ethics session - primerus · 2018-04-06 · 1. no, because the lawyer would not be held accountable...

ETHICS SESSION

Mark A. Berman, Esq., Ganfer & Shore, LLP

Ann V. Creelman, Esq., Vatier & Associes

Bradley C. Nahrstadt, Esq., Williams Montgomery & John Ltd.

Walter A. Lesnevich, Esq., Lesnevich & Marzano-Lesnevich, LLC

Mark Demorest, Esq., Demorest Law Firm, PLLC

Patricia Barcellos, Esq., Barcellos Tucunduva Advogados

Li-Pu Lee, Esq., Formosan Brothers, Attorneys at Law

Tina Denso, Esq., Broedermann & Jahn

Attorney in the State of Pennsylvania deposed an 18 year old non-party witness, who was not represented by counsel. Her testimony was adverse to the attorney’s client. The witness testified that she regularly uses a Facebook account on which she posts personal information on her wall and in her photographs, but individuals must seek permission to become part of her network, otherwise known as “friending” the witness. The witness must grant the friend request in order for individuals to access her home page.

Believing that the content of the witness’ Facebook page might impeach her testimony at trial, attorney would like to ask a third person, whose name the witness will not recognize, to “friend” the witness on Facebook. The third person would state his real name, but would not reveal that he is affiliated with attorney for the true purpose that attorney seeks access, namely to provide information posted on witness’ Facebookpage for possible use antagonistic to the witness. If the witness accepted the third person’s “friend” request, the third person would furnish the attorney with information posted on the witness’ Facebook page.

Would attorney violate the ethical rules by having a third person “friend” the witness on Facebook in order to access her personal information for impeachment purposes?

Ethical Scenario 1

Mark B

1. No, because the lawyer would not be held accountable for the third person’s acts.

2. No, because if the witness accepts the friend request, she is assuming any risks associated with making her facebook page available to an unknown individual.

3. Yes, because the lawyer’s conduct constitutes knowingly making a false statement of material fact to a third person.

4. Yes, because the lawyer is essentially communicating via the third person with a witness outside of the deposition concerning her testimony.

Possible Answer Choices 1

Mark B

Relevant Opinion: Phila. Eth. Op. 2009-02, 2009 WL 934623,

Philadelphia Bar Association Professional Guidance Committee

Relevant Opinion: California Rule of Professional Conduct 2-100

San Diego county Bar Legal Ethics Committee

Relevant Opinion 1

Mark B

D.O. Gooder is a well known defense attorney in Anytown, USA. He attended a legal conference a few months back and learned that blogging is all the rage. According to the speaker at the conference, all great lawyers have their own blogs. Gooder decides that since he is the best lawyer he knows, he needs a blog as well. He starts a blog and calls it Above the Bar: Adventures in Life and the Law.

For several months Gooder makes random posts to his blog. Most of his time has been devoted to defending a complex personal injury case involving the deaths of four people. At every turn, Gooder has been stymied by the judge who is presiding over the case. She denies his well-reasoned motion to dismiss the plaintiffs’ complaint. She orders him to turn over documents that he knows are clearly privileged. She denies his motion for summary judgment. As the case approaches trial, Gooder reaches the end of his rope. The judge has ruled on all the motions in limine and she has denied every motion Gooder filed with the court. Gooder feels an obligation to expose the judge’s inadequacies. He fires up the blog and makes several posts about the judge. He calls her an “evil, unfair witch” and writes that she is “clearly unfit for her position and knows not what it means to be a neutral arbiter.”

Two weeks after the trial ends, Gooder finds himself hired to defend the biggest case of his career. He knows that this case will make him famous—put him the same league as David Boies, Ted Olsen, Jerry Spence. He knows that the only way to make a name for himself is to get his name into the public domain. He again posts on his blog. He knows that in order to demonstrate his expertise, he has to provide a lot of information about the case—and he does just that. He provides sensitive and in some cases confidential information about the case on his blog—although he changes what he believes are the identifying facts and makes sure he uses nicknames to identify his clients.

