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Ethical Pitfalls for Litigators

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1 Ethical Pitfalls for Litigators
James J. Bell, Bingham Greenebaum Doll LLP

2 Losing Your Cool In Court

3 Disrupting a Tribunal Rule 3.5(d): “A lawyer shall not … engage in conduct intended to disrupt a tribunal.”

4 A.K.A. “Disrupting a tribunal”
A.K.A. Acting like a Fool in Front of a Judge or While a Tape Recorder is Running

5 Matter of K.M. Attorney disrupted tribunal when immediately after a discussion in chambers with a judge, attorney grabbed and struck opposing counsel, thereby knocking him over the table in the judge’s office. 60-day suspension

6 Matter of A.M. Throwing soft drink at opposing counsel and restraining him in his chair in response to deposition questioning of attorney’s wife, causing premature conclusion to deposition, is conduct intended to disrupt tribunal and that is prejudicial to the administration of justice. 60-day suspension

7 Matter of L.O. Respondent told judge “unless you want to arrest me, I’m leaving. I do not believe in going in there in front of the jury and allow the State to railroad my client into a conviction by uncharged, unconvicted … misconduct.”

8 Matter of L.O. After disobeying the order to sit down, deputies assisted the respondent with handcuffs. The respondent yelled to his client: “Fire me, God dammit, fire me!” The defendant stated “I don’t know what in the hell is going on.” After the defendant fired the respondent, the respondent got up to leave stating “I have no client.” These actions demonstrated an intent to disrupt a tribunal. 60-day suspension

9 Matter of R.B. Respondent threatened to go to attorney’s house and hit him in the head with a baseball bat. Told him “don’t press your luck because you’re not going to like me if I’m angry.” Opposing counsel stated “you better kill me.” Respondent stated “I will and I will get a medal for it.” Violation of Rule 4.4 and 8.4 Note: on the record

10 Losing Your Cool in Writing

11 7 Deadly Words and Phrases
“Ridiculous” “Ludicrous” “Disingenuous” “Preposterous” “Absurd” “Outlandish” “Absolutely False”

12 Briefing “Irrelevant commentary thereon during the course of judicial proceedings does nothing but waste valuable judicial time.” Amax Coal Co. v. Adams, 597 N.E.2d 350 (Ind.Ct.App. 1992).

13 Briefing The appellant’s brief on transfer stated: “indeed the opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for the appellee … and then said whatever was necessary to reach that conclusion. (Regardless of whether the facts or the law supported its decision.)” Public reprimand Michigan Mutual Ins. Co. v. Sports, Inc., 706 N.E.2d 555 (Ind. 1999).

14 Matter of M.W., 782 N.E. 2d 985 (Ind. 2003) “Lawyers are completely free to criticize the decisions of judges. As licensed professionals, they are not free to make recklessly false claims about a judge’s integrity.” Rule 8.2: “A lawyer shall not make a statement that the lawyer knows to be false … concerning the qualifications or the integrity of a judge.”

15 Briefing Sadly, the ramifications of the Court’s decision reads (sic) like a bad lawyer joke … “when is it okay for a lawyer to lie? When his lips are moving to an insurance adjuster.” VL Appliances & Services, Inc., v. McFerran, 712 N.E.2d 1033 (Ind.Ct.App. 1999). Public reprimand

16 Briefing The appellant called the opinion of the Court of Appeals “incomprehensible.” The Court of Appeals quoted professor Monroe Freeman who stated that there should not be anything in the brief that is not calculated to persuade the reader. Bloomington Hospital v. Stofko, 709 N.E.2d 1078, 1079 (Ind. 1999).

17 What Sanction Did This Lawyer Receive?
“Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” The assertions of the Judge were “irrational” and “cannot be taken seriously.”

18 Answer: No Sanction Lawyer: Justice Scalia in Atkins v. Virginia and Webster v. Reproductive Health Services

19 What not to say . . . In re P.R. Don’t insult the trier of fact.
Specifically, don’t say the Judge acts like he or she suffers from a “frontal cranial labotomy.”

20 What not to say In re P.R. “It must be stated, at the risk of offending others that anyone who has not suffered a full frontal cranial lobotomy knows that the words published on a Michigan lawyer's law office internet describing his professional narrative, including his licensing credentials, is not the practice of law in the State of Indiana.”

