Ethics Month Scenario 1

Friend or Fair Game?

Annie and James know each other from her American Inn of Court. During the cocktail hour, James congratulates Annie on her new job at a big law firm in town. Annie congratulates James on the pending arrival of his first child; James is excited but also nervous since his mother-in-law recently became ill and is no longer able to help them out for the first few months. Annie commiserates. Over dinner, they discover that one of the partners at Annie’s new firm, Ron, is handling a case against one of James’ clients. Annie says she hopes that she and James will have a chance to work together in the future.

The next day at work, Ron introduces Annie to one of their most important clients, Ms. Peterson. Both Ron and Ms. Peterson articulate their expectations that Annie is going to “stick it to the other side” and “go to the mat” on this case; they even want her to take advantage of some personal issues opposing counsel has going on. Ms. Peterson really wants Annie to "hold his feet to the fire on discovery deadlines and bring him up on sanctions for non-compliance." Ron indicates that the attorney has not filed any Notice of Unavailability with the court; he thinks that he has simply forgotten to do it, but this is another opportunity to rattle him. Annie says that since these tactics are not procedural or ethical rules violations, she is happy to play ball.

Then Annie finds out who the opposing counsel is: her friend from the Inn of Court, James.

—Based upon the program "What to Do When a Client or Boss Asks You to Do Something" by the C. H. Ferguson-M. E. White American Inn of Court in Tampa, FL

 Send us your comments or your own ethical dilemmas by email or Tweet them to @innsofcourt using the hashtag #AICethicsmonth


NEW! 7/11/2018

Judge Barbara M.G. Lynn, Patrick E. Higginbotham and Honorable Barbara M. G. Lynn American Inns of Court, and Michael P. Lynn, Esq., Patrick E. Higginbotham American Inn of Court, Dallas, TX

The matters presented here are matters of judgment and civility. It is uncivil to take undue advantage of James' personal difficulties and ultimately will redound to the client's detriment, particularly with the court and in dealings with opposing counsel, when mutual respect and professionalism would be advantageous. Annie should talk to Ron and urge a different course. If he persists, she should reconsider whether this is the right firm for her.

Terry Drake, Esq., Manatee American Inn of Court, Bradenton, FL

Jobs come and go, but your ethics are all that you are. You never do something that goes against your moral compass. Annie should represent her client to the best of her ability and respect the boundaries she has set for herself.

William R. Peterson, Esq., Garland R. Walker American Inn of Court, Houston, TX

This is a situation where the Texas Lawyer’s Creed may provide more guidance (and, potentially, protection) than lawyers receive in other states.  Section II of the Creed addresses the duties owed by a lawyer to a client.  Paragraph 10 discusses accommodations to opposing counsel:

I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client’s lawful objectives.  A client has no right to instruct me to refuse reasonable requests made by other counsel.

One important question is whether Annie’s client’s interests would be prejudiced by any extension of the discovery deadlines.  If the client has a particular need for the matter to be resolved as quickly as possible, opposing an extension might be reasonable.  But if the client would not be prejudiced (and the sole reason for the refusal would be to “rattle” opposing counsel), then any extension request would almost certainly be reasonable.

Lesly J. Adams, Esq., Honorable Fiorenzo V. Lopardo American Inn of Court, Vista, CA

Annie should diplomatically take the high road. 1) Explain to the boss that she does not doubt that she and James will have a good working relationship with respect to their clients' matter, because they are members of the same Inn of Court. 2) Then Annie should communicate with James that as members of the Inn of Court, she is confident that they will have a good working relationship with regard to their respective clients' matter. In conclusion, each attorney should strive to get the best result for their respective client while maintaining a professional, courteous and ethical relationship.

