Ethics Month Scenario 4
Sonya Fielding filed a lawsuit for the neighbor of one of her firm’s partners who was suing the local car dealership under the lemon law. Sonya knew that under a certain section of the code, a corporation could either be served through the registered agent, or by personal service on an officer. While the corporation had a registered agent, Sonya chose to have a private process server serve the president of the local car dealership personally. She planned to do it at a Chamber of Commerce event where he would be receiving a Volunteer of the Year award; the client absolutely loved the plan. But unbeknownst to either the client or Sonya, the president of the local car dealership regularly played mixed doubles tennis with Sonya’s partner and his wife. After being served, the dealership president told Sonya’s partner that he had let his law firm degenerate into a bunch of unprofessional jerks, and that he would absolutely be spreading the word in the community. “Oh, and no more tennis.”
—Based upon the program "Professionalism and Clients: Zealous Representation, Reasonably Diligent or Overly Meek?" by the I'Anson Hoffman American Inn of Court in Norfolk/Williamsburg, VA
Send us your comments or your own ethical dilemmas by email or Tweet them to @innsofcourt using the hashtag #AICethicsmonth.
The Ethics Gurus—Francis G. X. Pileggi, Esq. of Wilmington, DE and John P. Ratnaswamy, Esq. of Chicago, IL
Sonya seems to have behaved like a jerk in this particular instance and also to have been short-sighted. Sonya’s behavior might implicate principles about a lawyer’s using means to embarrass a third person, although one would have to think through how to apply those principles to choosing a means of service expressly authorized by law. See, e.g., ABA MRPC 4.4(a).
Mary Beth L. Sweeney, Esq., Massachusetts Family and Probate American Inn of Court, Boston, MA
There was no reason why Sonya should serve a summons under these facts in a completely unethical way. Lawyers are supposed to serve their clients in a manner in which the profession is best represented. The partner should apologize for Sonya’s behavior. As a partner you are ultimately responsible for your associates. I would sit down with Sonya and read to her the appropriate rules of professional conduct and then ask her how her choice of service could have been completed differently.
Judge William H. Burgess III, Barney Masterson American Inn of Court, Clearwater, FL
An attorney should never do anything that is deliberately calculated to harass or embarrass opposing parties or counsel. Ms. Fielding should be admonished by the managing partner not to engage in this sort of stunt ever again, and the firm should send a written apology to the president of the local car dealership. I would advise Ms. Fielding to acquaint herself with what “sharp practices” are and their consequences for individual attorneys and law firms, and in the future to avoid such practices.
Donald E. Campbell, J.D., Ph.D., Associate Professor of Law, Mississippi College School of Law, Jackson, MS
Rule 4.4(a) provides: “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….” Here, although the process method is procedurally proper, it had no purpose other than to embarrass the defendant. This provides an example of how sharp (uncivil) actions can backfire on the lawyer.
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
There is an ethical question here only if Sonya's partner interferes with the representation by Sonya of her client due to his friendship with the dealer. That partner probably should have placed something in the firm's conflict system to keep the firm from being adverse to the dealer. What Sonya did was apparently correct under the law, but it was unduly rude and humiliating of the dealer, and was likely to generate undue and counterproductive hostility in the litigation. The partner should counsel Sonya on the poor judgment she made, but should not focus on his friendship with the dealer.
Inn member in Pittsburgh, PA
There is an ethical issue in that the partner failed to supervise Sonya and for not advising her of his relationship to the defendant. It is also an ethical concern for Sonya to harass a party. Both the partner and Sonya should apologize to the defendant. Sonya should be mentored on what is unprofessional conduct and to realize that her behavior drives her reputation in the community.
Inn member in Dallas, TX
Sonya made a huge mistake for her own reputation and for her firm. It is obvious she did not have any reason to serve the president of the defendant car dealership at the Chamber of Commerce event where he was being honored other than to embarrass or harass him. The fact that the client liked the plan Sonia hatched is not helpful in addressing the lawsuit merits. Disciplinary Rule 4.04 (a) provides: “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 person.” Zealous advocacy must be pursued within the bounds of the law. The method of service used by Sonya is allowed by the law. However, what benefit did this method of service provide to her client in the lawsuit? She needs to recognize litigation is not to be a “blood sport.” Without thinking of the ramifications of her actions, her flawed plan to create an embarrassing situation for the president of her adversary caused substantial embarrassment to one of her partners. Not only that, the person she served at the Chamber of Commerce event may well spread the word among his friends and admirers in the business community that Sonya’s firm is full of unprofessional jerks. Will that cost the firm business in the future? Very possibly. Will the partner whose friendship was destroyed with the car dealer ship president be upset? One could reasonably expect that. Could Sonya’s reputation in the firm as well as in the legal community be tarnished? Very possibly. The advice Sonya needs is that which Justice Anthony Kennedy has given: He said this: “[Civility…] is not some bumper-sticker slogan, ‘have you hugged your adversary today?’ Civility is the mark of an accomplished and superb professional, but is even more than this. It is an end itself. Civility has deep roots in the idea of respect for the individual.” (1997 speech to the ABA House of Delegates)