditions. The accused also could be removed from his own trial whenever the presiding officer
decided national security needed to be protected, and the rules tolerating hearsay testimony were
so loose as to be meaningless. Any fifth-hand mumblings could be used against a man, and he
would have no effective ability to challenge them.
1-19
“In practice the commissions dispense with two indispensable legal protections—the
presumption of innocence and the prevention of ex post facto application of criminal laws,”
Fleener says. “What we’re saying is, ‘You are guilty of something—we just don’t know exactly
what. So we’ll gather as much incriminating evidence as we can, using methods that we aren’t
going to talk about, and then we’ll make up a law that criminalizes the conduct.’ ”
For some of the detainees charged in 2006, having a military lawyer was an acceptable
arrangement, certainly no worse than their present circumstances of sitting isolated in a cell.
But what if an alleged terrorist didn’t want to play along? What if he didn’t care about
making the show as convincing as possible?
Then the show would collapse. It would be exposed for what it is: neither fair nor
credible. Which is why al Bahlul and al Sharbi had JAG officers forced upon them.
“Over time,” Kuebler says, “we figured out we’re the linchpin in this process. They want
to have these bizarre trials, they don’t want to let the defendant see secret evidence—so the one
thing they need is us. The government wanted this attorney-client thing to work. They really did.
It’s an important part of the show.”
“Only the government benefits if we do a bang-up job,” Fleener says. “The
administration believes the commission process will ultimately justify the detentions. They know
they can’t just hold people; they don’t want to take the political heat. So they rigged the rule of
law. And because it’s rigged, the only thing that’s in play is the appearance.” And the detainees
know it, which is why they don’t want to go along with a charade. “At the end of the day,” he
says, “that’s how these guys look at it: ‘If I’m going to get a life sentence—or a death sentence—
I’d rather get one in this weird, disgusting system that everyone knows is a weird, disgusting
system than have some military lawyer up there dancing and juicing it up and making it look like
it’s not rigged.’ ”
*****
Ironically, Kuebler and Fleener want to defend their ostensible clients. They both have
this notion that al Sharbi and al Bahlul will come around, that each will eventually realize that an
American military officer who’ll fight for his right to reject him will also defend him at trial,
even an unfair trial. And they both believe al Sharbi and al Bahlul would be better off with their
help, too. Probably still doomed, but not quite as definitively.
But why should either man cooperate? After years in military custody, there’s no reason
to trust a man in uniform, particularly one with so little power he can be turned away by the
guards at the gate. “What’s this guy supposed to think?” Kuebler says. “ ‘Here’s your lawyer, but
we control him’?” Even if al Sharbi did accept his lawyer, nothing would change, not in any
future near enough for him to glimpse. He would still be stuck in Guantánamo. He would
probably be seen as a collaborator, an informant squealing to a man in a uniform. And his
objective isn’t to win his freedom—his motives are political. He wants to demonstrate that
America isn’t moral and isn’t just and is perfectly content to stage mock trials to convict him
under laws he doesn’t recognize. Why should he help? Would an American soldier captured by
the Taliban and charged with crimes against Allah willingly cooperate with the best Sharia
1-20
lawyer in all of Afghanistan? No. How is al Sharbi’s situation, from his perspective, objectively
different? It’s not.
“It would all be different if you had a guy saying, ‘Please help me,’ ” Fleener says. “And
that’s really what it comes down to. If a guy wants my help navigating through a rigged trial
system, I should help him.”
But he can’t. Al Bahlul hasn’t said help me. He has said I regard you as my enemy.
So in the spring of 2006, Fleener and Kuebler were stuck arguing for the right of two
defendants to fire them—which is to say, for the rule of law. (An often unpopular cause. Even
Fleener’s own mother wasn’t happy in the beginning. “I tried to explain it to her, and my mom’s
comeback was always something regarding 9/11,” he says.) What happens to those two admitted
jihadists is, frankly, less important than what happens to the American ideal. “It truly does affect
all of us,” Fleener says. “It’s not because al Bahlul wants to dispense with counsel that I’d leave
my job and get involved in this mess. It’s that once you start putting on show trials, you can’t go
back.”
And he couldn’t just quit, either. “What I didn’t want was for them to give this to some
junior officer who would let Colonel Brownback scare him into playing along and not do the
right thing here, and I think the right thing was to make sure this guy’s voice was heard,” he
says.
He sighs. “For the first time in my life, I felt like I couldn’t do the moral thing”—defend
al Bahlul’s rights— “or just walk away.”
*****
Here is the problem with an attorney representing a client who doesn’t want his services:
It’s unethical. There are exceptions, of course, such as when a defendant is incompetent or
disruptive. But as a general rule, a lawyer can’t impose himself on a man who’d prefer
otherwise, and he will be punished if he does. The defendant can sue for malpractice, and the bar
can impose sanctions, even take away his license to practice.
An order to represent al Sharbi and al Bahlul, then, would also be an order for Fleener
and Kuebler to violate their professional ethics; by obeying their superiors, they risked
disobeying the rules of the bar. Even if a foreign detainee’s right to choose counsel was
irrelevant, what about the right of Fleener and Kuebler to avoid committing professional
misconduct? They were U.S. citizens exposed to potentially serious harm by the commissions.
Al Sharbi and al Bahlul couldn’t argue anything in federal court, “but there’s no way they could
keep the lawyers out of court,” Fleener says. And looking at it from that angle highlighted the
deeper conflict. “Are we soldiers who have to try to get through this process because we follow
orders and that’s what we do?” he says. “Or are we lawyers who are supposed to try to make sure
the rule of law isn’t destroyed in the process?”
But would they face real harm? Or would the strange and muddy rules of the military
commission inoculate them against what would otherwise be obvious ethical violations? That
was not clear. The Professional Responsibility Committee of the navy JAG office, not
1-21
surprisingly, said that Kuebler “is required to zealously represent Mr. Al Sharbi at all
proceedings before a military commission,” because that’s what the commission rules required.
The army JAG office said that Fleener “may be directed to continue representation” of al Bahlul
“even though he can, and perhaps should, move to withdraw…if the client is completely
uncooperative” —which, of course, al Bahlul was and Fleener did and the presiding officer
denied. And the state bar in Iowa, where Fleener is licensed, came up with the curious notion that
his duty as an officer of the court trumped his ethical obligations involving an unwilling client.
To other ethics specialists, however, the answer was obvious. “There are some exceptions
way out at the margins,” says John Steele, a law-school lecturer and practicing lawyer in
California, where Kuebler is licensed. “But the basic rule is, for a competent individual, you
can’t do it.” In an April 2006 affidavit, Steele noted that even employing “an ‘attack the
government’s burden of proof’ defense for Mr. al Sharbi” —a bare-bones maneuver that
wouldn’t require al Sharbi’s cooperation at all— “would breach fundamental tenets of legal
ethics.” Fourteen lawyers and legal scholars in Wyoming, where Fleener is also licensed, agreed
in a separate memorandum. And if he were forced to represent al Bahlul, Wyoming rules would
require him to follow “the client’s decisions concerning the objectives of representation.” And
since al Bahlul’s objective is to not be represented by Fleener…well, it’s a conundrum.
Those state issues aren’t tangential. All JAGs must be licensed in one state or another
(there is no military bar), and breaking the rules can have serious consequences. If, for instance,
Fleener commits an ethical violation in Guantánamo, it could be a black mark on his license in
Wyoming, where he intends to practice when his tour is up at the end of this year. “Would
another public defender hire him?” says Debra Patalkis, a lawyer working pro bono for Fleener
on the ethics issues. “Would another defendant trust him? Tom would be damaged on many
different levels.”
Complicating all this, of course, is the fact that Fleener and Kuebler are military officers,
subject to a chain of command and military orders and prohibitions against insubordination.
Because the commission rules were so poorly drafted, they were caught between competing
loyalties—their superiors and their ethics. “It puts an ethical lawyer in a position of disobeying a
military order,” Patalkis says. “This is not a hypothetical injury. This is a real problem: Do you
anger the military, or do you anger the whole American system of justice?”
Those two things should never be in conflict to begin with. But given the choice, Fleener
and Kuebler chose to risk angering the military. In the late spring of 2006, they were preparing to
sue for their right to be fired by jihadis in Guantánamo Bay. Of course, that would have entailed
naming their superiors as defendants in a federal lawsuit, most likely the convening authority and
perhaps their commander in chief, President Bush. There’s nothing illegal about that, but neither
would it enhance either man’s military career. “I really think Tom is on the side of angels and his
motivations are pure,” Patalkis says. “But I’m concerned someday he’ll be stationed in Anbar
Province writing soldiers’ wills. He laughs. I don’t.”
*****
Fleener and Kuebler never sued, because the U.S. Supreme Court briefly made their
ethical conflicts disappear. On June 29, 2006, in Hamdan v. Rumsfeld, the court threw out the
1-22
military-commission system, ruling that the president can’t unilaterally invent ways of trying
people, even foreigners imprisoned outside U.S. territory, without congressional approval.
At the time, it was considered a resounding victory, partly for the detainees (who the
court said were covered under Common Article 3 of the Geneva Conventions) but mostly for the
rule of law and the separation of powers. In theory, that is true enough. In practice, however,
Hamdan has transmogrified into a significant defeat—again partly for the detainees and mostly
for the rule of law. The court said the commissions were illegal because Congress hadn’t
authorized them—so the White House merely needed Congress to do just that. It began drafting a
new military-commissions bill within weeks, and submitted it to the Republican-controlled
Congress two months later, just in time for the midterm elections.
On October 17, after largely party-line votes in both the Senate and House, President
Bush signed the Military Commissions Act (MCA) of 2006. It was an astonishingly radical law.
For one, it gave the president the authority to declare anyone, captured anywhere, an enemy
combatant who can be jailed indefinitely and without charge, precisely the sort of power against
which the colonists fought the revolution. Two, it explicitly stripped the right of habeas corpus
from any foreign national designated an enemy combatant. It also implicitly weakened the
Article 3 protections of the Geneva Conventions by allowing the president to define “outrages
upon personal dignity, in particular humiliating and degrading treatment,” which the conventions
prohibit.
For Kuebler and Fleener, there was one relative bright spot: “The accused shall be
permitted to represent himself, as provided for by paragraph (3).” It’s in Subchapter IV—Trial
Procedure, a simple sentence in black and white. But still, there were reasons to be skeptical, to
suspect that the provision wasn’t as clear as it seemed: The “paragraph (3)” it referred to was a
list of caveats that allowed self-representation to be revoked if the defendant didn’t behave to the
presiding officer’s liking. So what would happen if a man’s idea of representing himself was to
boycott his trial? Would a lawyer be forced on him then?
That wasn’t clear at all.
*****
There’s a little diner in Durham, North Carolina, just off the Duke University campus,
where Fleener and Kuebler like to have breakfast when they’re in town, which is every few
weeks, because part of the Guantánamo defense team consists of a handful of Duke law students.
Kuebler’s eating his usual, a giant biscuit piled with scrambled eggs and bacon, and Fleener is
checking headlines on his laptop.
It’s a glorious morning in the spring of 2007, more than five years after the military
commissions at Guantánamo were first created and the day after a single detainee, Australian
David Hicks, finally pleaded guilty. “This is funny,” Fleener says, without looking up from the
screen. “Listen to this: ‘A day after pleading guilty,’ blah blah blah, ‘Hicks was moved to a more
comfortable cell.’ ” He shakes his head. “Only in Guantánamo Bay are pretrial conditions worse
than after you plead guilty.”
1-23
Fleener and Kuebler are still officially assigned to al Bahlul and al Sharbi, but neither has
had to do any actual lawyering. The Hamdan decision was a reset button for the commissions,
dismissing all the cases that were pending in June 2006, and neither al Sharbi nor al Bahlul has
since been recharged. Their status for now is that of mere enemy combatants, squirreled away at
Guantánamo, five years and counting, until the end of an endless war.
With no one to defend, without even clients to fire them, Fleener and Kuebler spend a lot
of time lecturing and debating. They speak to small groups—law students and legal societies—
and at public-interest symposiums, often in tandem, sometimes solo, always criticizing
Guantánamo and the commissions, occasionally debating other lawyers and scholars who are
more sympathetic to the administration’s policies. The debates can be quite lively. On an
intellectual level, it’s intriguing stuff, untangling the threads of international law and military
procedure and constitutional reach. “All of that is fascinating,” Fleener says. “But what it does is
take everyone away from the facts, which are: We lock up innocent people without access to
courts, and we’ve tortured people. And when you’ve got a bunch of government lawyers sitting
around trying to game torture, the first thing you’d hope would happen, especially as a lawyer, is
that someone would step back and say, ‘Hey, we’re trying to game torture. This isn’t right.’ And
no one did that. Not one of them.”
Instead, people who swore to uphold the American ideal, beginning with the president,
deliberately subverted it. They established a system of detention and interrogation—with the
acquiescence of a compliant Congress and a fearful public—that no American would tolerate if it
were applied to our citizens anywhere else.
“Can you imagine,” Fleener says, “if people came out and did the exact same shit we just
did? Except brown people did it?” At that moment, imagining such a thing took no effort at all:
Iran was holding fifteen British sailors and marines after seizing them off the coast of Iraq.
“Would we get ripshit if Iran does to the Brits what we’ve done to al Sharbi and al Bahlul?”
Kuebler nods. “Yes.”
Fleener goes further. “I think more war crimes have been committed in the detention and
interrogation and fake trials of people in Guantánamo than people in Guantánamo have
committed,” he says. “And I don’t think the question is whether they’ve tortured people.”
Kuebler considers that for a moment. He’s the more reserved of the two, less animated,
the one who Fleener says “brings substance to my outrage.” After a bit, he slowly dips his chin,
then raises it. “I think things have been done to people,” he says, “that under any definition
except this administration’s very narrow one would be torture.”
The administration’s definition, obviously, is the one in play. The MCA purported to
exclude from the commission trials any statements obtained through abusive interrogations, but
it really doesn’t. Like the previous version, the commissions are still allowed to protect the
sources and methods used to collect evidence, an invitation to launder torture, not exclude it. To
use the same example: If a man was waterboarded until he coughed up a name, that can still be
sanitized into a sworn statement from an interrogator that a secret source identified a terrorist.
The defendant would get to see that, at least—defendants now get to see everything the jury
1-24
sees—but not the how or the why behind it. Nor would his lawyer, who nonetheless would have
the burden of proving that that evidence is unreliable. The only thing to prevent such a scenario
is the presiding officer’s discretion.
And so it goes, blacks and whites dissolving into grays. Fleener and Kuebler still aren’t
certain they won’t be ordered to represent men who don’t want them. Yes, the MCA says a
defendant can represent himself, but it also says the presiding officer can revoke that privilege if
he fails “to conform his deportment and the conduct of the defense to the rules of evidence,
procedure, and decorum.” If al Bahlul were to say, “I reject your illegitimate court,” then sit
down and hold aloft his boycott sign, is that proper decorum? If al Sharbi announces, as he has,
“I did what I did,” is that sufficiently close to the rules of evidence and procedure?
No one knows.
If it is not, if the right to self-representation is revoked, Fleener or Kuebler would be
seated at the defense table—because the commission regulations require a military lawyer be
present. Why? Here’s one possible reason: “It’ll put the judge in a much easier position to revoke
the guy’s right to represent himself,” Fleener says. “The military lawyer’s already there, and they
can make him start dancing.” Which would bring everything full circle. And then what? Does
representing al Bahlul mean denouncing the court and joining his boycott? Would that be
insubordination? Or must he put on the vigorous defense al Bahlul doesn’t want? Does he join
the show and play his role in this elaborate production?
No one knows. And maybe no one will ever know, because maybe al Sharbi and al
Bahlul will never be charged. Why bother? What’s in it for the government now? Why drag
unwilling players to the stage when they can be kept locked up forever, anyway?
It is so much easier to invite more compliant defendants into the courtroom. Late on the
afternoon of Friday, March 23, Marine Corps major Dan Mori went to see General Hemingway
in his office in Crystal City, Virginia, where they worked out a deal for David Hicks. More than
five years earlier, Hicks had been on the first plane into Guantánamo, one of twenty men said to
be so dangerous that they had to be chained to the floor so they wouldn’t chew through the
hydraulic lines and crash the transport into the sea. He’d also been one of the first men
charged—and with the spectacular crimes of attempted murder by an unprivileged belligerent,
aiding the enemy, and conspiracy. In February, under the new commissions, prosecutors
recommended he be charged with attempted murder in violation of the law of war and providing
material support for terrorism. A month later, the attempted murder was dropped; the chief
prosecutor had wanted him to do twenty years on the remaining count.
Mori and Hemingway cut a deal for nine months (with no credit for the five-plus years
he’d been locked up), most to be served in Hicks’s native Australia, where there was enormous
political pressure for his release. In exchange, Hicks had to promise not to speak to the media for
a year and to renounce his claims of being beaten, drugged, and anally raped while in American
custody. All things considered, not a bad trade for him.
And not a bad deal for the government. It now has a conviction before the military
commissions. It can now say the system works.
1-25
Except that it doesn’t.
“Mori pleaded his guy out in a naked deal to charges that weren’t a crime, before a trial
in an illegal court,” Fleener says the day Hicks’s deal was announced. “And that’s considered a
victory.”
He shakes his head. He likes Mori, knows he’s an excellent attorney, says he would have
done the same thing for his client. And he’s not exaggerating when he calls the commissions
illegal, either. In a weird quirk, the MCA allows only “unlawful enemy combatants” to be tried
before the commissions. Yet everyone in Guantánamo is classified as an “enemy combatant.” It
appears a semantic quibble. But not far into the future, close enough that Fleener can see it
coming, two commission judges will dismiss charges against other detainees because of that
single missing word, unlawful. Mori could have raised that point, could have argued the
commissions had no authority to try his client, a mere enemy combatant. But then David Hicks
would still be locked up in Guantánamo, uncharged and untried, serving a sentence between
indefinite and forever.
Instead, he cut a deal and went home. It had nothing to do with fairness or the rule of law
or any ideals that were once commonly held so sacred, so inviolable, that Guantánamo would
have never existed. It’s the new paradigm. It is what it is.
“It’s to the point with Gitmo that I’m so offended by what we do down there that…”
Fleener pauses, searches for the right words. “Well, it’s like, can a system be so bad that
everyone involved should just disengage? This is close.”
1.4.
Example: Terminating a Client?
Assume you’re a lawyer and get this email from a friend who’s also a lawyer:
Hey,
Can you give me some advice? I took on a case for a guy who seemed quite normal at the
time. He owns a deli and rented a small building from a commercial landlord. There have been a
lot of disputes between the Client and the landlord over the past year and the Client decided to
escalate things by hiring me and having me write to the landlord—and now to the landlord’s
lawyer. We’re now about 90 days away from the statute of limitations for filing suit against the
landlord on some of the issues.
The client paid me $5,000 in advance fees, which I kept in my trust account until I had
earned the fees. We burned through that pretty quickly and the Client has been very slow in
paying bills. Right now, he owes me $7,500. And as I’ve corresponded with the landlord’s
lawyer, it’s become obvious that my Client has a pretty biased view of the world. Many of the
problems were his fault, in my view. Some were the landlord’s. As I worked through the issues
with the Client, sometimes he’d get very angry with me, as if I were the enemy.
Anyway, I’ve probably had all the contact with this client I can stand. Can I just fire him
and keep the file until he pays me what he owes me? What are the upsides and the downsides to
doing that?
1-26
Be prepared in class to discuss the black letter law on this topic and to provide
sound advice.
1-27
BOALT: LEGAL PROFESSION
LESSON 2: CLIENT IDENTITY AND SCOPE OF REPRESENTATION
SEPTEMBER 2, 2014
FAQ’s
All Read
Online Talks
1.1, 1.2, 1.3
Optional
Outline LGL
§§ IV(A)-(E) & (H)-(I)
All Read
Rules
1.2(a); 1.13; 1.14
All Read
2.1
Trusts & Estates: Who is the
Client
All Read; Group 4
2.2
Silicon Valley Start-Up
Lawyer
All Read: Group 3
2.3
Domestic Violence Lawyer
All Read: Group 2
2.4
In-house corporate lawyer
All Read; Group 1
2.5
Government LawyerWhistleblower (Cindy Ossias)
All Read: no cold call
2.6
Examples from the News and
Case Law
All Read; no cold call
Objectives:
By the end of this lesson, you should be able to:
1.
Explain what is meant by “client identity” and the “scope of the representation.”
2.
List out 6 different kinds of clients and briefly describe how the lawyer’s
interactions with the client might be different for each type of client.
3.
Specify the rule, by number, that governs the representation of organizational
clients.
4.
Give practical guidance about the way that a lawyer for an organizational client
might interact with agents and constituents of that client.
5.
Specify the rule, by number, dealing with clients under a disability and articulate
some common scenarios that arise for lawyers who represent clients of that type.
2-1
6.
Explain what dangers arise for the client and the lawyer if the lawyer is not
sufficiently attentive to proper definition of the client identity and the scope of the
representation.
FAQs
(Q 2.1) When the client is an organization, who or what is the client?
(Q 2.2) Is client identity ever an issue when representing natural persons (i.e., human beings)?
(Q 2.3) Is the person who pays the legal fees always the client?
(Q 2.4) What happens if I have more than one client on a matter?
(Q 2.5) What happens if I represent someone who has insurance related to the matter?
QUESTIONS
(Q 2.1)
When the client is an organization, who or what is the client?
Under the so-called entity theory of representation, when a lawyer forms an ACR with an
organization (e.g., corporation or partnership), the client is the entity itself and not the employees
or constituents of the entity. (MR 1.13) If the corporation’s attorneys were to undertake to
represent any of those constituents, it would be considered an additional representation and one
that potentially conflicts with the representation of the organization. Generally, the attorney for
the entity will take efforts to ensure that her duty of loyalty is not clouded by any peripheral
representations of the entity’s constituents such as directors, officers, shareholders, etc.
Organizations can only act through the acts of the human beings who are the agents,
employees, etc., of the entity. Lawyers look to those people for the authorized instructions to
carry out for the client. To determine who properly speaks for the entity client, the lawyer looks
to the organization’s rules of governance. Note that this rule, 1.13, also governs client identity in
the context of representing governmental organizations—a topic of much confusion and
controversy.
The entity representation theory seems straight forward, but complications arise. What
happens if, for example, a corporate officer trusts and shares confidences with the attorney and
the attorney’s advice relates to the personal interests of the officer? Has a new representation
ensued? Is there a conflict between the attorney’s representation of the entity and her
representation of the officer? And what happens when there is confusion or a dispute over who
controls the organization? As the comments to MR 1.13 make clear, these issues often confound
even careful lawyers.
Another difficult issue relates to corporate affiliates. For example, if a lawyer represents a
parent corporation, does the attorney represent the subsidiaries? Would it be a conflict for that
lawyer to represent a third party against the subsidiary? That and related issues will be discussed
in the unit on conflicts of interest.
2-2
Representation of government entities raises particularly difficult problems. If you are a
lawyer employed by the State of Indiana, is your client the agency you work for, the state itself,
or even the people of Indiana? (See, MR 1.13, cmt. [7])
When analyzing legal ethics, the very first question often is who is the client? If you
want to know the basics of client identity, you should have a basic working knowledge of the law
governing representation of (i) competent human beings; (ii) less than fully competent human
beings; (iii) publicly held corporations; (iv) smaller, non-public corporations; (v) partnerships;
and (vi) government entities.
(Q 2.2)
Is client identity ever an issue when representing natural persons (i.e., human
beings)?
In the case of natural person clients, client identity can still be an issue, especially where
a non-client is paying the legal fees, or where the client is under a disability such as minority,
mental illness, or conservatorship. MR 1.14 regulates the representation of clients under a
disability.
(Q 2.3)
Is the person who pays the legal fees always the client?
No! Many times a non-client is paying the fees. And there are three different provisions
in the rules—in the comments to 1.7, in 1.8, and in 5.4—that say that if the person paying the
legal fees is not the client, you must not treat such payors as the client. You must serve the best
interests of the actual client and must not share confidences with the non-client unless the client
gives informed consent.
(Q 2.4)
What happens if I have more than one client on a matter?
We will discuss this further in the classes on conflicts of interest, but the basic concepts
are: (1) you would need the two clients to consent to the joint representation if their positions
conflict (and it may be a prudent idea to obtain consent in all cases of joint representation); (2)
you must serve the best interests of each client; and (3) you must carefully consider how
confidentiality and attorney client privilege are applied in joint representations.
(Q 2.5)
What happens if I represent someone who has insurance related to the matter?
You should know that this is an important issue in the real world, even though we
probably cannot explore it in depth this semester. If you represent someone in a matter and they
have insurance to cover the legal fees or to indemnify the client for possible liability, there is a
three-way relationship (insured; lawyer; insurer) that is potentially cooperative and potentially
antagonistic. In some states, the lawyer represents both as clients, in what is called the “tripartite” relationship. In other states, the lawyer represents only the insured.
2.1
Example: Trusts & Estates: Who is the Client
This example is based upon a hypothetical discussed in Thomas L. Shaffer, “The Legal
Ethics of Radical Individualism,” 65 Tex. L. Rev. 963 (1987). In that article, Professor Shaffer
argues that the standard answer to the question “Who is the client?” may sometimes be an ethical
2-3
evasion. How would you define the client in The Case of the Unwanted Will‖? Do you favor
Shaffer’s approach? Assuming that the ethics rules do indeed assume a radical individuality, is
there anything to say for or against that assumption? We’ll start with the hypothetical and move
to Shaffer’s article.
*****
A married couple, Miriam and Henry, visit Colleen O’Hara, a trusts and estates lawyer, to
finalize and sign a will that will leave their estate in equal shares to their three children. Miriam
walks from the conference room to the kitchen to get some coffee and bumps into O’Hara, who
is busy pulling the final papers together.
“I bet it’ll feel good to get your will finalized,” said O’Hara.
“That will is mostly Henry’s idea, but I’ll be glad to get this signed,” said Miriam.
“What do you mean?”
“My niece, my late sister’s daughter, lived with us practically as our own child. I would
have left her some money. But, Henry feels so strongly about it.”
*****
Thomas L. Shaffer:
Most of what American lawyers and law teachers call legal ethics is not ethics. Most of
what is called legal ethics is similar to rules made by administrative agencies. It is regulatory. Its
appeal is not to conscience, but to sanction. It seeks mandate rather than insight. I argue here that
what remains and appropriately is called ethics has been distorted by the weaker side of an old
issue in academic moral philosophy. This "weaker side" rests on two doctrines: first, that fact
and value are separate; and second, that the moral agent acts alone; as W.H. Auden put it, each of
us is alone on a moral planet tamed by terror. The influence of this philosophical position
deprives legal ethics of truthfulness and of depth. As a principal example of the distortion, I use
the case of lawyers employed by and for families, and by and for associations that use the
metaphor of family to describe themselves.
I.
The Ethical Context
Ethics properly defined is thinking about morals. It is an intellectual activity and an
appropriate academic discipline, but it is valid only to the extent that it truthfully describes what
is going on. Those in contemporary ethics who concentrate on the importance of the truthful
account argue first that fact and value are not separate—that stating the facts is, as Iris Murdoch
put it, a moral act, a moral skill, and a moral art; and second, that organic communities of
persons are prior in life and in culture to individuals—in other words, that the moral agent is not
alone.
2-4
In the practice of estate planning, for example, the facts that are available for moral
description are death and property: property seen in the context of mortality, death seen in the
context of owning things.
*****
This principled analysis of The Case of the Unwanted Will fails because of what is prior
to analysis: the moral art of description. The failure is sad and, I think, corrupting. It is
corrupting, first, because it rests on an untruthful account of what is going on. What is present in
the law office is a family, and this one-lawyer-for-each-person way of first seeing a moral
quandary in this situation and then resolving the quandary with the ethics of autonomy (the
ethics of aloneness) leaves the family out of the account. The analysis looks on [Miriam] as a
collection of interests and rights that begin and end in radical individuality. Her affiliation with
her husband, and with the children they have made and reared, is seen as a product of
individuality(!), of contract and consent, of promises and the keeping of promises—all the
consensual connections that lonely individuals use when they want circumstantial harmony. The
employment of the lawyer is a result, then, of the links, the promises, the contract, the consent,
and the need for circumstantial harmony. The family in the office is there only as the product of
promise and consent. It is relevant to the legal business at hand only because the (radical)
individuals, each in momentary and circumstantial harmony with one another, want it to be. The
promise and the consent create the family.
This description is offered by the legal ethics of radical individualism. It is sad,
corrupting, and untruthful. An alternative argument is that the family created the promises, the
contract, the consent, and the circumstantial harmony—not the other way around. The family is
not the harmony; it is where the harmony (and disharmony) comes from. A truthful description
of The Case of the Unwanted Will is that the lawyer's employer is a family. I suspect that that
proposition will sound unusual in legal ethics, but my argument would be ordinary in other
contexts. It treats, sees, and describes the family the way families are treated, seen, and described
in the stories we tell, in the television commercials we watch, in the comics, and in our religious
tradition. In these ordinary ways of accounting to ourselves for ourselves, it is the family that
causes individuals to make the promises that begin, develop, and continue families. The family
causes people to seek human harmonies and, consequently, to create more families, as well as
associations such as businesses, clubs, and professions, that account for themselves with family
metaphors.
Organic communities such as families are prior to individuals. The lawyer in The Case of
the Unwanted Will, for example, did not err in turning his attention to [Miriam], in [Henry’s]
absence. (Nor would it have been a mistake to turn his attention to [Henry], in [Miriam’s]
absence; if evenhandedness is important, it would have been more evenhanded to talk privately
with each of them.) The deep things to be found out about [them], in particular the deep things
involved in their will making, are family things. Inquiring into deep family things is not only
tolerated, but it is required by common representation, because the client is the family. Any other
description is incomplete and, thus, untruthful and corrupting. If an adequate account of what is
going on in the family (to the extent that it has to do with their will making) requires talking to
either or both parents alone, then talking to them alone is appropriate. If the family is well
2-5
represented, it (that is, each person in it) will learn how to take [Miriam’s] purposes into account,
because [Miriam] is in the family.
2.2
Example: Silicon Valley Start-Up
A venture capitalist that your firm has often represented sends your firm a new client. It’s
a small, five-shareholder technology corporation that wants to reincorporate itself in Delaware,
to draft a series of employment agreements for the founders (i.e., the five shareholders), and to
handle an influx of financing from a different set of venture capitalists (i.e., a second round
financing). The second round VCs will invest $15 million and will want to have the rights to
manage the business as they see fit. Each founder needs an employee agreement that governs
their compensation, stock ownership rights, and what will happen to those shares if the employee
leaves the company voluntarily or involuntarily. You know that corporate start-ups cannot afford
to have large shareholders leave the company and keep their shares. You also know that the
founders have sunk years of their lives into the start-up and don’t want to be tossed out on the
street by the new VCs.
One of the founders sends you this email message:
I’ve seen the latest drafts of the Employment Agreements. Can you break it down
for me? What do I get if I leave the company on my own accord? What do I get if I
get fired over my objection?
How should you respond?
2.3
Example: Domestic Violence Lawyer
You work at a non-profit legal clinic for victims of domestic violence (the Domestic
Abuse Advocates). It’s the second Tuesday of the month, so you are at a table at a local
community center along with two associates of local law firms, fielding drop-in questions. One
woman, a former client, has brought her friend, Doris, to talk to you. This is the third time that
Doris has made a drop-in visit. With each prior visit, Doris has come closer and closer to
initiating a protective order proceeding against her husband, but her social and religious beliefs
make her reluctant to do so. Tonight she has questions about what the timetable for litigation is
generally like, whether the local judges are friendly or mean, and whether court proceedings are
open to the public.
Another visitor, Maria, has questions because she has been accused of battering her
domestic partner, the woman she has been living with for many years. Another visitor, Susan,
comes with her mother and has questions about how to divorce her abusive husband. Susan is
worried about the tax and financial implications of divorce.
Be prepared to speak to Doris, Maria and Susan about the attorney-client relationship
issues raised by these encounters.
2-6
2.4
In-House Corporate Lawyer (Prior Exam Question)
You are General Counsel at The Parts Supply, an automotive and trucking parts
company. You often meet with Mike Morris, the Midwest Regional Vice President, who in
addition to running legal issues by you, chats with you about everything from the weather, the
local schools, and Hoosier basketball. In June 2002, Morris walked into your office, slumped
down in a chair and nervously lit up a cigarette—a habit you’d thought he’d kicked. He asked if
taking a government purchaser out on hunting trips would be considered commercial bribery.
You said that anything of value can be a bribe. He asked about the jail time a briber might serve.
You told him that bribery can cost five years in prison. He asked if it mattered that he began his
hunting trips with the purchaser when they were in high school together. You told Morris you
couldn’t give good advice if he dripped out the facts one by one. You asked Morris to trust you
with the whole story. Here’s what he said.
“Jason Spencer, my old high school buddy, works for the City and County of St. Louis
purchasing car and truck parts for the various municipal fleets. I took Spencer on several hunting
trips over the past year. My treat. Spencer never paid. Sometimes we just drove out to the
country, but sometimes we’d stay at upscale hunting or fishing lodges.
“Back in May, Spencer signed a policy allowing the County to purchase parts that aren’t
certified by the National Automotive Parts Laboratory. NAPL is a national testing agency, and
most everyone requires NAPL certified parts. Spencer also signed a technical specification
permitting County trucks to be outfitted with smaller, less powerful brake assemblies. I had
lobbied Spencer for both changes, because The Parts Supply carries the non-certified, smaller
brake assemblies. They are cheaper for the County, and we are glad to sell them. Spencer and I
briefly discussed the changes during one of our hunting trips.
“In late May, the County published a Request For Bids on a large contract for a variety of
parts, including quite a few brake assemblies. Because prices on the other parts are largely
uniform, The Parts Supply used its price advantage with the non-certified parts to make a great
bid. We won the Request. We already shipped some parts, and will make additional deliveries
over the next two years.
“Just before the final bids were submitted, the manufacturer of the brake assemblies
called about some safety concerns. Ten brake failures have been reported nationwide. He said
that no recall was currently contemplated because it seemed that the assemblies had failed only
when they were installed on trucks that were too large for the parts. He wanted me to report any
potential problems.
“Well, bad things are happening. A County truck plowed through a storefront last week.
We don’t yet know what caused the accident, but I think his truck had the small brake assembly.
I just heard one hour ago that another County truck crashed at the bottom of a downgrade. I don’t
want to call Spencer or the manufacturer and highlight the problem.
“Yesterday, I saw one of my competitors at a hunting goods store. He asked me, ‘Hey,
Morris, are you buying more goodies for your pal, Spencer?’ That’s why I’m talking to you.
Look, Spencer’s cost-saving policies are perfectly justified. But if people find out about what’s
2-7
happened, everyone will think the worst and I’m going to jail for five years—or worse if people
are killed.”
You told Morris that you need to begin a thorough investigation and that you need to talk
to others at the company. Morris screamed at you. He said that you can’t tell anyone about the
facts. He said that you are his attorney, and that he is trusting you.
Is there an attorney-client relationship between you and Morris? What consequences flow
from this determination?
2.5
Government Lawyer-Whistleblower (Cindy Ossias)
Whistle-Blower Tells Panel of Her Outrage
Probe: Department of Insurance attorney testifies she recommended $119 million in fines against
State Farm and was appalled at $2-million settlement.