Mark C. Kurdys, Esq., Harry C. Martin American Inn of Court, Asheville, NC

“Exploit” is a loaded term. If it means to utilize, it would not only be appropriate but to the advantage of all concerned to utilize a congenial relationship between opposing counsel to expedite communication and moderate the level of antagonism that can quickly permeate high-profile litigation. Indeed, the most high-stakes disputes can be addressed in a most professional and expeditious manner when opposing counsel have sufficient respect for each other to approach the case that way.

If “exploit” is interpreted as taking unfair advantage of personal information about opposing counsel, information  known only because of  a personal relationship, to gain some perceived advantage in the litigation, that crosses the line from zealous advocacy to conduct unbecoming an attorney.

 The Ethics Gurus—Francis G. X. Pileggi, Esq. of Wilmington, DE and John P. Ratnaswamy, Esq. of Chicago, IL

When a lawyer is asked by a client to take action that is lawful and permissible under the applicable law and rules, but the proposed action involves a question of tactics and not the objective of the representation, and the lawyer wishes to pursue a different approach, the situation is complicated.  Often, it is said that the objective of a representation is up to the client and the tactics are up to the lawyer, but it is not necessarily that simple, as to the latter, under the rules and ethics opinions/case law.

  • ABA Model Rule of Professional Conduct (MRPC) Rule 1.2 on the scope of representation and the allocation of authority between client and lawyer is complicated.  Rule 1.2(a) instructs the lawyer to abide by client decisions concerning the objectives of representation, but subject to Rule 1.2(c) and (d), while Rule 1.2(b) says representation does not constitute endorsement.  Rule 1.2(c) permits the lawyer to limit the scope of the engagement in a reasonable manner with informed client consent.  Rule 1.2(d) says a lawyer may discuss the legal consequences of a proposed course of conduct.  Comment [2] recognizes that a lawyer and client may disagree about means, and the possibility of withdrawal on that basis.
  • MRPC Rule 1.3 requires reasonable diligence and promptness in representing a client, but does not mention zeal.  Comment [1] calls for acting with zeal, but also states that the lawyer has some discretion as a professional in not seeking every possible advantage, citing Rule 1.2, and in acting in a courteous and not offensive manner.  See also, e.g., MRPC 3.1, 3.2, 3.4, 3.8, 4.1, 4.2, 4.3, and 4.4(b) and its Comment [3].
  • MRPC Rule 1.4, on communication, states a lawyer shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished.  MRPC 1.4(a)(2).
  • MRPC 2.1 on the lawyer as advisor calls for the lawyer to exercise independent professional judgment and render candid advice, and further states: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.”

It would be beneficial if all of us could see opposing counsel as a human being even before we meet or know them or know of their personal circumstances.  Annie seems not to have had that perspective, at least in this instance, until it involved someone she knows.  Moreover, civility is a sound tactic even from a purely ends-oriented perspective, because it is fairly likely that, at some point in any given matter, the shoe will be on the other foot.  Or: “what goes around comes around.” Annie could use mentoring on the ethical, moral, and prudential aspects of being considerate to opposing counsel.  This situation involves nuances that do not easily lend themselves to a simple clear-cut answer.  Courteous and polite dealings with opposing counsel are not mutually exclusive with zealous advocacy.  However, the dividing line between the two can be hard to detect and is often impacted by different styles and personalities.

 Ben J. Weaver, Esq., St. Augustine American Inn of Court, St. Augustine, FL

The fact that James is Anne’s friend from membership in an Inn is irrelevant. Her actions regarding opposing counsel in any law suit should not turn on whether her opposing counsel is her friend. She has the same duty to act ethically and professionally whether or not opposing counsel is a friend.  Taking advantage of personal issues that opposing counsel has is not professional and it is counter-productive. Most courts require lawyers to make a good faith effort to reach agreement on discovery issues including motions and hearings. Some courts require a certification by the moving party’s lawyer that a good faith effort to reach agreement has been made. Professional conduct requires no less. Ron’s suggestion that Annie should use opposing counsel’s personal issues “to rattle him” is unprofessional and bush league. It is the lawyer representing a client in a lawsuit that decides the content of papers filed with the court. The client is paying for the lawyer’s judgment about what to file and when to file. Ron appears unqualified to mentor Annie. She should have a serious discussion with Ron about the standards of professionalism the “big law firm” expects and depending on how that goes, consider another law firm.