Did D.O. Gooder violate any ethical rules by making these posts to his blog?

Ethical Scenario 2

Brad N

1. Yes as to the first post, no as to the second on the grounds that Gooder was careful to use aliases and change the identifying facts.

2. No since both posts are protected speech under the First Amendment.

3. Yes, on the grounds that Gooder made reckless statements about the judge and revealed protected information about his clients.

4. No since Gooder has a qualified privilege to comment on pending litigation.


Brad N

Gooder’s first post violated at least two different provisions of the ABA Model Rules.

Rule 8.2 Judicial And Legal Officials

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(d) engage in conduct that is prejudicial to the administration of justice;

It is not a defense to these violations that the attorney making the comments has a First Amendment right to make the statements.

Relevant Opinion 2

Brad N

Gooder’s second post also violated ethical rules, specifically ABA Model Rule 1.6.

Rule 1.6 Confidentiality Of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

A lawyer commits an ethical violation when he or she discusses or reveals confidential information pertaining to a client without the client’s consent or uses a client’s story to market himself or herself without the client’s consent. Accordingly, blog posts that contain information of a private or confidential nature can and will likely result in a reprimand or some other disciplinary action. This rule is violated even if the lawyer uses nicknames or aliases—provided the client(s) can still be identified. Brad N

Sally graduated cum laude from Law School two years ago and has just finished her clerkship. Harry, her classmate, has worked since graduation with his uncle, a very active entrepreneur from the information technology segment. Harry has learned a lot about web, net, cloud, social network, giga-bytes, tera-bytes, sales, advertising, promoting, marketing, branding, etc. – but very little about Law. Sally has learned a lot about contracts, seizures, searches, evidence, principles, rulings, etc. – but too little about clients.

When Harry met Sally at their second graduation anniversary meeting, they decided to establish a law practice. Sally wanted to rent a place, buy the furniture, print out stationary and business cards and wait for clients to come. But Harry did not want to have it the old fashion way. He explained to Sally how the Second Life game worked and how it would be a lot less expensive to start up their practice in a virtual platform and how many clients they could reach by simply establishing themselves in that platform. A couple beers more, Harry has talked Sally into it.

(continued)

Ethical Scenario 3

Patricia B

Their practice is currently posted at Second Life as Harry & Sally Law Firm. Their clients are already counted by tens and the firm’s goal is to hire two associates until the end of the year. In order to protect clients’ information, by Sally’s request, only the first contacts with the firm are held on Second Life platform. After the first files are transmitted, Harry and Sally analyze the case, provide their quotes, execute the engagement letter and clients are instructed to address the law firm through regular email, outside the platform. Also by Sally’s request, they keep advertisement to a low level, but anyone searching for Harry and Sally’s avatars will receive a message (which is automatically spread out to the other avatars to which the client-to-be is connected). The message reads: “Harry & Sally Law Firm: “the Web Deal Makers – counsel by the bytes”.

• Can Harry and Sally keep their online practice without breaching any ethical rules set forth in Brazil?

Ethical Scenario 3

Patricia B

1. Yes, because conversations after the engagement are held outside the platform, but as long as they do not make use of the tool that spreads out the automatic message to the avatars connected to their client-to-be avatars without getting the client-to-be’s consent beforehand.

2. Yes, but they should work alongside the company that runs Second Life in order to find a way to make the files transmitted by clients not available to other avatars.

3. No, because the required personal character of the legal services is not present where the lawyers are avatars.

4. No, because the lawyers should not advertise their avatars as “the Deal Makers” unless their engagement letter sets forth a section making clear that the obligation of making the deal is one of “best efforts”, as closing the deals depends on a third party obligation to which the lawyers cannot make any commitment.