June 27, 2000 | JENIFER WARREN | TIMES STAFF WRITER
SACRAMENTO — When the phone call finally came, Cindy Ossias was ready. Her mounting
frustration over insurance company settlements had reached critical mass. It was time to talk.
So it was that Ossias, a seasoned lawyer with the state Department of Insurance, became a
whistle-blower, launching investigations into California's biggest political corruption scandal in
years.
It is not a role she sought. But on Monday, during four grueling hours of testimony before the
state Assembly committee investigating Insurance Commissioner Chuck Quackenbush, it is one
she played with poise.
"I'm glad I did it," Ossias, 49, said during a break in the sometimes hostile questioning. "I think it
was worthwhile--no matter what happens next."
For now, what happens next is an uncomfortable mystery for Ossias (pronounced oh-SIGH-us).
Last week, the department placed her on paid administrative leave until July 21, ordering her to
be available by phone except during lunch hour--a status she jokingly called "house arrest."
After that, she's not sure what to expect. By leaking sensitive Department of Insurance
documents to the Assembly Insurance Committee, she has put her job--and possibly her license
to practice law--at risk.
"I'm not in denial," she said, acknowledging the grim possibilities. "I'm just trusting that I'll land
on my feet."
Recommended Fines Scrapped
2-8
Documents leaked by Ossias are central to the widening scandal engulfing Quackenbush, who is
under scrutiny for his settlements with major insurance companies in lieu of fines for Northridge
earthquake claims violations.
The documents included audits detailing such violations by State Farm, Allstate and 20th
Century and also staff-recommended fines against those companies. Quackenbush allowed the
companies to contribute far smaller amounts to private foundations he created.
Testifying under immunity from criminal prosecution, Ossias said she was "appalled" when she
learned that her recommended fine of about $119 million against State Farm had been scrapped
in favor of the alternative settlement scheme, under which the company was assessed just $2
million--none of which went to quake victims.
"I was truly outraged and with each settlement I saw, I was more outraged," she told the
committee. Later, addressing reporters in a Capitol hallway, she added: "I knew what we could
have gotten [for earthquake victims], and I felt they should know they got shortchanged."
Despite her frustration, Ossias figured she would just ignore her angst and go on doing her job.
But then came a call from Paul Donahue, a former consultant to the Assembly Insurance
Committee.
"He knew I had done some earthquake work, so he asked me if I knew anything about the
Northridge settlements," Ossias recalled. Her response? "I have a lot to tell you."
In the days that followed, Ossias told the committee, she went through "an internal struggle" as
she agonized over which documents to leak. She was fearful of violating attorney-client
privileges and she was concerned about jeopardizing her job.
But more than anything, she wanted the truth to come out: "I realized [Donahue] was somebody
who could get these documents to the right people, get them made public," she said outside the
hearing room.
'A True Watchdog'
A 10-year veteran of the Insurance Department, Ossias said she has become known as the
"catastrophe queen" in the legal division because of her work on the Oakland Hills fire, which
burned 3,000 houses in 1991, and the 1994 Northridge earthquake.
She lives with her cat, Bob, and dog, Jackie O, in San Francisco, and spends her spare time
playing piano and singing in an a cappella group.
One homeowner who got to know Ossias after the Oakland Hills fire called her "a true
watchdog," noting that she encouraged residents to file complaints with the department.
"She was our point person after the fire," said Betty Ann Bruno, who lost her home and battled
State Farm for an equitable settlement for four years. "If we had complaints about insurance
companies, which most of us did, she would help us in any way she could."
2-9
Monday's hearing was something of a bipolar experience for Ossias. The morning was positively
pleasant, with Democrats on the committee asking carefully scripted, friendly questions of their
star witness.
After lunch, however, it was the Republicans' turn. Assemblyman Tom McClintock (RNorthridge), while noting that her whistle-blower actions were "in the highest tradition of public
service," lectured Ossias for possibly breaking the law by leaking confidential documents. By so
doing, McClintock charged, she "undermines the moral authority of the Legislature to sit in
judgment of the commissioner."
*****
Bill Proposes Protections for State Lawyers
California and the West
Legislature: A staffer in Quackenbush's insurance department who reported wrongdoing faced
dismissal and the loss of her license.
February 22, 2001 | VIRGINIA ELLIS | TIMES STAFF WRITER
SACRAMENTO — The plight of a whistle-blower who risked her law license by exposing
misdeeds at the Department of Insurance prompted legislation Wednesday to protect government
attorneys who report wrongdoing
Assemblyman Darrell Steinberg (D-Sacramento) said he was introducing the measure, AB 363,
to fulfill a commitment to push for reforms that would help avoid a repeat of the scandal that
involved former Insurance Commissioner Chuck Quackenbush and forced him from office last
July.
Steinberg, who handled much of the questioning during legislative hearings into Quackenbush's
activities, said he learned firsthand from that investigation of the risks that government attorneys
take in reporting wrongdoing.
He said insurance department lawyer Cindy Ossias jeopardized both her job and her right to
practice law when she leaked documents to the Assembly Insurance Committee about secret
settlements that Quackenbush had reached with insurance companies after the Northridge
earthquake. The settlements allowed the companies to donate to private foundations created by
Quackenbush rather than face heavy fines for mishandling claims.
When her role in the investigation became public, Quackenbush put Ossias on administrative
leave and took steps to fire her. The State Bar of California later investigated to determine if she
had violated the attorney-client privilege that requires lawyers to keep confidential information
divulged by clients.
"My loyalties were at war last year--loyalty to my boss, loyalty to the agency, loyalty to the
public and loyalty to the rules of professional conduct," Ossias said.
2-10
She was eventually reinstated by Quackenbush's successor, Clark Kelso, and exonerated by the
bar, which licenses and disciplines lawyers in California.
But Steinberg said the bar specifically limited its decision to Ossias' case so it would not become
precedent for other government lawyers in similar circumstances.
He said his bill would remedy that by protecting all government lawyers in California, including
those who work for state and federal agencies, from losing their jobs or their bar licenses when
they expose wrongdoing.
"We want to protect attorneys who act in the public interest and we want to create incentives for
them to come forward when they see wrongdoing," Steinberg said.
Jeffrey Ruch, executive director of Public Employees for Environmental Responsibility, said he
expects the measure will be copied by other states if it is passed by the Legislature. Ruch's group
is a national organization created to protect government employees who report environmental
abuse.
"Almost no states make any distinction between a government lawyer and a private lawyer," he
said. "Attorneys are supposed to take their secrets to the grave. You see wrongdoing and the only
recourse is to resign and forever keep silent."
2.6
Examples from the News and Case Law
(A)
News accounts have covered the criminal prosecution of George Zimmerman for
the homicide of Trayvon Martin. Below are excerpts from the state’s prosecutor’s press
conference following the initiation of the criminal proceedings against Zimmerman.
ANGELA COREY, FLORIDA STATE ATTORNEY: Good evening, everyone. I am
Angela Corey, the special prosecutor for the Trayvon Martin case.
Just moments ago, we spoke by phone with Sybrina Fulton and Tracy Martin. It was less
than three weeks ago that we told those sweet parents that we would get answers to all of their
questions no matter where our quest for the truth led us.
When they appointed us to this case less than three weeks ago, I want you to know that
these two fine prosecutors, despite all that is on their plate already, handling all of the homicides
in the Fourth Judicial Circuit, supervising the other young lawyers who also handle homicides,
they willingly took this case on and said, we will lead this effort to seek justice for Trayvon.
The Supreme Court has defined our role on numerous occasions as prosecutors that we
are not only ministers of justice; we are seekers of the truth. And we stay true to that mission.
Again, we prosecute on facts and the laws of the great and sovereign state of Florida, and that's
the way it will be in this case.
We thank all of the people across this country who have sent positive energy and prayers
our way. We ask you to continue to pray for Trayvon's family, as well as for our prosecution
team.
2-11
QUESTION: (OFF-MIKE)
COREY: I am going to be quite honest with you. And I have some people who have
lived through our justice system here. And they are among the finest people in
Jacksonville, Florida. They represent but a small sample of the people who
know that those of us in law enforcement are committed to justice for every
race, every gender, every person of any persuasion whatsoever.
They are our victims. We only know one category as prosecutors, and
that's a V. It is not a B, it is not a W, it is not an H. It is V for victim.
That's who we work tirelessly for. And that's all we know, is justice for
our victims. And we still have to maintain the constitutional rights.
Remember our role, ministers of justice. [Emphasis added]
QUESTION: Can you shed any more light on (OFF-MIKE)
COREY: I think that after meeting with Trayvon's parents that first Monday night
after we got appointed in this case -- Bernie was there, John was there,
our prosecution team was there. The first thing we did was pray with
them. We opened our meeting in prayer.
Mr. Crump and Mr. Parks were there. We did not promise them
anything. In fact, we specifically talked about if criminal charges do not
come out of this, what can we help you do to make sure your son's death
is not in vain?
And they were very kind and very receptive to that. And as I stated, Mr.
de la Rionda has been in touch with Mr. Crump and with Ms. Fulton and
Mr. Martin since we took over this case. And we intend to stay in touch
with them. [Emphasis added]
(B)
One of the many collapses of alleged Ponzi schemes was Stanford Financial,
which was represented by the Proskauer firm. The SEC took testimony under oath from one of
Stanford Financial’s officers, who was accompanied at the deposition by a lawyer from
Proskauer. At the start of the deposition, the SEC asked on the record if the lawyer represented
the witness, and this is what the lawyer said:
"I represent her insofar as she is an officer or director of one of the Stanford affiliated
companies."
(C)
The general counsel of PSU was Cynthia Baldwin, and when certain employees
of PSU gave grand jury testimony and were asked if they were represented by counsel. Here’s a
news account of what transpired. 1
1
http://www.morrisdailyherald.com/2012/07/27/penn-state-counsels-role-in-sandusky-inquiry-called-intoquestion/arb9xg2/ questioned.html)( July 27, 2012 )(last visited January 5, 2014)
2-12
Three top Penn State University administrators were each posed a question from
prosecutors when they testified separately last year before the grand jury
investigating Jerry Sandusky:
Do you have counsel with you today?
Then-university president Graham B. Spanier, athletic director Tim Curley, and
vice president Gary Schultz each offered the same answer: Yes, Cynthia Baldwin,
the university’s general counsel.
But Baldwin has since maintained that she represented none of them and instead
sat in on the proceedings on behalf of the university.
(D)
Under the terms of a technology license, the licensee assumed all control over
prosecution of patents on the technology. In prosecuting the patents, the licensee’s lawyers had
numerous conversations with the inventors and other personnel of the licensor. Later, when an
ownership dispute arose between the licensor, the inventors, and the licensees, all three asserted
that they were represented by the same lawyer (who thought she represented only the licensee).
(E)
Artika R. Tyner, Professor at St. Thomas, has written an article, “Planting People,
Growing Justice: The Three Pillars of New Social Justice Lawyering,”2 the abstract of which is:
This article explores the tools that lawyers can employ to build and sustain social
change. These tools add a new dimension to scholarly research in the field by
focusing on the role of lawyers as leaders as they seek to influence processes of
social change, transform systems, and empower others to lead. This Article
draws upon principles of social justice lawyering, which acknowledge that
lawyers have a fiduciary duty to create equal justice under the law. It
combines these frameworks with leadership theoretical perspectives since there is
a dearth of research available on the role of lawyers as leaders in the context of
social change. Another framework that informs this new type of lawyering is
public policy advocacy. The combination of social justice lawyering practices,
leadership skills, and public policy advocacy is referenced in this Article as the
three pillars of “new social justice lawyering.” [Emphasis added]
2
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2302653
2-13
BOALT: LEGAL PROFESSION
LESSON 3: COMPETENCE & DILIGENCE
SEPTEMBER 9, 2014
FAQ’s
All Students Read
MR 1.1, 1.3
All Students Read
Outline
§§ IV(F)(3-4);
All Students Read
3.1
Motion Warriors
All Read; All Students are
Ready to Discuss
3.2
Criminal Defense Work? Me?
Seriously?
All Read; Groups 1 & 2
3.3
Quick Self-Assessment
All Read; All Students on Call
3.4
John Monroe
All Read: Groups 3-4
3.5
From 3L to 401(k): Seasons of
an Attorney’s Life
Optional (useful for students
headed toward larger private
practice firms)
Objectives
By the end of this lesson, you should be able to:
4.
1.
Articulate the basic rules of competence and diligence, including the rules about
inexperienced lawyers, emergency legal services, and the lawyer’s personal
crises.
2.
Explain how the rules of competence and diligence might implicate the rules
about withdrawal (both mandatory and permissive).
3.
Discuss how your particular life competencies might fit with certain parts of the
legal profession.
4.
Discuss how competencies, as defined by the market for private practice lawyers,
affect the lawyer’s ability to practice law, change jobs, and take control of your
work-life balance.
Competence and Diligence
Rules: MR 1.1 & 1.3 Read those Rules and Comments!
FAQs
3-1
(Q 3.1) What is the duty of competence?
(Q 3.2) Is a brand new lawyer competent at anything at all?
(Q 3.3) How can a lawyer gain competence?
(Q 3.4) Can a lawyer help out in an emergency even if she’s not really competent in that area?
(Q 3.5) How does a lawyer maintain competence?
(Q 3.6) How does the duty of competence relate to the tort of legal malpractice?
(Q 3.7) To whom is the duty of competence owed?
(Q 3.8) What is the duty of diligence?
(Q 3.9) What are common causes of non-diligence?
(Q 3.10) Does a solo practitioner have a special duty of diligence?
(Q 3.11) What is the relationship between “zeal” and competence/diligence?
QUESTIONS
(Q 3.1) What is the duty of competence?
Competence is the ability to do the task at hand. Usually, we define it with reference to
legal knowledge, skill, thoroughness, and preparation.
In addition to legal competence, you will need competence in dealing with people. Some
people are intimidated by lawyers, and some clients will have different cultural backgrounds than
you. Although we will deal with some of those issues in the next unit, on “Abide, Consult &
Communicate,” your ability to successfully interact with clients and co-workers is a huge part of
your competence.
Competence includes “cultural competence.” Your clientele might come from various
cultural settings, and you will need to be sensitive to those differences.
(Q 3.2) Is a brand-new lawyer competent at anything at all?
Great question. Brand-new lawyers are typically competent to do legal matters that
involve analysis of precedent, evaluation of evidence, and basic legal drafting. More difficult,
esoteric matters may demand higher levels of competence.
(Q 3.3) How can a lawyer gain competence?
If a lawyer lacks competence for a matter, the lawyer is ethically permitted to undertake
the matter and gain the competence through study or through associating co-counsel who is
competent in that area.
3-2
(Q 3.4) Can a lawyer help out in an emergency even if she’s not really competent in that area?
If an emergency leaves a lawyer with no time to gain competence, and if the lawyer
cannot find another lawyer to undertake the matter, the lawyer may do the best she can and, once
there is an opportunity to obtain a competent lawyer for the client, may then transition the matter.
For example, if you lack any criminal law expertise and your brother-in-law telephones you at
2:00 am on Sunday to say that he’s been arrested, and if there is no ready alternative, you could
handle the emergency until Monday, at which time you would presumably find a competent
criminal defense lawyer for him.
(Q 3.5) How does a lawyer maintain competence?
Because the law changes, lawyers have a duty to maintain competence. Usually this is
done simply by staying abreast of the field, reading new cases and statutes, etc. In many states,
lawyers are also required to attend a certain number of hours of continuing legal education
(CLE) each year.
(Q 3.6) How does the duty of competence relate to the tort of legal malpractice?
Legal malpractice is a tort (duty; breach; causation; damages). The “breach” element is
usually proven by showing that the lawyer’s conduct fell below the “standard of care” in that
legal community. Quite often, but not always, the malpractice action is premised on the theory
that the lawyer’s work was incompetent.
Although this course is not focused on legal malpractice, it is worth noting that the
causation element in legal malpractice is treated differently than causation in most torts. In a
legal malpractice case, the plaintiff must establish the difficult element of “but for” causation
rather than the easier element of “substantial factor” causation. The plaintiff must prove that but
for the lawyer’s breach the client would have obtained some better result. That means that the
client must prove a “case within a case”—it must prove how the legal matter would have gone
had the lawyer practiced competently. That could even require a plaintiff to put on a mini-trial of
the original trial it lost due to the lawyer’s poor performance. (For most other tort causes of
action in the US, plaintiffs need only prove that the defendant’s breach was a “substantial factor”
in bringing about the bad result.)
(Q 3.7) To whom is the duty of competence owed?
Courts want lawyers to be focused on the needs of clients rather than on the needs of nonclients. For that reason, the general rule is that only clients can sue lawyers for incompetence.
There has been one tightly-defined exception to that rule. When a lawyer drafts a will,
trust, or similar legal instrument for a client who subsequently dies, and due to the lawyer’s
malpractice the inheritance does not pass to the intended third-party beneficiary, most
jurisdictions permit that beneficiary to sue the lawyer for legal malpractice. Courts have reasoned
that because the client is dead s/he cannot bring the suit, and given that the beneficiary is
required to prove the intentions of the deceased, the beneficiary will be “stepping into the shoes”
of the client.
3-3
(Q 3.8) What is the duty of diligence?
You have to keep working hard, in a timely way, despite opposition, obstruction or
personal inconvenience to you. (Personal crises do not excuse your lack of diligence!)
As comment [2] to MR 1.3 notes, “A lawyer’s work load must be controlled so that each
matter can be handled competently.” (You might be aware that public defenders across the
country are trying to use that Comment to justify lighter workloads. See, e.g., cases cited in
Section 1.2, n. 10. Some public defenders have workloads of 400-600 cases.)
(Q 3.9) What are common causes of non-diligence?
Procrastination; working less diligently on matters you don’t like; heavy workloads; poor
time management skills; and poor supervision and guidance by bosses.
(Q 3.10) Does a solo practitioner have a special duty of diligence?
In some states, it is suggested that solos should have a written plan with instructions just
in case the solo dies or is incapacitated. (MR 1.3, Cmt. [5])
(Q 3.11) What is the relationship between “zeal” and competence/diligence?
The rule on diligence governs the modern duty of zeal. Under the modern approach in the
rules, “zeal” is praiseworthy so long as it does not include nasty, over-aggressive tactics and socalled “Rambo-style” lawyering. In the good sense, “zeal” is always bounded by the lawyer’s
duties to the court and is exemplified by the lawyer’s diligence, enthusiasm, and concern for the
client’s legitimate objectives.
3.1
Example: Motion Warriors (Stephanie Francis Cahill), ABA Journal, Nov. 2002.
High-profile trial lawyers representing unpopular clients are often rewarded with big fees
and media attention.
Then there are the solo and small-firm lawyers who represent what many see as society's
rabble. They know the money might be better elsewhere, but for them, the trade-off isn't worth it.
These motion warriors are on the front lines of the American justice system, slugging it
out for ordinary people. In court all day every day, they all seem to know one another and those
who staff the courthouses. They chat with clerks and sheriff's deputies, juggling multiple
appearances before multiple judges.
In Chicago most of these lawyers practice at the Richard J. Daley Center, Cook County's
civil courts building. The 31-story structure was built in 1965 in Chicago's Loop. Most floors
have two rows of courtrooms. Some elevators only go to certain floors, making navigation of the
building tricky.
3-4
Other lawyers spend their days at the county's criminal division courthouse about 6 miles
southwest of the Loop, where air conditioning may be on the fritz and ashtrays are still provided
in some restrooms. Smoking in the building is prohibited, but the policy seems to deter few.
We talked to four lawyers who are well-known and respected members of this Chicago
brigade. They represent alleged slumlords, drunk drivers, abusive parents and murderers.
Honesty and reliability are a big part of the motion warrior strategy. You're only as good
as your word, they say. Being in court all the time for so long, it doesn't take long to determine
which lawyers are trustworthy.
Despite that commitment to the truth, they say many people disapprove of their clients.
"I tell them that everybody is entitled to representation," says Mitchell F. Asher, who has
a substantial number of landlord clients. "There are three sides to every story: yours, theirs and
the truth. As long as we have an adversarial system, which is the best system in the world,
everything gets worked out."
JOEL KESSLER
Joel Kessler doesn’t dress like a lawyer. He often wears black jeans to court.
Today, the jeans accompany a gray sports coat and a tie featuring the Tasmanian Devil
driving a car. Kessler's wavy hair looks air-dried and does its own thing.
After 33 years in practice, Kessler can wear what he wants. And he doesn't hesitate to
turn away clients.
"This is a business. It's not a crusade," he says. "If a client doesn't want to work with me,
I don't need him."
Defending people charged with driving under the influence, Kessler says, is not "a
morality issue." The practice requires a certain character, someone who realizes that some clients
do wrong. "Some of them are very bad people who have done horrible things," he says. "But if
you chose to take the client on, you have an obligation to that client."
Young lawyers need to know that, he says, and they need to understand that clients will
lie to them.
Kessler ferrets out the truth by initially meeting clients in person. On the phone, he can't
tell by a person's body language whether he or she is telling the truth. If he can't determine the
truth in person, Kessler may ask the same question five times, in five different ways. If that
doesn't work, he probably won't represent the person.
Kessler's day starts out at traffic court in Maywood, a near-west suburb of Chicago. For
the most part, defendants in the courtroom are middle-aged, accompanied by spouses or
significant others. Some appear to be hung over, and, indeed, the smell of alcohol is apparent
when they walk by.
3-5
Kessler's first client, a man in his mid-40s who arrives at the courthouse alone, is facing a
one- year county jail sentence for driving on a suspended license. Kessler gets him a deal for
probation with mandatory community service.
The client is not thrilled.
"Clients always think they should get a better deal," Kessler says. "Every client's always
got an excuse about why he or she was doing something, assuming they actually did something."
The clients he represents may have a problem with the truth, but Kessler says his
reputation is built on honesty.
"You have to make sure that your ethics are absolutely unquestionable. If you say you're
going to do something, you do something," he says. "I don't think you have to volunteer
information, but if asked, you have to give an honest answer."
Next it's on to downtown Chicago, where he has four hearings scheduled at the Daley
Center. He drives a black sport utility vehicle with zebra-print seat covers. Duck decoys are lined
up on the dashboard. Kessler does not hunt or bird-watch, but he has a fondness for the wooden
figures. He also keeps some in his downtown office.
Is Kessler a good driver, given his knowledge of traffic laws?
"That depends on who you talk to—me or my wife," he says just before running a red
light at an expressway onramp. "Nobody stops for those; don't look so surprised."
Kessler gets to the Daley Center about 11 a.m. In his first matter, a client was videotaped
during a DUI arrest, and Kessler files a motion to suppress the tape's audio portion.
"Under Illinois law, you can't audiotape something without consent. My guy didn't know
he was being taped," Kessler says.
He has two other appearances on minor traffic violations. Neither judge has arrived yet,
so Kessler paces the hall, keeping an eye on both courtrooms.
"Showtime," he says as one judge appears. The matter takes about four minutes. The
second one is equally short.
Then it's back upstairs, where Kessler, 57, is defending a man charged with driving under
the influence on a suspended license. Kessler attempts to set aside an additional summary license
suspension from that arrest on the basis that his client, who was picked up at a roadside safety
check, was arrested after he refused a Breathalyzer test. Under Illinois law, Kessler says, the
arrest is supposed to be made first, before the test is administered.
The arresting officer shows up to testify. He's somewhat famous among the state's
attorneys and the informal DUI defense bar for not following procedure, Kessler says.
3-6
Kessler walks around the defense table while questioning the officer. He notes that the
officer listed the same time, 11:55 p.m., in three places on the arrest sheet: for the defendant's
stop, the reading of his rights and his refusal of the Breathalyzer. Kessler also asks the officer
why his signature and badge number do not appear on the arrest's carbon copy.
The officer, a small man who appears to be in his 50s with a large, gold eagle medallion
around his neck, winces before he answers Kessler's questions. In between winces, he leans back
in the witness chair with one arm behind his head. The officer testifies that he determined the
defendant was drunk after speaking with him.
Kessler objects on the basis that the officer had not yet read the defendant his Miranda
rights. Ultimately, the officer testifies that he arrested the defendant after he refused the
Breathalyzer test. The judge is unfamiliar with case law on the required order of the procedure
and asks for a citation. Kessler heads up to the 29th-floor law library.
He finds the citation after combing through six books and returns to the fourth-floor
courtroom, caption and case number in hand. The judge grants Kessler's motion that there was no
basis for summary suspension because procedure established by statute and case law was not
followed during the arrest.
Kessler says this procedure violation happens probably 80 percent of the time in DUI
cases. What's difficult is getting an officer "to admit that he didn't do what he was supposed to
do. They probably do that 5 percent of the time."
MITCHELL F. ASHER
Mitchell Asher estimates that he represents thousands of landlords. He is about 5'10" with
broad shoulders. He wears a pinkie ring, and his hair is slicked back. Most people know him as
"Mickey." During the week, he can be found striding through the Daley Center hallways, pulling
a large trial bag on wheels.
Along the way, Asher, 58, stops to chat with other lawyers in the hallways and elevators.
The conversations, usually about building code or eviction laws, are brief. Sometimes he doesn't
even stop but shouts answers over his shoulder or through a closing elevator door.
"You have to know the code" to represent landlords, says Asher, referring to the Chicago
Building Code. "Most attorneys don't study the code."
As an example, he mentions a single-room-occupancy building on South State Street,
south of the Loop and a long way from the city's gentrified North Side. In this structure, the
rooms are literally cages.
"There's no law against having cages," Asher says, displaying his own knowledge of the
code. "All [the landlord] had to do was put in sprinklers."
Many of his landlord clients are charged with building code violations.
3-7
"If the client says he fixed some violations and he didn't, I get rid of the client. I don't
need that," he says. "When I tell the judge the [repairs] are done, I have to believe it, and the
judge has to believe me. All you've got is your credibility."
Asher grew up with uncles and cousins who practice law. At age 12 he started clerking
for lawyers during the summer, filing motions in court. His former bosses "knew a little bit about
everything, especially the general practitioners." He learned a lot from them on matters inside
and outside of court.
After college, he enrolled at Chicago's Northwestern University School of Law. "I'd been
in court more than the law professors," he says. "They'd ask me how to do things."
The school "taught everybody to be appellate lawyers," which never appealed much to
Asher. "I don't want to have to write all the time," he says. "I'd be bored. I love being in court."
This is a good thing, since he's there five days a week. Today is Friday, which is eviction
day at the Daley Center. The evictee usually doesn't show up, and each hearing takes about two
minutes.
There are some exceptions. A female judge tells one tenant—who shows up in a tank top
with nothing underneath—that she is not properly dressed. The young woman is given two hours
to come back in more appropriate attire.
"Maybe she thought the judge was going to be a man," says Eliot B. Fishman, Asher's
associate. While they wait, Asher and Fishman file more motions.
"It was a business doing pleasure with you. You get it?" Asher jokes to a clerk. Then he
talks with an elderly sheriff about a mutual friend's health problems. It seems the friend won't
listen to the sheriff about taking care of himself, so the sheriff enlists Asher's help.
"I've been here 35 years," Asher says. "I talk to everybody."
The relationships pay off. Asher tells a story about an eviction order in which the tenant
thought he knew the system. After the hearing, the tenant informed Asher that he knew it would
take at least six weeks for the sheriff's department to serve the order of possession to get him off
the property. "I told [a deputy] what this guy's attitude was, and they sort of expedited things for
me," Asher says. "They got him a couple of days later, when he was in bed with his girlfriend."
About 45 minutes after being scolded by the judge, the young woman returns to court
with a T-shirt over her tank top. She tells the judge that she's two months behind in her rent
because the landlord said it would be taken from her $700 deposit. She also accuses the landlord
of stealing her bicycle, which she estimates is worth $200. Then she starts to cry. Perhaps out of
pity, the judge deducts $200 from the $700 judgment.
This doesn't go over well with Asher's client, and they discuss the matter, loudly, in a
settlement room. A few minutes later, the landlord leaves looking satisfied.
"He's never going to see any of that money anyway," Asher says. "It's monopoly money."
3-8
DAVID P. WIENER
David Wiener uses words like “gargantuan,” “abuts,” and "putrid" in conversation. In the
criminal division courthouse, even in casual settings, he almost always addresses a person by
"Mr." or "Ms.," or in some cases, "Counsel."
His vernacular changes when he talks to clients, many of whom have been referred to
him from five of Chicago's largest street gangs. In those conversations, the criminal defense
lawyer's speech might include a few "say whats" and sentences that end in "man."
Sometimes he forgets to whom he is speaking.
"My wife chides me because I often talk street talk at home," says Wiener, 57.
Tall and slender with silver hair, Wiener has a genteel look. He grew up in Winnetka, a
wealthy suburb along Lake Michigan, north of Chicago.
"Very few people who grew up where I grew up are now criminal-defense lawyers," he
says. Originally, Wiener wanted to be a teacher. But he graduated from college during the
Vietnam War and decided that he needed to go to law school for a draft deferment. When he
graduated from Northwestern's law school in 1969, the war still hadn't ended, so Wiener joined
Vista, a national service program conceived in the 1960s by President John F. Kennedy. The
group was founded in 1964, as part of President Lyndon Johnson's war on poverty.
Wiener worked for Leo Holt, an African-American lawyer, now a judge, who led
Evanston's Cook County Legal Services. The position paid $80 a month, and it was the first time
Wiener got to know people who came from a different socioeconomic level.
"I think it taught me something I already knew—that people often use their social status
and the fact they have wealth to somehow make themselves feel better about themselves," he
says.
Wiener's father owned a Michigan company that manufactured shopping carts, as well as
an East Chicago, Ind., corporation that made railroad axles. Initially, he would have preferred
that his son go to a white-shoe firm.
"But once I started, I think he was quite pleased," Wiener says. "He didn't take long to
understand and become very accepting."
Of 200 active cases in Wiener's office today, 28 are murders. Generally, he charges
$25,000 for a murder defense, depending on how many associates or private investigators are
used. The gangs have a general counsel of sorts, Wiener says, who refers members facing legal
trouble to specific lawyers. He wishes they'd send him more drug cases because they are more
lucrative than murder trials.
"But, unfortunately, they give those to someone else," he says.
3-9
On this day in August, Wiener has appearances in robbery, weapons and drug cases. He
tries all his cases, "unless an offer is extraordinarily good." The approach usually keeps clients
happy.
"We try to try everything. I believe in the fairness of the system," Wiener says. "Clients
are much more grateful for having a trial. So many people who are promised a trial are pled out."
When a client is acquitted, Wiener usually celebrates by having dinner with his wife,
Christine. He also goes to his wife when a client is convicted, and she tells him, "Everything is
going to be OK."
"If the evidence is overwhelming, I feel that I've done my job but I can't feel awful about
the verdict," he explains. "I feel awful when my client is innocent or the state has not produced
sufficient evidence. Then I feel nuts."
The first matter of the day starts at 9:15 a.m. and is set for trial. It involves two young
men charged with possessing large amounts of drugs and weapons. According to Wiener, police
chased two different men into an apartment, where his clients happened to be visiting. It was
dark, Wiener says, and the police arrested the wrong men.
About 15 minutes after the first appearance, Wiener has a hearing for a client charged
with robbery who is out on bail. The client is 18 but looks 15. His mother accompanies him to
court.
"Let's set this for trial today, all right? Would that be a good idea?" Wiener asks the client
in a grandfatherly tone.
The client nods his head, and a date is set. On the way out of the courtroom, Wiener pats
him on the back and compliments him on his red satin shirt, which bears the logo of the urban
wear label Ecko Unlimited.
The next client, who was arrested on drug charges, is not as agreeable. Also out on bail,
the man is not content to wait in the courtroom until his case is called. He and Wiener have a
brief argument.
"It doesn't matter, man," Wiener tells him. "Just sit down and relax." Many of Wiener's
clients are younger than 30.
"Young people do things that older people forget how to do," he says, like hanging out in
the park at 1 a.m.
Most weekday mornings, Wiener visits clients in jail before court starts and again at the
end of the day. The jail is just down the street from the criminal court. He says he's never had
any run- ins with disgruntled clients, or with their gangs.
"You manage to avoid problems with clients if you represent them to the best of your
ability," he says. "If a client knows you're fighting for him, he's not going to be angry at you."
3-10
CHARLES J. ARON
Charles Aron gets to court about 8:30 each morning. A former seventh-grade teacher, he
still has a scholastic look, which includes ties featuring children's artwork that are sold by Save
the Children. He has more than 50 of them.
"In the last heat wave, I wore one with snowmen," Aron says. On this day, he also wears
a double-knit navy blue blazer and aviator glasses.
His work still involves kids. But now he is usually at Chicago's Juvenile Justice and
Child Protection Department, located in a new courthouse in the West Town neighborhood.
Aron seems less intense than many litigators, especially the ones who spend their days in
court. There is a cell phone affixed to his hip, and he carries a beeper. But he rarely uses either
device.
A lot of lawyers make phone calls while they wait for hearings, but Aron prefers to read
novels. "I just sort of sit and chill." Sometimes he writes. His articles have appeared in The
Champion magazine, published by the National Association of Criminal Defense Lawyers.
He also tries to get away from time to time. "In the summer I try to thin things out," Aron
says. "And I take the occasional afternoon off to play golf."
Aron first encountered juvenile court as a child, when he and his mother would ride past
the structure on the trolley, which has since been replaced by diesel buses.
"She'd say, 'That's where Mrs. Jones lives. She comes in the middle of the night and takes
all the bad little boys,'" he recalls of the fictional character his mother concocted to keep him in
line.
After graduating from law school in 1972, Aron got a job as an assistant state's attorney,
prosecuting juvenile matters. "I said, 'Mom, guess what? I'm working for Mrs. Jones,'" he recalls.
Since then, Aron has not strayed far, but he has switched sides. He is a panel attorney
appointed to represent parents or to serve as guardian ad litem for children in cases where
parental rights are at stake. Aron earns $40 an hour for in-court time and $30 an hour for work
outside of court. He also is a panel member for the Federal Defender Program.
Since Aron started practicing law, the county has built three different court buildings on
the site he feared as a youth.
"The first building was more dingy and dirty," he says. "Thirty years ago, there were two
courtrooms. Now there are 14. There were three state's attorneys assigned to the juvenile unit.
Now there are three assigned to each courtroom."
Today, the courthouse is shiny and new with toys and books for kids, as well as
volunteers who stroll the halls passing out milk, fruit and cookies.
3-11
Parents have changed, too, says Aron, 56. "We've become more aware—and more
sensitive. It was not unacceptable to smack kids across the backside 30 years ago."
Many of Aron's opposing counsel were not even born 30 years ago. It's not unusual for
Aron to give them advice, and he says they often take it. "It makes my life easier if they do
something correctly."
Aron estimates that one in 25 of the parents he represents cleans up his or her act and
keeps custody of the kids. He mentions a previous client.
"There was no other way to describe her: She was a crack whore," he says. The court
gave the woman six months to stop using drugs, Aron says, and she did it.
She was able to keep her three children, all of whom were younger than age 12. Today
she works as a concierge at one of Chicago's largest hotels.
"She hit bottom and decided to turn her life around," he says. "It was a rarity." For the
others, Aron says that he often compartmentalizes his feelings.
"You have to be a little cold because these cases will get to you," says Aron, who has no
children. "My wife has always instructed me that I can't bring any children home. It's a running
joke we have."
He says he feels that his work as an attorney has been more of a benefit to society than to
the legal community.
"When I'm representing parents, I give them the legal support they need in order to
reunite their families, keeping in mind that I am only as good as they are," Aron says.