Mary Beth L. Sweeney, Esq., Massachusetts Family and Probate American Inn of Court, Boston, MA

There are no legal issues with using the information shared by James to Annie, however, this tactic by Annie would violate the mission and aspirations of the AIC. These tactics do not promote civility and professionalism in our practice. I would suggest to Annie that her law practice and reputation are of the utmost importance and that no one case is worth ruining professional relationships. I would also suggest she look for new employment if this is the method of practice being taught to her by her boss.

Judge William H. Burgess III, Barney Masterson American Inn of Court, Clearwater, FL

The first ethical consideration is that Annie should treat opposing counsel as she would want to be treated.  I would advise her to call James, tell him that they are opposing counsel, and ask, based on what he has told her, if he is going to file a notice of unavailability while telling him that, on behalf of her client, she will be holding his feet to the fire on discovery deadlines and that she expects he will do the same for his client.  I also would advise her to give James her direct contact information and invite him to contact her right away if he needs to discuss the case and ask if it would be acceptable for her to contact him directly if she needs to communicate something to him.  I would finally advise her that vindictiveness in litigation destroys trust, erodes communication, reduces opportunities for agreement, raises costs to all, does not promote the justice of the cause, and is not in the long-term best interests of her client.

Donald E. Campbell, J.D., Ph.D., Associate Professor of Law, Mississippi College School of Law, Jackson, MS

The division of decisional authority under Rule 1.2 leaves questions of tactics -- including whether to grant opposing counsel extensions – to the lawyer and not the client.  The lawyer should not allow their independent judgment regarding these issues to be swayed by the client’s desire to use these issues for tactical advantage. 

I would mentor Annie on the long-term consequences of taking some of these steps.  Inevitably she will need some accommodation in the course of the representation and using these strong armed tactics can lead the opposing counsel to take the same approach she took.

An Inn member from Wilmington, DE

The ethical concerns stem from Annie’s prior knowledge of James’s personal circumstances; that her knowledge was derived at an event devoted to increasing civility and professionalism in the legal profession.  That knowledge sets Annie’s professional responsibilities to her new firm and new client against the damage to her professional credibility and reputation.  Assuming James has missed a discovery deadline, and there are no procedural rules that otherwise prohibit Annie from following Ron’s instructions (my jurisdiction is unfamiliar with notices of availability), Annie’s professional responsibilities to her new client are in conflict with the likely damage to her professional reputation that would result from following them.

In that situation, I would advise Annie to speak to someone within the firm that she trusts (perhaps her partner mentor).  I would hope that conversation would result in disclosing the conflict to Ron.  She works at a big law firm and, at least in principle, another associate could handle the matter without jeopardizing Annie’s professional reputation as someone who uses personal information to take advantage of opposing counsel.  I would also advise her that, at least in my jurisdiction, following the client’s advice would prove tactically unsound.  I am fortunate enough to practice before judges that, almost without exception, expect attorneys to work together collaboratively to advance litigation without engaging in an unnecessary motions practice. 

That climate does not extend to arbitrary or unreasonable delays, of course, but that doesn’t sound at all like what’s happening here.  I would advise Annie to do whatever is possible to avoid a scenario where she irreparably damages her reputation with the bar, the court, and her friend.  It might also be a valuable experience for Annie to discover whether the other partners at her firm endorse Ron’s views of legal practice, and if so, whether that is enough to start her looking for a new home.

Inn member in Pittsburgh, PA:

This approach unnecessarily increases the cost of litigation. Annie should talk with the partner and explain that she has a good relationship with opposing counsel and thinks she can resolve the matter quickly and inexpensively. If that doesn't resolve the situation, she should look for another job.