Patricia B

APPLICABLE RULING: Proceeding E-3.472/2007, ruled on July 18th, 2007 (see Bulletin of the Sao Paulo Lawyers Association (“Boletim AASP”) # 2547 from Oct 29th to Nov 4th 2007, page 4)

LAW PRACTICE – LAW FIRM AT SECOND LIVE VIRTUAL PLACE – BREACH OF CONFIDENTIALITY DUTY – IMPOSSIBILITY TO KEEP THE INVIOLABILITY OF THE LAW OFFICE – LACK OF PERSONAL TRAIT RELATIONSHIP – PROHIBITION – SOLICITING LAW SERVICES THROUGH A VIRTUAL GAME.

Relevant Opinion 3

Patricia B

Second Life is not only a game; it is a virtual online environment which provides the players with the opportunity of closing deals that spread their effects into the economic and the legal worlds. The use of such an environment by lawyers who want to engage in social relationships is outside scope of the Brazilian Bar. Nevertheless, if the lawyer uses such an environment to solicit clients, with or without compensation, providing services within or outside that virtual environment, then the legal and ethical rules of professional conduct will certainly apply. Because the company that runs such an environment/platform can trace everything that happens therein, it is impossible for a lawyer to keep the professional duty of confidentiality and, therefore, the lawyer is not allowed to establish his practice at Second Life. The clients’ information and files are not granted the required inviolability and confidentiality. The lawyer keeping such an office will, therefore, breach the duties of inviolability and confidentiality set forth on section 7, II of the Brazilian Bar Lawyer Statute (“Estatuto do Advogado/OAB”). The inviolability therein is not only a right of the lawyer; it is also a lawyer’s duty. Furthermore, the relationship in such a virtual environment poses a breach to the principle by which lawyers should keep their relationship with clients in the personal level. And last, but not least, the advertisement by means of establishing and keeping a law practice at Second Life virtual platform does not abide by the principles inserted in the Lawyers Ethics Codification and in Provimento 94/2000 of Brazilian Federal Bar.

Relevant Opinion 3

Patricia B

Attorney is a product liability lawyer in Taipei, Taiwan, who applies for a “Twitter” account for the purpose of introducing his firm’s services and his own capacity, including the name of the firm, contact information, service items, charge standard, and a brief description of the deals he used to handle. Recently, he won a product liability case and “twittered” the following information to his Twitter Subscribers (approx. 200) right after he got a favorable final judgment: “Another win to my successful record of product liability cases today from the former director of the Taipei Bar Association, and this time I won millions for an entire family, including family members who lived in China, Taiwan, England and the United States. If you encounter a dispute regarding product liability that has international implications, let me help you. Trust me, I can make it!! ”

Does Attorney violate Attorney Regulation Act and Rules of professional Ethics in Taiwan by advertising his service and insinuating his relationship with those judges?

Ethical Scenario 4

Li-Pu

1. No, as those Twitter Subscribers have expressed their desire to receive Attorney’s Twitter message.

2. Yes, as non-traditional advertising through internet communication, e.g., Twitter, is not allowed in Taiwan.

3. No, as Attorney merely expresses what he believes is fact.

4. Yes, as Attorney advertises his service in an improper manner, i.e., making an exaggerative and misleading statement to his prospective clients.


Li-Pu

Lawyer Act and Rules of Professional Ethics in Taiwan:1. Article 30 of Attorney Regulation Act:

An attorney shall not, in his name or the name of another, post or publish notices amounting to deception or threats.

2. Article 35 of Attorney Regulation Act:

An attorney shall not instigate or solicit suits by improper means or barratry.

3. Article 12 of Rules of Professional Ethics:

An attorney shall not promote his or her services in one of the following manners:

1) making exaggerative, false or misleading advertisement;

2) giving anything of value to a person for recommending the attorney’s services;

3) using judicial officers or retaining a person to solicit professional employment; and

4) using other improper means.