21 What not to say In re P.R. “This proceeding is about behavior and protocol; what to say and how to behave in the presence of the supreme monarchy, or in this situation, the representatives of the Indiana Supreme Court who alone decide what is and what is not attorney misconduct subject to discipline.”

22 What not to say In re P.R. “My experience with the Indiana attorney disciplinary system is a hideous aberration of justice: a Disciplinary Commission and staff attorney with a self-image of pompous arrogance; a hearing officer who permits herself to be used as a rubber stamp....”

23 What not to say continued . . .
The Commission's former Executive Secretary “A firstclass ass” The Disciplinary Commission “Soft and Lazy” The Disciplinary Process “A modern day version of the Star Chamber, a Salem witch hunt, or a Spanish Inquisition”

24 What not to say continued . . .
The Supreme Court's disciplinary rules “Frivolous and Antiquated,” “Rules of behavior conceived over a cigar and brandy ... during the late Victorian Era by a group of self-impressed lawyers”

25 What not to say continued . . .
I would do it again “I will not misrepresent the content of my letter by trivializing it with the notation ‘Advertising Material.’” “I will be thankful that Michigan does not attempt to impose frivolous and antiquated regulatory restrictions upon its licensed attorneys . . .”

26 Losing Your Cool With the Jury

27 Decorum, Communication and Demeanor with Jurors
Rule 2.8(C): A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.

28 Richard “Racehorse” Haynes
Would this Texas Judge be in Trouble? Practice of having client thank judge and jury after acquittal for murder Judge’s response: “Don’t thank me you little turd. We both know you are guilty.”

29 Richard Racehorse Haynes
“Thank you ladies and gentlemen of the jury. I will never do it again.”

30 Abusing Discovery Rights

31 Rule 4.4 Respect for Rights of Third Persons
(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

32 Conduct in Depositions
Matter of O.C. 11 day deposition of 82-year old man Shouted at deponent and pointed his finger in his face Accused opposing counsel of corruption Told opposing counsel he was going to put his head “in a toilet bowl.”

33 Conduct in Depositions
Matter of Prosecutor Q: You’re lying. You’re a damn liar. You’re a waste of time. You’re lucky you won’t get charged with neglect of a dependent. Hopefully someone will take that kid from you before you destroy him … oh please, and you’re probably on meth too. And your damn teeth. Q: Are you going to stand up or are you going to be a wuss? I guess that’s already explanatory, right? That’s what you are. You’re not a stand up guy. You can’t even stand up and tell the truth.

34 Conduct in Depositions
Court Reporter: Anything else? Q: I have no further questions. A: Finally. Q: Finally? You run your little smart ass with me, believe me you will end up getting charged with new emissions … Violation of Rule 4.4 Public Reprimand

35 In a “Professional Capacity”
Watch What You Say In a “Professional Capacity”

36 Rule 8.4(g) It is professional misconduct for a lawyer to: (g) engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors.

37 Mullaney v. Aude (Md.) Atty.(F): You got a problem with me?
Atty.(M): No, I don’t have any problem with you, babe. Atty.(F): Babe? You called me babe? What generation are you from? Atty.(M): At least I didn’t call you a bimbo.

38 Be Careful While the Tape is Running

39 Be Careful What You Say Even if You Are Trying to Be a Friend

40 Revealing Confidential Information
In re: Anonymous: Friend contacted attorney for referral. Friend became prospective client and revealed confidential information regarding an altercation with her husband. Lawyer referred her to another lawyer. Lawyer encouraged a friend to reach out to prospective client because she was going through a hard time. Violation for revealing confidential information.

41 Social Media

42 Florida Case Stated Judge was trying "to make defendants waive their right to a speedy trial.“ “evil, unfair witch” “seemingly mentally ill” and “clearly unfit for her position and knows not what it means to be a neutral arbiter.”

43 Advertising

44 Applies to More than Billboards
7.2(a): “‘[A]dvertise’ refers to any manner of public communication partly or entirely intended or expected to promote the purchase or use of the professional services of a lawyer, law firm, or any employee of either involving the practice of law or law-related services.”