Matthew J. Sweeney III, Esq., Harry Phillips American Inn of Court, Nashville, TN:

This could be seen more as a matter of professionalism than legal ethics. There are several provisions in the Tennessee Rules of Professional Conduct (based very closely on the ABA’s RPC) which need to be considered:
• RPC 1.2 Scope of Representation and Allocation of Authority. Subject to several limitations, a lawyer is bound to abide by the client's decisions regarding the objectives of the representation. Generally, after consultation with the client, the lawyer may select the means by which those objectives are accomplished. The issue presented in this problem concerns the means by which the client's objectives in the case are to be secured.
• RPC 3.1 prohibits a lawyer from asserting or contesting an issue absent a basis in law or fact. Depending on how a motion to compel or for sanctions is asserted, it could run afoul of this provision, based on the knowledge Annie has about James' situation.
• RPC 3.3, which requires candor toward a tribunal, presents the same or at least a similar issue to that under RPC 3.1.
• RPC 8.4(d) might also be implicated, as an unwarranted motion to compel or for sanctions might be viewed by some judges as a waste of the court's time and "prejudicial to the administration of justice."

There are also several key pieces of information that are missing:
• Is James representing his client alone, or are there other attorneys on his side?
• Has James missed any deadlines in the case?
• Is there any basis for sanctions?
• Who is the judge and how does she react to aggressive lawyering?

As a practical matter the Annie needs to talk with Ron. She needs to tell him that she knows James and share with him what he told her about his family situation. They need to flesh out the missing information. They need to discuss how to address the client's strategic directions in light of the current status of the case, the lawyers on the other side, the best strategies for winning the case overall, and the assigned judge and how she is likely to react to the various strategic options. It is possible to be tough in a case (including insisting on deadlines) without being a jerk, hurting the case, disappointing the client or offending the court.  It is also important to understand and consider that however you deal with the opposing lawyer, that lawyer likely will treat you no better, both later in that case and in the future. Also, if you develop a bad (Rambo) reputation with a court, it will carry forward to other cases and may be shared by that judge with others. Ron should mentor Annie on how to be a good, tough, professional trial attorney, who can properly assess effective strategies, communicate persuasively with clients, and successfully present reasoned and supported positions to the court.

 Inn member in Dallas, Texas: 

Annie must be very careful not to take steps that are extreme in creating a situation that could be viewed as being unreasonable. Some states have disciplinary rules that prohibit tactics that are used to be burdensome, harassing, causing an unreasonable increase in cost, or causing unreasonable delays. See Texas Disciplinary Rule 3.02 (“In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter.”) Cf. ABA Model Disciplinary Rule 3.2 (“A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” Also, see Comment to ABA Model Disciplinary Rule 3.2 which says in part, “The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”). “Sticking it to the other side,” “going to the mat,” or taking “advantage of some personal issues” could be deemed to be unreasonable.  Zealous advocacy must be within the bounds of the law. Tenacity and hard work are virtues in litigation. Cheap shots are not. Litigation is not to be a “blood sport.”

Not every unreasonable position taken by a lawyer will constitute a disciplinary rule violation. However, if Annie is trying to please her client by being a “jerk,” her actions could be deemed to be uncivil by a court thereby putting her in a bad light before the court, other lawyers, and tarnishing her reputation. For instance, if she files a motion to compel discovery and for sanctions without having called the other lawyer to inquire when the discovery will be provided, it could appear she has failed to take reasonable steps to obtain discovery. Additionally, she could be creating problems for herself if she develops a reputation for being a “jerk.” Typically, the word gets around that a lawyer is difficult to work with and is a “jerk.” That type of reputation will give warning to an adversary that he or she cannot expect to make progress in a case by making agreements on routine things like deadlines or times for depositions. She must ask herself: is pleasing this one client by being a “jerk” on issues that may not mean anything in a case worth sacrificing her reputation and creating potential problems for other clients in the future?