An attorney shall not undertake professional employment in a manner against public policy or morals or jeopardizing his or her dignity or reputation as attorney.


An attorney shall assist the court to maintain its judicial dignity and achieve justice and shall be jointly liable for law and order with the judicial authorities.

Li-Pu

An US based company enters into legal proceedings with a German based company. The competent court is an US American court. Within the pre-trial discovery the German based company (“Defendant”) shall transmit and disclose e-mail-accounts of various German employees. The (German) in-house counsel of the Defendant strongly recommends not disclosing any such e-mail-correspondence in view of the German and the European data protection law. He pointed out, that the violation of the German data protection law constitutes a criminal offense. The US attorney, retained by the Defendant, visited the German in-house counsel in Germany. He informed the German in-house counsel about the obligations resulting from such a pre-trial discovery in the US. At the end of the meeting the US attorney collected all data with regard to the e-mail-correspondence and put it back with him to the US in order to provide them to the court.

Does the US attorney violate any law by disclosing the e-mail-correspondence of German employees of his client?

Ethical Scenario 5

Tina

1. No. As the envisaged court proceedings are situated in the US

• the US-American law overrides any existing German/European data protection laws respectively

• the US attorney is not subject to non-US-American law which might conflict with his duties in connection with pre-trial discovery.

2. Yes. German and European data protection laws strictly prohibit the disclosure of e-mail-correspondence.

3. No, as there is already an US court decision on the ground of a similar case.

4. Yes. Unless the US attorney takes measures to ensure that the e-mail-correspondence would only be disclosed to the court and the other party.


Tina

Relevant opinion of US-courts:

• Société Nationale Industrielle Aérospatiale v. United States Dist. Ct., 482 U.S. 522 (1987)

• AccessDataCorp v. ALSTE Technologies GMBH, No. 08-cv-569, 2010 WL 318477 (D.Utah Jan. 21,2010)

Relevant provisions of European / German laws:

• Directive 95/46/EC of the European parliament in social council

• Section 28 (1) 1 No. 2 and section 4 BDSG (German federal data protection act)

Relevant Opinion 5

Tina

A Texas attorney is considering participating in a privately sponsored, for-profit internet service (the “Service”) that obtains information over the internet from potential clients about their legal problems, and forwards the information to lawyers who have paid a fee to participate. The fee is fixed based upon the geographical and legal practice areas for which the lawyers wish to be included. Potential clients go online, and input their location, general area of law and basic information concerning their problem. Lawyers are then identified based on the location and legal practice area. The Service provides information from the potential client to all identified lawyers, and every lawyer is then free to decide whether to communicate information to the potential client.

The Service is not involved in the retention process, and does not receive compensation from either the clients or the lawyers based upon retention, legal fees paid, or results. Additionally, the Service does not rate or recommend lawyers, although it may limit the number of lawyers who are permitted to participate for certain geographic areas or with respect to certain legal practice areas.

What requirements must be met in order for attorneys to participate in such a Service without running afoul of the Texas Disciplinary Rules of Professional Conduct?

Ethical Scenario 6

Mark B

1. The clients participating in the Service must request contact by the lawyer.

2. The lawyer may not pay or give anything of value to any person not licensed to practice law for soliciting or referring clients, unless such payment constitutes a reasonable fee for advertising and public relations.

3. If the lawyer communicates with prospective clients in writing or in a electronic form of writing, such communication must be marked “ADVERTISEMENT” and conform to specific requirements.

4. All of the above.


Mark B

TX Eth. Op. 573, 2006 WL 2526291,

Supreme Court of Texas Professional Ethics Committee, July 2006

Relevant Opinion 6

Mark B

Monitoring employee email/use of company computer

In-house counsel for US client is dispatched to Paris to work with the client’s Paris attorney with regard to a suspected fraud within the client company’s Paris subsidiary. In-house counsel is based in the US and a member of his state bar, but stays for several weeks in Paris to deal with this matter.