45 Applies to More than Billboards
Applies to websites s Blogs Social Media

46 Rule 7.1 Communications Concerning a Lawyer’s Services
“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” “A communication is false or misleading if it contains a material misrepresentation of fact or law,” or “Omits a fact necessary to make the statement considered as a whole not materially misleading.”

47 In re G.G. 777 N.E.2d 1097 (Ind. 2002) What is False and Misleading?
Billboard advertisement: included image of individuals. Tag line: “Expect more from a [Name of Law Firm] attorney.” All of the individuals pictured were lawyers at the firm except one. The one non-lawyer was the only African American individual in the picture.

48 In re G.G. 777 N.E.2d 1097 (Ind. 2002) What is False and Misleading?
Violated: Old Rule 7.1(b)/New Rule 7.1: The billboard was misleading and deceptive because not everyone was an attorney – from whom you could “expect more.” Implies Racial Diversity No requirement that advertisement actually mislead someone. Sanction: Public reprimand.

49 In re G.H. 740 N.E.2d 846 (Ind. 2000) What is False and Misleading?
Letter to individuals who had been arrested: “Choose a Lawyer with 20 years of United States Marine Corps Experience and a former Assistant Professor at Boston University … Together we will ATTACK the Charges the State has filed against you.”

50 In re G.H. 740 N.E.2d 846 (Ind. 2000) What is False and Misleading?
Violated: Old Rule 7.1(b)/New Rule 7.1: Contained misleading or deceptive statements. Was in the Marines, but not a lawyer in the Marines, True statements that are deceptive in context Sanction: Public reprimand

51 In re S.B. & D.C. 892 N.E.2d 1237 (Ind. 2008) Advertisement: described successful past cases, including the name of the client and the amount recovered. Violated: Old Rule 7.2(d)(2)/New Rule 7.1: information based on past performance is prohibited Even if the ad quoted and cited newspaper articles Leads to unjustified expectations Sanction: Public reprimand.

52 In re V.W. 725 N.E.2d 75 (Ind. 2000) Advertisement: “Best Possible Settlement Least Amount of Time.” Violated: Old Rule 7.1(b)/New Rule 7.1: Statement created an unjustified expectation, and therefore was misleading, deceptive, self-laudatory, and unfair. Sanction: Public reprimand.

53 In re S.B. & D.C. 892 N.E.2d 1237 (Ind. 2008) Advertisement: the firm had a “commitment to obtaining the best possible settlement for you and your family.” This was ok, because it only promises a commitment to the case, not an outcome (compare to “I can obtain the best possible settlement,” which was not ok – In re V.W.).

54 In re J.K. & J.K. 792 N.E.2d 865 (Ind. 2003) Television advertisement:
Junior adjuster to Senior adjuster: “[Name of Law Firm]” is representing the victim A metallic sound effect follows Senior adjuster says: “’[Name of Law Firm]’ Let’s settle this one.” Actor Robert Vaughn then advises viewers to call the firm.

55 In re J.K. & J.K. 792 N.E.2d 865 (Ind. 2003) Violated:
Old Rule 7.1(d)(3)/New Rule 7.1: Contained an endorsement. Sanction: Public reprimand.

56 Rule 7.2 Comment [2] You Can State the Following:
Name and Name of Law Firm Place of Attorney’s Birth That the Attorney Has Malpractice Insurance Smith & Jones Law Firm: “Tough. Effective. Insured (Just in Case).”

57 Rule 7.4 Communication of Fields of Practice and Specialization
(d) A lawyer shall not state or imply that the lawyer is a specialist in a particular field of law, unless: (1) The lawyer has been certified as a specialist by an Independent Certifying Organization accredited by the Indiana Commission for Continuing Legal Education pursuant to Admission and Discipline Rule 30; and, (2) The certifying organization is identified in the communication.

58 In re Anonymous (2003), In re Anonymous (1997), and In re M.F. (1994)
Advertisements stated: “Elder Law Specialists” Attorney “specialized in personal injury cases” “Estate Specialist” Violated: Rule 7.4(d) Sanction: Private reprimand in two cases, public reprimand in one case (which included other violations).