Perhaps showing how he compartmentalizes, Aron says it's easy to represent parents who
don't try to comply with court demands.
"You just show up in court," he says. "I can't really advocate per se. I can try and buy
them time, I can advise them and I can direct them, but if they don't do anything, there's very
little I can do in the way of advocating for them."
On the other hand, Aron says that if a parent is doing everything he or she can "and if it's
the bureaucracy that's blocking them, I will not be hesitant about coming into court and laying
waste to a social worker."
Is that one of the best parts of his job?
"No. ... Well, yeah," he says. "If I can get something done for a client, it's great."
*****
89 A.B.A.J. 10 (January 2003)
Letters to the Editor
3-12
Editor:
Shame on you for not including one female solo practitioner or small-firm owner of the
four you highlighted in “Motion Warriors.” As a black woman and owner of a small firm who
practices in the area of corporate employment defense, I was looking forward to reading about
other female lawyers who practice “down in the trenches.” Instead, what I got was the
perspective of four white men. What happened to diversity?
Jennifer Robinson
Denver, Colorado
3.2
Example: Criminal Defense Work? Me? Seriously?
You are a first-year associate at a medium-sized firm, in the banking department. The
partner you work for calls you at home early one Sunday morning. He wants you to go to the
county jail and handle the bail and arraignment hearing of the son of an important client. The
hearing will be Monday afternoon. The son is going to be charged with felony possession with
intent to sell cocaine. The partner asks you to handle the hearing because he recalls you did an
externship at a prosecutor’s office in your third year of law school. In the externship, you were a
certified legal intern who handled research, fact investigation, drafting and some traffic court
proceedings.
You have some qualms about taking the case on, as you have not practiced criminal law
outside your one-semester externship, your current caseload is transactional, and you have a lot
of work at the moment. On the other hand, you don’t want to disappoint your boss—a powerful
partner who can “make or break” your partnership chances.
(a)
Do you raise your qualms with the partner, and, if yes, how? What do you do if
the partner insists that you represent the son because it is important to assist this client?
(b)
What do you need to do to become competent in representing the son?
(c)
You go to the county jail to meet the son. What top 3 things do you tell him about
yourself as a lawyer? Plan not only the subject but also the language you’ll use to tell him.
3.3
Example: Quick Self-Assessments
Look at the following 2x2 charts and the list of possible career development paths. For
Chart 1, assume that you have ten points to distribute across the four quadrants—and you can’t
use decimals or fractions. Distribute more points in the quadrant that seem to play to the
strengths you expect to develop; assign fewer to quadrants that don’t strike you as the best path
for you. (For, example, in an extreme case, you might assign 7 points to the internal expertise
quadrant and 1 point to each of the other boxes.) To help assess the best fit, review Chart 2 for
the success factors for each role. After you’ve allocated your points, share your results with your
Practice Group members and discuss how you all came out as you did.
Chart 1. Practice Styles
3-13
External
(new business from new
clients)
Internal
(new business from existing
clients)
Expertise
Relationships
Hired Gun
Rainmaker
(External Reputation)
(firm ambassador)
Brain Surgeon
Point Person
(Technical Specialist)
(client manager)
Chart 2. Tactics By Business Development Type
Hired Gun
Rainmaker
Marketing
Conferences
Pitches
Writing Articles
Networking
Boards
Entertaining
Community causes
Brain Surgeon
Point Person
Research & Development
Internal reputation
Internal CLE
Client service
Events with client
Managing teams
Look at the following list of “sweet spots.” Rank them from first to last in terms of how
you see them fitting into your future. Share results with your PG. Talk about what skills you
need to develop for your top choices and how you might get those skills.
•
Writer (advocacy). You’re known for your ability to write great briefs without the
need for extensive re-writes. This typically involves long hours, alone in your
office, diving down deeply into the material at hand.
•
Legal researcher. You can’t wait to dig into the law and find out what’s there.
•
Project Manager. You can break down a litigation (e.g., document review) or a
deal (e.g., due diligence), assign the tasks to the right people, solve bottlenecks,
and keep the overall project moving.
•
Law wonk. You’ve taken one or two complicated areas of law and made them
your own. People in your firm and colleagues at other firms know you as the “go
to” person on those topics.
3-14
3.4
•
Clownfish in the Anemone. You somehow are immune to the stresses that drive
others crazy. You can work long hours in tense work environments. You even
kind of like it. (Note: a clownfish happily swims around in the anemone tentacles
that instantly kill other fish.)
•
Trial lawyer. You love the “Show time!” and the competition of trial work.
•
On my feet and talking all day. You’re not a desk-bound person, and so you spend
your days on your feet, talking to dozens of people. The time between 9:00 a.m.
and 5:00 p.m. flies by every day.
•
Deposition and law & motion. You enjoy civil litigation. You take several dozen
depositions each year and you write and argue that many motions down at the
Law & Motion calendar.
•
Compliance lawyer. You’ve deeply studied some aspect of regulatory
compliance, which involves knowing the regulations and interacting with the
government bureaucrats. You help your clients comply with their duties, which
sometimes takes some cajoling.
•
Working with people. You like interacting with people who have real world,
personal issues.
•
Working with abstract/analytical entities and issues. You like dealing with
corporations and other organizations, and prefer dealing with the more analytical
and abstract issues of law.
•
Deal lawyer—people side. You love the negotiating, planning, strategizing, etc.,
that are integral to the art of the deal.
•
Deal lawyer—documents and drafting side. You love the craftwork that’s needed
when complicated deal documents need to be drawn up—but you’re not in love
with the direct negotiating.
Example: The Case of John Monroe
During John Monroe’s first year of law school at Indiana Central University School of
Law, he attended a number of presentations by his career services office and enjoyed talking to
lawyers during his first year networking exercise. But during his second year, he lost touch with
those lawyers and lost interest in searching for a job when he (like 80% of his class) did not get
one through on-campus interviewing. Instead, he told himself he would focus on his job search
after he had his bar results.
In May 2009 Monroe graduated with lots of debt and no job offers. He spent the summer
preparing for the Indiana bar examination, telling himself that he would resurrect that contact list
from first-year when he was less busy. But it felt uncomfortable to contact those lawyers after
two years, so he didn’t do it. Instead, he took a part-time job giving golf lessons as he awaited
3-15
the bar exam results. In late August 2009 Monroe learned that he had passed, and he was sworn
in.
By early September 2009 Monroe wondered if he should take a non-legal job while
searching for legal employment or just “hang his shingle” by becoming a solo practitioner. He
decided to open his own office, but until his practice grew he would continue giving golf lessons
on the weekends.
Monroe spent September finding an office and buying his office supplies. He signed an
“office share” sublease with three solo practitioners near the county courthouse. He paid a web
developer to create “JohnMonroe.com,” and spent $7,000 on used office furniture, a computer, a
fax-printer-scanner, software, and basic office supplies. Having less than $1,000 left in his bank
account, Monroe decided not to hire an assistant. After telling his grandparents of his plans,
Monroe’s grandmother gave him $7,000 for the purchase of a legal malpractice insurance policy
from the State Bar’s program for solos and small firms, and he attended a short CLE program on
starting your own practice that stressed having a viable business model and understanding time
management.
Monroe still needed to choose an area of practice. During law school, he enjoyed
transactional practice and working in the school’s clinic for start-up and non-profit corporations.
But corporate jobs just weren’t available. So he decided to build a practice doing divorce and
personal injury cases. He would charge 33% contingency fees for injury cases, but he worried
that he wouldn’t have the cash to pay the upfront costs, such as filing fees and expert fees. For
the divorce and family law matters, he set his fees at $275/hour with an $825 retainer (which
equaled three hours of work). Monroe hoped to bring in a bunch of divorce cases, work at least
three hours on them, and move the retainers from the trust fund to his personal bank account.
Monroe handed out business cards everywhere he went, and took referrals of existing
cases from local family law lawyers. By mid-October, he had taken in thirty-five family law
cases, with nearly $30,000 in retainers. He made sure to work three hours on each matter—some
105 hours in all—and the $30,000 in revenue paid off his debts for undergraduate education and
for costs for starting his law practice. But by late October, Monroe realized that the family law
cases took a lot of time, that he was still inefficient, that he couldn’t take on any new matters,
and that many of his clients—especially the referrals of existing cases from other lawyers—
wouldn’t pay their legal bills. Revenue wasn’t pouring in. The backlog of divorce cases was
wearing him down. Even just the process of calendaring and scheduling his matters was taking
too long. And, given the colder weather, the golf lessons had slowed to a trickle.
By December, John had taken in six minor personal injury matters. One day in late
December, Monroe’s luck turned around while giving an indoor putting lesson to a wealthy
Hoosier, Benjamin Stucky. Stucky, who knew that Monroe was a lawyer, confided that his
marriage was ending. Stucky also told Monroe, “I was hurt pretty bad in an automobile accident
a while back when my brand new Cadillac SUV hit a tree. The steering was defective on that
model. I’ve been hurting ever since.”
Monroe offered to represent Stucky on the divorce and possibly on the car crash as well,
but asked about the statute of limitations. Stucky said that the accident had happened on July 10,
3-16
2008 and that he’d drop by Monroe’s office after the holidays. Because there was a two-year
statute of limitations on defective automobile cases, Monroe carefully noted the “last day to file”
date of July 10, 2010 in his office calendar.
Stucky didn’t drop by Monroe’s office until April 10th. Meanwhile, the divorce cases
continued to be hard work. The clients needed hand holding and the courts insisted that the
parties attended multiple rounds of time-consuming mediation. He spent his week going back
and forth from his office to the courthouse and meeting with clients. Although parts of family
law were straightforward, Monroe needed to learn the court’s formulas for deciding custody
issues and for setting alimony and child support. He bought two treatises on Indiana family law
and attended several CLE sessions in the evenings. About one-fifth of his clients spoke English
as a second language, which made it harder and slower to have client meetings. And Monroe
realized that he needed to establish good working relationships with the other divorce lawyers in
the county, which required socializing and volunteering on committees for the county bar
association. As before, some of his clients didn’t want to pay their legal bills. Monroe wanted to
fire those clients, but wasn’t comfortable confronting them about fees. By April, Monroe was
working long hours, trying to keep current on his matters, and trying to stay profitable.
At the April 10th meeting, Monroe, who was unprepared because of his backlog of
divorce cases, bluffed his way through. Stucky gave Monroe the divorce papers he was served
with on April 5th. Stucky was worried that his wife, who came from a wealthy French family,
would try to take their children back to France, where they had been born. Stucky said that his
prenuptial agreement was too favorable to his wife. Monroe said that he would look into
international custody issues and research the law on prenuptial agreements.
Next, Stucky mentioned his automobile accident. He didn’t have the details and told
Monroe to get the accident report and other paperwork from the insurance company. Monroe
said that there may be a claim for a defective steering mechanism and that Cadillac wouldn’t
want bad publicity, but that the claims would need factual research. Monroe reassured Stucky
that he would start looking into the car crash to see if there was a claim.
After the meeting, Monroe realized that he would need help researching international
custody issues. He decided to ask Nancy Harris, an attorney leasing the adjacent office, to do the
international custody research for him. Monroe and Harris met for lunch at Harris’s favorite bar
to discuss the case and a fee-sharing arrangement. Harris assured Monroe that she had handled
international custody matters and could quickly prepare a memo.
Monroe, excited about the prospect of a big settlement, put in long hours on the Internet
looking for evidence of steering defects in Cadillacs. He had even telephoned some plaintiffs
lawyers in the state and across the country to see if any similar suits had been filed. He wasn’t
finding anything. He called a few potential expert witnesses on automotive defects, but they
wanted large advance fees. And it had taken weeks to get the files from the insurance company
and from Ben’s doctors.
Worried that he hadn’t heard from Monroe, Stucky called on May 23rd to request a
second meeting. Monroe returned Stucky’s call on June 4th to say that he was making progress
and not to worry.
3-17
On June 10th, after he had written the basic allegations of the complaint, Monroe began
to draft the key allegations about the defective steering. Only then did Monroe notice that the
insurance report on the accident said “June 10, 2008.” Panicked, Monroe called Stucky, who
said, “You’re the lawyer, and you have the files. I don’t remember the exact date.” Monroe
realized that he had four hours to file suit. He decided to add generic allegations of a defective
steering mechanism and then later amend the complaint with more details. On June 10th, Monroe
hurriedly filed a complaint against General Motors that pled:
On June 10th, 2008 the Plaintiff was driving a Cadillac SUV when suddenly, and
unexpectedly, the steering mechanism failed, causing the SUV to careen into a
tree. As a result of this accident, caused by the Defendant’s negligent making of
the said SUV, the Plaintiff has suffered numerous personal injuries and prays for
actual and punitive damages in the amount of ten million dollars
($10,000,000.00).
On the morning of June 13th, Monroe received a telephone call from Susan Stonewall, a
lawyer from Nice Billerz, the largest firm in Indiana, who said that she represented the
defendant. After small talk, Stonewall politely said, “John, your complaint names the wrong
defendant, it pleads a specific amount of punitive damages, which isn’t permitted, and it fails to
allege with particularity, as is required by the statute, what the specific defect was. We will
certainly win a motion to dismiss. Under some of the case law interpreting the statute, we think
that your amended complaint won’t get the benefit of the earlier filing date. In other words,
you’ve probably blown the statute. By the way, I assume that you’re aware that this steering
mechanism is widely considered to be one of best ever designed and that, according to the police
report, your client had been drinking that night. That’s why he crashed. We’d like you to drop
the complaint. But, fair warning: if you try to amend, we will get aggressive with your client—
and with you, for malicious prosecution.” Monroe bluffed his way through the call and said he’d
call Stonewall back.
Monroe was furious at Stucky and at himself. He wanted to call Stucky, but Monroe
didn’t know where the divorce matter stood and knew that Stucky would ask about it. Monroe
had been so busy that he had forgotten to file an appearance in Stucky’s divorce case until May
25th and didn’t recall getting any notices of hearings. So Monroe raced over to the courthouse to
examine the file. The court had already held two hearings and had set the final hearing for the 1st
of July! Stucky had attended the first hearing, but only the lawyer for Stucky’s wife had attended
the second one. Monroe wondered if Stucky had gotten notices of the hearings and had failed to
inform Monroe. Not knowing what to do, and now in a huge panic, Monroe called a law school
classmate who was practicing in a firm that specialized in family law. Monroe’s friend
recommended filing for a continuance of the final hearing and informing Stucky of all
developments. Monroe’s friend said, “Those problems will deteriorate each day, so bring the
client in, make disclosure, and get to work.”
Monroe then called Harris, who hadn’t produced a memo. Monroe drove down to
Harris’s favorite bar and confronted her. Harris said that she had had personal issues and just
hadn’t done the memo. Monroe spent the next hour learning what Harris knew about
international custody, which mostly involved Canadian law. Monroe returned to the office to
prepare a motion for a continuance and called to ask Stucky to come in for a meeting.
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At the meeting with Stucky on June 14th, Monroe fully laid out the problems with the
complaint and the divorce case both orally and in writing, and then accused Stucky of getting the
date wrong and concealing that Stucky had been drinking the night of the crash. Stucky became
irate, screaming at Monroe, threatening to have his license revoked, and eventually storming out.
Later that day, Monroe got a phone call from another lawyer in town, saying that she had
been retained to represent Stucky and asking for all the files right away. Monroe delivered them
late that afternoon.
Two months later, the State Bar informed Monroe that Stucky had filed a formal
complaint against him and that one of his family law clients had also filed a complaint for lack of
diligence. Under the discipline statute, Monroe was required to respond candidly to the State
Bar’s investigator, who would arrange for a recorded interview.
Eventually, the investigator filed a report stating that (1) Monroe had fully, fairly, and
diligently represented the family law client; (2) Monroe had not committed any acts of
dishonesty or fraud toward Stucky; (3) Monroe had violated both MR 1.1 and 1.3 in his handling
of Stucky’s divorce matter; and (4) Monroe had violated both MR 1.1 and 1.3 in his handling of
Stucky’s claim for personal injury arising out of the car crash. On that basis, the State Bar filed
formal disciplinary charges against Monroe.
Stucky sued Monroe for malpractice regarding both incidents. Fortunately, Monroe’s
malpractice insurer provided for defense counsel. The malpractice case was sent to an early
mediation, where Stucky’s lawyer had to concede that the divorce matter had turned out well for
Stucky and that Stucky had not even tried to amend the complaint about the car crash. Stucky’s
lawyer couldn’t even begin to show that Stucky ever had a good claim against Cadillac. Stucky
accepted a small settlement of $10,000 from Monroe’s insurance carrier and signed a settlement
agreement stating that Stucky “had been made whole by the settlement amount.”
Based on the advice of his lawyer, Monroe took out a $50,000 small business loan to
capitalize his law practice, dropped all his volunteer work for now, hired a bookkeeper and a
secretary on a part-time basis, and terminated his non-paying clients. That allowed Monroe to
take on additional clients. Monroe spent a lot more time analyzing which new clients to take on
and started to require “evergreen” retainers, so that as Monroe did work and withdrew funds
from the client’s retainer, the client was required to replenish the retainer to its original amount.
That permitted Monroe to quickly identify problem clients and, when necessary, terminate them.
By late 2010, John Monroe’s financial footing looked reasonably sound and he was sleeping
better at night.
3.5
Example: From 3L to 401(k): Seasons of an Attorney’s Life (Sirkin)
While no two journeys are the same, an attorney’s progression through life at a law firm
holds some constants across the board.
The professional career trajectory in the average large law firm has never been easy or
straightforward. There were, however, inevitable stages that one attained, mastered, and passed.
Despite all the changes in Big Law (and small law), the trajectory itself has not changed much. It
may be more complex and there may be more on and off ramps, but the skills and competencies
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required to master each stage are nevertheless predictable as responsibilities for matter
management and firm leadership increase.
The professional development of attorneys in a law firm setting has become an expertise
that most large law firms require. This paper attempts to explore this topic using some timetested methods from the field of psychology and adult development, and help both practicing
attorneys and those who help guide their career path navigate a career in the law. From Sigmund
Freud to Daniel Levenson, conceptualizing a life path as a series of stages is a tried-and-true
developmental approach with deep roots in psychology. As is often the case, what is true for life
in general is true for life in the law.
While no two journeys are the same, an attorney’s progression through life at a law firm
holds some constants across the board. This white paper will map out the nine career stages—
and corresponding transition phases—through which a successful career in a law firm
partnership progresses. The passage from each of these stages to the next entails a personal and
professional transition and requires mastery of a specific set of skills, tasks and opportunities. As
you read this paper, think of attorneys you know who feel “stuck” in their role within the firm
and ask yourself, “Which stage are they at, and what skills can I help them develop or enhance in
order to advance to the next one?”
Mastering the challenges one faces in a law firm means successfully progressing up a
ladder that yields a number of career benefits, including higher pay, more status, increased
autonomy and greater responsibility. Failure to master a stage may lead to career stagnation,
frustration, frozen compensation or separation from the firm.
This approach represents a departure from traditional law firm career pathing.
For traditionalists, the focus is on partnership—it has been the primary status division in
law firms. Partner or non-partner, owner or non-owner: these have been the only meaningful
divisions in the past when thinking about progression in a law firm partnership. But times have
been changing. As law firms have grown from local, “clubby” partnerships to international,
multi-billion dollar firms, other developments have become inevitable. A focus on professional
management of lawyers by lawyers, the growing importance of non-attorney professionals to
help manage the firm, and the growing cadre of non- partner attorneys (non-equity, of counsel,
and multiple tier partnerships) are all examples of these changes. It is inevitable, and arguably a
good thing, that larger firms are starting to borrow a page from their corporate cousins when
thinking about importance of management and career paths.
It is odd to think that the attainment of partner status is not even the midpoint in this new
world. Management opportunities, with concomitant pay increases and leadership responsibility,
will be inevitable stages on the career path of the successful firm attorney. For the attorney who
chooses to take on these responsibilities, there are numerous stages beyond attaining partner
status that must be mastered in a stage-like progression.
The trajectory is not as straight of a line as it once was. Twenty or thirty years ago, it was
not uncommon for a lawyer to join a firm as a young associate and stay with that firm throughout
an entire career. Now, such loyalty is rare, both from the firm and from the associate. Many
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attorneys change firms after a few years and some firms simply do not survive, while others
merge and morph into other firms.
Yet the stages that an attorney must master to progress in his or her career remain
consistent in the law firm environment. Firm changes, career interruptions and forays into
business or politics only interrupt the rate, but not the route, of progress through a law firm.
We will examine each career stage and the skills needed to advance through the
corresponding transition phase in more detail, but the following provides a brief diagram of the
journey:
I’d like to add a word of caution here before unveiling the following—these stages should
not be read as de-valuing the solid contributions of lawyers who choose to practice without the
ambition or opportunity to manage. The schema below is simply a recognition of the changing
landscape of 21st century law firms, where profit depends on leveragability, enabling partners to
earn more than the sum of their billable hours.
It is simple economics that profit is a function of what is left after subtracting the cost of
labor (i.e., what the partners receive in salary and bonus) and overhead. A partner who is paid
only for the time he or she bills may earn a “good enough” salary. However, the opportunity to
earn more than that, not to mention the ability to pay for non-producing professionals that make
the firm run smoothly (development, IT, marketing and other service areas), requires money
earned and set aside for this purpose. For law firms to be solidly profitable, and for partners to be
able to participate in ownership income over and above their billable hours, they must be able to
leverage lower-priced talent. This is the essence of leverage and why it is so important to the
firm. It is also why effective management is critical for the profitability of a large firm; it is the
difference between owners making a profit or simply paying their own way. Ultimately, it is the
rationale for working in a firm vs. being a singleton.
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STAGE I: SUMMER/EARLY ASSOCIATE
For any attorney the plan is to grow in practice, gain experience and
achieve agreed–upon goals through self-knowledge and focus.
The first stage of an attorney’s career—the first season of her professional life —
sometimes begins before law school even ends. Whether a summer associate or a full-time
associate fresh out of law school, the goal of a stage one attorney is to grow a baseline of skills
and core competencies required to advance to stage two. This is an ongoing theme among the
stages (with the obvious exception of the final stage): they are largely meant to groom an
attorney for the next stage.
Early associates are equipped with knowledge gained in law school, but lack the
experience and application of this knowledge into practical skill. The goal of stage one for any
attorney is to grow in practice, gain experience and achieve agreed-upon goals through selfknowledge and focus. Stage one attorneys are expected to develop four main skills:
•
Exhibiting self-discipline and emotional self-control. Life in a law firm is very
different from life in law school, and mastering this drastic life change is an
important step in any attorney’s personal and professional development.
•
Being a reliable and trusted contributor. Young associates are expected to work to
an accepted standard. As this standard is met, trust comes naturally.
•
Coordinating complex tasks. A stage one attorney must not only do her assigned
work, but also prioritize, multi-task and coordinate larger efforts.
•
Functioning in small teams. Early associates often participate in smaller teams
assembled for specific projects or matters. Being a valued, respected and trusted
member of this team means excelling at the job and acting in the best interest of
the team—playing nicely in the sandbox, if you will.
Early associates are not yet expected to lead, but rather learn and then apply this practical
learning on the job; eventually growing into a small, yet significant, leadership role. A successful
journey through stage one often lasts as little as one to two years, after which an attorney
undertakes his first career transition—the shift from individual contributor to matter
management.
STAGE II: MID-LEVEL ASSOCIATE
The goal is to learn how to manage a small team and get work done
through and with others, rather than by one’s self.
Upon mastering the leadership skills developed during stage one and demonstrating an
ability to manage both one’s self and the legal matter at hand, an attorney enters stage two. As a
mid-level associate, requirements and expectations are increased, as is responsibility. While
stage one attorneys are focused on managing themselves, stage two attorneys seek to manage
others and absorb broader leadership and matter management skills.
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The goal of a stage two attorney is to learn how to manage a small team and get work
done through and with others, rather than by one’s self. The second transition phase—from
matter management to small team and project leadership—requires the development of
additional skills:
•
Defining and assigning work to be done. This includes communicating with
superiors and others about needs and expectations, planning, organizing, choosing
team members and delegating tasks.
•
Developing junior staff. This requires enabling more junior team members to do
their work by monitoring, coaching, providing feedback, acquiring resources,
problem solving and communicating. The challenge here is not to do the work
oneself, but to facilitate others to do the work.
•
Building social contacts through establishing relationships with junior associates,
peers, and partners and other support staff that facilitate open dialogues and trust.
Stage two can last anywhere from two to five years, depending on the firm and the
growth rate of the individual. Since many firms are abandoning the lockstep model of associate
advancement and focusing on performance-based measures for retention and promotion, it is not
always easy to delineate the transition between associate stages one through three. A functional
competency model helps. However, mastery of the skills required at each stage will ensure
advancement up the ladder toward partnership.
STAGE III: PRE-PARTNER ASSOCIATE
It is necessary to broaden the focus and learn the delicate balancing act of
serving two masters—the client and the firm.
An attorney’s journey through the first two career stages is all about personal growth and
getting work done. However, in stage three, with partnership on the horizon, there is a slight shift
in focus toward practical firm issues. Partners are expected to deliver superior work and
materially affect the success of the firm from a business, reputation and staffing standpoint. As
such, the stage three attorney, seeking to make the leap from associate to partner, needs to
broaden her focus and learn the delicate balancing act of serving two masters—the client and the
firm. Stage three is one of the most difficult phases in an attorney’s life, because it requires not
only a sharpening of practical work skill and the expansion of skills from project management
and small team leadership to overall matter and client management, but also the development of
staff management and business skills required for partnership. Practically speaking, a stage three
attorney is expected to:
•
Build alliances inside the firm at the practice group level and beyond. The term
“partner” as used in this context is not a coincidence – partnership means growing
professional networks and building bonds that are in the best interest of one’s self,
one’s clients and one’s firm.
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•
Develop a consultative relationship with clients. Stage three attorneys are
expected to move out of the “worker bee” mindset into a more strategic,
thoughtful role, especially as the face of the firm in front of clients.
•
Identify a go-to team for both project and broad matter management. To
paraphrase an old saying, behind every good attorney is an even better team.
Building rapport with a trusted team of colleagues makes one’s job easier and
lessens the mental strain of complex task, project and matter management. It also
contributes to the production of quality work product, upon which reputations are
built.
The jump from associate (stage three) to partner (stage four) is one of the most easily
recognizable and rewarding transitions an attorney will make during his career. However, it is
important to remember that “making partner” only represents approximately one-third of an
attorney’s journey through a law firm.
STAGE IV: EARLY PARTNER
The next step in an attorney’s life means going from matter management
and client contact to full client management and greater internal responsibilities.
Many law students will be shocked to learn that attaining partnership is only the fourth
stage in a nine-stage career progression; partnership is often considered the end-game of law firm
life. However, simply making it to partnership, while a tremendous accomplishment, does not
mean an attorney is done growing, learning and advancing through the firm.
Early partners are generally expected to serve as client contacts, lead broad matters and
multi-pronged tasks, and manage personnel. But as any seasoned firm partner will tell you, this is
merely dipping a toe in the larger responsibility set required of senior firm management.
The next step in an attorney’s life means going from matter management and client
contact to full client management and greater internal responsibilities. As such, a stage four
attorney is expected to develop these skills:
•
Identifying, selecting and training first-line team leaders for individual matters.
Stage two and three attorneys need to grow, and stage four attorneys need to help
them. By developing a trusted team of associates to assist on client matters, an
extension of the final required skill outlined as part of stage three, an early partner
is freed up to pursue the other, less “in the weeds” requirements of her position
and can hold this first-line team accountable for managing the matter.
•
Deploying and redeploying resources among matter-specific teams. An early
partner must be able to identify appropriate team members and project leaders and
allocate appropriate resources to the areas where they are most needed.
•
Managing boundaries. Matter and project leaders and teams will often serve more
than one master within the firm; juggling time and focus on multiple matters is the
norm. The art of managing the dueling responsibilities and respecting the
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boundaries between work done for the partner’s clients vs. other clients is an
important aspect of being a stage four attorney.
•
Cross-selling between practices. As an attorney progresses through these career
stages, the business aspect of the practice of law becomes increasingly important.
Being able to cross-sell clients on services provided throughout the firm, not
necessarily only in one’s own practice, is a valued skill. A stage four attorney
needs to listen to her clients, identify their needs and offer up strategic solutions,
even if the work is outside her own expertise and practice area.
STAGE V: MID-LEVEL PARTNER
The main objective is to establish one’s self as a force within the firm, and
an agent of positive change and momentum.
After several years of early partnership, an attorney passes into stage five—the mid-level
partner. The main goal of a stage five attorney is to establish one’s self as a force within the firm,
and an agent of positive change and momentum. It is during this stage when a partner makes a
more significant shift from client work to management and the fine art of making rain.
Bringing in new clients and additional business (even from existing clients) to the firm is
the easiest way for a partner to set herself apart from her colleagues, but it cannot come at the
expense of managing her workload or internal management responsibilities. As such, the skills
developed during stage five span a broader spectrum than any previous stage, and help firm
management to separate those attorneys with upper-leadership potential from those who have
reached their maximum contribution to the firm:
•
Juggling demands. The stage five attorney usually manages several key client
accounts, yet must master the art of making each client feel like they are his only
concern.
•
Supporting the practice leader. While a mid-level partner carries a heavy burden
of responsibility, he still has an overall responsibility to the practice and the
practice group leader. The practice leader can be responsible for several mid-level
partners, so supporting this leader in ways that facilitate the functioning of the
practice group become a great challenge and opportunity for a stage five attorney.
•
Contributing to the firm as part of good citizenship. Whether through committee
work, serving as a liaison or mentoring younger staff, there is an expectation that
mid-level partners contribute to firm culture and growth.
•
Learn to manage peers and even senior partners. “Leading from the middle” is an
invaluable asset for a mid-level partner, and increasingly common in today’s firm
culture. One does not need “managing” in his title to be a change agent, and the
exhibition of management and leadership skills in every direction (down,
sideways and up) will help a stage five attorney transition to larger management
roles – stages six through nine.
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•
Longer-term thinking. As an associate and early partner, it is not always easy to
see the forest for the trees. With the amount of work required of young attorneys,
stepping back and examining the big picture is not expected or even realistic.
However, as an attorney progresses through stage five, this type of long-term
strategic thinking, both on behalf of clients and the firm itself, is a must.
•
Proactive management. The stage five attorney must be aware of himself, his
peers, firm leadership and team members, anticipating issues before they arise. By
honing these management skills, a midlevel partner can focus on preventing fires,
rather than putting them out once they’ve already sparked.
•
Strategic understanding. A stage five attorney needs to develop an understanding
of the strategic needs of the clients and their industry, as well as how these
developments affect the firm’s strategic goals.
•
Factoring all aspects of the team and client needs into strategic thinking. This is
one of the hardest skills to master for any attorney – with three distinct but related
entities at play (the client, the individual team members and the firm), keeping
everyone happy can be a challenge to say the least. Determining how to keep all
parties positive and motivated is often more art than skill, but a required part of
mid- to senior-level partnership. As a corollary to this, the ability to make tradeoffs that support client strategy, firm profitability and competitive advantage,
rather than just supporting success in an isolated matter, is also a critical skill to
master at this stage.
For some attorneys, stage five is the end of the road—not every partner can advance to
leadership and management roles within the firm nor does every partner want to. A naïve view of
career progression is the straight arrow, always climbing upward, further and further. This
simply is not realistic for the vast majority, considering how little room there is at the top of the
pyramid; and even less likely in the relatively flat organizational structure of the modern law
firm.
Does this mean one simply stops, content to “retire in place?” The notion that only people
at the top of the pyramid lead, and everyone else follows, is both wrong and counter-productive
for everyone involved. Leadership is a quality and a state of mind that every professional should
exhibit at every stage of one’s career. A senior associate can guide more junior associates, senior
partners can lead those more junior and peer leadership is a fact of life in modern organizations.
There will always be opportunities to step up and be a leader: to help others facilitate the goals of
the client, the practice or the firm.
This ability to “lead from the middle” is particularly relevant in law firms. It represents
the opportunity that any knowledge worker has to show initiative, leadership and mentorship to
others at any stage in one’s career. Leadership is a state of mind, not simply a box on an
organization chart.
STAGE VI: PRACTICE LEADER
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While managing a practice group may be likened to herding cats, it is a
necessary part of management and a critical factor in a firm’s success.
...being a successful attorney also requires managing your public persona
and maintaining calm in the midst of what will undoubtedly be hectic times.
For those individuals who do advance beyond step five on the ladder, practice leadership
represents stage six of an attorney’s career. While managing a practice group may be likened to
herding cats, it is a necessary part of management and a critical factor in a firm’s success. Thus,
with great power comes great responsibility.
A practice leader is responsible for managing a particular function within the firm,
including profit and loss accountability, personnel management and client relationships, in
addition to the rainmaking and broader business responsibilities outlined above. Skills expected
of a stage six attorney include:
•
Conceptualizing a practice and selling it. It is not merely enough for a stage six
attorney to say, “I manage the firm’s X practice,” she must be able to articulate
the particular benefits of the practice to a given client or prospect as well as her
firm’s competitive advantage. Selling the practice is an important piece of
leadership—almost as important as keeping the ship afloat.
•
Managing costs and revenue. Ultimately, practice leaders are expected to manage
a business unit within the firm, complete with profit and loss accountability.
•
Looking at the practice as a business. Managing the business of one’s practice
goes beyond the finances. A practice leader must endeavor to increase
competitive advantage and position the practice as a leader in the marketplace.
•
Developing a sense of ownership about the practice. While the vast majority of
newly appointed practice leaders will be filling someone else’s shoes, there is
great opportunity—and need—to make the position one’s own.
•
Managing complexity. Every practice consists of multiple personalities, diverse
individuals, cross- functioning teams and complex processes. A stage six attorney
must master the subtleties of each and manage the interconnectivity in order to
create and promote a successful practice.
•
Being highly visible. The visibility at this stage can be intense and quite different
from any role the attorney has yet experienced. A stage six attorney serves as the
face of the practice to others within the firm, both above and below, and the face
of the firm to external audiences.
Practice leadership, just like every other stage, requires the mastery of a unique set of
skills and an intense learning process. But unlike nearly every other stage, being a successful
stage six attorney also requires managing your public persona and maintaining calm in the midst
of what will undoubtedly be hectic times.
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STAGE VII: DIVISION LEADER
... A division leader is intimately involved in the day -to -day operations
and issues of the firm as well as top -level client involvement.
The next step for some attorneys is that of division leader—stage seven. In larger firms,
practices are grouped into divisions (if practicing at a smaller firm, there is often no
differentiation between stage six and stage seven); a division leader is intimately involved in the
day-to-day operations and issues of the firm as well as top-level client involvement. The stage
seven attorney is part of the management coalition, but usually not yet part of the ultimate
management team, and requires mastery of the art of leading near the top. The “leading from the
middle” skills learned as part of the stages four, five and six will need to be relied upon and
grown as an attorney continues to progress up the management ladder.
The division leader could come in any one of a number of roles or titles: Group
Managing Partner, Office Managing Partner, Practice Leader with Portfolio, for example. While
each of these specific roles comes with its own set of challenges (managing several practices,
management of a regional office, large practice management with significant additional
responsibilities, etc.), the transition is often the same. A stage seven attorney often progresses
from a leadership position that she found the most fun to one that she finds the least. However,
this challenge is ultimately a test for Managing Partner potential.