In house counsel does not speak French and asks the Paris attorney to assist in dealing with personnel who do not speak English.

Ethical Scenario 7

Ann C

QUESTIONS

1. The first step is obviously to establish the facts. The company has a general policy prohibiting the personal use of the computer provided by the employer, and the company has the technology to review, but does not review all employee emails and documents or randomly monitor them. Can in-house counsel

1. Review of all emails sent or received by those employees suspected of participating in the fraud, taking the position that all emails sent or received on the company computer subject to this general policy are available for review?

2. Only review emails not marked ‘Personal’ or included in a file designated as ‘Personal’ and only pertaining to the subject issues?

3. Review all documents on those employees’ computers notmarked ‘Personal’ or included in a file designated as ‘Personal’?

4. None of the above.

Ann C

In the Nikon case (Cass.soc. 2 October 2001 confirmed by Cass. Soc. 12 October 2004) the highest non administrative court in France ruled that an employee is not entitled to read its employees personal emails sent or received on a computer provided by the employer. To do so, said the Cour de Cassation, is a violation of privacy and secrecy of correspondence. Even where the employer has prohibited personal use of the computer provided.

In the ten years since the Nikon case, the position has been confirmed, but nuanced.

In principle, all documents, emails and the like on the employee’s computer are assumed to be professional unless the employee has identified them as personal. See Cass. Soc. 15 December 2009 and Cass. Soc. 16 May 2007.

The employer may consult professional documents, emails, data without the employee being present or even informed. See Cass. Soc. 18 October 2006 and Cass. Soc. 16 May 2007.

Relevant Opinion 7

Ann C

QUESTIONS

2. In-house counsel points out that documents pertaining to the fraud will inevitably be in files marked ‘personal’ and therefore access to these files is required. In-house counsel asks the external French attorney for a recommendation as to how to proceed. The French attorney recommends:

1. Internal review of all email by in-house counsel, management and technical team, with the caveat that some or all of the information obtained cannot later be used as evidence in a legal proceeding in either France or the United States

2. File a criminal complaint based on suspected fraud and let a usual French criminal investigation (handled by the police or as the case may be a specialized investigating magistrate or ‘juge d’instruction’) proceed with a review.

3. Petition the court in an ex parte procedure to allow client to hire an officer of the court entitled under French proceedings to establish facts (a ‘huissier’) to proceed with the review.

4. None of the above.

Ann C

Unauthorized review of personal documents and correspondence is a violation of privacy and of the secrecy of correspondence, the latter protected under article 226-15 of the Penal Code (up to 45,000€ fine and one year’s imprisonment).

This does not apply to personal documents or correspondence which has been transmitted to third parties (whistleblowers or cooperating personnel). Initial investigations should be limited to documents/correspondence not covered by article 226-15. In-house counsel will not be covered by client/attorney privilege rules application in the US when dealing in France.

Option b is preferable in this regard, but will be entirely out of the client’s control and, if the suspicions are unfounded or cannot be proved, may lead to a damages claim by the employee.

Option c is the best. Action will be taken with prior authorization of the court, obtained in an ex parte proceeding.

Relevant Opinion 7

Ann C

QUESTION

3. As a result of what has occurred, in-house counsel advises that steps must be taken to monitor employee emails to the extent allowed under French law. French attorney advises:

1. No monitoring may be done at all.

2. Monitoring may be implemented immediately without notice to or consent of employees as long as it is restricted to review of the quantity, size, recipients/senders of emails sent or received and/or documents downloaded and content of email/documents is not seen.

3. Monitoring of emails is possible only if a clause in each individual employment contract provides for it (or individual consent is obtained in writing from each employee).

4. Monitoring is possible, but employees must first be put on notice, in writing and the policy must be discussed with employee delegates prior to implementation.

5. Content of suspicious documents/emails may only be reviewed in the presence of the employee and with employee’s case by case consent.