59

60 Fees

61 Fees 1.5(a): “a lawyer shall not make an agreement for, charge or collect an unreasonable fee.”

62 What Happens If You Charge Too Big Of A Flat Fee?

63 Matter of M.E. Client hired Respondent to defend him for striking two pedestrians with his vehicle after consuming alcohol, causing serious bodily injury. Fee was $25,000. Case pled to a misdemeanor three days later. Fee unreasonable. Public reprimand.

64 What Happens If You Charge Too Small Of A Flat Fee?

65 Rule 1.8 A lawyer shall not enter into a business transaction with a client UNLESS The terms are in writing and reasonable The client is advised to get advice from outside counsel

66 Rule Comment Rule applies when lawyer renegotiates initial fee arrangement after representation begins And new fee agreement is more advantageous to lawyer

67 What If A Refund Needed? Duty to keep property in Trust Account if lawyer and client (or third person) have dispute over interest in the property. Matter of Y, 802 N.E.2d 922 (Ind. 2004).

68 Non-Refundable Fees Non-refundable fees are unethical.
Matter of M.K., 804 N.E.2d 1152 (Ind. 2004).

69 Refunds If fired in the middle of the case: Flat fee:
Hourly billing is easy to refund. Flat fee: Commission takes position that some refund is due.

70 Attorney Liens / Keeping The File
Commission’s position: File is the client’s property. Attorney liens are legal, but …

71 Neglect and Lack of Communication

72

73

74 Matter of C.C., 862 N.E.2d 648 (Ind. 2007) Respondent filed lawsuit
Took no action Lawsuit dismissed for failure to prosecute 2 years later Statute of limitations expired Respondent filed an appeal to have case reinstated Appeal unsuccessful Respondent did not tell his client about the dismissal or the failed appeals

75 Matter of C.C., 862 N.E.2d 648 (Ind. 2007) Continued
Respondent concealed dismissal Told client the depositions were planned and that the case was set for trial Respondent took client on tour of courtroom where the case would be tried and explained the trial process 6 years after a lawsuit was filed, client finally learned that the case had been dismissed 4 years earlier

76 Matter of C.C., 862 N.E.2d 648 (Ind. 2007) Continued
Violations: Rule 1.3 Rule 1.4 Rule 8.4(c) Sanction: Suspension without reinstatement

77 Matter of M.K., 814 N.E. 2d 250 Respondent failed to advise appellate client that Court of Appeals affirmed conviction. Failed to communicate right to petition for transfer. Client was particularly vulnerable and reliant on respondent. Public reprimand.

78 Components of Communication
The communication death spiral Non-diligence Communication avoidance-client viewed as a pest “White” lies Outright falsehoods Defrauding the client Communicating preemptively Communicating in times of inactivity

79 Other Communication Tips
Creating realistic client expectations Prompt and candid notice of negative events Defensive communications/documentation Making and keeping promises Use caution about making promises Keep them when you make them

80 Possible Causes of Neglect
Are you drowning in ignorance? Substance abuse/Mental Health problem? Not Getting Paid? You are either in or out

81 Candid With The Tribunal
Failure To Be Candid With The Tribunal

82 Preamble to the RPC “In the nature of law practice … Conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.”

83 Who is the most important person in your case?

84 Rule 3.3(a)3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly … offer evidence that the lawyer knows to be false. If [a witness] … called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

85 Matter of Scahill, 767 N.E.2d 976 (Ind. 2002)
Public reprimand for failing to disclose a material fact to the tribunal when disclosure was necessary to avoid assisting a fraudulent act against a tribunal. Marital asset was placed on financial declaration. Client stated he lost the proceeds when he fell asleep in the men’s restroom of a local restaurant.

86 Matter of P.P., 774 N.E.2d 49 (Ind. 2002) Lawyer received public reprimand when he failed to inform the Court that client had lied under oath about driving a car within the last nine years, while attempting to obtain a hardship license.

87 Failure to Supervise Staff

88 “It was my secretary’s fault.”
Bad Excuse: “It was my secretary’s fault.”