To be a successful division leader and make the leap to Managing Partner, a stage seven
attorney must master these skills:
•
Allocating limited firm resources among competing practice areas. Managing
several practice groups or business units within the firm often requires making
tough choices. The successful stage seven attorney not only makes these
decisions, but also has the ability to communicate well with individuals affected
by these choices in a forthright and trustworthy fashion.
•
Creating horizontal synergies among practice areas and leading initiatives. Crossselling and cross- promoting is a part of earlier stages, but with increased business
objectives and responsibilities, finding new ways to sell practice group offerings
and services to both existing and prospective clients is required. This often
manifests itself in new firm programs or initiatives and carries both risk and
reward.
•
Cultivating and managing leaders. Ultimately, a stage seven attorney will be
judged at least in part based upon the work others do. Thus, it is important for a
division leader to develop and manage the leadership skills of the practice leaders
and mid- or senior-level partners whose performance will reflect on him.
•
Making sure the group practices tie into firm-wide goals. While managing a group
or collection of practice units may seem like an isolated process, it still must be
done within the context of the firm at large. Keeping in close contact with the
firm’s managing partner and management committee to ensure that these firmwide goals are being addressed and met is advisable.
3-28
•
Managing the unanticipated. A division leader must master the ability to
strategize and anticipate needs and opportunities before they arise or be prepared
to jump into the breach when a new challenge arises.
The stage seven attorney has myriad balls to juggle—managing both down and up the
career ladder, balancing the needs of many stakeholders (clients, practice teams, firm
management, etc.) and proving herself worthy of advancement to managing partner status.
STAGE VIII: MANAGEMENT COMMITTEE MEMBER
Usually, before an attorney progresses to the level of managing partner, he joins the
firm’s management committee. This entails ultimate enterprise responsibility to multiple
constituencies and leading from the top. Often stage eight will overlap with stage seven; that is,
group or division leaders (and sometimes practice leaders) are typically members of a firm’s
management committee.
What makes an attorney’s duties as part of the management committee unique are the
expectations and shift of focus almost entirely away from client management. As a stage eight
attorney, some of the skills to develop are:
1.
Delivering consistent, predictable top and bottom-line results. Inconsistency is
one of the killers of career progression at any level. In order to reach this stage in
one’s career, an attorney will have likely demonstrated consistency in work ethic,
performance and results throughout her career—now, though, this must be
expanded to include business results, not just work product.
2.
Setting enterprise direction. A stage eight attorney is expected to think
strategically and develop a road map for the firm’s future, ensuring not just
survival but growth in the years ahead. This includes shaping the soft side of the
enterprise, maintaining an edge in execution and managing the enterprise in a
broader, global context.
3.
Understanding how the firm serves its key clients. Understanding client needs is a
skill mastered as an early stage attorney, but understanding what this means for
the firm is an integral part of being a management team member.
4.
Balancing between an inward and outward focus. Management Committee
(sometimes referred to as the “Executive Team” or “Executive Committee”)
members are responsible for real world business results, but this does not mean
their focus can be entirely external. Part of business success is a focus on internal
firm health, through staffing, professional development, training and creating a
culture of success.
Much like stage seven, management committee membership serves as a barometer for
leadership skills. The ultimate decision makers are looking for those who go beyond merely
juggling the many stresses of management, thriving under the pressure and pushing the firm
forward. Conversely, some of the red flags or warning signs of leadership transition issues
include uninspired communication, an inability to assemble a strong team, problems with time
3-29
management and prioritization, failure to grasp how the business can increase (or even maintain)
revenue flow and neglect of the soft issues such as professional development or team
functioning. Compensations issues are often handled, or approved, at this level. Here the
challenge is to adopt compensation strategies that are best for the firm, rather than for any one
individual. It is not unusual for someone at this level to advocate higher compensation for other
contributors than for himself. Those who use their power to increase their own compensation
selfishly run the risk of losing credibility as a leader of the firm.
Stage eight, in actuality, is probably more abstract than real–it represents a crucial
mindset that a true leader and owner must have. The reality is that, in all but the very largest
firms, those who serve on the management committee also hold division or practice leadership
roles. However, it is important to be clear that the roles are different, with differing, and at times
competing, priorities. One can do both, but it is important to realize that roles—and objectives—
are different.
STAGE IX: MANAGING PARTNER
...The managing partner has ultimate firm responsibility, oversees day-today operations, is responsible for firm finances, oversees staffing—in short,
everything required to run a business.
Congratulations, you’ve made it! Attaining the role of managing partner (or CEO,
president, etc.) is truly an exceptional achievement. Growing upon what one has learned during
the previous eight stages, the managing partner has ultimate firm responsibility, oversees day-today operations, is responsible for firm finances, oversees staffing – in short, everything required
to run a business. By putting the right people in place in senior leadership roles, many of these
duties are delegated, but responsibility ultimately lies at the top.
It should be remarked that being the top professional in a law firm is challenging in part
because one is managing peers. The notion of partnership implies a group of equals. While it is
tempting to think in terms of traditional hierarchies, partnerships are typically a different kind of
organizational “animal.” They require a deft and subtle hand when it comes to managing and
leading a firm of one’s peers. Trustworthiness and integrity are often the cornerstone
requirements for someone to successfully achieve and hold this position. If these are not abiding
characteristics of the leader, the firm’s culture rests on shaky ground and the leader can only
maintain his or her position by unhealthy means.
While there are no additional skills to master during stage nine—presumably any attorney
who has climbed this far has tackled most of the challenges he has faced thus far—this does not
mean that the ride is over. There are still issues to be faced and questions to be answered,
although these are generally more personal in nature:
•
Considering alternative career paths, including in-house counsel, politics,
judiciary, etc.
•
Deciding when to leave and when to tough it out.
•
Life after the firm.
3-30
New books with titles like “Seventy is the New Fifty” are appearing frequently; people
are living longer and, coupled with the fact that many attorneys have made enough money to
retire comfortably, it raises the question, “What’s the next act?” For some it will be life on the
golf course, or on a boat, or in Boca, but for many this will not be enough. Everyone has a story
of the partner who comes into the office regularly, dressed in full business regalia, well into his
80s or 90s. While these scenarios work for some, they do not work for many.
Erik Erikson, the famous psychoanalyst, suggested that later-stage psychological
development comprised a stage of “Generativity vs. Despair” in which one retrospectively
considers the good, the bad and the ugly of one’s life and career. But just as adolescence is a
time to re-work the early stages of development, later life may be an opportunity to re-work midlife stages of intimacy and productivity. It is a chance to usher in a second act that could be as
fulfilling, if not more so, than the first.
Many retirees are finding meaning and fulfillment in volunteer careers that enable them
to give back and not concentrate exclusively on making money or career progression. It is a
chance to more fully align with closely held values, to give back to the world on one’s own terms
and in ways that are more fulfilling. Our society has long neglected the potential continuing
contributions of the elder generation. What if people spent as much time and energy preparing
for their “retirement career” as they do for their “work career?” It opens the door to many
interesting and exciting, not to mention deeply gratifying, opportunities.
CONCLUSION
I’m sure you know someone who feels like their career has stalled—someone who is
seemingly “stuck” in one of the nine stages outlined above. Hopefully this paper provides an
outline of the skills an attorney must master and the challenges that attorney faces while
attempting to reignite the spark into his or her career.
Identifying which phase an attorney is in and determining what skills are needed to
advance is sometimes harder than it seems. But while every firm is different in its specific
requirements for advancement and the sometimes intangible qualities it looks for, the “seasons”
of an attorney’s life remain somewhat constant.
So next time you encounter an attorney who feels stuck or stalled, I challenge you to
think back to this paper, identify where in the life-cycle that attorney is, and help him or her
identify, attack and master the challenges he or she faces.
Trained as a clinical psychologist, Mark Sirkin has had post-doctoral training and
experience in organizational consulting and development. He has worked in small and large
consulting firms with businesses ranging from modest family businesses to Fortune 10
organizations, and developed a specialty in enhancing the human capital in organizations
through coaching, consulting and training. Mark is a contributor to the Leadership and
Organization Development Practice of Hildebrandt Baker Robbins, a Thomson Reuters business,
where he advises law firms on issues related to talent development at every level in the firm.
3-31
BOALT: LEGAL PROFESSION
LESSON 4: ABIDE, CONSULT, AND COMMUNICATE
SEPTEMBER 16, 2014
FAQ’s
All Students Read
Outline
Section IV(F)(1)-(2);
pp. 27-28
All Students Read
Rules
MR 1.2, 1.4
All Students Read
3.1
Tram Nguyen’s Case
All Read; Group 4
3.2
Undue Influence
All Read; Group 3
3.3
Defending the
Unabomber
All Read; all read to
discuss
3.4
Settlement Talks
All Read: Group 2
3.5
Death Row Volunteer
All Read: Group 1
3.6
Lawyers representing
mass killers
All Read; no one on
call
3.7
Traumatized persons in
the legal system
All Read; no one on
call
3.8
Overview of
Paternalism
Optional
Objectives:
By the end of this lesson, you should be able to:
1.
Articulate the basic rule on how decision-making is allocated between client and
lawyer.
2.
Explain how that rule interacts with the rule on withdrawal.
3.
Explain how the rule on decision-making affects the rule on communication with
clients.
4.
Discuss some of the difficulties in representing persons and organizations that
might have different outlooks, backgrounds, or philosophies that you do.
4-1
FAQ’s
Rules: MR 1.2(a), 1.4, 1.14, 2.1
QUESTIONS
(3.1)
What rules govern the power over decision-making between attorney and client?
This week we will explore the sharing of power and authority in the attorney-client
relationship. We can divide this topic into the rules, the black-letter law, the practice of power
sharing, and normative analysis of these issues (e.g., client autonomy, attorney paternalism, etc.)
First, the key rules: MR 1.2, 1.4, and 1.14. MR 1.2 provides that “a lawyer shall abide by
a client's decisions concerning the objectives of representation and shall consult with the client
as to the means by which they are to be pursued.” This duty to “abide & consult” is sometimes
reduced to potentially misleading shorthand: the client controls the objectives and the attorney
controls the tactics. It may be misleading because, under the rules, the attorney doesn’t simply
control tactics but rather must consult regarding the means.
MR 1.4 requires the lawyer to communicate with the client as to significant
developments. The rule is also invoked regarding the single-most common complaint against
lawyers: “She doesn’t return my phone calls.” Obviously, you don’t know the client’s objectives
until you’ve communicated well with the client.
MR 1.14 governs the representation of clients with diminished capacity. Under that rule,
a client’s capacity isn’t “all or nothing,” but rather can vary according to the situation. The
lawyer must treat such clients as normally as possible. Ultimately, the rule is somewhat vague
and open-ended because of the wide variety of situations in which is must be applied.
Second, much of the black-letter law concerning the allocation of decision-making and
authority within the ACR deals with who is permitted to make certain kinds of decisions. For
example, MR 1.2 provides that attorneys must abide with the client’s decision regarding
settlement, and that criminal attorneys must abide by the client’s decision regarding pleas, jurytrial waivers, and the decision to testify. (The ABA’s Standards for Criminal Justice also give the
client control over “whether to appeal.” Std. 4-5.2(a)(v).) These sorts of action-specific rules,
often dealing with settlement issues, derive from the common law of principal and agent. We
won’t have time to explore that case law in any depth.
Third, the normative issues focus on the topics of autonomy and paternalism. Some
commentators believe it is the attorney’s job to facilitate the client’s autonomous pursuit of its
interests, while other commentators emphasize the need for attorneys to engage in “moral
activism” in the course of representing clients so as to achieve results that are more just.1
What do the rules say? MR 2.1 permits, but does not require, attorneys to resort to moral
suasion when advising clients.
1
For the former, see Monroe Freedman, UNDERSTANDING LEGAL ETHICS 43-64 (1990); for the latter, see
David Luban, LAWYERS AND JUSTICE: AN EMPIRICAL STUDY (1988).
4-2
(3.2)
What is the duty of communication?
Please read MR 1.4. Lawyers are expected to give their clients the information the clients
need to make decisions and to respond to questions about the status of the matter. The single
most common complaint filed with state bars is “my lawyer won’t return my calls.”
In my continuing legal education speeches to practicing lawyers, I often refer to the duty
of communication as “the mother of all our fiduciary duties.” Leaving aside the world of legal
doctrine and theory (where the duties of confidentiality and loyalty are treated as the most
important duties), in the working world when a lawyer is communicating well the other duties
tend to fall neatly into place. Conversely, a lawyer who communicates poorly with clients is
headed toward disaster even if he produces technically terrific work product.
4.1
Tram Nguyen’s Case (former exam question)
During your first year as a lawyer, you were introduced to Tram Nguyen, who was
charged with leaving the scene of a minor traffic accident without identifying herself. Ms.
Nguyen’s sister-in-law has offered to pay the expected legal fees.
You met with Ms. Nguyen, who said that she had stopped to identify herself—it was the
other driver who had both caused the accident by hitting her car in the rear and who had left the
scene without stopping. The other driver, Ms. Swanson, and her passenger, who works as
Swanson’s assistant, then called the police and reported Ms. Nguyen as leaving the scene. The
policeman who visited Ms. Nguyen to discuss the matter had been rude and condescending. He
claims that Ms. Nguyen made inconsistent statements about the accident.
Ms. Nguyen, a Vietnamese-American who has been in this country about fifteen years,
speaks with a heavy accent and uses unorthodox grammar. She was tight-lipped and nervous but,
as the interview went on, she opened up. You had no doubts about her sincerity or her grasp of
the facts. Ms. Nguyen, a homeowner and a churchgoer, is a respected member of her community
who works as a green grocer and who volunteers with her church. She had never been in trouble
before. As upset as she was, she slowly revealed herself to be a charming person. You sense that
she values her dignity and her reputation. She believes that the police and prosecutor have sided
with Ms. Swanson because of communication problems and racism.
Your firm’s investigator photographed both cars. The dents and the paint chips
corroborated Ms. Nguyen’s account of how the cars collided. “Fight all the way,” he said,
tossing the photos on your desk. “No one ‘flees the scene’ when they’ve been rear-ended.”
The photos were encouraging, and the misdemeanor procedure offered two bites of the
apple: a one hour bench trial and, if unsuccessful, a jury trial de novo.
Because of your inexperience, you discussed the case with a criminal defense partner at
your firm who immediately dismissed, with a roll of her eyes, your plan to expose the police’s
racism through devastating cross-examination. She said, “You have no facts to support the
allegation. If an acquittal requires an implicit finding of racism, you won’t get your acquittal.”
Then, as you listened, the partner called the prosecutor, listed the strengths of Ms. Nguyen’s
case, and described the photos — without mentioning racism.
4-3
The prosecutor said, “Judge Cook will believe the police and the two witnesses. He’ll
want Nguyen to plead. If she does what Cook wants, he’ll go very easy on her. If not, he’ll be
mad at her. He’s swamped on this docket, and he has little patience to begin with. Here’s the
deal. She pleads nolo contendere to the misdemeanor and gets four months’ probation, no
community service, and a fine of $100. Her criminal record can be sealed in one year if she
behaves well. Lose the bench trial, and it’ll probably be four days in the jail, 100 hours of
community service, and a $1,000 fine—plus the record could never be sealed. If she loses in the
jury trial, it’s probably going to be ten days in jail, 250 hours service, a $2,000 fine, and no
sealing of the record.” When the call was over, the partner said to you, “Do Ms. Nguyen a big
favor—get her to do what Judge Cook wants. Don’t try to be a hero.”
You met again with Ms. Nguyen the day before the bench trial. She was again rather
nervous. You began to discuss various options. Ms. Nguyen said, “You are the expert. Tell me
what to do.” At that point, Ms. Nguyen and you were joined by her sister-in-law, Theresa
Nguyen, who articulated a strong belief that the police were racist in believing Ms. Swanson, and
who stated that any sort of plea bargain would not be justice. “You are Tram’s protector,”
Theresa said. You asked Ms. Nguyen what she thought about those comments, and she said, “I
trust Theresa very much. What should I do?”
4.2
Undue Influence
By William Soskin
Most of the time I really like being an estate planner. I translate clients’ vague goals into
precise directions. I even save them taxes in the process. I am a wordsmith, draftsperson,
technician. But occasionally my role gets more problematic, and I struggle with the question of
when it is appropriate to refuse to do a client’s bidding.
Of course, I didn’t realize I would have to deal with these issues when I got a phone
message recently from Louise Laughlin (all names have been changed), who wanted an
immediate appointment to revise her will. In fact, I had only a vague recollection of preparing
her will several years before under trying circumstances. When I returned the call, a man
answered, identifying himself as her grandson. He said his grandmother wanted to come in
immediately to change her will and leave her house to him.
I asked to speak to Louise. I kept our conversation short. "Louise, I can see you next
Monday at 4 P.M. I would rather have just the two of us meet. Is that OK?" Louise agreed.
Louise arrived 20 minutes before our appointment. By that time I had reviewed her file.
Louise was 78 when I first met her four years ago, three months after her husband had died. She
had a married daughter, two grandchildren, and a great-grandchild. The 33-year-old grandson
lived with Louise. The granddaughter was a hardworking single mother living in Houston.
Although Louise loved her daughter, she felt her son-in-law was extremely greedy and feared his
influence over her daughter. Louise’s assets consisted of $60,000 in savings and a modest home
worth about $325,000. Though her estate was far less than what most of my clients had, her
problems were far worse. At her request, I prepared a simple will dividing her estate so that each
grandchild and the daughter would receive an equal share. Louise had called back shortly after
4-4
our meeting to tell me that her grandson wanted the house to be placed in his and his sister’s
names. I quickly convinced Louise that this was a bad idea. With these details fresh in my mind,
I wondered what new developments had made her decide to make changes in the will. This
meeting would tell, I thought.
When I entered the waiting room, Louise was sitting ramrod straight on the edge of the
couch. She was wearing an out-of-style white winter coat. Her face was freckled, and she was
overweight. Her hair was teased into neat little white curls.
"How are you?" I asked
"I’m kinda nervous right now," she answered.
"What’s going on, Louise?" I asked.
"It’s my son-in-law. He’s—excuse me for saying so—a real bastard. I’m afraid that if he
gets his hands on my property, he’ll destroy it," she blurted out.
"How will he destroy it?" I asked.
She didn’t hesitate. "He’ll take all the property for himself, and no one else will share in
it. He has scared my daughter, and I think she’ll do whatever he wants. I need the house in my
grandson’s name to protect us. That way, my son-in-law can’t get the property when I die."
"I don’t think it will work that easily," I said calmly and slowly. "Louise, the only assets
you have in the world are your home and $60,000. What if you get sick? You are 82 and in good
health, but that can change. If you put the property in the name of your grandson, you won’t be
able to borrow against it, and if he sells the property, you won’t get all the money. You need to
keep the property in your name in case of a rainy day. And besides, you told me you love your
granddaughter and you love your daughter. Isn’t that true?"
"Yes."
"Well, then, if you put the property only in the name of your grandson, you’ve essentially
cut out the other two people you love. That isn’t right, is it?"
Louise nodded in agreement, but I could see she wasn’t fully convinced. She looked
down and clenched her hands.
"Louise, look at me," I said. She raised her eyes. "I can’t get rid of your nervousness. No
matter what I do, you’re going to be nervous. If we put the title to your house in the name of
your grandson, your son-in-law can still file a lawsuit. He can still say your grandson was trying
to unduly influence you. There’s nothing I can do to make the fear go away." I thought Louise
was going to cry. "Louise, let me do the best I can to protect all of you. But, please, keep your
house while you are alive. When you go, you will still be sharing your assets with the three
people you really love. I think that’s the best we can do.
4-5
Louise sat for a moment and then said, "Well, if we leave the will the way it is, will you
call my grandson, Richard, and explain to him what we’re doing?"
"Of course I will," I said. "But tell me more about him. What’s he like?"
"He has lived with me for the past two and a half years, you know. But he has a bad back.
He was working in a liquor store, and he hurt his back four years ago. He’s on disability. He
plays games on the computer all day. Some days he can cut the lawn, but some days his back just
really hurts. I think his drinking helps take the pain away."
"I’m so sorry about all of his pain," I said. "I’ll be glad to talk to him. Look, we’re doing
the best we can, and you are right to leave things as they are."
I got up and helped her out of her chair. I put my arm on her shoulder. She had been
wearing her coat throughout our meeting. We walked slowly out of my office. This isn’t over, I
thought to myself.
I was right. Twenty minutes after she left, Louise called. "What if I put the house in
Richard’s name and my name now?"
"I don’t think that’s a good idea," I responded, and explained–again–the problems that
could ensue.
"Why don’t you talk to my grandson?" she asked, and passed the phone to Richard.
Before Richard could say a word, I told him that Louise and I had had a good meeting and that
Louise wanted the three people she loved to share equally in her estate. And she wanted to keep
her house in her name. Richard was not fazed.
"What if someone changes her mind?" he asked.
"What do you mean?"
"I mean," he said sharply, "what if my grandmother changes her mind? Can she change
the will?"
"Of course," I answered.
"Well," he said, "she’s changed her mind. Why don’t you talk to her?"
Louise got on the phone. "I want to leave the house to Richard now. The others have
houses. He doesn’t have a house. He needs the house. He’s sick. I’ll give them the cash when I
die. I want you to change my will and make him the owner of my house now."
"Why don’t you think this over for a few weeks? We can talk about it again."
"No."
"I hear what you’re saying," I said. "I’ll get back to you." I hung up.
4-6
On one level, what she said made sense. But Louise had previously insisted on treating
all three equally, and I didn’t trust Richard as far as I could throw him. Did I have an ethical right
to simply bail on Louise because I didn’t like what she asked me to do? In my heart, that just
didn’t feel right. Should I call the "ethics hotline" and ask them for their opinion? I decided to sit
on it for a few hours and then make a decision.
It was only an hour later that Richard left a message with my office saying he would give
me until tomorrow morning to call him about "the situation." His message also said that the
situation had been discussed among family members for at least six months, and that it was news
only to me.
Two hours after Louise left, I made up my mind. I dictated a letter to Louise telling her I
was extremely uncomfortable making the changes. I explained that if I resigned as her attorney, I
knew she could easily find another lawyer to draft the documents. In the end, I said, I just
couldn’t prepare documents for her when I didn’t believe that it was what she, personally,
wanted. I told her I was convinced that I would simply be carrying out Richard’s wishes and not
hers.
I gave Louise another alternative. I would prepare a new will leaving her house to
Richard with the remaining savings accounts divided equally between her daughter and
granddaughter if either her daughter or granddaughter called me to confirm that this is what the
family wanted. Or Louise could decide to leave the will as it stood. If neither of those choices
was acceptable, then she should find a new attorney who would be more comfortable carrying
out her wishes.
Nine days later, my latest encounter with Louise ended as it had started, with a phone
message. Jim Barrett, a local attorney, had called to tell me he now represented Louise and
would send me a note from her confirming that all of her files were to be sent to him.
4.3
Defending the Unabomber
By William Finnegan
The ending—abrupt, unsatisfying, badly understood—befitted the strange, unhappy saga
of Theodor J. Kaczynski. He was spared a grueling trial, the judgement of an elaborately chosen,
"death qualified" jury, and a strong chance of being condemned to death, but he was saved from
all this by a bizarre alliance of lawyers he was trying to fire, a family he had renounced,
psychiatrists he did not trust or respect (and in some cases had never met), a federal judge who
had drastically restricted his right to counsel and seemed to fear (with reason) the trial to come, a
press convinced that he was a paranoid schizophrenic, and, finally, a legendary death-penalty
opponent skilled at "client management" (management, that is, of Kaczynski). Much of the story
took place entirely out of public view. Kaczynski pleaded guilty, in late January, to all charges,
and forswore all appeals, in exchange for a life sentence. In our overburdened courts, defendants
are often left with little choice but to plead guilty, forfeiting their right to a trial in exchange for a
lesser sentence. But Ted Kaczynski was not just another defendant denied his day in court.
He was, of course, the Unabomber, the self-styled scourge of big business, big science,
behavioralism, genetics, computer science, and all things high-tech and harmful to the
4-7
environment. For seventeen years, starting in 1978, he had terrorized the country, killing three
people and injuring twenty-three – all with small, handmade parcel bombs. The longest, most
expensive manhunt in American history had produced no real suspects. Then, in 1993, the
bomber wrote to the New York Times, identifying himself as a member of an anarchist group
called the Freedom Club, and in 1995, in the most extraordinary manuscript submission in the
history of publishing, he prevailed upon the Washington Post and the Times to publish a thirtyfive-thousand word essay, "Industrial Society and Its Future", by promising to stop the killings.
The Manifesto, as it became known, denounced modern technology and urged a
revolution in the name of Wild Nature. Jefferson Morley, and editor at the Post, described it as "a
romantic, turgid, disturbing document - but so were the ‘Port Huron Statement' (which marked
the birth of the New Left in 1962) and ‘Witness', Whittaker Chambers' autobiography in 1952
(which marked the birth of the modern Right)." Most Americans didn't read it, and no doubt
considered its author nothing more than an evil coward.
David Kaczynski, a social worker in Schenectady, New York, read the Manifesto on the
Internet, and thought he recognized his older brother's language and ideas. After considerable
agonizing, David got in touch with the F.B.I., and Ted, then fifty-three, was arrested on April 3,
1996, at his cabin, near Lincoln, Montana. The Freedom Club turned out to have a membership
of one.
Nineteen months later, jury selection began in Sacramento, California, for a federal trial
on charges related to four bombings, two of them fatal. The prosecution, over bitter objections by
David Kaczynski, had decided to seek the death penalty. Because the F.B.I. had found an
overwhelming trove of evidence in Kaczynski's cabin - it included a completed bomb, a carbon
copy of the Manifesto, and thousands of pages of journal meticulously recording his work on the
earlier bombs - the guilt phase of the trial was effectively moot, and the lawyers were already
looking to the penalty phase, when jurors would be asked to consider a death sentence. For six
weeks, Kaczynski watched with great interest as his lawyers grilled the prospective jurors. Here
were the ordinary, technology-oppressed Americans in whose name he had conducted his long
campaign of terror against "the technician class". Kaczynski, dressed in cable-knit sweaters and
striped dress shirts, looked trim and professorial, and nothing like the shaggy half-mad hermit
whose image was flashed around the world after his arrest. He conferred amiably with his
attorneys - Quin Denvir, the federal defender for the Eastern District of California, and Judy
Clarke, a renowned trial lawyer and federal defender. Clarke had recently saved Susan Smith –
the woman who drowned her two young sons in South Carolina - from execution. Lanky and
attractive, Clarke often had her hand on Ted's shoulder.
But the appearance of harmony at the defense table was misleading. In truth, a profound
conflict had been growing between Kaczynski and his various lawyers virtually since his arrest.
They believed that his best, if not his only, hope of escaping a death sentence was to claim that
he was mentally ill. He staunchly refused to do so. This clash of wills and world views
eventually erupted into open court. But before he was yanked offstage Kaczynski's quietly fierce
performance raised fundamental questions about a defendant's right to participate in his own
defense, and the role of psychiatry in the courts, and the pathologizing of radical dissent in both
the courts and the press.
4-8
He was a bookish, brilliant boy, born in 1942, the first child of ambitious, self-educated
parents. Reared in a working-class Chicago suburb, he skipped two grades, had few friends, liked
to shut himself up in his attic room. He was a nerd's nerd, shy and arrogant, socially doomed. For
playmates he was forced to rely on David, who was seven years younger, popular, and
easygoing.
At sixteen, Ted entered Harvard on a scholarship. He lived in Eliot House, where big,
swaggering rich boys ruled the roost. Ted, physically slight and badly dressed, ate alone. He
graduated at twenty, then went to the University of Michigan, at Ann Arbor, where his
considerable gifts as a mathematician emerged. He began to publish in scholarly journals, and his
dissertation on "boundary functions", won a prize.
Still, after he left for a teaching job at Berkeley, almost nobody in Michigan remembered
him. Ann Arbor and Berkeley were hotbeds of the student antiwar movement, which was then
reaching its peak. Kaczynski apparently remained uninvolved. In a 1968 photograph taken at
Berkeley, he's short-haired and clean-shaven, and is wearing a coat and tie. Though not a popular
teacher, he continued to publish impressively, and was on track for tenure in one of the world's
top math departments. Then, in 1969, he suddenly resigned, telling his family that he didn't want
to teach math to engineers who would use it to harm the environment.
It seemed that, for all his indifference to student leftism, Kaczynski despised the whole
status quo. He and David, who graduated from Columbia in 1970, bought 1.4 acres together in
Montana, in high country just west of the Continental Divide. And that was where Ted lived except for a few forays into the outside world to earn money at menial jobs and, later, to deliver
bombs - for the next twenty-five years. He built a simple, ten-foot-by-twelve-foot cabin with two
small windows, a woodstove, no electricity, no plumbing. He grew a garden, built a root cellar,
hunted rabbits and deer, exchanged vegetables with neighbors, didn't file a federal tax return. He
rode an old bicycle five miles into the town of Lincoln for supplies, and spent a lot of time at the
public library there. His parents visited him each summer for the first few years. David came
several times, and then, emulating Ted, moved to his own patch of remote wilderness, in the west
Texas desert. But Ted's relations with his family became increasingly strained. In voluminous
letters, he blamed them - particularly his mother, Wanda - for his shyness, his loneliness, his
anxiety, his anger, even his height (he was shorter than David). Their visits ceased. He
sometimes refused to open their letters. The family came to believe that Ted was seriously
disturbed.
There was never any real doubt that Kaczynski was legally sane. But his lawyers believed
that the degree of his culpability for his crimes could be made to depend on his psychiatric
classification - the more serious his diagnosis, the less his culpability.
They called him a "high-functioning" paranoid schizophrenic. Medically speaking, that
would place him at the least-ill end of the spectrum of schizophrenia, where obvious symptoms
are often absent. The primary evidence of his illness seemed to be in his writing (most of which
have never been made public), in his family's stories, and in his way of life. Dr. Karen Froming,
who specializes in neuropsychological assessment, gave Kaczynski a battery of tests that
"revealed deficits of a mild nature in the areas of frontal and cerebellar motor functions,
microsomia or smell functions, cognitive processing efficiency, visual memory, and affective
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processing." These deficits were consonant, she said, with paranoid schizophrenia. What really
indicated such a diagnosis to her, Dr. Froming told me, were Kaczynski's systematized paranoid
delusions.
I asked what those delusions were.
"Anti-technology", Dr. Froming said simply. "His view of technology as the vehicle by
which people are destroying themselves and the world." The Manifesto, in other words.
Predictably, the prosecution's psychiatrists disagreed. Dr. Froming's test findings "scream
geek, not schizophrenic", Dr. Park Dietz said dryly. Dr. Dietz, a forensic psychiatrist who often
works for the government in high-profile cases, cautioned me that he could not diagnose
Kaczynski's condition without interviewing him, and that he had been prevented from doing so,
despite a court order. (According to the defense team, the problem was that Kaczynski refused to
see a government doctor, whereas the government thought that the real problem lay with
Kaczynski's lawyers, who did not want him interviewed by experts who might not find him
psychotic.) Dr. Dietz had, however, read Kaczynski's journals, and had not found them to show
schizophrenia. "They're full of strong emotions, considerable anger, and an elaborate, closely
reasoned system of belief about the impact of technology on society. The question always is: Is
that belief system philosophy or is it delusion? The answer has more to do with the ideology of
the psychiatrist than with anything else."
Kaczynski's own ideology gave psychiatrists short shrift. "The concept of ‘mental health'
in our society is defined largely by the extent to which an individual behaves in accord with the
needs of the [industrial-technological] system and does so without showing signs of stress," he
wrote in the Manifesto. He himself, despite his elaborate effort to withdraw from society,
showed plenty of signs of stress - insomnia, anxiety, and depression - and even sought help from
therapists in Helena, Great Falls, and Missoula. In his journals he recorded his fear the his
campaign against industrial society would ultimately be dismissed as the work of a "sickie",
observing that "many tame, conformist types seem to have a powerful *need* to depict the
enemy of society as sordid, repulsive, or ‘sick'." He noted the old Soviet practice of suppressing
dissidents by labeling them mentally ill.
So the paradox, as his case neared trial, could not have been lost on Kaczynski. His own
lawyers, talented idealists intent on saving his life, were striving mightily to label him mentally
ill. The prosecutors, meanwhile, intent on having him executed, were ready to accept him as the
dead-serious dissident and violent anarchist that his writings said he was. "The prosecution
believes that he was acting on a genuine political program", Dr. Froming said, with some
wonderment. "In fact, he wasn't. What it was was a real need to protect himself from an
extremely frightening world". Dr. Xavier Amador, a schizophrenia researcher at Columbia
University, who did not examine Kaczynski but, at the request of the defense team, did review
his writings and submit a report to the court, specialized in "unawareness of illness". The
circularity of the reasoning in Dr. Amador's report, in which Kaczynski's disdain for psychiatrists
and his firm rejection of the idea that he was schizophrenic were offered as expert evidence that
he was schizophrenic, presumably made for some exquisitely annoying reading for Kaczynski in
his cell.
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Dr. Froming's report was probably not much more fun. She wrote that his journals
undermined his claim, made during their interview, that he had chosen to live as a hermit: "The
explanation for his chronic social isolation which he offered during the testing were clearly
contradicted by Mr. Kaczynski's writings that document his despair over both his inability to
establish normal human relationships and his inability to comprehend why he has been unable to
do so." It was as if being proudly independent ("autonomy" is much extolled in the Manifesto)
were incompatible with being sad, lonely, and shy – almost indeed, as if sadness and loneliness
were the equivalent of mental illness.
The psychiatrists retained by Kaczynski's lawyers stood ready to treat his crimes as
symptoms (the illness committed them, not Kaczynski, Dr. Amador explained to me), which was
really the legal and ethical heart of the matter. To a lay observer, there was, in truth, a mountain
of evidence, lying mostly in plain sight, of complete madness. The defendant had apparently and, indeed, would soon admit he had - spent seventeen years building ingenious little bombs
and sending them around the country to kill and maim people he had never met. Mild deficits in
affective processing seemed, somehow, beside the point. And yet the bombings were the crimes
charged. They could not be the evidence of illness.
While this might seem a perverse distinction before the law, its real implications are more
disturbing still, for it suggests what few of us like to acknowledge - that sane, rational people
may commit violent, terrible acts, including serial murder. (Dr. Dietz, who seems almost to relish
this thought, helped convince a jury that Jeffrey Dahmer, the Wisconsin cannibal, was not
insane.) Ted Kaczynski, in his refusal to plead mental illness, was not only refusing to recant his
ideas, but also refusing to recant his acts. He had done what he had done for the reasons he had
given. And he was apparently prepared to explain those reasons to the jury and the world. He
even had, virtually from the beginning, a lawyer who was ready and well qualified to step in and
help him make his deeply subversive case.
J. Tony Serra had got in touch with Kaczynski shortly after his arrest. Serra was the reallife inspiration for a 1989 film, "True Believer", starring James Woods, about a flamboyant
radical attorney who defends unpopular clients. Known for courtroom eloquence, a long gray
ponytail, Salvation Army suits, and a marijuana habit, Serra has built an enviable record of legal
victories, often in cases that other lawyers wouldn't touch. He has represented Black Panthers,
White Panthers, members of the Symbionese Liberation Army. He has twice won freedom for
men already condemned to death in California. He works pro bono much of the time, and that
was what he proposed to do for Kaczynski. He has, he says, the highest regard for public
defenders, who, like him, spend their careers representing the poor and the despised. "I respect
them and I love them", he told me. "They are my allies." But Kaczynski's lawyers were intent on
saving his life with a defense that their client did not want. "I am of a different ilk", Serra told
me. "I have always served the objective of the client. A person has the right to defend himself in
the manner he chooses, even if it means death, as long as he appreciates the risk. Kaczynski
appreciated and understood all the ramification and wanted a trial based on an ideological
defense."