6. If proper procedural precautions are taken, content of suspicious documents/emails may be reviewed without the presence or consent of the employee. Ann C

The CNIL (Commission nationale de l’informatique et libertés) issued guidelines in 2004 :

The computer is the property of the employer, made available to the employee for professional use; however the employee may make limited personal use of the computer and private information may be stored on the computer.

Restrictions of civil liberties of the employee (privacy, secrecy of correspondence, free speech, etc.) are acceptable if motivated by the legitimate interests of the employer and proportionate to the objective sought.

Are therefore acceptable:

Use of logins and passwords

Tracing of use of the computer (internal and internet)

Application of filters to prevent access to certain websites or certain content, firewalls)

Prohibition or blockage of access to chats, forums, certain downloads, and the like.

It is permissible for an employer to issue rules as to the use of the employer’s IT system. These rules must be in writing (a ‘charter’) subject to prior review and discussion with employee representatives, individual notice to employees, filing with the Labor Inspectorate and the Employment Court, and in certain cases, with the CNIL itself.

Relevant Opinion 7

Ann C

A lawyer is working on the formation of a limited liability partnership (LLP). The partners forming the LLP consist of other partnerships and individuals from around the country. Each potential partner of the LLP is represented by separate counsel.

In order to more efficiently prepare and comment on the partnership agreement, a Google Document is created using the Google Docs application. Google Documents provides free web based storage for documents, which makes it easier to share the document with the various parties involved. Google Documents allows users to use privacy tools in order to allow only specific individuals access to the documents. In other words, access to the public can be restricted.

Google’s terms and conditions grant Google a content license. Although you retain all copyrights, Google is allowed to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any content that you include in the documents. As part of the license, Google is permitted to make the information available to other companies, organizations or individuals with whom Google has relationships. Google may also transmit or distribute your content over various public networks and in various media and make changes to your content.

Does the use of Google Docs violate the duty of confidentiality or breach the attorney-client privilege?

Ethical Scenario 8

Mark D

1. Yes, the Lawyer has breached the duty of confidentiality because Google Documents allows Google to use information of the confidential negotiations for other purposes, including sharing that information with others.

2. No, the documents are still confidential because Google really will not use this information for the purposes stated in its terms of services.

3. Yes, by using Google Documents, the lawyer has revealed privileged information.

4. No privilege issue is raised here because the client did not knowingly waive privilege because he didn’t know the information would be available to third parties.


Mark D

Model Rule of Professional Conduct 1.6:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.Mark D

Relevant Opinion 8

Attorney Frank Forwarder is a general practice attorney in New Jersey. A former client comes to him with a complicated personal injury-medical malpractice case. Forwarder sends the case to Winifred Always, a Certified Civil Trial Lawyer, certified by the Supreme Court of New Jersey. Always sends a letter to Forwarder stating that he will pay Forwarder one-third of any amount he receives as a fee.

The client is Al Spineless and his wife Gina Spineless. Spineless is 42, married with three children that he supports. He is a hedge fund manager who earned $1 million last year. Spineless trips over his own two feet one day, and falls down a flight of stairs. He lies motionless until the EMTs arrive. The EMTs place him on a spine board and carefully transport him to the hospital.

(continued)

Ethical Scenario 9

Walt L

There he is examined by Doctor Orthoapidopolos. Dr. Orthoapidopolos finds that the patient has feelings in all four extremities. MRIs reveal that the spinal chord is precariously next to a fractured vertebrate. The slightest movement of the patient in the neck area could cause total paralysis. The patient is brought, carefully, still on the spine board, to the OR prep room. At the OR prep room another set of MRIs are conducted and Dr. Orthoapidopolos once again finds that there is movement in all extremities, but the patient’s condition is precarious. He prepares for surgery. He leaves the OR prep room to wash up and go to the OR. The OR prep room is manned by Nurse Screwup. Patient is brought from the OR prep room into the OR. Dr. Orthoapidopolos examines him and discovers that he is paralyzed in all four extremities. The spinal cord has been irreversibly damaged by coming into contact with the jagged edge of the cracked vertebrate. It is medical fact that this could only have happen if the patient’s head or neck had been moved.