89 Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
With respect to a nonlawyer … associated with a lawyer: (a) a lawyer [with] … managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligation’s of the lawyer

90 Rule 5.3 Cases Trust Account Violations
Matter of Anonymous, 876 N.E.2d 333 (Ind. 2007) Matter of G.P., 742 N.E.2d 924 (Ind. 2001) Matter of S.S., 894 N.E2d 543 (Ind. 2008)

91 Potential Pitfalls Rule 1.6: Confidentiality of Information
Rule 4.2: Speaking with Represented People Rule 4.4: Respect for Rights of Third Persons

92 Unauthorized Practice of Law
Engaging in practice by person not admitted      Sec. 1. A person who:        (1) professes to be a practicing attorney;         (2) conducts the trial of a case in a court in Indiana; or         (3) engages in the business of a practicing lawyer; without first having been admitted as an attorney by the supreme court commits a Class B misdemeanor.

93 In re Thonert, 693 N.E.2d 559 (Ind. 1998) Unauthorized Practice of Law
“The core element of practicing law is the giving of legal advice to a client and the placing of oneself in the very sensitive relationship wherein the confidence of the client, and the management of his affairs is left solely in the hands of the attorney.” Thonert, 693 N.E.2d at 563

94 Guideline 9.2. Permissible Delegation
“Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a  non-lawyer assistant or paralegal any task normally performed by the lawyer.” 

95 Guideline 9.3. Prohibited Delegation
A lawyer may not delegate to a non-lawyer  assistant: (a) responsibility for establishing an attorney-client relationship; (b) responsibility for establishing the amount of a fee to be charged for a legal service; or (c) responsibility for a legal opinion rendered to a client.

96 Inadvertent Disclosure
Rule 4.4(b) A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.

97 Speaking With Represented People

98 Rule 4.2 In representing the client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law or a court order

99 Matter of S.L., 55S DI-241 Deponent was represented Attorney for deponent could not attend deposition Deponent nevertheless appeared in spite of attorney’s advice Deponent was advised of her Miranda rights and was advised not to proceed without counsel being present

100 Matter of S.L., 55S00-0706-DI-241 Continued
Incriminating statements were elicited from deponent Violation Rule 4.2 Sanction: Public reprimand

101 Matter of Uttermohlen “The Rule applies even though the represented person initiates or consents to the communication.”

102 PT Barnum’s Nightclub v. Duhamell, 766 N.E.2d 729 (Ind.Ct.App. 2002)
“We join with the majority of jurisdictions that have analyzed this issue and hold that Indiana’s Rule 4.2 does not prohibit an attorney from contacting the former employee of a party adverse to the attorney’s client in litigation.”

103 Sex With Client

104 Rule 1.8(j) A lawyer shall not have sexual relations
with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

105 770 N.E.2d 273 Respondent “personally manifested his
romantic interest in [client] during appointments … Three times he hugged and kissed her during the pendency of the dissolution and bankruptcy.”

106 770 N.E.2d 273 Respondent violated Indiana
Professional Conduct Rule 1.7(b) by continuing to represent the client after expressing and promoting his personal and romantic interest in her.

107 770 N.E.2d 273 Footnote: “It was the respondent’s expression of personal and romantic interest in the client that led to the respondent’s conflict of interest. Had the expression been manifested in more strenuous fashion, the appropriate discipline would have been more severe.”

108 Matter Grimm, 674 N.E.2d 551 (Ind. 1996) Hired May of 1987 for divorce case February 1988 sexual relations begin and continue Conducts trial for the client in April 1988 Assures her that the bill is “taken care of”

109 Matter Grimm, Continued
August 1988 client terminates personal relationship because it’s not “appropriate” Respondent begins sending a bill Files attorney lien Client goes to the Disciplinary Commission

110 Matter Grimm, Continued
Response to Grievance: Called Client’s accusations: “Nothing more than the raving of a lazy, promiscuous, greedy, psychotic bitch.”

111 Only Thing Worse to Send
Dear Don:

112 The Florida Bar v. Tipler
Attorney represented 18-year old woman. Lawyer charged client flat fee of $2,300. As part of fee agreement, reduced balance by $200 every time client had sex with him or $400 every time client arranged for another woman to have sex with him. Pled guilty to one count of solicitation of prostitute. Disbarred.

113 Matter of Inglimo, 740 N.W. 2d 125, 139 (Wis. 2007)
Wisconsin Supreme Court held lawyer did not have sexual relations with client within the meaning of the Rules of Professional Conduct. Rules prohibit sexual relations “with” clients. Lawyer had sex with third party who was simultaneously having sex with lawyer’s client.

114 The End


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