As Serra envisioned such a defense - which could probably be argued only during the
penalty phase of the trial - Kaczynski would explain himself to the jury, using the Manifesto.
Eminent political scientists would be called to interpret the essay, paragraph by paragraph. The
4-11
defense case would be based on what Serra called "imperfect necessity - you commit a crime to
avert a greater disaster that you believe will occur", though others may find your belief
unreasonable. "It doesn't eliminate culpability", Serra noted, "but it lowers culpability." Serra
was confident that Kaczynski's case against technology would be perfectly comprehendible to
the jurors. "It's not crazy, and it's not difficult to understand. And if the hole in the ozone opens
up and kills us all, he'll be proved right!"
While federal death-penalty guidelines do not include ideology in the list of "mitigating
factors", they do contain and "other factors" clause, and Serra thought he had a reasonable
chance of persuading at least a couple of juror to vote against execution. (Denvir and Clarke
were counting on "impaired capacity" - a mitigator when "the defendant's capacity to appreciate
the wrongfulness of the defendant's conduct or to conform conduct to the requirements of the law
was significantly impaired." Any defense would have to contend, of course, with varying
"aggravating factors", including "substantial planning and premeditation" and "grave risk of
death to additional persons.") Serra, who has represented his share of disturbed clients, did not
consider Kaczynski mad. Indeed, he told a reporter, "This guy is a genius. He sees things we
can't see and understands things we can't understand. Maybe we should give him the benefit of
the doubt."
Kaczynski's court-appointed legal team took a very tough stand against Tony Serra. Serra
has declined to describe their contacts in any detail, beyond acknowledging that the statement
"His blood will be on your hands" was liberally employed. Scharlette Holdman, a veteran deathpenalty "mitigation investigator" and a key member of the defense team, was less shy. "I couldn't
believe that Tony was coming to a capital case and exploiting the vulnerability of a mentally ill
patient in that emotionally charged environment", she told me. Holdman, who is not a lawyer,
has earned a formidable reputation by managing appeals in scores of capital cases in Florida.
Newsweek once dubbed her "The Mistress of Delay" for her success in preventing executions.
Now working from San Francisco, she is usually appointed to cases on a confidential basis, and
prosecutors often know little or nothing about her role. Though the fact that she was working
with the Kaczynski team went completely unreported, she was involved almost from the
beginning. And the Serra matter really seemed to enrage her. "There are always those attorneys,
like moths to a light, who come to a famous case out of their own self-interest, nothing to do
with the defendant's interest", Holdman told me. She knows well that the best chance of saving
the life of a convicted capital defendant usually lies in constructing a sympathetic life story, often
one involving significant mental impairment, and that such a story must often be prepared
without the client's cooperation. I first tracked her down, in fact, at a conference of the capitaldefense bar where the workshops included "Dealing with Difficult Clients" and "Detecting
Mental Illness". Holdman was offering "Defusing Bombs Before Penalty Phase" (pun most
likely intended).
Holdman had been described to me by a former colleague as a specialist in "client
management", and she spent many hours a week with Kaczynski during the long months of trial
preparation. She was one of the links between Kaczynski and the outside world, which included
his political supporters - an amorphous but vivid crew of anarchists and environ-radicals, who
gathered primarily on the Internet. Holdman even persuaded key figures in that world to shut
down their support campaigns as the trial approached, lest they disrupt delicate plea negotiations.
Holdman's counsels to Kaczynski himself have not been disclosed, but he was obviously kept
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firmly in the dark for as long as possible about the extent of his team's plans to depict him at trial
as mentally ill. The analogy usually employed by hard-liners in this area is that the brain surgeon
doesn't ask the brain damaged patient how he wants his surgery done.
For many months, Kaczynski's attention was actually focused elsewhere - on the
possibility that a defense motion to suppress the evidence found in the cabin, because of
inadequacies in the F.B.I.'s search warrant, might succeed, and that the case against him might
therefore collapse. Even after this motion was denied, he apparently held out hope that an appeal
might succeed, and that he might yet walk free, back to Montana. Although Tony Serra says he
believes that Kaczynski did everything he could to engage his services long before the trial but
was prevented from doing so by his defense team, it seems more likely that Kaczynski was not
yet convinced that it would be necessary for him to dismiss his lawyers. If he did, in fact, believe
that he had any chance of walking free from jail, he was, of course, severely deluded (not
clinically deluded but blinded by unrealistic hopes, however conceived and encouraged). No
judge in America would have set him free. Still, Kaczynski always attached, in negotiations with
the government, a major condition to his offer of a guilty plea - that he be allowed to pursue his
appeal on the search of the cabin. Not a prayer, said the prosecution.
Kaczynski was evidently not seeing much of the press coverage of his case, where his
lawyers' plan to offer a "mental defect" defense was being reported. Indeed, it was only in the
second half of November, with jury selection well under way, that Kaczynski discovered that his
lawyers were planning to introduce testimony from the psychiatrists who had diagnosed his
condition as paranoid schizophrenic. He was furious, and protested vehemently. And that was
when, with the trial itself rapidly approaching, a game of legal chicken began. In Scharlette
Holdman's experience, it was the client who normally flinched in these situations. This client did
not flinch.
David and Wanda Kaczynski were in a horrendous position. David had always loved his
brainy older brother, the proud purist, though the two of them had had some painful clashes. Ted
once worked briefly in a factory where David served as his supervisor. Ted had gone on a date
with a female co-worker, and when she told him she didn't want to see him anymore he posted
copies of a nasty limerick about her in various places in the factory. After David told him to cut
it out, Ted stuck a copy on the machine where David worked, daring him to do something about
it. David fired him.
David made his last visit to Montana in 1986. He and Ted continued to write, but their
letters grew increasingly rancorous, particularly when the subject was Ted's mental health. David
and his wife even discussed what might be necessary to have Ted involuntarily committed. In
November of 1995, in the last letter David received, Ted wrote, "I am not ‘suffering, sick or
discouraged,' and I don't know what ‘indications' you think you have that I am so. But if you
want me to get sick, all you have to do is keep trying to communicate with me, because I get just
choked with frustration at my inability to get our stinking family off my back once and for all,
and ‘stinking family' emphatically includes you."
David shared this letter, and others like it, with the Washington Post last year as part of
what the Post called "a campaign by the Kaczynski family to persuade prosecutors not to seek
the death penalty". The idea of the campaign was, of course, to portray Ted as mentally ill. After
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making the excruciating decision to turn in his brother to the F.B.I., David had felt betrayed
when the authorities, breaking a promise, revealed his role to the press, thereby causing him, his
wife, and his mother to be cruelly besieged by reporters, and also causing what might be a
permanent rift with Ted. But that betrayal was small beer compared with the government's
subsequent decision to seek the death penalty.
David and Wanda stayed impressively "on message" even then, according to a key
member of the defense team. With the help of Anthony Bisceglie, a media-savvy Washington
lawyer, they had learned how to use the press. In the months after Ted's arrest, they gave long
interviews to the New York Times and the Washington Post. David talked at length to the
Sacramento Bee, painting a vivid picture of his brother as a complex idealist who was helplessly
mentally ill. In September, 1996, mother and son went on "60 Minutes", and Wanda, who was
well spoken and sympathetic, and was nearing eighty, told a horrifying story. At the age of nine
months, she said, Ted had been hospitalized for a severe case of hives. In those days, babies in
that hospital were not allowed to be touched by family members. Ted was strapped to a table,
naked and screaming for a week. When she finally got him back, Wanda said, he was
unresponsive, "completely limp". And she felt that all his later problems had stemmed from that
early trauma.
David and Wanda worked with Ted's lawyers, meeting with the mental-health experts,
and with a family historian, for the defense planned to describe a family dynamic that included,
according to court transcripts, "multiple generational...mental illnesses." How much Ted knew of
this collaboration is hard to gauge. David did hear that Ted had seen the Times interview and a
transcript of the "60 Minutes" appearance, and that he was livid about alleged inaccuracies as
well as the general violation of his privacy.
On January 5th, the day Ted's trial was scheduled to start, Wanda and David bravely
turned up in the federal courtroom in Sacramento, taking seats in the front row which the defense
had reserved for them. Ted had seen neither of them in more than a decade. But when he came
in, a few minutes later, striding briskly across the room to his spot at the defense table, not five
yards from where his mother and brother were sitting, he turned and sat down without a flicker
of acknowledgment.
The courtroom was jammed that morning, with reporters, spectators, surviving victims of
the Unabomber, and victim's families. Judge Garland E. Burrell, Jr., took his seat on the bench,
but before he could say a word Kaczynski himself spoke up, in a calm, reedy voice. "Your
Honor, before these proceedings begin, I would like to revisit the issue of my relations with my
attorneys", he said. "It's very important." Apparently, Kaczynski, after weeks of semipublic
wrangling with his lawyers about a mental-health defense, had just learned that they were
planning to go ahead with it in the guilt phase, despite his wishes. For her opening statement,
Judy Clarke had brought along two photographs of her client - one the scrubbed young Berkeley
professor and the other a spectral hermit's face. Kaczynski and his lawyers retired with the judge
to his chambers, and there Kaczynski declared his interest in replacing his lawyers with Tony
Serra.
Proceedings were delayed for two days while Burrell attempted to resolve the conflict.
Contact was made with Serra, and his willingness to represent Kaczynski pro bono was
4-14
confirmed. During the subsequent public hearing, Kaczynski again spoke up, clearly and politely
stating his wish to retain Serra. Judge Burrell, who was said to be haunted by the thought of poor
Lance Ito, undone in the national spotlight by bunglers and demagogues, denied the request for
new counsel. Serra would need many months to prepare, he said. The jury had already been
selected, and witnesses were waiting to testify. The request was "untimely". Glaring at
Kaczynski, Burrell went on to try to settle, once and for all, the dispute between the defendant
and his lawyers by ruling that it was the lawyers' choice, rather than the defendant's, whether or
not to present a "mental status" defense. This ruling caught all parties by surprise, and the next
morning the prosecution expressed its concern that the ruling might contain "grave appellate
error" and cause a guilty verdict to be thrown out by a higher court. The Judge also seemed to
have second thoughts about his ruling.
Kaczynski, in any event, had just electrified the courtroom with another announcement made this time through an ashen Judy Clarke - that, since he had been denied both the counsel of
his choice and the control of his own defense, he would exercise his Sixth Amendment right to
represent himself. Clarke explained that Kaczynski, while he had no enthusiasm for doing so, felt
he had no other choice. It was the "unendurability" of listening to his lawyers describe him in
public as mentally ill that had forced this decision, she said - an inability to endure which she
considered a symptom of his mental illness. (Would a sane man, passionately committed to his
ideas, more easily listen to himself being described by his own representatives as insane?) On
the day that Kaczynski made this request, David Kaczynski told me later, "I thought he had to be
absolutely the most lonely person in the world. I thought, Here he is rejecting lawyers who care
about him just as he rejected the family who loved him. I felt intense grief."
The Judge deferred the question of self-representation by ordering a competency
examination. A Bureau of Prisons psychiatrist, Dr. Sally Johnson, would determine whether
Kaczynski was competent to stand trial and competent to represent himself. Since the standard in
such matters is low, there was little doubt that Kaczynski would be found competent. Indeed,
Judge Burrell himself, who had been dealing with Kaczynski through seventeen months of
pretrial hearings and motions, had said of him a few days before, during an in-camera discussion,
"I find him to be lucid, calm. He presents himself in an intelligent manner. In my opinion, he has
a keen understanding of the issues. He has always seemed focused on the issues in his contact
with me. His mannerisms and his eye contact have been appropriate. I know there's a conflict in
the medical evidence as to whether his conduct, at least in the past, has been controlled by any or
some mental ailment, but I've seen nothing during my contact with him that appears to be a
manifestation of any such ailment. If anything is present, I cannot detect it."
The news media could detect it, though. As Kaczynski's conflict with his lawyers
escalated, delaying the start of the trial, a cartoon image of Ted as a wild-eyed madman gained
currency among reporters, pundits, and TV talk- show hosts. Kaczynski became the stuff of
kitsch. Even the Times ran a story, in early January, that began, "Theodore J. Kaczynski, the
hermit standing trial on charges that he is the Unabomber, has told his defense team that he
believes satellites control people and place electrodes in their brains. He himself is controlled by
an omnipotent organization which he is powerless to resist, he told the lawyers." These lines
were a collage of fragments from various sources pasted together to produce remarks that were
never made and, if they had been, would almost certainly have been shielded by attorney-client
privilege. Newsweek, in a January cover story about new research on genes and the brain, wrote,
4-15
"Mental health, in this new view, is a continuum. At one extreme might be a Ted Kaczynski, the
Unabomber suspect described by his brother's lawyers as obsessive-compulsive, out of touch
with reality, delusional, antisocial and paranoid."
"Described by his brother's lawyers"?
Mental health *is* a continuum. There are many shades of schizophrenia, for instance,
and Kaczynski may suffer from some version of this disease. But he is nowhere near any clinical
extreme. There is no credible evidence that he hears voices, has hallucinations, or is "out of
touch with reality" - unless reality is defined as having conventional social and political views.
There was clearly something comforting, though, in the familiar picture of an ordinary crackpot and something frightening about the physically meek, homegrown terrorist who stubbornly
refused to accept not just established authority but modernity itself. Fears that the trial might
become a "circus" filled countless editorials. (This awful possibility was also referred to as a
political "show trial", though that term properly refers, of course, to a sham trial staged by a state
to punish its enemies, and not to an argument offered by a revolutionary in the dock.) It wasn't
easy to picture Kaczynski turning his trial into agitprop theatre - he is no Abbie Hoffman - but it
was becoming clear that he simply would not recant his stark, apocalyptic view that science and
progress were a colossal mistake.
There were a few - a very few - dissenting voices. Michael Mello, a law professor (and
former capital defender), wrote, in a column for the Sacramento Bee, "Ted Kaczynski's lawyers,
however well-intentioned and paternalistic, are not ‘assisting' him. They are strong-arming a man
on trial for his life." Mello compared Kaczynski's legal situation to that of John Brown, the
leader of the famous raid at Harper's Ferry - a violent attempt to foment a slave rebellion in
Virginia in 1859. Brown's refusal to allow his lawyers to raise an insanity defense during his trial
was respected, and his execution helped bring about the end of slavery. James Q. Wilson, the
conservative social scientist, wrote, in a Times Op-Ed, of the Manifesto, "The argument is subtle
and carefully developed, lacking anything even faintly resembling the wild claims or irrational
speculation that a lunatic might produce....If it is the work of a madman, then the writings of
many political philosophers - Jean Jacques Rousseau, Tom Paine, Karl Marx - are scarcely more
sane."
The only writer who got to see Kaczynski was John Zerzan, a veteran anarchist from
Oregon. Here is a sample of the coverage that Zerzan was giving Kaczynski, taken from the
magazine Anarchy:
"Enter the Unabomber and a new line is being drawn. This time the bohemian
schizfluxers, Green yuppies, hobbyist anarcho-journalists, condescending organizers of the poor,
hip nihilo-aesthetes, and all the other "anarchists" who thought their pretentious pastimes would
go unchallenged indefinitely - well, it's time to pick which side you're on.... Some, no doubt,
would prefer to wait for a perfect victim. Many would like to unlearn what they know of the
invasive and unchallenged violence generated everywhere by the prevailing order - in order to
condemn the Unabomber's counter-terror. But here is the man and the challenge before us.
Anarchists! One more effort if you would be enemies of this long nightmare! Think for yourself.
Act on your own."
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Those who wanted to know what Kaczynski was thinking were forced to rely on the few
people who had contact with him - still primarily, his lawyers, who naturally tended to
emphasize his terrible mental illness. (It was so much worse than an outsider could know, they
claimed. Anyone who doubted its power was stupid or heartless, or both.) But Tony Serra, too,
was still in touch with him, and what he told me was that Kaczynski "believed that the public
defenders (who are paid by the government and therefore ‘sup from the same trough' as the
prosecutors) were conspiring...to silence him and prevent him from espousing the ideology that
‘explained' the homicides. He believed that it was ultimately the right and the left hands, so to
speak, of government seeking the same objective in chilling his opportunity to be heard."
Dr. Sally Johnson proved to be the drama's deus ex machina. A life long employee of the
federal prison system, she is currently the associate warden for health services at a prison in
Butner, North Carolina. Like Dr. Park Dietz, she has testified for the prosecution in many highprofile trials, including Jim Bakker's and John Hinckley's. She has a reputation for fairness,
although Vince Fuller, one of Hinckley's attorneys, has said that the government "picks her when
they want a certain result, and she gives it to them."
Dr. Johnson spent a week interviewing Kaczynski and reading his journals and other
writings and the reports of the other doctors. As had been expected, she found Kaczynski
competent to stand trial and to represent himself. But, according to those who read her sealed
report to the court, she also offered a "provisional" diagnosis of paranoid schizophrenia. This
was good news for Kaczynski's lawyers and bad news for the prosecutors, and it was to have a
decisive impact on the proceedings.
Court reconvened on January 22nd. Although Dr. Johnson had found the defendant
competent to represent himself, and both the defense and the prosecution, asked for their views,
had filed briefs conceding that he had a constitutional right to do so, Judge Burrell went out on a
judicial limb and denied Kaczynski's request. This request, too, he said, had been "untimely."
Kaczynski would need time to prepare - never mind his offer to start trial immediately - and a
new jury would have to be selected. The Judge even accused Kaczynski from the bench of trying
to manipulate the court and delay his trial. The upshot: Kaczynski would have to proceed with
his present lawyers, would have to listen to himself being described as mentally ill, and would
have to listen to the most embarrassing parts of his journals read out in court, aware that they
would be broadcast around the world as evidence that he was a "sickie", a despicable
laughingstock, certainly not someone whose ideas should be taken seriously. That was when
Kaczynski copped a plea.
It was a curious denouement. The government had been widely criticized for not
accepting previous offers of a guilty plea, and had been accused of pursuing the death penalty for
political reasons. But the plea offers had always been conditional. The prosecutors wanted at
least a clean win - a life sentence, without possibility of release - and not further litigation about
the constitutionality of their search of the cabin. So they had refused to consider anything but an
unconditional plea. And that was what Kaczynski suddenly offered them, only minutes after the
Judge refused his request to represent himself.
In truth, the government's chances of getting a death sentence had started to look less
bright. The prosecutors knew, after the Judge's rulings, that they would be facing at trial not only
4-17
the formidable pair of Denvir and Clarke but the even more formidable pair of David and
Wanda. The Kaczynskis, that is, had made it clear that they intended to sit, in obvious agony,
behind Ted throughout the trial, and to testify about his many years of deepening mental illness.
What jury would not be moved by such a spectacle?
Judge Burrell, for his part, had reason to be pleased with this abrupt conclusion. His
painful struggle, primarily with Kaczynski, for control of his courtroom was suddenly over, and
his controversial ruling restricting the defendant's right to counsel would not face appeal. Instead,
they had helped to force the settlement of the case. There was, of course, something odd about
his flying a psychiatrist in from North Carolina for a week to determine the defendant's
competency to represent himself and then, when she found him competent, ruling that he could
not represent himself. But the defense was not about to point out this bit of judicial fickleness.
And, when the prosecution changed course and supported this ruling, it seemed that the fix was
definitely in. Nobody - at least, nobody with any power - wanted this trial to go ahead.
The final scene, that afternoon, was appropriately weird. The Judge asked Kaczynski a
set of basic questions - age, education, occupation - to which he gave answers that were both
banal and riveting. "I was once an assistant professor of mathematics. Since then I have spent
much time living in Montana and have held a variety of unskilled jobs." (At one point, the Judge
used one of his favorite words, a miserable legalism, saying, "Is that what you are referencing?"
Kaczynski replied, "Yes, Your Honor. That is what I am referring to." It was as if some lexical
divinity had parted the clouds, particularly when the Judge then replied, "Are you referring to
anything other than that?") Next, the prosecutors laid out some of the facts that they would have
been prepared to prove at trial. The recitation lasted nearly an hour. It was gory - shrapnel
piercing a heart, hands blown off - and what was particularly horrifying were decoded "lab
notes" from Kaczynski's journals, in which he recorded the results of his "experiments."
"Excellent" was his judgement on the swift, bloody death of Hugh Scrutton, a young computerrental-business owner. "A total satisfactory result", he wrote of the murder of Thomas Mosser, a
New Jersey father of two.
After each horror story - and all sixteen bombings were described - the Judge asked
Kaczynski, "Do you agree with the factual representation just made by the Government's
attorney?"
And Kaczynski answered, in a clear, unreadable tone, "Yes, Your Honor."
What was, in a way, the most disturbing story involved no fatalities. It was an attempt, in
1979, to bring down an airliner with seventy-two passengers aboard. Kaczynski had used a
barometer-triggered device, and it had succeeded only in setting some mailbags on fire and
forcing an emergency landing; in a letter written years later, the Unabomber expressed relief that
the airline bomb had failed, since its target had been too indiscriminate. By then, he had laid out
the political coordinates of his campaign, seeking to justify, in the Manifesto, his attacks on
computer scientists, geneticists, behavioral psychologists, and public-relations executives. But
one of his motives for planting a bomb on the airliner, and nearly killing all those people, had
apparently been pure peevishness. Hypersensitive to noise, Kaczynski hated the jets that
periodically flew over his home in Montana.
4-18
The worst journal entry, certainly, concerned the 1985 maiming of John Hauser, and Air
Force pilot and Berkeley graduate student in electrical engineering:
"I was relieved to find out what kind of guy sprang the trap. I had worried about
possibility that some young kid, undergrad, not even computer science major,
might get it. But this guy is clearly typical member of the technician class. Might
even be one of the guys that has flown those fucking jets over my home. This give
great relief to my choking, frustrated anger and sense of impotence against the
system. At same time, must admit I feel badly about having crippled this man's
arm. It has been bothering me a good deal. This is embarrassing because while my
feelings are partly from pity, I am sure they come largely from the training,
propaganda, brainwashing we all get, conditioning us to be scared by the idea of
doing certain things. It is shameful to be under the sway of this brainwashing. But
do not get the idea that I regret what I did. Relief of frustrated anger outweighs
uncomfortable conscience. I would do it all over again."
Later, Kaczynski wrote:
"Further search of newspapers yielded...Hauser's arm was severed or nearly
severed. Tips of three fingers torn off. Use of arm and hand will be permanently
impaired. To what degree not known. Hauser father of two kids. He was working
toward Ph.D., contrary to other paper that said Masters. He was afraid his ‘dream'
was ruined. Dream was to be an astronaut. Imagine a grown man whose dream is
to be an astronaut. I am no longer bothered by this guy partly because I just ‘got
over it' with time, partly because his aspiration was so ignoble."
Watching Kaczynski listen to these "representations" of his crimes and his private,
crabbed confessions, I struggled without success, to comprehend the combination of such
viciousness and such meekness in one man. He really was the mail bomber par excellence. He
was also no stranger to ignoble ambitions – his own being, apparently, a career of guilt-free
killing and maiming of innocent people. I was reminded of a passage from an undated letter he
had written to his brother:
"As you know, I have no respect for law or morality. Why have I never
committed any crime? (of course, I'm not talking about something like shooting a
grouse out of season now and then. I mean felony type stuff - burglary, arson,
murder, etc.) Lack of motive? Hardly. As you know, I have a good deal of anger
in me and there are lots of people I'd like to hurt. Risk? In some cases, yes. But
there are other cases in which I can figure out ways of doing naughty things so
that the risk would be insignificant. I am forced to the humiliating confession that
the reason I've never committed any crime is that I have been successfully
brainwashed by society. On an intellectual level I have only contempt for
authority, but on an animal level I have all too much respect for it. My training
has been quite successful in this regard and the strength of my conditioned
inhibitions is such that I don't believe I could ever commit a serious crime.
Knowing my attitude toward psychological manipulation of the individual by
4-19
society, you can imagine how humiliating it is for me to admit to myself that I
have been successfully manipulated."
On the Internet, where discussion groups are still devoted to topics like "Ted's Anger",
there was much debate and rending of garments in the aftermath of the plea bargain. My own
favorite posting was "He admitted to his crimes without shame, unlike that pussy McVeigh."
While some commentators speculated that Kaczynski had in fact brilliantly manipulated
the judicial process, the defense psychiatrists were non-plussed by this image of Kaczynski as
mastermind. What they saw, as the trial approached, was a spectacle of panic, with Kaczynski
becoming "extremely disorganized", to quote Dr. Froming. A report by his jailers that
Kaczynski, on the night after his request to retain Serra was denied, had apparently tried to hang
himself in his cell seemed, if true, to favor the psychiatrists' view of his mental state. I saw it
differently. Kaczynski struck me the way he had struck Judge Burrell, as lucid and well focused,
particularly when one considered that he was on trial for his life. He was just hopelessly trapped.
He had tried each of his very few options, and then had taken the best deal he could get.
It is reported that while Kaczynski awaits formal sentencing, which will come in May, he
has been writing furiously. Speculation about what he is writing has included a "Manifesto II", a
detailed rebuttal of the psychiatric reports that found him mentally ill, and a desperate effort to
withdraw his guilty plea, arguing that it was coerced. He has also been in touch with Tony Serra,
who has declined to assist with any effort to withdraw his plea. The slight possibility that such an
effort might succeed, gaining Kaczynski a trial, which might then result in a death sentence, is
presumably too awful for even the True Believer to contemplate.
I talked to David Kaczynski the day after the plea agreement was reached. He was full of
praise for the Judge, for Ted's defense team, for Dr. Sally Johnson. He and his mother were
immensely relieved, he said, but also immensely sad. "There is just so much that the public hasn't
seen of Ted", he said. "He is so different from the outline the prosecution sketched of him. He is
the most complex individual I have ever known - truly a mystery - and I thought that long before
I ever imagined what he might be involved in attacks on people." Ted had always been at war
with the idea that he had a conscience, David explained. "You could hear it in the journal entry
they read in court about John Hauser. He really believes that conscience comes from
brainwashing. It's not the way most of us see our socialization....He is committed to a kind of
rationality that ultimately doesn't create coherence in his own psyche. I guess there are people
who really can dissociate - people in organized crime, or government leaders who commit great
violence, and still sleep well at night. I don't think Ted ever slept well."
I thought of Ted's cabin, which his lawyers had brought to Sacramento on a flatbed truck,
planning to show it to the jury and ask the question: "Would anyone but a certifiable lunatic
choose such a primitive abode?" What they did not bring, of course, were the forests and rivers
and mountains Kaczynski loved.
David started talking about the times he and Ted had spent together in Montana when
Ted first lived there. He recalled with particular fondness a long backpacking trip. "I mean, it
was long for me", he said, laughing softly. "A couple of weeks. We went way back in the
mountains, where we found this pristine little lake. It seemed like no other people had been there.
4-20
The lake was full of cutthroat trout, and this was before I became a vegetarian, so we just caught
trout every day and that was what we ate. We actually camped on a little island. We waded out
there. I guess we were thinking of bears." "Bears can wade", I said.
"That's true", he said. "They can."
4.4
Settlement Talks
I need some ethics advice. As you know, I represent Pat Richards in her suit against
Acme, Inc. A gas stovetop manufactured by Acme had design defects and caused a serious fire
in Richards’ house. Louise Ma, the attorney for Acme, was at the law and motion calendar today
on a different case, and she pulled me briefly aside to say, “Hey, I’m pretty sure I’ve got my
client ready to offer Richards’ $150,000. Let me know if that’s going to do it for her.”
Now, I’ve known Louise for a long time, and I’ve litigated against Acme several times.
An early offer for $150,000 is really just an attempt to sound out my client and get some free
information about her attitude on settlement. The case is easily worth $500,000 or more and
Louise and I both know it. Here’s the problem, though. Pat Richards is extremely risk averse
and could easily cave at the $150,000 offer. So, for her own good, I don’t plan on telling her
about it. It’s not in writing, and besides it’s technically not an offer anyway. Ma’s comment just
isn’t enforceable. What do the California ethics rules say about this situation?
Analyze this example under California Rules of Professional Conduct 3-500 and 3-510
and offer practical advice.
4.5
Death Row Volunteer (former exam question)
One of your friends from law school needs help. Please respond to her question.
My big law firm allowed me to take on a pro bono death penalty appeal. In reality, I’m
using the case as a chance to switch to public interest law and death penalty defense cases in
particular. I’ve been getting lots of help from the California Capital Defense Project (CCDP),
which is a public interest group that supports death penalty defense teams by providing briefs,
organizing strategy conferences, developing legal theories, etc.
I will represent Ty Jackson who’s been on San Quentin’s death row for eight years since
his conviction for the killing of a storeowner during a robbery. The evidence against him is
uncontestable (confession, fingerprints, videotape, eye witnesses, and hot capture in the store’s
parking lot!), but the trial was grossly unfair: all people of color were struck from the jury pool
for pretextual reasons; the judge obviously favored the prosecutor; and the judge wouldn’t allow
the defense to develop its theories during the penalty phase.
We’re preparing a briefing before the Ninth Circuit—our best chance for a new trial. In
the long run, the best chance is to keep Jackson alive long enough for the political winds to
change and for the death penalty to be abolished or at least suspended. Realistically, the best we
can hope is that Jackson will spend his remaining years in a brutally harsh prison environment.
4-21
I’m preparing to meet Jackson for the first time. Terry Rushton, a CCDP lawyer, pulled
me aside and talked to me about death row “volunteers”—prisoners who voluntarily drop all
appeals and seek an early execution date. Apparently, Jackson has raised the topic repeatedly. I
said I thought that was the client’s choice. Rushton disagreed. Strongly disagreed. This morning,
my voicemail had the following message. (It wasn’t Rushton’s voice.)
“Don’t let your client volunteer. The death penalty is murder. By necessity you must stop
the murder of your client. Because your client is on death row, he’s undoubtedly suffering
clinical depression. Imagine the brutality of his living conditions. He’s a client under a disability.
Choose his objectives for him. You have a duty not just to clients, but also to the system.
Permitting your client’s execution after the prosecutor struck African-American jurors will make
that sort of racist execution easier in the future. There are lots of techniques to prevent clients
from volunteering. Ask the CCDP attorneys. I tell you this because I like you. I want you to be a
success at what you do and not make a fatal mistake on your first matter.”
How should I approach this problem?
*****
Give the lawyer advice. The only governing law is the ABA Model Rules.
4.6
Lawyers Representing Mass Killers
(A)
Watch the interview with Geir Lippestad, the highly regarded Norwegian lawyer
who represented Anders Breivik, who killed dozens of children. Lippestad
referred to his client as “insane” without his client’s permission. What do you
think of that? What do the Model Rules say about that?
http://www.bbc.co.uk/news/world-europe-14292212
(B)
Not allowed to drop out, Nidal Hasan defense team in 'morally repugnant' spot”
By Josh Rubin. Josh Levs and Chelsea J. Carter, CNN; updated 12:01 PM EDT, Thu August 8,
2013
Fort Hood, Texas (CNN) -- The military judge overseeing the trial of admitted Fort Hood
gunman Maj. Nidal Hasan told defense attorneys Thursday that they can't drop out of the case -even though they believe it's tantamount to helping him commit suicide.
"This is nothing more than their disagreement with Major Hasan's strategy in conducting
his defense," said the judge, Col. Tara Osborn, rejecting a motion by the standby counsel who
are tasked with assisting Hasan as he represents himself.
The attorneys argued Wednesday that Hasan is trying to help the prosecution achieve a
death sentence.
4-22
Osborn's decision sparked a bitter fight in a trial focused on charges that Hasan shot and
killed 13 people and wounded 32 in the November 2009 rampage at the Army installation near
Killeen, Texas.
"We believe your order is causing us to violate our professional ethics. It's morally
repugnant to us as defense counsel," said Lt. Col. Kris Poppe, head of Hasan's legal team.
He asked for a stay on her order, which would prevent it from going into effect. The
judge then asked for a written document from the state bar establishing that continuing to work
with Hasan would be an ethical violation.
"I will make it easy for you. I've given you an order ... and that relieves you of every
ethical liability," Osborn said.
Poppe would have nothing of it, his voice raised in obvious frustration.
"The order does not relieve us of the responsibility. ... We believe we are doing
something that is morally repugnant. This is not about saving my license ... this is about what
you are requiring me to do today: assist this man in achieving the goal, which we believe is
achieving a death sentence."
The lead prosecutor chimed in, questioning the defense team's claims, saying that Hasan
is mounting a legitimate defense.
"The government sees only two defenses: either 'I didn't do it,' or 'I did it, with an excuse.'
He was caught with a gun in his hand," said Col. Michael Mulligan.
"I don't understand how that's repugnant to defense counsel -- I'm truly perplexed."
In a military capital trial, a guilty plea is not an option. Hasan's official plea is that he is
not guilty of the charges. But on Tuesday, Hasan used his opening statement to declare "I am the
shooter."
After the standby counsel argued Wednesday that Hasan was seeking the death penalty,
Hasan objected, calling it "a twist of the facts." But he refused to submit his objection in writing,
a move that Osborn requested to avoid revealing privileged information in open court.
The defense attorneys Thursday immediately appealed Osborn's ruling. But she gave no
stay in the meantime. "We're going to move forward," the judge said, allowing the trial to
continue unless a higher military court weighs in.
The trial resumed with the prosecution calling to the stand soldiers who were witnesses of
Hasan's shooting spree.
The attorneys' request Wednesday halted what would have been the second day of
testimony.
4-23
Although Hasan, a U.S.-born citizen of Palestinian descent, was granted his request to
represent himself, Osborn ruled before the court-martial began that defense lawyers would act as
standby counsel during the proceedings.
Expert: Judge can't let attorneys stop
Geoffrey Corn, a military justice expert at the South Texas College of Law in Houston,
said the defense lawyers are in "a terrible predicament."
"They have to stand by and watch the person they are ostensibly charged with assisting to
represent himself essentially put a noose around his own neck, and they view this as
fundamentally inconsistent with their ethical obligation as lawyers," he said.
But Corn said Hasan not only has the right to defend himself, "he has the right to do it
poorly" -- even to the point of asking for death.
"The defense lawyers would love to get off this case, because it becomes unbearable,"
Corn said. "If you imagine having to sit there, being an ardent opponent of capital punishment,
watching this guy seal his own fate with every move he makes, it must be torture. But the judge
can't let them off the case."
4.7
Traumatized Persons in the Legal System
Ask the experts! Sample trauma scenarios
Criminal examples:

This is a child molestation prosecution where the defendant is the step-father of the 12
year-old female victim. The victim was aggressively cross-examined at the preliminary
hearing by the defense attorney (who is widely-known for employing such methods in his
practice). The victim cried throughout her testimony at the prelim but the Judge found the
testimony credible and the defendant was held to answer. According to her mother, since
the prelim, the victim has had a recurrence of intense nightmares that had subsided over
the months prior to the prelim.
o

What role should trauma play on the conduct of the prosecutor, defense counsel
and judge when the case goes to jury trial? How should the court system respond
to the needs of this trauma victim while still ensuring a fair process?