Always files a medical malpractice suit. The testimony of Nurse Screwup is that she never left the OR prep room and no one touched the patient. Gina Spineless, the wife, is deposed and testifies that she was told of the fall, ran to the hospital as fast as possible and did not see her husband until he left the OR, paralyzed.

(continued)

Ethical Scenario 9

Walt L

Always has kept you advised of all activity in the case, because of your interest in the forwarding fee. Always includes you in all of his emails concerning settlement. He particularly includes you in the discussions back and forth as to whether to accept a $2,000,000.00 settlement offer. This would result in a fee of $541,500.00 of which you would receive a third, $180,000.00. On the eve of trial wife sends an email replying to an email from Always discussing settlement, not realizing that by hitting “reply all” she is including you in her reply. In the reply she advises Always that she is certain that Nurse Screwup is a liar and must have caused the damage to her poor husband, because when she arrived at the hospital she went into the OR prep room and in fact Nurse Screwup was not there. She waited for several minutes and no one appeared. Her husband was all alone in the room. She was so emotionally overcome that she lovingly reached down and lifted up his head and kissed him and told him that she loved him.

It has been 24 hours since you got that email, which you had no right to get. Always has said nothing further and in fact is picking a jury.

What do you do?

Ethical Scenario 9

Walt L

1. Nothing. You have no obligation nor do you have a right to interfere as these people are not your clients. You are merely a stranger to the case, despite your economic interest in the outcome.

2. You call Always and tell him he has to decide whether to tell the defense and the court the new information, as he is the attorney and it is his case. He also must determine whether or not to put the wife on the stand or whether there is no need to because the per quod is minor, very minor in contrast to the quadriplegic, middle age, high income wage owner case.

3. You call Always and demand that he tells the defense the new information, seek an adjournment and try and figure out how to save the case and you warn him that if he does not you will have to do so.

4. You call the defense lawyer and tell him what you have learned.5. You scream, quit the practice of law, and take up growing orchids in

Tahiti.


Walt L

RPC 3.3 Candor Toward the Tribunal

RPC 3.4 Fairness to Opposing Party Counsel

RPC 8.3 Reporting Professional Misconduct

Relevant Opinion 9

Walt L

Ethical Scenario 10

Attorney is a personal injury lawyer in California, who searches the internet and discovers a chat room created for families and victims affected by the 2004 tsunami. The chat room’s website home page states that its purpose is “the provision of emotional support to victims of the recent mass disaster and their families by similarly affected persons.”

Attorney visits the website and, after monitoring the conversation for awhile, introduces herself as a lawyer and offers to answer questions. Her goal is to prompt the individuals visiting the chat room to hire her for legal services.

Does Attorney violate the California Rules of Professional Conduct by communicating with prospective fee-paying clients in a chat room for those affected by a mass disaster?

Mark B

1. No, as Attorney has no way of knowing whether the other participants in the chat room are already represented by counsel.

2. Yes, on the grounds that Attorney’s chat room conversations constitute real-time communications that are prohibited solicitations.

3. No, on the grounds that Attorney’s participation in the chat room does not constitute in person or by telephone client solicitation, and is thus otherwise permissible.

4. Yes, on the grounds that Attorney communicated her availability for retention in an intrusive manner, and she should have been aware that the chat room participants were thusinhibited from making a reasoned judgment about retaining Attorney.


Mark B

CA Eth. Op. 2004-166, 2004 WL 3079031, California State Bar

Standing Committee on Professional Responsibility and Conduct

Relevant Opinion 10

Mark B

QUESTIONS?