A teenager witnessed a drive-by gang shooting in his neighborhood that resulted in the
death of his cousin. He escaped injury but his cousin died in his arms before the
ambulance arrived. The teen is now traumatized by the event, and for many reasons, is
terrified to appear in court, face the defendants and retell the experience. There is no
question this is an extremely traumatized witness. Just seeing the guns on the deputies
"triggers" an emotional breakdown by this witness.
o
How should the court system respond to the needs of this trauma victim while still
ensuring a fair process?
4-24
Family Court example:

Wife applied for and obtained a temporary restraining order in Family Court after
alleging Husband was physically violent to her and the children. Her application
indicated husband suffers from a mental health disorder and she believes he is not taking
his prescribed medication. Husband cross-files a TRO against Wife which the judge
denies, because his allegations against her appear to be the result of hallucinations.
However Husband is still legally entitled to a hearing on his request. When the judge
hears the matter, he finds Wife has met her burden to obtain protection but Husband is
not credible and his request is denied.
o
Why is it important the judge deliver a message on non-credibility in a traumainformed way, and what should the judge say?
Civil examples:


Jasmine came to the United States with her family when she was six years old. English is
not Jasmine's first language, and she is not fluent in it. On one occasion when she was 11
years old, Jasmine was the victim of sexual molestation by a male relative. The event
occurred when the two of them were alone in her home. The relative stared at her, putting
one hand on her shoulder, and warned her not to tell anyone what "they" had done. She
has never told anyone of this incident, which upset her greatly. Now 16 years old,
Jasmine has just gotten her first job at a fast-food franchise. On Jasmine's first day of
work, her shift supervisor, Brandon, told her, when no one else was within earshot: “I’m
the one who decides your hours and your evaluation, so you'd better be nice to me."
When he said this, Brandon was staring into Jasmine's eyes, and had his hand on her
shoulder, rubbing her. When Jasmine was later at home and was asked by her mother
how her first day at work went, Jasmine burst into tears. Jasmine's parents file a lawsuit
on her behalf including claims of sexual harassment and battery.
o
If you are counseling the attorney defending Jasmine's suit, what would you tell
the attorney as to the best approach in cross-examining Jasmine for maximum
jury impact without creating sympathy for her?
o
How far will you let the opposing attorney go in cross-examining Jasmine if that
attorney makes an offer of proof that the attorney will present evidence that
Jasmine is lying about the existence of her alleged trauma?
After a long marriage, Mary's husband unexpectedly announced his intention to divorce
her and marry a younger woman. Mary was devastated and went into a deep depression
that lasted many months. She was awarded substantial property in the divorce, including
a small ranch. While she was still deeply depressed (and had even contemplated suicide)
Mary dated a younger man. During the relationship, she signed a deed conveying her
ranch to him. Her relationship with the younger man ended. With the support of friends,
she engaged counsel and brought a civil action against him, requesting the deed be
cancelled. The defendant resisted, and his counsel set Mary's deposition. Mary was quite
nervous about giving a deposition. She felt extremely embarrassed and foolish in the way
4-25
she had behaved with the younger man. At Mary's deposition, defense counsel asked
extensive questions forcing Mary to go into the details of her divorce, her actions after
the marriage breakup and her relations with the defendant. Mary was thrown back into
the negative feelings she had experienced during those events, to the point where she
broke down in tears and could not go further. Her counsel had to interrupt the deposition
and take Mary aside for a substantial period of time. Mary told her counsel she felt she
could not go on with the deposition or litigation because she was thrown so deeply back
into feelings she did not want to experience including feeling shamed and embarrassed
about what she had done.

o
What should Mary's attorney do to assist his client, both in terms of preparation
prior to the deposition and appropriate support when it is clear at the deposition
that Mary cannot continue?
o
How will Mary's emotional state impact her attorney's strategy for resolving the
case?
The plaintiff is a 25 year old woman who was brutally assaulted and raped in the garage
of her apartment building. She has filed suit against the building owner, alleging the
security system in the garage was in poor condition and inadequate, thereby allowing the
attack on her. She suffered severe trauma both physically and mentally as a result of the
assault. She was hospitalized for ten days, and has continued in therapy since the
incident. She has been unable to return to work and is claiming substantial damages. The
building owner's defense attorney has attempted to take the Plaintiff's deposition on two
occasions. Both times she broke down when asked to describe the attack, causing the
deposition to be terminated. The defense attorney has asked the discovery judge to
compel her to testify or dismiss the case
o
4.8
How should the discovery judge handle this?
Overview of Autonomy
A PRIMER ON ATTORNEY-CLIENT PATERNALISM
John Steele
1.
What is paternalism?
Paternalism is interference with an individual's liberty on the grounds of the individual's
best interest. Paternalism is not interference justified by our own good, by our self-protection, or
by the needs of the community. Sometimes these reasons are intertwined with paternalism; for
example, we make motorcyclists wear helmets for their own good but also because we don't
want taxpayers burdened with brain-dead Hells Angels.
2.
What are the objections to paternalism?
Paternalism isn’t necessarily bad. Plato was a big fan of paternalism. There are many
pro-paternalists today, including some parents, clerics, busy-bodies—not to mention law schools
4-26
that require legal ethics courses. But our world is dominated by the Enlightenment view that the
individual must be protected from the power of institutions like the state, the church, etc. That
worldview entails two basic objections to paternalism. First, we might assert empirically that the
individual is always (or nearly always) the best judge of that individual's best interests. Second,
we might assert deontologically (i.e., as a matter of duties and rights) that an individual's right to
determine his or her own best interests—whether that determination is well-made or poorly
made—is a critical component of our inherent personal autonomy.
These objections have weaknesses. First, as an empirical matter, there are lots of people
who cannot ascertain their own best interests – e.g., children, the mentally impaired, etc. And
even the best of us frequently make stupid choices and wish that someone had intervened to stop
us. (Recall the old saying: “Half of a decent lawyer’s practice is telling clients that they are
damn fools and should stop.”) So we do intervene. Drawing upon hard-earned lessons, we have
crafted bright line rules regarding who is competent (i.e., eighteen year olds) and make ad hoc
determinations when someone’s competence is formally challenged (i.e., “it isn’t natural for
Grandma to squander her estate that way”). We also interfere with the choices of competent
people.
Measuring an individual’s competence is difficult because we often employ a limited
calculus. We tend to favor those choices that further the ends of instrumental rationality—i.e.,
choices that preserve life, health, and the accumulation of wealth and property, which are the
generalized means for obtaining a variety of ends. It's hard to weigh choices that involve the
whimsical, spiritual or quixotic.
In sum, even if we cannot always identify when the individual is making bad choices, we
believe that it happens frequently. But we still haven't justified paternalism until we have
established that a better decision-maker is available. The government, the family, the church, the
school, and the bureaucracy will make choices for you, but they each have obvious strengths and
drawbacks. We might turn to friends, who are sometimes uniquely situated to look out for our
best selves. (It has been argued that a lawyer is a special kind of friend.) Drawing on common
experience we might conclude that there are many times when a friend of some sort is justified in
intervening in an individual’s decision-making.
The second objection to paternalism—that is it infringes the individual's inherent
autonomy—is also weak. It's hard to argue that each of us is a sovereign island. If you believe
that we are social, political animals, you might conclude that part of being human is belonging to
institutions like families, churches, schools, circle of friends, that ought to possess some degree
of decision-making over our lives.
3.
What situations might justify paternalism?
(a)
The individual's decision making is impaired, as in the case of children,
the elderly, the mentally ill, etc. We feel justified in choosing what they
would choose if they were fully competent. This issue is raised legally in
commitment proceedings, emancipation petitions, testamentary
challenges, guardianships proceedings, etc. We might posit a fictional
consent to choosing what the person would want if fully competent.
4-27
Similarly, if the individual’s decision-making is temporarily affected by
stress or coercion, we might make the choice the individual would make if
not coerced.
4.
(b)
The individual makes a valid choice but lacks the will or ability to
effectuate that choice. We feel justified in paternalism because we believe
we have actual consent. For example, you might give your car keys to a
friend before you enter a party and insist that you not be permitted to drive
home if you drink alcohol.
(c)
The individual's choice is flawed because in balancing the possible
outcomes the individual misunderstands the appropriate values at stake.
This is a tougher case for paternalism, but we might feel justified in
making the choice we feel the individual would make if they properly
apprehended the circumstances. Attorneys sometimes force settlement on
their clients for this reason.
(d)
The individual is making a permanent, irreversible choice that causes
serious harm, perhaps even eliminating the individual's ability to make
choices in the future. This justification seems sensible, but the decision
made be based upon fundamental beliefs that are, for example, spiritual or
ideological. In that case, how are we to measure and balance the
competing interests?
What are the bases for the conclusions we draw for the individual?
The legal process is well-equipped to weigh the preservation of life, health, and
generalized means to a variety of ends (i.e., wealth and property). The legal process has a harder
time with the less measurable values such as spirituality, sacrifice, whimsy, self-dignity, political
beliefs, etc.
5.
What limitations would we put on it even when justified?
In addition to justifying the paternalism on the grounds stated above, we might further
constrain paternalism by insisting that the burden of proof is on the party who wishes to
interfere, that the interference is justified only when failure to intervene would cause severe
consequences, and the interfering party must use the least restrictive means to interfere.
6.
What rules govern paternalism in attorney-client relationships?
MR 1.2 governs the scope of the representation and the objectives thereof. MR 1.14
discusses clients under disabilities. Standard 4-5.2 of the ABA Standards for Criminal Justice
governs the control and direction of the criminal defense. California ethical rules do not
expressly cover the point.
7.
Some paternalism issues in attorney-client relationships.
Is an attorney simply a technician who pursues the stated best interests of the client?
4-28
Is the attorney an expert whose experience and wisdom warrant some degree of
paternalism?
In general, how should an attorney assess the degree of proper degree of paternalism in
any particular case? Do we need less paternalism when attorneys deal with less powerful natural
persons? Do we need more paternalism when the client is a corporation that is violating or
skirting the laws?
Further Reading:
David Luban, Paternalism and the Legal Profession, 1981 Wis. L. Rev. 454
William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones’s Case, 50 Md. L.
Rev. 213 (1991)
Gerald Dworkin, Paternalism, in Morality and the Law (Wasserstrom, ed.; Wadsworth
Publishing 1971)
4-29
BOALT – LEGAL PROFESSION
LESSON 5: CONFIDENTIALITY
SEPTEMBER 23, 2014
FAQ’s
All Students Read
Model Rule 1.6; Cal.
Rule Prof’l Conduct
3-100
All Students Read
Outline
§ IV(F)(5); pp. 30-34
All Students Read
5.1
Spaulding v.
Zimmerman
All Read; Group 4
5.2
Alton Logan
All Read; All ready to
discuss
5.3
Confidential?
Privileged?
All Read; Group 3
5.4
Let a Smile Be Your
Umbrella
All Read: Group 2
5.8
Amy A. v. Cooper
House
All Read: Group 1
(ready to discuss the
2nd question)
5.9
Recent Examples
from the News
All Read; no cold
calls
Objectives:
By the end of this lesson, you should be able to:
1.
Distinguish and define (a) the ethical duty of confidentiality; (b) the evidentiary
concept of attorney client privilege; and (c) the work product protection doctrine.
2.
Define what information is considered confidential under the ethics rules.
3.
Explain the concepts of express and implied client consent to revelation of
confidences.
4.
Explain the situations when a lawyer might have discretion to reveal client
confidences even in the absence of express or implied client consent.
5-1
5.
Explain what is commonly called the “financial fraud exception.”
6.
List out some situations where under the ethics rules a lawyer not only “may”
reveal a client confidence without consent, but “must” do so. (Note: the “must
reveal” exceptions will be covered later in the semester.)
7.
Discuss your personal views, apart from governing law, about what the ethics
rules should permit a lawyer to reveal even without client consent.
QUESTIONS
(5.1)
What is the attorney client privilege?
For the purposes of this semester, including the exam, assume that these are the operative
definitions of the attorney client privilege and the crime-fraud exception.
The attorney client privilege is an evidentiary concept. Here is one formulation of the
elements of the privilege. Where a communication is made in confidence between a client
(current or potential) and an attorney (or the attorney’s subordinate agent) for the purpose of
securing legal services and not for the purpose of furthering an ongoing crime of fraud, then the
communication is privileged.
Under the so-called “crime-fraud” exception, if the communication is in furtherance of an
ongoing crime or fraud, then the communication was never privileged to begin with, even if the
attorney is unaware of the client’s nefarious purpose. United States. v. Laurins, 857 F.2d 529
(9th Cir. 1988).
(5.2)
What is the duty of confidentiality?
While the privilege is an evidentiary concept, the duty of confidentiality is a fiduciary
duty running from attorney to client. The duty of confidentiality applies to all “information
relating to the representation of a client.” (MR 1.6) That’s incredibly broad—much broader than
may be intuitive to you.
Note that the duty is not limited to privileged information and is not limited to
information received from the client. Hence the scope of information covered by the duty of
confidentiality is typically broader than the information covered by the attorney-client privilege.
Under the California formulation, for example, the duty of confidentiality applies to any
information that could be “embarrassing or detrimental to the client.” In the Venn diagram
above, privileged information is represented by a smaller circle within the larger circle that
represents the duty of confidentiality.
(5.3)
Are privilege and confidentiality the same?
No, they are not. Sometimes information and communications are both privileged and
confidential, but not always. You need to do separate analyses for each concept. Below there are
some examples below that will help you work through that.
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To determine whether the duty of confidentiality applies, first consider whether it falls
into the broad definition of clients’ confidences and then analyze whether any exceptions to the
duty apply. When you analyze the exceptions, bear in mind that when states can provide that
under a given exception the attorney either “shall” or “may” reveal the confidence. There aren’t
too many states that have “shall reveal” exceptions, but a few do.
(5.4)
What is the current state of the ABA Model Rules regarding the duty of confidentiality?
At the August 2003 convention, the ABA House of Delegates approved two more
exceptions to the duty of confidentiality; there are now six “may reveal” exceptions within MR
1.6. Elsewhere in the Model Rules there are three “must reveal” exceptions (3.3(a); 3.3(b); and
4.1(b)) and two “may reveal” exceptions (1.13(c); 1.14(c)).
(5.5)
What is work product protection?
We won’t cover the concept of work product protection (it is covered in Evidence). It’s a
judge-made right by which lawyers may shield their own litigation-related work product from
their opponents.
(5.6)
What are the standard normative arguments about the duty of confidentiality?
Normative arguments often turn on the empirical question of which rule will maximize
compliance with law. Some say that a strict rule of confidentiality will increase compliance,
because clients will trust their lawyers and share all the facts—whereupon lawyers will be in a
position to urge the client to comply with law. (Recall that under MR 1.2(d), a lawyer shall not
counsel or assist a client to commit a crime or fraud.) Others say that adding liberal exceptions to
the duty of confidentiality will increase compliance, both because lawyers will reveal client
confidences to halt bad behavior and because lawyers can threaten their clients with disclosure if
they will not cease their bad behavior. This empirical debate is a perennial, but neither side of the
debate has marshaled much data to support its position
That’s the basic utilitarian argument. You could also offer rights-based arguments. For
example, a rights-based argument might assert that, regardless of any consequential calculus,
clients need to have a private sphere of communication safe from government intrusion. Those
arguments are being raised, for example, in the context of the new rules under which the
Department of Justice is tape recording conversations between terrorist suspects and their
attorneys.
5.1
Example: Spaulding v. Zimmerman
Spaulding v. Zimmerman
263 Minn. 346; 116 N.W.2d 704; 1962 Minn. LEXIS 789 (1962)
OPINION BY: GALLAGHER
OPINION: Appeal from an order of the District Court of Douglas County
vacating and setting aside a prior order of such court dated May 8, 1957,
approving a settlement made on behalf of David Spaulding on March 5, 1957, at
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which time he was a minor of the age of 20 years; and in connection therewith,
vacating and setting aside releases executed by him and his parents, a stipulation
of dismissal, an order for dismissal with prejudice, and a judgment entered
pursuant thereto.
The prior action was brought against defendants by Theodore Spaulding, as father
and natural guardian of David Spaulding, for injuries sustained by David in an
automobile accident, arising out of a collision which occurred August 24, 1956,
between an automobile driven by John Zimmerman, in which David was a
passenger, and one owned by John Ledermann and driven by Florian Ledermann.
On appeal defendants contend that the court was without jurisdiction to vacate the
settlement solely because their counsel then possessed information, unknown to
plaintiff herein, that at the time he was suffering from an aorta aneurysm which
may have resulted from the accident, because (1) no mutual mistake of fact was
involved; (2) no duty rested upon them to disclose information to plaintiff which
they could assume had been disclosed to him by his own physicians; (3) insurance
limitations as well as physical injuries formed the basis for the settlement; and (4)
plaintiff's motion to vacate the order for settlement and to set aside the releases
was barred by the limitations provided in Rule 60.02 of Rules of Civil Procedure.
After the accident, David's injuries were diagnosed by his family physician, Dr.
James H. Cain, as a severe crushing injury of the chest with multiple rib fractures;
a severe cerebral concussion, probably with petechial hemorrhages of the brain;
and bilateral fractures of the clavicles. At Dr. Cain's suggestion, on January 3,
1957, David was examined by Dr. John F. Pohl, an orthopedic specialist, who
made X-ray studies of his chest. Dr. Pohl's detailed report of this examination
included the following:
* * * The lung fields are clear. The heart and aorta are normal."
Nothing in such report indicated the aorta aneurysm with which David was then
suffering. On March 1, 1957, at the suggestion of Dr. Pohl, David was examined
from a neurological viewpoint by Dr. Paul S. Blake, and in the report of this
examination there was no finding of the aorta aneurysm.
In the meantime, on February 22, 1957, at defendants' request, David was
examined by Dr. Hewitt Hannah, a neurologist. On February 26, 1957, the latter
reported to Messrs. Field, Arvesen & Donoho, attorneys for defendant John
Zimmerman, as follows:
"The one feature of the case which bothers me more than any other part of
the case is the fact that this boy of 20 years of age has an aneurysm, which
means a dilatation of the aorta and the arch of the aorta. Whether this
came out of this accident I cannot say with any degree of certainty and I
have discussed it with the Roentgenologist and a couple of Internists. * * *
Of course an aneurysm or dilatation of the aorta in a boy of this age is a
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serious matter as far as his life. This aneurysm may dilate further and it
might rupture with further dilatation and this would cause his death.
"It would be interesting also to know whether the X-ray of his lungs, taken
immediately following the accident, shows this dilatation or not. If it was
not present immediately following the accident and is now present, then
we could be sure that it came out of the accident."
Prior to the negotiations for settlement, the contents of the above report were
made known to counsel for defendants Florian and John Ledermann.
The case was called for trial on March 4, 1957, at which time the respective
parties and their counsel possessed such information as to David's physical
condition as was revealed to them by their respective medical examiners as above
described. It is thus apparent that neither David nor his father, the nominal
plaintiff in the prior action, was then aware that David was suffering the aorta
aneurysm but on the contrary believed that he was recovering from the injuries
sustained in the accident.
On the following day an agreement for settlement was reached wherein, in
consideration of the payment of $ 6,500, David and his father agreed to settle in
full for all claims arising out of the accident.
Richard S. Roberts, counsel for David, thereafter presented to the court a petition
for approval of the settlement, wherein David's injuries were described as:
"* * * severe crushing of the chest, with multiple rib fractures, severe
cerebral concussion, with petechial hemorrhages of the brain, bilateral
fractures of the clavicles.
Attached to the petition were affidavits of David's physicians, Drs. James H. Cain
and Paul S. Blake, wherein they set forth the same diagnoses they had made upon
completion of their respective examinations of David as above described. At no
time was there information disclosed to the court that David was then suffering
from an aorta aneurysm which may have been the result of the accident. Based
upon the petition for settlement and such affidavits of Drs. Cain and Blake, the
court on May 8, 1957, made its order approving the settlement.
Early in 1959, David was required by the army reserve, of which he was a
member, to have a physical checkup. For this, he again engaged the services of
Dr. Cain. In this checkup, the latter discovered the aorta aneurysm. He then
reexamined the X- rays which had been taken shortly after the accident and at this
time discovered that they disclosed the beginning of the process which produced
the aneurysm. He promptly sent David to Dr. Jerome Grismer for an examination
and opinion. The latter confirmed the finding of the aorta aneurysm and
recommended immediate surgery therefor. This was performed by him at Mount
Sinai Hospital in Minneapolis on March 10, 1959.
5-5
Shortly thereafter, David, having attained his majority, instituted the present
action for additional damages due to the more serious injuries including the aorta
aneurysm which he alleges proximately resulted from the accident. As indicated
above, the prior order for settlement was vacated. In a memorandum made a part
of the order vacating the settlement, the court stated:
"The facts material to a determination of the motion are without
substantial dispute. The only disputed facts appear to be whether * * * Mr.
Roberts, former counsel for plaintiff, discussed plaintiff's injuries with Mr.
Arvesen, counsel for defendant Zimmerman, immediately before the
settlement agreement, and, further, whether or not there is a causal
relationship between the accident and the aneurysm.
"Contrary to the * * * suggestion in the affidavit of Mr. Roberts that he
discussed the minor's injuries with Mr. Arvesen, the Court finds that no
such discussion of the specific injuries claimed occurred prior to the
settlement agreement on March 5, 1957.
"* * * the Court finds that although the aneurysm now existing is causally
related to the accident, such finding is for the purpose of the motions only
and is based solely upon the opinion expressed by Dr. Cain (Exhibit 'F'),
which, so far as the Court can find from the numerous affidavits and
statements of fact by counsel, stands without dispute.
"The mistake concerning the existence of the aneurysm was not mutual.
For reasons which do not appear, plaintiff's doctor failed to ascertain its
existence. By reason of the failure of plaintiff's counsel to use available
rules of discovery, plaintiff's doctor and all his representatives did not
learn that defendants and their agents knew of its existence and possible
serious consequences. Except for the character of the concealment in the
light of plaintiff's minority, the Court would, I believe, be justified in
denying plaintiff's motion to vacate, leaving him to whatever questionable
remedy he may have against his doctor and against his lawyer.
"That defendants' counsel concealed the knowledge they had is not
disputed. The essence of the application of the above rule is the character
of the concealment. Was it done under circumstances that defendants must
be charged with knowledge that plaintiff did not know of the injury? If so,
an enriching advantage was gained for defendants at plaintiff's expense.
There is no doubt of the good faith of both defendants' counsel. There is
no doubt that during the course of the negotiations, when the parties were
in an adversary relationship, no rule required or duty rested upon
defendants or their representatives to disclose this knowledge. However,
once the agreement to settle was reached, it is difficult to characterize the
parties' relationship as adverse. At this point all parties were interested in
securing Court approval. * * *
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"But it is not possible to escape the inference that defendants'
representatives knew, or must be here charged with knowing, that plaintiff
under all the circumstances would not accept the sum of $6,500.00 if he or
his representatives knew of the aneurysm and its possible serious
consequences. Moreover, there is no showing by defendants that would
support an inference that plaintiff and his representatives knew of the
existence of the aneurysm but concluded that it was not causally related to
the accident.
"When the adversary nature of the negotiations concluded in a settlement,
the procedure took on the posture of a joint application to the Court, at
least so far as the facts upon which the Court could and must approve
settlement is concerned. It is here that the true nature of the concealment
appears, and defendants' failure to act affirmatively, after having been
given a copy of the application for approval, can only be defendants'
decision to take a calculated risk that the settlement would be final. * * *
“To hold that the concealment was not of such character as to result in an
unconscionable advantage over plaintiff's ignorance or mistake, would be
to penalize innocence and incompetence and reward less than full
performance of an officer of the Court's duty to make full disclosure to the
Court when applying for approval in minor settlement proceedings."
The principles applicable to the court's authority to vacate settlements made on
behalf of minors and approved by it appear well established. With reference
thereto, we have held that the court in its discretion may vacate such a settlement,
even though it is not induced by fraud or bad faith, where it is shown that in the
accident the minor sustained separate and distinct injuries which were not known
or considered by the court at the time settlement was approved, Larson v. Stowe,
228 Minn. 216, 36 N.W. (2d) 601, 8 A.L.R. (2d) 455; Wilson v. Davidson, 219
Minn. 42, 17 N.W. (2d) 31; Dasich v. La Rue Min. Co. 126 Minn. 194, 148 N.W.
45; and even though the releases furnished therein purported to cover both known
and unknown injuries resulting from the accident. Larson v. Stowe, supra. The
court may vacate such a settlement for mistake even though the mistake was not
mutual in the sense that both parties were similarly mistaken as to the nature and
extent of the minor's injuries, but where it is shown that one of the parties had
additional knowledge with respect thereto and was aware that neither the court
nor the adversary party possessed such knowledge when the settlement was
approved. As stated in Keller v. Wolf, 239 Minn. 397, 401, 58 N.W. (2d) 891,
895:
* * * * although in Minnesota the mistake need not be 'mutual' * * * there
must be concealment or, at least, knowledge on the part of one party that
the other party is laboring under a mistake in order to set aside a release
for unilateral mistake. Equity will prevent one party from taking an
unconscionable advantage of another's mistake for the purpose of
enriching himself at the other's expense."
5-7
2. Where’s point 1? From the foregoing it is clear that in the instant case the
court did not abuse its discretion in setting aside the settlement which it had
approved on plaintiff's behalf while he was still a minor. It is undisputed that
neither he nor his counsel nor his medical attendants were aware that at the time
settlement was made he was suffering from an aorta aneurysm which may have
resulted from the accident. The seriousness of this disability is indicated by Dr.
Hannah's report indicating the imminent danger of death therefrom. This was
known by counsel for both defendants but was not disclosed to the court at the
time it was petitioned to approve the settlement. While no canon of ethics or legal
obligation may have required them to inform plaintiff or his counsel with respect
thereto, or to advise the court therein, it did become obvious to them at the time
that the settlement then made did not contemplate or take into consideration the
disability described. This fact opened the way for the court to later exercise its
discretion in vacating the settlement and under the circumstances described we
cannot say that there was any abuse of discretion on the part of the court in so
doing under Rule 60.02(6) of Rules of Civil Procedure.
3. Defendants contend that, since plaintiff's counsel also had information with
respect to plaintiff's injuries which was not disclosed to the court at the time
settlement was made and which might have caused the court to withhold approval
thereof, plaintiff cannot in good conscience now seek to have the settlement set
aside. Without determining whether a minor would be thus bound by his counsel's
actions, we find no basis for defendants' contentions in this respect. Their claim
has reference to a letter of Dr. Paul S. Blake to plaintiff's counsel dated March 1,
1957, wherein he stated:
"* * * There may be some permanent brain injury in association with such
a condition [cerebral concussion and contusion]. * * *
I think I can say that he has a post-concussion syndrome, moderately
severe and that these symptoms will probably improve gradually over the
next 6 to 12 months. * * * I would recommend that this case not be settled
for at least a year or so that these findings can be definitely assessed and
so that we can guard against any unforeseen complications developing."
While this letter was not submitted to the court at the time it approved the
settlement, it does appear that an affidavit of Dr. Blake attached to the petition
asking approval of the settlement was submitted to it. Therein the following
appears:
"* * * That your affiant conclude[s] on that date [February 22, 1957] that
David Spaulding had had a cerebral concussion and contusion and
probably had some post- concussion cerebral edema. That there may be
some permanent brain injury in association with such a condition, and that
he is probably having a post-concussion syndrome and that these
symptoms will probably improve gradually over the next six to twelve
months."
5-8
It is clear therefrom that all essential and basic information as to plaintiff's
concussion with the possibility of some permanent brain injury was fully
disclosed to the court before it approved the settlement; and that this
factual situation would not be sufficient to estop plaintiff from seeking to
have the settlement vacated because the aorta aneurysm had not been
disclosed to the court or taken into consideration at the time such
settlement was approved.
4. It is also suggested that the settlement made on behalf of the minor was
in part at least dependent upon insurance limitations relating to plaintiff's
injuries; and that these having been a factor should constitute a bar to the
court's exercise of its discretion in vacating such settlement. No decisions
are cited in support of this contention. There are, however, numerous
decisions holding that insurance limitations have no part in the trial of
actions relating to personal injuries or property damage, Jeddeloh v.
Hockenhull, 219 Minn. 541, 18 N.W. (2d) 582; Lee v. Osmundson, 206
Minn. 487, 289 N.W. 63; see, also, Brown v. Murphy Transfer & Storage
Co. 190 Minn. 81, 251 N.W. 5; and it would seem fairly clear that the
principles governing this rule would be equally applicable here. In any
event, there is nothing in the record which lends support to defendants'
contention in this respect. Nowhere does it indicate that defendants had
disclosed either to counsel for the plaintiff or to the court that insurance
limitations were involved in the settlement; or that otherwise the court had
knowledge thereof or gave consideration thereto at the time it approved
the settlement. Under all such circumstances, no weight can be given to
this argument.
Affirmed.
5.2
Example: The Case of Alton Logan
Visit this web site and read the article and watch the video regarding Alton Logan:
http://www.cbsnews.com/stories/2008/03/06/60minutes/main3914719.shtml
It may be seen here too. If you can’t get it running at either link, please email me
immediately!
http://www.cbsnews.com/video/watch/?id=4126194n
5.3
Example: Confidential? Privileged?
For each statement, determine whether (1) they are confidential under the Model Rules;
(2) if so whether any exceptions apply; and (3) whether they are privileged under the definition
given in 8.1.
1.
A client tells you she committed a crime last week.
5-9
5.4
2.
A client asks questions in confidence about securities law. You explain the law.
He then says, “That’s useful because I am in the middle of pulling off a stock
swindle, and I want to know what laws I’m breaking.”
3.
Same as last hypo, but the client says “I have completed a stock swindle.”
4.
You are at a party discussing current events with your client when your client’s
friend joins you and mentions that your client has decided to breach a contract
with a customer.
5.
You are a criminal defense attorney hired to represent Ostrow, who has defrauded
elderly home owners. Ostrow knocks on doors and offers to “seal” driveways for
$500, but then simply paints the driveways black. In the course of preparing for
the trial, Ostrow asks you about whether the local county has an active consumer
fraud unit, about the penalties for his conduct, and about what he can safely do
with the $19,000 cash he has accumulated through the scam.
6.
You represent the seller of a corporation, who confides in you that her corporation
may have violated export control regulations. She instructs you not to discuss this
issue unless buyer’s counsel directly inquires about compliance issues, in which
case you are to inform counsel that seller will indemnify buyer for any costs
arising from federal regulation compliance.
7.
In the course of attorney-client communications, your client mentions that in
college she was an All-American swimmer.
8.
Your client says he will bribe some witnesses, and if the witnesses don’t agree to
perjury he will have the witnesses killed.
Example: Let a Smile Be Your Umbrella
A fifth-year associate at a major firm prepared a memorandum for the client outlining
possible settlement strategies—and then mailed the document to the opposing party. Once she
realized her mistake, she ran down to the private mailbox company where the plaintiff’s lawyer
had his mail sent to. She saw the envelope in the window of the lawyer’s box. She asked the
employee to hand it to her. The employee refused. She stepped behind the counter and reached
for the envelope. A fight ensued. Blood soon stained the envelope. The employee claims that the
associate beat him with an umbrella. The associate claimed the employee banged her head
against the wall “for four minutes.” As the altercation raged, the plaintiff’s lawyer showed up to
claim his envelope. According to whose story is to be believed, the plaintiff’s lawyer promised
not to read the contents at all, or until the next day. He did read them.
5.5
Example: Loose Lips Sink Ships (Hoppin and Sandburg)
A 31-year-old stock trader who cleared more than $400,000 in profits after he learned
privileged information about a merger from a Brobeck, Phleger & Harrison associate pleaded
guilty to a felony Tuesday. Matthew Joel Mesplou admitted he heard about the merger of Sun
Microsystems Inc. and Cobalt Networks Inc. last September from Julie Freese, a second-year
5-10
Palo Alto-based mergers and acquisitions associate who has since resigned from the firm.
Mesplou pleaded guilty to making false statements to the SEC. Under terms of the agreement he
will forfeit $536,000. Mesplou was also charged with insider trading by the Securities and
Exchange Commission and is settling that case for $286,000, for a total forfeiture of $822,000.
Freese, who could not be reached for comment, has not been charged in connection with
Mesplou's trading. Nanci Clarence, whom Freese retained during the investigations, said her
client made a simple mistake. "The point is, Julie's a victim of circumstances in this case. She
mistakenly made an innocuous remark to somebody who already had information about the
merger," Clarence said. "It's a mistake."
U.S. District Judge William Alsup accepted Mesplou's guilty plea of making a false
statement to the SEC. He could face five years in prison, although a significantly lower sentence
is expected. "It's not an insider trading case," said Mesplou's attorney, Keker & Van Nest partner
Elliot Peters. "He didn't trade on inside information." Mesplou admitted he talked with Freese
about Cobalt Networks on Sept. 17. The next day he purchased $1.2 million in Cobalt options
and stock. Peters said it was the third time Mesplou had taken a position in the company. The
merger was announced the day after his purchases. Mesplou then sold his stock, clearing
$412,000.
The next month, the SEC came calling. "I was contacted by the SEC and asked whether I
had heard any information about the Sun/Cobalt merger and I said that I had not," Mesplou told
Alsup. Leslie Caldwell, the assistant U.S. attoney handling the criminal case, told Alsup Mesplou
characterized his one-day profit as "a lucky turn of events." Brobeck chairman Tower Snow Jr.
said an associate—whom he declined to name—told a Brobeck partner in January that she had
been approached by a government representative investigating an insider trade. Brobeck
immediately put her on administrative leave and she subsequently resigned from the firm. "I
have sympathy for the individual," Snow said. But he added that resigning was "the professional
thing to do." "We are absolutely intolerant of intentional or inadvertent disclosure of nonpublic
information," Snow said. Freese was photographed for a January article about young Bay Area
corporate associates in The American Lawyer, a Recorder affiliate. Robert Mitchell in the SEC's
San Francisco office would not comment on Freese's responsibility in the case. "We're not going
to comment on people who have not been charged," Mitchell said.
Every year Brobeck lawyers must sign a certification declaring that they are
knowledgeable of and in compliance with firm policy prohibiting discussion of confidential
client information. Snow said every deal is given a code name and only attorneys working on a
transaction know that it's underway. Government attorneys did not identify the associate in their
cases. The indictment against Mesplou was unsealed Tuesday. Both cases state only that
Mesplou and the associate "met socially." It was apparently their second meeting, the first having
come two weeks prior. The two later developed a relationship, according to an attorney familiar
with the case. Both defense attorneys downplayed the significance of the case. "I don't think that
the U.S. attorney could prove an insider trading case here," Clarence said. Helane Morrison, head
of the SEC office here, touted the case as another signal that the SEC is paying attention to
Silicon Valley. "We're trying to keep our eye on whether people in Silicon Valley are engaged in
insider trading,"
5-11
Morrison said. "Also, I think the criminal case is very important to say that people can't
lie to the SEC."
5.6
Example: Confidentiality and Privilege in Electronic Discovery-- New Rule 502 to
Protect Against Privilege Waiver
New Rule 502 to protect against privilege waiver
Proposed rule would apply if disclosure results from innocent mistake.
August 25, 2008 | ALVIN F. LINDSAY - Special to The National Law Journal, The National
Law Journal
Due to the skyrocketing cost of producing electronically stored information in litigation,
the U.S. Senate unanimously passed without amendment Senate Bill S. 2450 in February. If, as
expected, the bill is approved by the House of Representatives, the long-anticipated new Federal
Rule of Evidence 502 should take effect on Dec. 1.
Proposed Rule 502 is intended to reduce the staggering costs of document and ESI review
by protecting against waiver of the attorney-client privilege and work-product immunity. The
legislation would apply to proceedings commenced after the effective date and, "insofar as is just
and practicable," to all proceedings pending on that date—obviously including many current
lawsuits.
In what now is likely its final form, Rule 502 seeks to protect against forfeiting a
privilege when disclosure in a federal action is the result of an innocent mistake. The rule also
would enforce often-agreed-upon court orders permitting procedures like the so-called "quick
peek" that allows requesting parties to assess the producing party's ESI before more definitively
delineating the scope of production, and "claw-backs" allowing the return of inadvertent
disclosures without claim of waiver.
By way of background, in 2006, House Judiciary Committee Chairman James
Sensenbrenner, R-Wis.—concerned about rising costs associated with ESI—suggested that the
Judicial Conference of the United States consider proposing to Congress a rule dealing with
waiver of attorney-client privilege and work-product. Unlike rules of civil procedure, rules
governing evidentiary privilege must be approved by an act of Congress pursuant to the Rules
Enabling Act, 28 U.S.C. 2074(b).
The Advisory Committee on Evidence Rules accordingly prepared drafts that were
revised after testimony from a select group of judges, lawyers and academics, and again revised
after two days of public testimony and the consideration of more than 70 written submissions
from groups including defense and plaintiffs' lawyers, corporate counsel, the American Bar
Association and even prisoners. In late 2007, the Advisory Committee provided its final draft,
concluding that the current law on waiver of privilege and work-product is largely responsible
for the rising costs of discovery, especially discovery of ESI. The Standing Committee on Rules
of Practice and Procedure and the Judicial Conference itself approved the text, which then was
introduced as a bill by senators Arlen Specter, R-Pa., and Patrick Leahy, D-Vt.
5-12
In complex litigation, lawyers spend significant time in efforts to preserve work-product
and the attorney-client privilege because they know that, under existing law in some
jurisdictions, if one protected document is produced—even inadvertently—there is a risk that a
court may find a subject-matter waiver. Subject-matter waiver means that attorney-client
privileged communications and work-product are considered waived not only as to the disclosure
at issue but as to all related material—and not only in that instant case, but in all other cases.
ESI DISCLOSURE IS CHIEF PROBLEM
Lawyers producing paper or electronic data worry about subject-matter waivers. Case law
is rife with examples of inadvertent disclosures of otherwise privileged material due to clerical,
vendor or attorney error. But the real problem is ESI. Our still-adolescent paradigm of electronic
data retention, versus the former paper regime, mushrooms the potential for inadvertent
production.
Problems include the fact that normal viewing of native-format computer documents, for
example, will not reveal hidden metadata about who wrote, edited or last opened some
PowerPoint presentation. Embedded data also don't always just show up on the screens of
reviewing attorneys. The now-ubiquitous word searches performed using certain native
applications, like Outlook, will not identify responsive and potentially privileged attachments.
Then there is the multiple-replication problem, endemic to ESI, that provides numerous
opportunities for one iteration of a privileged document to slip through a privilege review. These
problems are, of course, amplified by the sheer magnitude of sometimes gigabytes or terabytes of
data that are increasingly necessary to assess in the wake of the now-famous Zubulake opinions
and the subsequent 2006 civil procedure rule revisions governing the production of ESI.
As a result of ESI and the fear of waiving privilege, there are reports of increasingly
expensive privilege reviews. Representatives from Verizon testified during an advisory
committee public hearing that the company had spent $13.5 million on one privilege review
relating to a U.S. Department of Justice antitrust merger investigation. "Think about that the next
time you pay your phone bill," one quipped. See Testimony of Ann Kershaw, Jan. 29, 2007,
Hearing of the Advisory Committee on Evidence Rules, at 89.
Rule 502 would try to address this cost-of-review issue in several ways. First, it would
provide that, in cases of actual waiver, the waiver would not automatically be deemed a subjectmatter waiver. Information other than that specifically waived would be produced only if it
"ought in fairness" be considered together. The committee note explains that the "fairness"
determination required for a broader waiver determination should be limited to situations in
which a party intentionally puts information into litigation in a selective, misleading and unfair
manner. Obviously, like many of the rule's provisions, this will be litigated extensively, but any
cost savings here would seem to flow from damage control to limit the effect of disclosures
determined to be actual waivers, rather than from any savings during the privilege review itself.
As to the genuinely menacing prospect of inadvertent disclosure, the proposed rule
provides that if such disclosure is made at the federal level, no waiver will be found if the holder
had taken reasonable steps to prevent the disclosure and employed reasonably prompt measures
to retrieve the mistakenly disclosed information. This provision codifies a middle-ground
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standard that has been adopted by a plurality of courts requiring some form of balancing test. A
minority of courts has applied either strict liability—meaning that any inadvertent disclosure is a
waiver, and perhaps a subject-matter waiver—or intent-based standards that take hornbook
knowing-and-intentional language to the opposite finding of no waiver for inadvertent
disclosures.
Under proposed Rule 502, state courts in subsequent state proceedings will be required to
honor Rule 502 determinations made at the federal level; if there is an earlier disclosure of
privileged or protected information in a state proceeding, admissibility in a subsequent federal
proceeding would be determined by the law that is most protective against waiver, even in
situations in which potentially less-protective state law would otherwise provide a rule of
decision. The exercise of federal pre-emption and supremacy over state law under these
circumstances was evidently palatable to the group of state chief justices that commented on the
proposed rule. These justices succeeded, however, in blocking other language that would have
imposed a uniform middle-ground balancing standard on all inadvertent-disclosure cases,
including those made in, and applicable solely to, state proceedings. The state judiciary evidently
thought this congressional regulation of traditional state law would be anathema to principles of
federalism, if not to the U.S. Constitution.
Importantly, under the proposed new rule, federal courts would be permitted to enter
confidentiality orders providing that disclosure of privileged or protected material, for example,
under quick-peek and clawback agreements, does not constitute a waiver as to other parties in
other state or federal proceedings. In fact, early language prohibiting court confidentiality orders
without agreement of the parties was deleted. Presumably, therefore, such orders will be entered
on disputed motions or perhaps even courts' own accord.
Will the rule in its final version achieve its stated purpose of reducing the cost of
privilege review? Even a middle-ground balancing as to inadvertent disclosure can provide
seemingly harsh results. As recently as May 29, a District of Delaware court applied a common
law balancing test, but found waiver for the inadvertent production of 165 privileged documents,
out of tens of thousands reviewed, because the party failed to satisfy its burden to establish that
its search-and-review methodology was "reasonable." Victor Stanley Inc. v. Creative Pipe Inc.,
2008 WL 2221841, at *1-*7 (D. Md.).
Nor was the Victor Stanley court impressed with the producing party's "prompt measures
to retrieve the mistakenly disclosed data," as it chided the party for the "delay" of a "one-week
period between production by the Defendants and the time of the discovery by the Plaintiff of the
disclosures -- a period during which the Defendants failed to discover the disclosure." Id. at *8.
One week would actually seem very prompt when, as noted by the American Bar
Association in its Feb. 15, 2007, submission to the rules committee, it may be months—even
years—before errors are discovered, and determining when an error "should have been"
discovered is inherently subjective. Thus if such decisions were to continue under the Rule 502's
proposed balancing test, the rule would do nothing to change current efforts to prevent
inadvertent disclosure by extensive attorney review.
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The committee note to proposed Rule 502 does acknowledge, however, that while the
rule "does not require the producing party to engage in a post-production review to determine
whether any protected communication or information has been produced by mistake," it does
require follow-up on obvious indications of potential communication of protected material.
Moreover, regarding whether "reasonable steps" were taken to prevent a disclosure, the
committee note suggests that using advanced analytical software applications and linguistic tools
in screening for privilege may suffice, i.e. with no page-by-page attorney review. Further,
implementation of an efficient system of records management may also be relevant to a
reasonableness determination.
Whether the rule succeeds in saving money, therefore, will depend on whether courts are
willing, first, to conduct balancing tests for inadvertent waiver in a manner that understands the
difficulties and costs of reviewing substantial ESI; and, second, to freely enter anti-waiver orders
when asked, perhaps even sua sponte.
Notably, the most controversial potential provision of Rule 502, governing selective
waiver, ultimately was discarded. "Selective waivers" between government agencies and parties
being investigated are attempts to agree that the party under investigation will produce privileged
material to the government, while still preserving no-waiver status as to nonparties. The
effectiveness of selective waivers, however, has largely been rejected by the courts. See, e.g., In
re Qwest Comm. Int'l, 450 F.3d 1179 (10th Cir. 2006).
Although the U.S. Securities and Exchange Commission clearly supported inclusion of a
provision codifying the legality of selective waiver in the proposed rule, most others strongly
opposed the provision. Several times during the public hearings, business representatives
indicated that, although they might have supported the provision five years ago, in the current
climate selective waiver would signal a tacit approval of regulatory-agency belief that waiver is
the touchstone of the level of cooperation necessary to secure better treatment by the
government.
Corporate counsel and business argued that selective waiver would further chill what
might be an already cool reliance on the free dialogue between corporate counsel and corporate
representatives as contemplated by Upjohn v. U.S., 449 U.S. 383 (1981). Executives don't want
to worry that advice solicited regarding a potential compliance program will later become a
blueprint of evidence about the company's insufficiencies if failures occur. As a representative
from the Association of Corporate Counsel testified, selective waiver would put "an inherent
endorsement upon the culture of waiver." See Testimony of Susan Hackett, Jan. 29, 2007,
Hearing of the Advisory Committee on Evidence Rules, at 218. These arguments obviously
succeeded.
Whether those parties that staunchly opposed the erosion of the attorney-client privilege
through selective waivers, but otherwise hailed Rule 502, ultimately will allow even more of
their privileged material to be viewed by outsiders under the protection of clawback and quickpeek agreements, however, remains an interesting question.
Alvin F. Lindsay is a partner in the Miami office of Washington-based Hogan & Hartson.
He specializes in the litigation and trial of complex business disputes and has expertise in
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technology in litigation. Linda M. Defendeifer, a research analyst at the firm, provided assistance
in the research and editing of this article.
5.7
Example: Our Web Site
You work for a small firm and are responsible for developing the firm’s website. Your
partners recently finished successfully representing a Fortune 500 company, BanditBrothers Inc.,
in a major litigation matter. You propose including the following on your firm’s website:
Partners Joe Jones and Donna Davies successfully represented BanditBrothers Inc. in its
claim against Lasoo Industries.
Any problems? Why or why not?
5.8
Example: Amy A. v. Cooper House (Former Exam Question)
This former exam question is a hypothetical memorandum to an intern working for a
public interest law firm. Analyze only the second issue, which concerns confidentiality.
MEMORANDUM
TO:
Summer Intern; Client-Matter No: A1000-00102
FROM:
The Amy A. v. Cooper House Team
DATE:
September 2, 2008
RE:
Ethics Issues in Preparation for the Upcoming Hearing in Amy A. v.
Cooper House
We need ethics research on a short fuse. This public interest law firm (PILF) represented
six residents (Amy, Brenda, Carla, Doreen, Elena, and Fiona) in a suit against Cooper House, a
halfway house run by Santa Clara County. Its two wings (one for parolees and one for the
mentally disabled) are an alternative to incarceration or civil commitment in a mental hospital.
The residents have jobs and contribute money back to the County. Management at Cooper House
had been abysmal. The staff committed verbal, physical, and emotional abuse of residents, and
two of the residents also apparently suffered sexual harassment (if not sexual battery). After
talking with the six residents, we applied for a temporary restraining order (TRO) enjoining any
form of abuse. We worked long hours with the clients on their declarations (signed under penalty
of perjury). All six declared that they had been hit, pushed and yelled at. Amy and Brenda
declared that in the same incident they had both been coerced into sexual contact with a staff
member named Roger.
The County opposed the TRO. All staff members denied the abuse, although they
conceded that some sharp words had been exchanged. Before she even read the TRO papers,
Judge Lucas urged the County to stipulate to a TRO enjoining any form of abuse, saying, in
effect, that there’s no harm in stipulating to an injunction against doing something you claim
5-16
you’re not doing anyway. The TRO provided, “This stipulation is neither an admission by any
party nor a finding of the Court that any violations of law have occurred.” Judge Lucas
scheduled expedited discovery, a settlement conference, and a permanent injunction hearing.
We prepped Amy for her deposition (excerpts attached). Amy was both a parolee and
under mental health supervision. She was worried about questions relating to her criminal
history. In confidence, she told me she had once tried to burn down the house of an abusive
foster parent and had started a fire at a junior high school, but had not been suspected or caught
either time. She told me that she doesn’t handle stress very well, although her medication helps.
Near the end of the first day of Amy’s deposition, she testified very briefly about her and
Brenda’s encounter with Roger. Roger was present and did not disguise his disagreement with
and contempt for Amy’s testimony. The continuation of her deposition was set for next week.
The next day during a depo prep session with Brenda held before the first day of her
deposition, Brenda asked many questions about the penalties for perjury. I asked her about her
concern, and she said something like the following, “Hypothetically, what if Amy had not been
present during the encounter with Roger, but had agreed to pretend to be a witness so that Roger
could not claim it was simply a “he said/she said” dispute?” Brenda was adamant that she had
been coerced into the contact. When I pressed her about her hypothetical question, she said that
“My testimony will be that Amy and I were both abused that day.” Brenda was able to give me
quite detailed recollections about Roger and the incidents concerning the encounter.
Right after that, I met with Amy and shared my concern that her testimony had been
false, both in her declaration and in the deposition. Amy admitted that in her deposition
testimony she had lied about graduating from high school, and had lied when she failed to list all
of her criminal past. (She had been convicted of writing bad checks.) But Amy did stick to her
story that both Brenda and she had been present and had been abused. I asked Amy questions to
test her recollection, but she had no details. She then asked me, “What did Brenda tell you?” Our
discussion left Amy visibly upset. She said, “One way or another, Cooper House will pay bigtime.” This bothered me, because Amy also mentioned she had not been taking her medication.
When I asked Amy about that, she told me to act like a lawyer, not like a doctor. Then she said
she was going to see Brenda.
We wanted to analyze the ethics rules, but we were due at the settlement conference. The
settlement judge, Nancy Corrigan, took quite an interest in the case. She wanted settlement, and
she wanted Cooper House to shape up. Corrigan outlined the terms of a settlement, including
new staff, new policies, physical improvements to the building, closer monitoring by the county,
and attorneys’ fees to PILF (to be determined in law and motion practice after the tentative
settlement was confirmed). Obviously, this was an awesome settlement, even though any
sexually abused plaintiffs should have received some cash. Corrigan hammered the County’s
counsel on the facts, including the incident with Roger. County counsel said that there had been
brief consensual contact with only Roger and Brenda present, and he boasted that he could
conclusively prove that Amy had committed perjury. Judge Corrigan replied, “So your defense is
that the staff is having sexual contact with inmates? Who will believe there is no coercion?” The
judge asked both the counsel to see if the settlement was acceptable.
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The County quickly approved the terms. We telephoned the six plaintiffs. Amy and
Brenda pushed hardest for the settlement. Amy said, “This settlement will bring stage one to a
close.” The other four clients initially wanted cash payments, but eventually agreed to settle
when Amy and Brenda pushed so hard.
Counsel for the County and I went back and put the tentative settlement on the record.
Judge Corrigan noted that because the plaintiffs were wards of the state, yet another Superior
Court judge would have to hold a final hearing to determine if the settlement was in the
plaintiffs’ best interest, and if it accurately reflected the merits of the dispute. That hearing is
scheduled for Friday of next week. The rules for such a hearing are attached. The next day, we
met with the six clients and gave them the tentative settlement to sign. Amy was hostile. As I
left, she said “Cooper House has just begun to pay.” I asked her to elaborate, but she would not.
Now we’re faced with the upcoming hearing. We take the duty of candor to the court
quite seriously. First, if anything, should we do at the hearing? Second, Amy scares us. I would
like to reveal everything she told me to someone who can make sure that Cooper House and its
residents are safe. What are our options in that regard? We need analysis under MR 1.6.
5.9
Examples from the News
(a)
Did George Zimmerman's Lawyers Violate the Duty of Confidentiality?
http://www.legalethicsforum.com/blog/2012/04/george-zimmermans-lawyers-withdrawand-make-inappropriate-comments-to-the-media.html
The lawyers for George Zimmerman have withdrawn from his case (see also here), citing
an inability to locate him and his failure to heed their advice.
At the press conference announcing the withdrawal, the lawyers noted that they think
Zimmerman is in the U.S., but no longer in Florida. They also expressed concern about
Zimmerman's "emotional and physical safety," suggesting that Zimmerman might be suffering
from post-traumatic stress disorder. They also noted that, without their knowledge and despite
specific advice to the contrary, they heard that Zimmerman tried to speak with the special
prosecutor in the case as well as a television commentator. Finally, they questioned
Zimmerman's creation of a website to raise money for his defense, with one of Zimmerman's
lawyers saying, "I wish he would have told me."
I don't question Zimmerman's lawyers' decision to withdraw, but why did they need to
hold a press conference to explain themselves? The comments to the media were not only
unnecessary, but they seem to have revealed confidential information that could potential hurt
Zimmerman's case. The remarks suggest that Zimmerman is on the run, potentially unstable,
refusing to communicate with his attorneys, and ignoring his lawyers' advice.
Natalie Jackson, the lawyer for Treyvon Martin's family, has expressed the same point,
but in more colorful terms:
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Not only have they [Zimmerman's lawyers] spoken recklessly about racial issues,
enflaming passions and reinforcing stereotypes, but now they have thrown their own client,
George Zimmerman, under the bus by alluding to his possible flight from justice.
Indeed. Can anyone offer a reasonable rationale for the lawyers' remarks? Does George
Zimmerman somehow benefit from his lawyers' very public, highly detailed withdrawal?
As an aside, this is the second high profile case in the last year in which a criminal
defense lawyer appears to have said too much when withdrawing from a case.
(b)
Lawyer Faces Discipline Over Blog Posts
http://legalblogwatch.typepad.com/legal_blog_watch/2009/09/lawyer-faces-disciplineover-blog-posts.html
A former Illinois assistant public defender faces disciplinary charges over postings to her
blog that Illinois authorities say exposed client confidences and revealed her complicity in a
client's fraud on a court. The attorney denies the charges and says she plans to hire legal counsel
to help her fight them.
The focus of the disciplinary complaint is Kristine Ann Peshek and her former blog, "The
Bardd Before the Bar -- Irreverent Adventures in Life, Law, and Indigent Defense." Among
other things, the blog chronicled her work as an assistant public defender in Winnebago County.
She discontinued the blog when her supervisor became aware of it in April 2008 and fired her.
The two-count complaint from the Illinois Attorney Registration and Disciplinary
Commission charges Peshak with writing posts to her blog that identified her clients and
revealed confidential information about them. Although she never used last names, she referred
to clients by first names or by jail identification numbers, the complaint says. In the course of her
writing about her defense of clients on drug and other charges, she revealed information that
would be "embarrassing or detrimental" to them, the complaint charges.
In one post, Peshak describes her conversation with a client just after the client's
sentencing. Having told the judge and Peshak that she did not use drugs, the client now wanted
to go back before the judge and tell him that she was on Methadone. Peshak's blog post
described her reaction:
Huh? You want to go back and tell the judge that you lied to him, you lied to the presentence investigator, you lied to me? And you expect what to happen if you do this? I'll tell you
what would happen; the sentence just pronounced would be immediately vacated and you'd go to
prison, that's what would happen.
This post was double trouble, the complaint charges. Not only did Peshak harm her client
with the post, but she also revealed her complicity in her client's fraud upon the court.
(c)
Lawyer blogs, public facts, and confidentiality (or, that blogging criminal
defense lawyer from Virginia won on First Amendment grounds)
5-19
http://www.legalethicsforum.com/blog/2013/02/lawyer-blogs-public-facts-andconfidentiality-or-that-blogging-criminal-defense-lawyer-won-on-first-.html
Many of us have been following the case of Horace Frazier Hunter, the criminal defense
lawyer in Virginia who blogged about his cases without client consent and without a disclaimer
about outcomes and guarantees. The State Bar successfully disciplined the lawyer but he
appealed on First Amendment grounds and has achieved some success in that appeal (opinion
here). The court framed the issues as:
In this appeal of right by an attorney from a Virginia State Bar (“VSB”) disciplinary
proceeding before a three judge panel appointed pursuant to Code section 54.1-3935, we
consider whether an attorney’s blog posts are commercial speech, whether an attorney may
discuss public information related to a client without the client’s consent, and whether the panel
ordered the attorney to post a disclaimer that is insufficient under Rule7.2(a)(3) of the Virginia
Rules of Professional Conduct.
The court held that the blog was commercial speech and that the regulations requiring a
disclaimer about guarantees and outcomes were constitutional. No surprises there.
Then the court had to decide if the bar could prohibit lawyers from discussing public
facts that are potentially embarrassing or detrimental to the client. Here's the interesting part:
"Thus, we are called upon to answer whether the state may prohibit an attorney from discussing
information about a client or former client that is not protected by attorney-client privilege
without express consent from that client. We agree with Hunter that it may not." That's contrary
to a lot of settled expectations, isn't it?
Further: "The VSB argues that it can prohibit an attorney from repeating truthful
information made in a public judicial proceeding even though others can disseminate this
information because an attorney repeating it could inhibit clients from freely communicating
with their attorneys or because it would undermine public confidence in the legal profession.
Such concerns, however, are unsupported by the evidence. To the extent that the information is
aired in a public forum, privacy considerations must yield to First Amendment protections. In
that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired
in the courtroom. Thus, the circuit court did not err in concluding that the VSB’s interpretation of
Rule 1.6 violated the First Amendment."
What do you all think about that holding? I don't like it, but have to admit that I'm not
deeply versed on the law of the First Amendment's application to attorney speech. It seem to me
that it even if the facts are public, it especially hurts to have the client's own agent repeat them. It
also makes me wonder about any continuing duty of loyalty that might be tied to the subject
matter of the representation, as in the Oasis West Realty case. The holding doesn't just lack a
"fit" with the law of lawyering; it would seem to undo many important principles in that law. For
example, everything the client gives us (including information) is held in trust for the benefit of
the client. Why can I use what's been entrusted to me to embarrass my own client?
[I've edited this a little bit and may continue to do so.]
UPDATE: in the comments, Margaret Tarkington offers these thoughts.
5-20
I think the opinion is absolutely wrong, John. I think the state constitutionally can
forbid attorneys from violating the traditional (and even quite broad) duty of
confidentiality. This is the whole point to my access-to-justice approach to the
First Amendment (45 U.C Davis L. Rev. 27). Traditional First Amendment
doctrines fail to illuminate what attorney speech must be protected (such as
speech essential to providing legal advice to clients or to invoke the law on behalf
of clients, and overarchingly, speech necessary to invoke or avoid government
power in the protection of client life, liberty, and property), and, conversely, the
traditional doctrines do not illuminate what attorney speech constitutionally can
and should be prohibited.
As you know, my view is that the First Amendment as applied to attorney speech
must be keyed to the attorney's role in the system of justice in protecting client
life, liberty, and property (or depriving others of life, liberty, or property—for
example, a prosecutor). Thus restrictions on speech essential to that role are
constitutional under my theory—and confidentiality would be a prime example.
Attorneys have access to client information solely because of the delegation of
state power to them to practice law, to discover the most embarrassing and terrible
information possible about people. That information is provided to the attorney
for the express purpose that the attorney will be able to use the information to
invoke and/or avoid government power on behalf of that person. As an essential
component of the role of the lawyer, Virginia and other states can constitutionally
prohibit attorneys from disclosing information about their clients outside of what
is necessary for this role, unless the client consents.
As a matter of First Amendment theory, these ideas are reflected in the work of
Alexander Meiklejohn and Wittgenstein. Wittgenstein argues generally that
speech protection must be keyed to the "form of life" in which it exists. Thus, as
applied to the system of justice, speech regulation and protection must preserve
that form of life—and here, our system of justice as a “form of life” requires
confidentiality. Alexander Meiklejohn uses the town meeting as an example.
Although political speech is absolutely protected in town meetings, yet it is and
must be abridged (for example, through rules and regulations about who speaks
when, and order by the chair, etc.). The abridgment is necessary to accomplish the
governmental purpose—that is, the purpose of holding the town meeting. While
manipulation of the process cannot be allowed through abridging just one side of
an issue, for example, abridgment through creating rules of the game is essential
to preserve the process itself.
In like manner, there are many restrictions on attorney speech that are essential to
the proper functioning of the attorney’s role in the system of justice and as an
advocate for her client. These regulations are constitutional precisely because they
make it possible for the speech essential to our system of justice to take place.
Without confidentiality, clients don’t talk, a lawyer’s knowledge in pursuing legal
remedies becomes limited, and, more importantly, state powers and processes to
discover information through the justice system can be used by attorneys (who are
licensed with state power to discover such information for these very purposes) to
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instead embarrass and undermine clients—and perhaps even harm their reputation
and property. As you know, there are plenty of regulations on attorney speech that
I think are unconstitutional under the First Amendment and that I have written
about. But confidentiality is not unconstitutional; instead, it is an essential aspect
of the attorney’s role in our system of justice.
5-22
BOALT: LEGAL PROFESSION
LESSON 6: LOYALTY
OCTOBER 7 & 14, 2014
Outline Section IV(F)(6)
Pages 35-44; Appendix A
All Students Read
Online lectures (optional)
Lectures 6.1, 6.2, 6.3
Optional
Rules 1.7 – 1.12
Rules Supplement
All students read
Ex. 6.2
All Read; Group 1
Ex. 6.3
All Read; Group 2
Ex. 6.4
No cold calls, but note that
this question that will walk
you through many of the
rules and concepts. It’s a
good exam review question.
Ex. 6.5
All Read; Group 3
Ex. 6.7, 6.8. 6.9
All Read; Group 4
Ex. 6.9
All Read; All students are
ready to discuss whether the
firm handled the conflict in
accordance with the Model
Rules
Ex. 6.10
Optional
Objectives:
1.
Identify the series of rules that govern conflicts of interest.
2.
Explain why the rules have both general standards for conflicts and list of specific
conflicts.
3.
Explain the two general standards for current client conflicts.
4.
Discuss the various specific conflicts rules under MR 1.8
5.
Discuss how the rules about termination of the ACR affect the conflicts rules.
6.
Explain the three subparts to MR 1.9.
6-1
7.
Explain the consent formulas, (a) "informed consent, confirmed in writing"; (b)
"writing signed by a client"; and (c) "advise in writing of the desirability of
seeking the advice of independent legal counsel."
8.
Express your own views about the degree to which conflicts of interest might be
waived in advance.
9.
Explain the rule on imputation of conflicts, including (a) situations where the
building of an ethical screen might prevent imputation, and (b) situations where
imputation of conflicts does not occur even when an ethical screen has not been
built.
10.
Explain the conflicts rules for current and former government lawyers.
11.
Explain the conflicts rules for current and former judges.
Read M.R. 1.7, 1.8, 1.9, 1.10, 1.11, 1.12.
Read CRPC 3-300; 3-310.
QUESTIONS
(6.1)
What is the lawyer’s duty of loyalty?
A lawyer must put the interest of the client before any other interest. Quite often, this
duty is analyzed in the context of “conflicts of interest.”
(6.2)
What is a conflict of interest?
It’s any interest that might prevent you from fulfilling your fiduciary duties to the client.
It’s any duty you might have to current clients, former clients, third persons, or to yourself, that
might impede how you serve your client.
(6.3)
What is the framework for analyzing the duty of loyalty and conflicts of interest?
The key Model Rules are 1.7 – 1.12. Case law may impose additional requirements.
The rules’ basic distinction is between a lawyer’s conflicts as to current clients and as to
former clients. They are sometimes called “concurrent conflicts” and “successive conflicts.” In
this course, your instructor will probably refer to them in class as the “current client rule” and the
“former client rule.”
The rules also determine how one lawyer’s conflicts affect other lawyers in the same
work setting (“imputation”), and how conflicts can be resolved (i.e., waivers). Finally, the rules
about conflicts and imputation are modified when applied to judges and government lawyers.
The rules:
6-2
(6.4)
a.
MR 1.7 is the general rule on concurrent conflicts of interest (i.e., current client
conflicts).
b.
MR 1.8 regulates specific types of conflicts between attorneys and clients.
c.
MR 1.9 regulates conflicts with former clients.
d.
MR 1.10 determines when a lawyer’s disqualification is imputed to other
attorneys.
e.
MR 1.11 prevents a lawyer from utilizing governmental employment for private
gain.
f.
MR 1.12 governs former judges or arbitrators and third party neutrals.
What is the duty of loyalty owed to current clients?
MR 1.7 defines two types of concurrent conflicts: (1) acting “directly adverse” to a
current client; and (2) situations where the representation of a client will be “materially limited”
by the lawyer’s duties to others. Those two definitions are found at MR 1.7(a)(1) and (a)(2), and
are fleshed out in the Comments. You should be able to articulate, with examples, what “directly
adverse” means and what constitutes a “material limitation.”
The “current client rule” is a rule of sweeping breadth. It’s often said that the broadest
conflict of interest rules of any profession are the ones that govern US lawyers. Adversity to a
current client is a conflict even if the adverse matter is completely unrelated to what the firm
does for that client. Suppose you represent Acme regarding trademarks and Bravo, another one
of your current clients, asks you to negotiate a real estate lease adverse to Acme. That’s a
conflict of interest.
While MR 1.7 creates two broad categories of conflicts, MR 1.8 is a laundry list of
specific conflicts. (How do you think that such a complicated rule arose over time?) You might
be amazed at what’s in MR 1.8, so read it carefully and ask yourself why it was necessary to
enact each subparagraph.
(6.5)
How can conflicts be resolved, if at all?
Usually, the presence of a conflict is resolved by not commencing the problematic ACR,
by terminating the problematic ACRs, or by obtaining consent from each affected client. (If you
have made an appearance in a litigation, you probably also need the court’s approval to
withdraw.)
Sometimes the lawyer will decide not to proceed with the problematic ACR. Suppose that
Alpha, Inc. is your firm’s largest client and a potential new client asks you to negotiate a contract
across from Alpha. Even though a waiver might be obtained, you might not even want to
consider that representation.
6-3
You might terminate the problematic relationship. Suppose that you represent a criminal
defendant and a few months into the case you realize that the best strategy is to point the finger
at another person—who happens to be a current client in another matter. You might declare a
conflict and terminate the relationship. (When we cover the rule on withdrawals and termination
of the ACR (1.16), you will see that conflicts might require termination.)
You might consider whether to obtain a waiver. MR 1.7 and 1.8 each contain their own
provisions about whether, and how, conflicts can be waived. Some conflicts can’t be waived
under any circumstances and others can be waived only when it is “reasonable” to do so.
When they can be waived, the usual formula is to disclose the risks and alternatives (MR
1.0(e)), and then obtain “informed consent, confirmed in writing” (let’s refer to it by the
acronym ICCW)—which is the basic form of conflict waiver under the Model Rules.1 ICCW
can be accomplished by either (1) a written consent from the affected client(s) or (2) oral
consents from the affected client(s) and prompt written confirmation from the lawyer to the
affected clients.
In some cases, the MR will require different forms of consent than ICCW. For example,
the consent required by MR 1.8(a) requires the use of very specific words and there are three
rules (1.5(c), 1.8(a), 1.8(g)) that require a writing signed by the client (WSC). There is a short
cheat sheet at Appendix A to this reading.
Later, we’ll consider the special case of the “advance waiver,” which is one of the
contested, “hot button” issues in legal ethics.
In the context of motions to disqualify lawyers, courts might consider equitable defenses
to an asserted conflict. That is, the lawyer opposing a motion to disqualify might argue, “whether
or not it’s a conflict, the moving party either never had the right to assert the conflict or lost that
right by committing inequitable conflict.”
(6.6)
What about “advanced waivers”? How do they work?
This is one of the most contested issues in legal ethics. Recall the breadth of the current
client rule. Taking on any new client, especially a large client, can prevent the firm from taking
on a wide variety of new work in the future. For that reason, many large firms ask new clients to
agree in advance that the firm can be adverse to the new client on any matter unrelated to what
the firm does for the new client. That’s an “advanced waiver” that would exempt the law firm
from the normal application of the current client rule.
The basic problem is this: waivers require informed consent, and the most that the firm
can say is that it wants to be adverse to the new client in certain categories of legal work in the
future. By definition, the firm can’t specify exactly what matters those will be. Is disclosure by
category sufficient under the ethics rules? Twenty years ago, the answer was almost surely “no.”
Although you don’t have to memorize these provisions, you will find the ICCW formula in MR’s 1.7(b) (current
client waivers); 1.9(a) & (b) (former client waivers); 1.10(c) (x-ref to 1.7); 1.11(a) (government lawyers);
1.11(d)(2)(i) (government lawyers); 1.18(d)(1) (adversity to prospective client); 3.7[6] (lawyer as adverse witness to
client).
1
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In ten years, the answer may well be “yes.” The answer today is that the courts are struggling
with that question. Comment [22] to MR 1.7 suggests that they are enforceable in many
situations.
From the clients’ point of view, the widespread practice of seeking advance waivers can
destroy a client’s sense of trust even at the outset of the ACR. From the firm’s point of view,
advance waivers are necessary to protect the interests of existing clients and to protect the firm’s
ability to take on the new business that leads to growth.
(6.7)
How do conflicts work with entity clients that have affiliates?
When analyzing conflicts of interest, we once again need to ask who the client is. The
answer is often obvious. If a natural person hires us, we owe a duty to that current client. If the
client is an organization, the client is the entity itself and not the people working at the entity.
(MR 1.13) But how should we treat corporate affiliates? If you represent Parent Corp., may you
undertake a representation adverse to Subsidiary Corp.? What about two corporations that are
wholly owned subsidiaries of the same corporate parent?
There are at least three ways to analyze this issue. One is to say that you must always
treat the affiliates as if they were one entity. To my knowledge, that approach has been urged by
critics but is not the law anywhere. Another approach is to say that if the two entities are legally
distinct—which would always be the case for separately incorporated subsidiaries—then you can
be adverse to a current client’s affiliates. One case from California takes that approach.
Brooklyn Navy Yard Cogeneration Partners v. Superior Court, 60 Cal.App.4th 248 (1998). A
third approach is take a case by case approach, looking at all the facts and circumstances, and
then “collapsing” the corporate affiliates into one entity when fairness demands it or when being
adverse to the client’s affiliate offends the client’s reasonable expectations of loyalty. That’s the
approach taken by a [two?] new Second Circuit case[s], (GSI v. BabyCenter, LLC (618 F.3d 204
(2010)?)) and by Morrison Knudsen Corporation v. Hancock, Rothert & Bunshoft, 1998 Cal.
App. Lexis 1091 (1999). (Morrison Knudsen Corp. v. Hancock, Rothert & Bunshoft, L.L.P., 69
Cal. App. 4th 223 (1999)??
Let’s consider two examples of the third approach. Suppose you represent Parent, Inc., on
some matters and propose to represent Alpha, Inc., against Bravo, Inc. As it turns out, Parent
owns 25% of the shares of Bravo. Is undertaking the matter a violation of the current client rule?
Suppose further that the matters for which you represent Parent have not given you access to any
confidences that would be useful in the proposed matter adverse to Bravo. Under a facts and
circumstance approach, a court may rule that the matter is not a violation of the ethics rules. Of
course, it might be a poor business decision! And it might be something that discredits you in the
eyes of Parent or in the eyes of decent people. But it may not be an ethics violation. On the other
hand, the recent case, GSI v. BabyCenter LLC, found that that fact pattern created a conflict of
interest. Obviously, there remains uncertainty in the law on this point.
As a counter-example, suppose that Parent owns 100% of Bravo, the general counsel of
Parent serves as the general counsel of Bravo, and there is some overlap in what you do for
Parent and the matter on which you’d be adverse to Bravo. A court applying the “facts and
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circumstances” approach might decide that the proposed representation is a violation of the
current client rule.
Now let’s apply the current client rule in the context of partnerships. Generally, the courts
will look at the extent and nature of the contacts between the attorney and the partners to
determine if the partners and the partnership should be treated as a single entity for purposes of
applying the conflicts rules. So, there is even more uncertainty applying conflicts rules to the
representation of partnerships than to corporations.
In practice, many lawyers eliminate the uncertainty by reaching a written agreement with
the client as to which corporate affiliates are clients. Law firms might include a “one client”
clause in the fee agreement, attempting to define just one corporation as the client and excluding
the possibility that the firm represents any individual employees or officers of the corporation or
any corporate affiliates. Sophisticated clients may ask the lawyer to agree to terms and
conditions that define all affiliates as clients or that provide that all affiliates will be treated as if
they were clients for purposes of the conflict of interest rules.
(6.8)
What is the duty owed to former clients?
We discussed this briefly during our discussion of the attorney-client relationship
lifecycle. The basic duty a lawyer owes a former client is tied to the duty of confidentiality; a
lawyer can take on representations materially adverse to former clients unless it would breach the
continuing duty of confidentiality. To understand how this issue plays out, we need to read each
subparagraph of MR 1.9.
MR 1.9(a) applies when the lawyer formerly represented a client in a matter. Suppose
that Lisa Lawyer formerly represented Acme and now wishes to undertake a representation
adverse to Acme. It’s a conflict of interest if the new matter adverse to Acme is the “same or
substantially related to” the matter she handled for Acme. (MR 1.9(a)) If the adverse matter is
the “same or substantially related,” then the court presumes that the lawyer would necessarily
make use of the former client’s confidences. So it’s a conflict of interest.
MR 1.9(b) deals with another situation—one where the lawyer didn’t represent the
former client. Suppose that Lawyer works at Able & Baker while that firm represented Echo,
Inc., but Lawyer didn’t work on that matter. Lawyer moved laterally to the firm of Charlie &
Delta and proposes to work on a matter adverse to Echo. Because Lawyer didn’t represent Echo,
1.9(a) doesn’t govern. But the other subparagraphs do. Under 1.9(b), it would be a conflict of
interest for Lawyer if she had acquired material confidences from Echo. That is, it’s a conflict if
Lawyer learned Echo confidences that could be useful in the matter adverse to Echo. Lawyer
could have learned those confidences from chatter in the hallways of Able & Baker, or during
lunchtime presentations, or whatever, even if she didn’t represent Echo.
MR 1.9(c), a sort of “catch-all” provision, goes one final step further in protecting the
confidences of former clients. It provides that the confidences cannot be used to the detriment of
the former client or revealed to anyone without permission.
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Is that all there is to the former client rule? No. There is also case law holding that a
lawyer cannot attack his or prior work product, even if there is no adversity to a former client.
This is a nebulous, poorly-defined aspect of the former client rule.
(6.9)
What does “substantially related” mean?
The term of art “substantially related” needs some defining. In H.F. Ahmanson & Co. v.
Soloman Brothers, Inc., (1991) 229 Cal.App.3d 1445, the court held that there was no
“substantial relationship” between a particular attorney’s prior representation of a party while at
a previous law firm and his new firm’s representation adverse to that party. The court noted as
follows:
A former client may seek to disqualify a former attorney from representing an
adverse party by showing the former attorney actually possesses confidential
information adverse to the former client. However, it is well settled actual
possession of confidential information need not be proved in order to disqualify
the former attorney. It is enough to show a “substantial relationship” between the
former and the current representation. If the former client can establish the
existence of a substantial relationship between representations, the court will
conclusively presume the attorney possesses confidential information adverse to
the former client.
The “substantial relationship” test was announced in T.C. & Theater Corp. v. Warner
Brothers Pictures, (S.D.N.Y. 1953) 113 F.Supp. 265, 268, in which that court stated “the former
client need show no more than the matters embraced within the pending lawsuit wherein his
former attorney appears on behalf of his adversary are substantially related to matters or cause of
action wherein the attorney previously represented him, the former client.” The Ahmanson court
noted that the substantial relationship test is sometimes unfair:
While most courts and commentators agree with prophylactic approach to
disqualification established by T.C. & Theater Corp., they also recognize the
drawbacks to this approach. It is over inclusive. It may impose a significant
hardship on the current client. It may unfairly limit the employment opportunities
of lawyers and, finally, it may stifle development of expertise in complex areas of
law.
The Ahmanson court also noted that it is sometimes difficult to define “substantial
relationship”:
Use of the word “relationship” implies a connection, but offers no guidance as to
what is being connected: subject matters, facts or issues. (See T.C. & Theater
Corp. v. Warner Brothers Pictures, supra, 113 F.Supp. at p. 268 (subject matter);
Trone v. Smith (9th Cir. 1980) 621 F.2d 994, 998 (facts); Government of India v.
Cook Indus (2nd Cir. 1978) 569 F.2d 737, 739-40 (issues); and see Global Van
Lines, Inc. v. Superior Court, supra, 144 Cal.App.3d at pp. 486-89 (finding a
substantial relationship between subject matter, issues and facts).
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Hence “substantially related” is a term of art that permits the court to gauge, on a caseby-case basis, the real risk that the former client’s confidences will be used against the client.
There is a new legal theory that may expand the definition of “substantially related” and
therefore reduce a lawyer’s ability to be adverse to former clients. Under the so-called “playbook
theory” of former client conflicts, the former client can assert that even if there is no legal or
factual overlap between the current adversity and the former ACR, the lawyer learned how the
former client tends to handle legal matters, how it negotiates, and how it values legal claims.
(6.10) If you can sometimes be adverse to a former client, can you fire the client in order to be
adverse to the client?
May a lawyer “fire” a current client for the purpose of undertaking a representation
adverse to the “fired” client? She may not. Under the so-called “Hot Potato” doctrine, you may
not terminate a client for the purpose of being immediately adverse to it. See, e.g., Truck Ins.,
Exchange v. Fireman’s Fund Ins. Co., (1992) 6 Cal.App.4th 1050. [I put in missing year]
But may you terminate your relationship with clients not because you have a lucrative
piece of work against them but rather because you are rationalizing your client base for the long
term? Can a law firm that represents auto accident victims decide in a generalized way that it
cannot represent insurance companies anymore? The answer appears to be yes, so long as you
don’t fire the client for the purpose of taking on a contemplated piece of business against the
terminated client.
(6.11) What rules govern the imputation of conflicts?
In 2009, the ABA changed the rule that governs most imputation issues, so we will need
to know the “old rule” and the “new rule.”
First, let’s get a handle on what “imputation is.” Strictly speaking, conflicts pertain to
individual lawyers under the current client and former client rules. But once we identify any
lawyer who has a conflict, that conflict might be “imputed” to other lawyers as well.
Second, let’s recognize that there are four different imputation rules: (1) rule 1.10(a)
which governs when lawyers move from one private practice job to another private practice; (2)
rule 1.11, which governs when lawyers worked as government-employed lawyers; (3) rule 1.12,
which governs former third party neutrals, such as judges; and (4) rule 1.8(k), which governs the
specific conflicts that arise under rule 1.8.
Now let’s turn to the specifics. We’ll start with the pre-2009 version of rule 1.10(a),
which I’ll call the “old rule” on imputation. It applies when a private practice lawyer switches
jobs. Under the old rule, the lateral lawyer carries with her all the former client conflicts she has
amassed. Once she arrives at her new place of employment, all of those former client conflicts
are imputed to all the lawyers at her new firm. Can you see why hiring a lateral lawyer raises all
sorts of conflicts risks? It’s possible that the former clients will waive their rights and permit the
lateral or the other lawyers at her new firm to be adverse to the former client. If so, then the rules
require “informed consent, confirmed in writing,” or ICCW. But the former client may not
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consent, in which case the lateral’s former client conflicts are imputed to everyone at her new
firm.
Although we will call this the “old rule” on imputation, the old rule is still the
predominant approach in the United States today. Although the ABA amended its model rules,
most states have retained the old rule. What about the “new rule”? As of 2009, the Model Rules
provide that when a lawyer is prohibited from representing a client under 1.7 or 1.9, that
prohibition is imputed to all the other lawyers in the firm, unless (i) the prohibition is based on a
personal interest of the disqualified lawyer and does not present a significant risk of materially
limiting the representation of the client by the remaining lawyers in the firm (1.10(a)(1)); or (ii)
the prohibition arises from a lawyer’s previous work at a former firm and the new firm properly
screens the prohibited lawyer (1.10(a)(2)).
What’s an example of the first exception, which is found at 1.10(a)(1)? Suppose that a
lawyer at a firm is intensely pro-choice and pro-Democrat, and is asked to undertake a highly
politicized case seeking to overturn a state law passed by a Republican state legislature limiting
reproductive choice. Under 1.7(a)(2), that’s a material limitation conflict. But because the
conflict arises from personal considerations, if the other lawyers in the firm wouldn’t be limited
in representing the client challenging the statute, the first lawyer’s conflict is not imputed to the
other lawyers at the firm. Note, however, that these “personal conflicts” are unusual.
The second exception, at 1.10(a)(2), provides that when a lawyer moves laterally from
one private practice setting to another, she remains burdened by her former client conflicts but if
the new firm acts promptly and appropriately, it can prevent imputation of the lateral’s former
client conflicts to others at the new firm. The new firm must give notice to the affected former
client, must build an adequate screen, and must continue statements of compliance with the
screen. See 1.10(a)(2) for details.
We’ve now covered the basic rule on imputation of conflict, but you must remember that
screening has long been an option to prevent imputation of conflicts when the lawyer was a
government lawyer (rule 1.11) or a third party neutral (1.12). For details on how to build the
screen, read those rules.
Finally, let’s look at the imputation rules for the 1.8 conflicts. Rule 1.8 (k) says that all
the 1.8 conflicts are imputed to others at the firm—except for arising under 1.8(j), which
regulates sexual relations with clients.
(6.12) Does 1.10 cover any other fact patterns?
Yes, 1.10(b) deals with an unusual situation involving a departing lawyer and the old
firm’s ability to be adverse to the departed lawyer’s clients. If the departed lawyer’s client is no
longer a client at the old firm and if no lawyer left at the firm has confidences of the departed
lawyer’s former client, then the old firm can undertake adverse matters to that former client. See
rule 1.10(b) for details.
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6.1
6.2
6.3
6.4
Example: Walking through the Rules
a.
Give an example of a violation of MR 1.7(a)(1). (For example: "While at the firm
of Able & Baker, a lawyer named Mary [did this or that] . . . ."
b.
Give an example of a violation of MR 1.7(a)(2).
c.
Give an example, with a simple diagram, of a violation of MR 1.9(a).
d.
Give an example, with a simple diagram, of a violation of MR 1.9(b).
e.
Give an example, with a simple diagram, of a violation of MR 1.9(c).
f.
Give an example of an application of MR 1.10(a).
g.
Give an example, with a simple diagram, of a non-violation of MR1.10(b).
Example: MR 1.7 Current Client Basics
a.
Acme asks you to sue Baker on a trademark dispute. Your firm represents Baker
in real estate matters. What do the rules say?
b.
Acme asks you to sue Baker, Inc. The CEO of Baker is your sister-in-law. What
do the rules say?
c.
Acme wants corporate advice. Its main competitor, Baker, is your current client.
What do the rules say?
d.
Acme asks you to negotiate a contract against Baker, which is also a current
client. Baker agrees to waive the conflict. What are your options for getting the
waiver executed?
Example: MR 1.8 Transactions/Conflicts Basics
a.
Lawyer will work for the client and in lieu of fees will take stock in the company.
What subparagraph applies?
b.
Someone other than the client will pay the legal fees? Is that permitted? Under
what circumstances? (Note that this issue is also discussed at MR 1.7[13] and
5.4(c).)
c.
What rule governs sexual relationships with clients? Is this rule necessary? Is it
wise?
Example: A&A and B&B (Former Exam Question)
On March 6, 2000, Dan DePartino left his job at Baker & Baker (B&B) and left the law
entirely. While at B&B, DePartino represented Acme on tax issues related to Acme’s product
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shipments from the US to its various distributors and dealers abroad. DePartino never shared his
clients or let other attorneys work on his matters. B&B never represented Acme again.
On September 23, 2000, Wynona Whyte, a litigation partner at Able & Able (A&A)
married Bill Barker, a litigation partner at B&B.
At 4:45 P.M., on November 21, 2001, the day before Thanksgiving, Whyte told Ann
Associate (of A&A) to find and print out the basic dealer termination statutes for France,
England, Austria, Spain, and Turkey. Associate, desiring to finish the project and travel home for
the holiday, was perturbed at the last-minute request— and noted to herself, with some irony,
that the five countries’ initials spelled “FEAST.” Associate, who at first didn’t know the client’s
name, was told, “bill the time to Whyte’s holding account, so she can transfer the time to the
correct Acme matter.” Whyte transferred the time to account 8765-000 (“Acme-General”), but
then “wrote off” the time without billing it. Associate never met the client, saw its documents, or
billed Acme again, and never was told that Acme was reorganizing its worldwide dealer
network, which could require contract terminations or renegotiations.
On December 6, 2001, unbeknownst to Associate, the statutes she’d printed were
appended to a substantive legal memorandum about the reorganization that Whyte and other
A&A attorneys sent to Acme and billed to 8765-318 (“Acme-Dealer Reorganization”).
On January 1, 2002, Associate left A&A and joined B&B’s ten-attorney litigation group.
On February 4, 2002, Acme gave written notice of contract termination to its Spanish
dealer, Madrid Dealers (Madrid), asserting that Madrid had breached the contract.
On March 4, 2002, B&B was hired by Madrid, who suspected (but couldn’t yet prove)
that the allegation of breach was a pretext—that Acme simply wanted to revamp its distribution
system.
On March 8, 2002, Patricia Park, a B&B corporate partner, faxed Acme a letter, seeking
the name of Acme’s lawyers and threatening litigation unless Madrid was promptly reinstated.
Park also emailed Barker, asking him to find an associate to assist Barker in handling any
possible litigation between Madrid and Acme.
On March 11, 2002, A&A filed a declaratory judgment suit, signed by Whyte, on behalf
of Acme against Madrid, seeking a declaration that Madrid had breached the contract. A&A
internally designated that matter as 8765-609 (“Madrid Dealers v. Acme”).
*****
The ABA Model Rules apply. Spot, identify, and briefly analyze conflict of interest
issues raised by this fact pattern.
6.5
Example: Not Much of a Conflict (Former Exam Question)
In November 2001, Pat Devlin passed the bar examination and began as an associate at
Able & Baker (A&B), a large general practice firm. In December 2001, Devlin spent an evening
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with fellow A&B associates volunteering pro bono advice at the help desk at the Essex County
Legal Services Project.
Devlin’s only interaction that evening was with Eduard Reback, a janitor with debt
problems arising from his wife’s medical care and his purchase of bedroom furniture for his
toddler twins. The credit agency threatened Eduard with wage garnishment unless his $3,500
debt was paid. Eduard was unfocused and angry. Devlin spent ninety minutes sorting out
Eduard’s finances and plotting a strategy: offer the credit agency $2,500 (most of Eduard’s
savings), and propose a payment plan. Eduard agreed and left. He never returned to the clinic.
In January 2003, Devlin left A&B and joined Domestic Violence Advocates (DVA). Four
months later, Devlin and the DVA Supervising Attorney, Shawna Nixon, jointly staffed the
intake desk. Joy Reback entered, along with her lifelong friend, Anita Wesley. Joy, visibly
pregnant and with a black eye, was in a hurry. She had to pick up her twins from day care.
Wesley told Joy to slow down. “It took me six months to finally drag you here,” said Wesley,
“so don’t rush.”
Joy began by saying, “Anita says that you keep your clients’ confidences confidential. If
my husband knows I came here, he’ll hit me again.”
“You’re not our client yet,” said Nixon. “If we do agree on that, we’ll put it in writing.
But even though you’re not yet a client, the law says that this conversation—and even the fact
that you’re talking to us—must remain completely confidential.”
Joy relaxed. She said that the abuse was cyclical: he would hit her and then apologize and
treat her well. “It’s only when he’s stressed out,” Joy said, “He’s not really bad.”
“Yes,” Wesley interjected, “there are cycles, but it’s getting steadily worse. You need a
protective order, and a divorce, and the court will have to handle the financial issues.”
“Maybe,” said Joy, “but let’s start with some basics. I have two secrets my husband can
never know. First, he’s not the father of this baby,” she said, patting her stomach. “Second,
because I’m probably heading toward divorce and need a nest egg, I’ve been having my
employer pay half my salary in cash, off the books. Anita is holding $5,800 for me.” Looking at
her watch, Joy said that she needed to pick up the twins. “I trust you, so I’ll be back next week,”
she said, and headed out the door.
Wesley lingered briefly behind and said to Nixon and Devlin, “I’ll make sure she returns.
DVA helped me three years ago. I’ll guide her every step down the path.”
Devlin asked Wesley, “what’s the name of Joy’s husband, and where does he work?”
“It’s ‘Eduard,’ with a ‘u.’ He’s a janitor at the Wilton Chemical plant,” said Wesley, who
then left.
Devlin told Nixon, “My memory is really fuzzy, but I may have represented Eduard
Reback about a year ago. Some guy—it might have been him—came to a legal services clinic
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where I volunteered. I don’t recall the issue. But, knowing that clinic, it wasn’t a criminal matter.
Probably it was a wages dispute with his employer, or credit problems, or something like that.”
Nixon said, “I say that’s no conflict, or a thin one at best. We’ll wall you off. Or, if you
want to stay involved, you can prepare the case and other attorneys will sign pleadings and make
court appearances. But we won’t alert Eduard that she’s meeting with lawyers—and we won’t
turn her away either. She can’t afford legal fees, and we’re the only free DV advocates in the
county. We don’t abandon women in need; we protect them. You saw her stomach and her black
eye. Besides, this isn’t that difficult of an ethical dilemma. If you can’t stand some heat, you
can’t do domestic violence work.”
Be prepared to analyze the above fact pattern in class for a potential conflicts issue.
6.6
Example: Sandy’s Business Reincorporates
You receive this voicemail from a partner at your law firm:
“Hey, I have a quick project for you. For several years we’ve been representing Sandy
Ryerston, who started a small business providing payroll services to small businesses in the
county. Sandy’s been pretty successful. A lot of banks have recommended the business and
Sandy’s about to bring in two partners, reincorporate, and expand. It’s not a lot of work but if
the business continues to grow it could become a major client. Anyway, Sandy and the two new
partners—Pat and Terry—will be coming in to sign some paperwork for the reincorporation.
Sandy will still own most of the shares but won’t have sole control over the Board. If any of the
three leave the company, they’ll get bought out cheaply, so that capital stays in the company.
“Can you take a few minutes to think about the conflicts issues? Who should be the
client? Do we need consents? Should we even raise the issue or just let it be? Maybe there’ no
use driving a wedge between new partners, I suppose. Give it some thought. I’ll be back
tomorrow and we can discuss it.”
6.7
Example: Sandy’s Business Grows
You receive this voicemail from a partner at your law firm:
“I hope you’re available for a new project. Sandy’s business continues to grow. They’re
going to take out a loan from the local bank to fund some expansion. Pretty straight forward
stuff, really. It’ll probably be Midwest Bank. They’re great to work with. We’ve probably done a
dozen transactions with them over the last few years. One of our former partners, Mary Bobinski,
is the General Counsel there. And our new partner, Bobby Herndon, represents the bank on a lot
of trust matters.”
“Anyway, I’ll be in tomorrow and I suppose we should discuss whether there are any
conflicts issues.” Be prepared to have this conversation with the partner.
6.8
Example: Sandy’s Business Gets Bought Out
You receive this voicemail from a partner at your law firm:
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“Great news about Sandy’s business, Ryerston Payroll Services Inc., huh? It’s being
acquired by Payroll Data, Inc., for about $15 million. Actually the price isn’t quite final, but it’ll
be in that neighborhood. Sandy, Pat, and Terry just emailed me the term sheet that they worked
up with the buyer. Pat and Terry will get bought out completely. Good for them. Pat’s going to
retire and Terry’s going back into nurturing start-ups. Sandy would like to wind down too and
spend more time with the grandkids. But the buyer wants Sandy to stick around for a few years,
for obvious reasons. Sandy’s built the reputation and keeps the clients happy. The longer that
Sandy sticks around after the acquisition, the more the buyer will pay. Sandy will get paid out
more than Pat and Terry, but will have to stick around at the buyer for some time before being
fully paid out. The buyer and Sandy haven’t yet done a term sheet on Sandy’s employment
agreement.
“We’ll represent the target. Ryerston Payroll Services, Inc., in the acquisition and will
probably represent Sandy on the side agreement for employment with the buyer.
“Also, remember that the target will make factual representations and warranties to the
buyer and will fund an escrow of around $1 million. If the target wasn’t all it was promised to
be, the buyer can make a claim on the escrowed funds. If the buyer does make a claim, we’d be
the natural choice to represent the shareholders of the target in negotiations.
“Anyway, give some thoughts to the conflicts issues if you will. I’ll be in tomorrow and
would be interested in your thoughts on the conflicts.” Be prepared to have this conversation
with the partner.
6.9
Example: Image Technical v. Eastman Kodak2
2
Note: the underlying case involved Image Technical Services and ten other independent service organizations
(“ISOs”) that service Kodak photocopiers and micrographic equipment. The ISOs sued the Eastman Kodak Co.
(“Kodak”) for violations of the Sherman Act. The ISOs alleged that Kodak used its monopoly in the market for
Kodak photocopier and micrographic parts to create a second monopoly in the equipment service markets.
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6.10
McKesson and Duane Morris
Read the advance conflict waiver letter below.
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Now read about the judge’s initial ruling.
IN A CASE reflecting problems that can occur when huge law firms represent huge
clients, a Fulton County judge has ruled that legal giant Duane Morris violated conflict-ofinterest rules by representing subsidiaries of McKesson Corp. in Pennsylvania and then working
for a couple against an unrelated McKesson subsidiary in Atlanta.
Judge Thelma Wyatt Cummings Moore of Fulton County Superior Court on Wednesday
disqualified Duane Morris from the Georgia proceedings. She wrote that she was not persuaded
by the firm’s efforts to “explain away the apparent conflict of interest” by relying on an
engagement letter between Duane Morris and two other McKesson subsidiaries in the
Pennsylvania case.
The Duane Morris letter said, “Given the scope of our business and the scope of our
client representations … it is possible that some of our clients or future clients will have matters
adverse to McKesson.” In such cases, according to the letter, the company agreed to “waive any
actual or potential conflict of interest as long as those other engagements are not substantially
related to our services to McKesson.”
While contract law might allow for such a cross-representation, Georgia ethics rules do
not, Moore ruled, finding the Duane Morris waiver “inadequate and thus invalid.”
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Duane Morris’ general counsel, Michael J. Silverman, expressed disappointment with the
ruling.
“We believe that the firm’s conduct was appropriate and ethical. Our engagement letter,
reviewed and approved by McKesson’s outside counsel, expressly provided that our clients were
to be only [the two McKesson subsidiaries in the Pennsylvania matter], and not any other
McKesson affiliates or related companies,” he said.
“We are disappointed that the court did not address this central point and feel that the
result is at odds with the law in Georgia as well as the law in other jurisdictions.”
Silverman, who is based in Chicago, said the firm was considering an appeal.
“We’re very pleased, and we think the judge made the right decision,” said Joseph
Manning of Morris Manning and Martin, which represented McKesson in the case, which
spurred accusations of “extortion” in court filings and occasionally acrimonious assertions in a
hearing last week.
The trouble stemmed from a bankruptcy case in Harrisburg, Pa. In May, two creditors,
McKesson Automation Solutions and McKesson Medication Management, hired attorneys from
Duane Morris’ Philadelphia office.
Two months later, lawyers Sean R. Smith and John C. Herman of Duane Morris’ Atlanta
office agreed to represent Nan and Alex Smith (no relation to Sean), in an action against one of
McKesson’s subsidiaries, McKesson Information Solutions. At issue was an intellectual property
dispute stemming from McKesson Information’s purchase of a company which had bought out
the couple years earlier.
When McKesson learned that Duane Morris was engaged by their opponents in the
Atlanta case, they demanded that the firm withdraw, citing a conflict of interest.
In a written response, Duane Morris’s Smith refused, citing the firm’s engagement letter
from Pennsylvania that waived conflicts in cases not substantially related to those two
companies’ business.
Smith wrote that the company involved in the Georgia case is a different entity in
separate litigation in a separate state, and that his firm’s involvement was not a conflict. Further,
he said, should McKesson insist upon its position, his firm would withdraw from the
Pennsylvania case.
McKesson sued, demanding that Duane Morris drop the Georgia case, claiming that the
firm’s threat to withdraw from its Pennsylvania case amounted to “extortion” and “a gross
violation of the duty of loyalty.”
During a hearing last week, Georgia State University law professor Clark D. Cunningham
testified on behalf of McKesson that the waiver was impermissibly broad under Georgia legal
rules, which are more stringent than those of many other states and the model rules of the
American Bar Association.
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In turn, Duane Morris produced its own expert, Steven C. Krane of New York’s
Proskauer Rose and chairman of the ABA’s Ethics and Professional Responsibility Committee.
He testified that Georgia rules had no bearing because the engagement letter was signed in
Pennsylvania. He added that large, multi-pronged companies such as McKesson could not
reasonably expect law firms to look upon a contract with one entity as an engagement with the
whole corporate family.
In her 13-page opinion, Moore noted both viewpoints but came down squarely on the
side of McKesson.
The legal ethics codes in both Pennsylvania and Georgia, she wrote, “indicate that a
lawyer cannot represent a client if the representation involves a current conflict of interest and
that a lawyer may represent such a client only after each affected client gives informed consent.”
McKesson Information Solutions v. Duane Morris, No 2006CV121110.
Manning, the McKesson’s lawyer, said, “This is something these large multijurisdictional firms will have to take into consideration from now on.” He said that his own 165lawyer firm, while small compared to 600-plus-lawyer Duane Morris, has a multi-state practice
and “would never use such a waiver. We have a very intense conflict of interest policy here.”
Ironically, he noted, the Pennsylvania case settled on Thursday. Duane Morris’ Smith and
Herman were unavailable. Krane could not be reached, but Cunningham said he was not
surprised by the ruling.
“I think it’s legally sound and very thoroughly explained,” he said. “I also think it’s of
significance to lawyers nationally as well as in Georgia. … They were, in my opinion, making an
argument that is completely outside the mainstream of American law.”
Now read my views on this issue.
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BOALT: LEGAL PROFESSION
LESSON 7: LOYALTY
OCTOBER 7 & 14, 2014
Outline Section IV(F)(8) and
IV(G)
pp. 37-40
All Students Read
ABA Rules 1.5; 1.15
Rules Supplement
All Students Read
California Business &
Professions Code §§6147,
6148
Below, in reading packet
All Students Read
Scorpions in a Bottle
PDF file on course site
All Read; A-G on call
Ambulance Chasing Redux
PDF file on course site
All Read; H-R on call
A Day in the Life?
PDF on course site
All read; S-Z on call (note
that there is no sample fee
agreement to analyze, so just
read the fact pattern and think
about how money works in
the world of public interest
lawyering)
Cal. Bus. & Prof. Code**
6147. (a) An attorney who contracts to represent a client on a contingency fee basis shall,
at the time the contract is entered into, provide a duplicate copy of the contract, signed by both
the attorney and the client, or the client's guardian or representative, to the plaintiff, or to the
client's guardian or representative. The contract shall be in writing and shall include, but is not
limited to, all of the following:
(1) A statement of the contingency fee rate that the client and attorney have agreed upon.
(2) A statement as to how disbursements and costs incurred in connection with the
prosecution or settlement of the claim will affect the contingency fee and the client's recovery.
(3) A statement as to what extent, if any, the client could be required to pay any
compensation to the attorney for related matters that arise out of their relationship not covered by
their contingency fee contract. This may include any amounts collected for the plaintiff by the
attorney.
(4) Unless the claim is subject to the provisions of Section 6146, a statement that the fee
is not set by law but is negotiable between attorney and client.
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(5) If the claim is subject to the provisions of Section 6146, a statement that the rates set
forth in that section are the maximum limits for the contingency fee agreement, and that the
attorney and client may negotiate a lower rate.
(b) Failure to comply with any provision of this section renders the agreement voidable at
the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee.
(c) This section shall not apply to contingency fee contracts for the recovery of workers'
compensation benefits.
(d) This section shall become operative on January 1, 2000.
6148. (a) In any case not coming within Section 6147 in which it is reasonably
foreseeable that total expense to a client, including attorney fees, will exceed one thousand
dollars ($1,000), the contract for services in the case shall be in writing. At the time the contract
is entered into, the attorney shall provide a duplicate copy of the contract signed by both the
attorney and the client, or the client's guardian or representative, to the client or to the client's
guardian or representative. The written contract shall contain all of the following:
(1) Any basis of compensation including, but not limited to, hourly rates, statutory fees or
flat fees, and other standard rates, fees, and charges applicable to the case.
(2) The general nature of the legal services to be provided to the client.
(3) The respective responsibilities of the attorney and the client as to the performance of
the contract.
(b) All bills rendered by an attorney to a client shall clearly state the basis thereof. Bills
for the fee portion of the bill shall include the amount, rate, basis for calculation, or other method
of determination of the attorney's fees and costs. Bills for the cost and expense portion of the bill
shall clearly identify the costs and expenses incurred and the amount of the costs and expenses.
Upon request by the client, the attorney shall provide a bill to the client no later than 10 days
following the request unless the attorney has provided a bill to the client within 31 days prior to
the request, in which case the attorney may provide a bill to the client no later than 31 days
following the date the most recent bill was provided. The client is entitled to make similar
requests at intervals of no less than 30 days following the initial request. In providing responses
to client requests for billing information, the attorney may use billing data that is currently
effective on the date of the request, or, if any fees or costs to that date cannot be accurately
determined, they shall be described and estimated.
(c) Failure to comply with any provision of this section renders the agreement voidable at
the option of the client, and the attorney shall, upon the agreement being voided, be entitled to
collect a reasonable fee.
(d) This section shall not apply to any of the following:
(1) Services rendered in an emergency to avoid foreseeable prejudice to the rights or
interests of the client or where a writing is otherwise impractical.
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(2) An arrangement as to the fee implied by the fact that the attorney's services are of the
same general kind as previously rendered to and paid for by the client.
(3) If the client knowingly states in writing, after full disclosure of this section, that a
writing concerning fees is not required.
(4) If the client is a corporation.
(e) This section applies prospectively only to fee agreements following its operative date.
(f) This section shall become operative on January 1, 2000.
Hypothetical 29.2
“Public Interest Retainer Agreement”
Your sister’s friend, Lisa Olson, is bringing a test case in the field of sexual harassment
law. Olson was subjected to constant sexual harassment in public high school by other students,
both male and female. The school counselor knew, but did not intervene. Olson contacted the
Public Interest Law Group (“PILG”), which is willing to prosecute a civil case that could
establish a duty of “reasonable intervention” in the case of peer-harassment in public schools.
PILG sent Olson a Retainer Agreement, and Olson wants you to review it. Would you give her
advice? Assuming you would, what would you advise?
PUBLIC INTEREST LAW GROUP
RETAINER AGREEMENT
I, ___________________________________________________________________,
hereby retain the Public Interest Law Firm (hereinafter “PILG”) to represent me in a lawsuit to
challenge
on the following terms and conditions:
1.
Public Interest Law Group may retain, associate, join or dismiss additional
attorneys on my behalf as the Public Interest Law Group deems necessary. The Public Interest
Law Group also may consult or retain experts, investigators and others concerning this case. I
authorize the Public Interest Law Group to consult with such persons and to divulge to them such
privileged information as is necessary for them to assist the Public Interest Law Group in
connection with the case.
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2.
Representation by Public Interest Law Group is limited to the matter described
above. Representation in any other proceeding not specifically delineated above is subject to
mutual agreement and the signing of a new retainer agreement.
3.
Public Interest Law Group may employ any qualified person(s) to assist the
attorney(s) in the development and prosecution of the aforementioned legal matter to the extent
permitted by law in the appropriate jurisdiction.
4.
I shall not be obligated for any professional fee for the aforementioned legal
services. If attorneys’ fees are awarded to me by a court in this matter or otherwise obtained
through settlement of this action, I hereby assign such fees to the Public Interest Law Group and
direct the opposing parties (as ordered by the Court) to pay the attorneys’ fees directly to the
Public Interest Law Group. Further, any Court-awarded cost shall be reimbursed on a pro rata
basis to whoever has paid such costs.
5.
I shall fully cooperate with my attorneys and shall promptly provide them with
any and all information known to me relevant to the above matter. I agree to provide all
information and papers requested by the attorneys and to cooperate fully in any proceeding in
connection with the case, including but not limited to attending scheduled meetings and hearings,
answering interrogatories, appearing for depositions, and participating cooperatively in judicial
or other proceedings as may arise in the case. I agree not to communicate with the Court, or with
other parties to the case, without the attorneys’ consent.
6.
I understand that if the defendants prevail in this case, the defendants may recover
certain costs from me. If the defendants also demonstrate that the action was frivolous,
unreasonable, groundless, or litigated in bad faith merely to harass or oppress the defendants,
they may also recover their attorneys’ fees from me. The attorneys and I hereby agree that in our
best judgment the case is meritorious; it is not frivolous, unreasonable, groundless, nor is it the
purpose of the client or the attorneys to vex, harass, or oppress the defendants. In the event that
any fees, costs or expenses are assessed against me, I agree that I am responsible for the payment
of those fees, costs or expenses.
7.
I agree that the Public Interest Law Group may contact the media in order to
publicize this action and its possible ramifications. I agree to cooperate with the Public Interest
Law Group’s efforts to publicize this action. I agree not to discuss this action with the media
without first consulting the Public Interest Law Group. The Public Interest Law Group will
consult with me regarding any proposed press release.
8.
The Public Interest Law Group will not settle this case on my behalf without my
prior authorization. By law, I have the right to make all decisions regarding the settlement of the
case. In exchange for the attorneys’ promises in this agreement, I hereby limit that right by
agreeing not to accept any settlement which does not include a monetary component sufficient to
insure receipt by the Public Interest Law Group of a reasonable attorneys’ fee, unless the Public
Interest Law Group consents to the settlement.
9.
If, with my prior approval, this case is at any time certified as a class action, I
understand that decisions regarding settlement must thereafter be made by the attorneys in the
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best interests of the class and that any settlement of a class action be approved by the Court. The
Public Interest Law Group will consult with me regarding any proposed class settlement.
Date:
Client
Date:
Client
Accepted by the Public Interest Law Group
Date:
Directing Attorney
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Example: Macy’s Inc. v. J.C. Penny Corp., Inc.
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