A teaching tool for Professor Brill’s Professional Responsibility class…Spring 2007 University of Arkansas School of Law (this power point template is available on-line from the free teacher’s resource website http://www.teachnet.com/lesson/misc/winnergame022500.html)
A Civil Action…the story
Jan Schlichtmann, a Cornell-educated attorney, and founder of a small but lucrative personal injury law firm in Boston has it all. He is young and prosperous and has even been recently voted one of Boston’s most eligible bachelors. But the day Anne Anderson contacted his firm, Jan’s life began to change.
In Woburn, a small town outside of Boston, a terrible tragedy has fallen upon eight families. Children of these families suffered and died from leukemia. Ann Anderson is the mother of one of the children and has been suspicious that a problem in the town’s water was the cause of the leukemia cluster. Due to this, she has contacted numerous law firms, but has continually been denied representation. Her case is an “orphan”…no firm will take it. This was the case when she first contacted Jan’s firm…and after two years in his files, nothing had been done.
While appearing on a radio show, Jan receives a call from Ann, asking him why he has not returned her calls about the case. Feeling the pinch, Jan agrees to visit with Ann and the other families.
Initially, Jan insists that there is no case. He thinks the expenses would be far too great for his firm to handle and the chance for a successful recovery slim due to no defendant with “deep pockets.” Yet, while driving back to Boston after telling Ann that he can’t represent the families, he has a change of heart. He noses around the area next to a local tannery and realizes that quite possibly the chemicals used in the tannery have contaminated the area’s ground and drinking water. Additionally, and most importantly, he discovers that two large corporations, W.H. Grace and Beatrice Foods are the parent companies of the tannery…just the “deep pockets” to motivate him to take the case! Jan now believes that the families have a case that not only could end in a successful verdict, but one that could bring honor and glory to his firm and himself.
Rather than the goldmine of cash and glory that Jan had anticipated the case to be, it proved to be the most challenging and costly of his career. The firm incurs heavy debt due to the massive costs of litigation and eventually, the firm takes out bank loans, any credit card that they can find, and even mortgages on every partner’s home. Jan was presented with numerous opportunities to settle the case with both parties, but remained stubborn and persistent in his quest for a large jury verdict. Ulitmately, Beatrice Foods, through the cunning “lawyering” of attorney Facher, was dismissed from the case; and W.H. Grace settled with the families for $8 million. The families were angry with Jan and the result they received as no one ever accepted responsibility or apologized.
Jan lost his home, his car, his money, and his practice.
Welcome to Who Wants to be an Ethical Millionaire?! 50:50 10 9 8 7 6 5 4 3 2 1 $1 Million! $750,000 $500,000 $250,000 $50,000 $10,000 $5,000 $1,000 $25,000 $100,000
1. Anne Anderson calls a call-in radio show, where Jan Schlichtmann is one of the guests. Jan has not returned any of Anne’s phone calls for the past two years. Anne asks him why has not returned her phone calls. What should Jan say? A: Jan should inform her that discussing the case over the radio is not the best form of communication and ask her if they can speak off the air. C: Jan should inform her that discussing the case over the radio is not the best form of communication, but tell her that if she consents to speaking about the case over the radio, he will speak to her. B: Jan should tell Ann that he will call her back. D: Jan should say nothing because Anne impliedly consented to communicating over this forum. 50:50 10 9 8 7 6 5 4 3 2 1 $1 Million! $750,000 $500,000 $50,000 $10,000 $5,000 $1,000 $25,000 $250,000 $100,000
#1. The phone-in show…
A. Correct, Jan has complied with the Rules of Professional Conduct and is looking out for his client’s best interest if he uses this option. Jan has fulfilled his role as an advisor and has facilitated open communication with his client. Further, he has not put his client in the compromised situation of deciding whether to waive confidentiality.
B. Incorrect. Jan creates an appearance of impropriety if he chooses this option. While he may be sincere in telling Anne that he will call her back, his track record doesn’t prove this. Anne has already lost trust in Jan and this will only hurt their relationship even more.
C. Incorrect. While Jan should inform her that radio is not the best medium of communication. He’s putting his client in a compromising situation. She is either forced to waive her right to confidentiality or face never speaking to Jan again.
D. Incorrect. The Rules of Professional Conduct require an attorney to obtain informed from his client…though a client may impliedly give consent in certain circumstances, it would likely be quite irresponsible if Jan were to share confidential information here, even if he argued that by calling she consented.
#1. The phone-in show…analysis
Jan’s lack of returning phone calls over a two year period likely violates several rules of Professional Conduct on it’s face. In accordance with Rule 1.3 and the overarching theme of professional responsibility, Jan owes a duty to his client to be diligent and to be zealous. Jan’s lack of returning phone calls, at minimum, amounts to an appearance of impropriety. Rule 1.4 requires Jan to keep the client reasonably informed about the status of the matter. Even if Jan had nothing to communicate to Anne regarding the case, he should have at least returned her phone calls. While Rule 1.4 does not explicitly require Jan to communicate with Anne even if there is no development in the case, the spirit of the rule likely does. Since Jan refuses to return Anne’s phone calls, he likely does not know what her phone calls are regarding. Thus, the argument that Jan is not required to return her phone calls because Rule 1.4 does not explicit require him to do so is invalid.
As Comment 1a to Rule 1.6 suggests, one of an attorney’s duties is to advise his clients so that they avoid any potential violation of the law in the proper exercise of the law. By talking to Anne over the radio, Anne could make statements that are untrue, defamatory, or slanderous in nature against the opposing parties. This may give rise to a cause of action for the other party. While the client can waive confidentially if she gives informed consent, the attorney most likely has to tell his client of the potential ramifications of communicating on an open forum. Further Rule 2.1, requires an attorney to exercise judgment that is independent and give candid advice. Rule 2.1 also likely requires Jan to inform her that radio is not likely the best form of communication. While telling Anne that he will call her back would likely further the goal of compliance with the rule, practicality would dictate not using this option. Telling Anne that he will call her back will further destroy Anne’s trust in Jan.
Asking the client to consent to speaking over an open forum likely doesn’t violate the letter of the rule, but it violates the spirit of Rule 1.6. Rule 1.6 requires an attorney to not reveal confidential information unless the client gives informed consent. If Jan asks Anne to consent to speaking over the radio, the client is faced with a huge dilemma. She can either consent to confidentiality or risk not speaking to Jan again. This is clearly violative of the spirit of the rule. The client should not be put in a situation of essentially being forced to waive confidentiality or risk the chance of never speaking to her counsel. Thus, Answer A is the best choice.
William Cheeseman, counsel for Defendant W.H. Grace, receives the initial complaint filed by Jan Schlichtmann. Since Jan filed the complaint in federal court, he was only required to file a complaint that was in compliance with notice pleading. The complaint followed all applicable rules and law. The complaint alleged that W.H. Grace caused the water source in Woburn to become polluted by its dumping of toxins on its property. The complaint further alleged that the toxins dumped by W.H. Grace caused leukemia in several children in Woburn, who drank water from the polluted water source. Even though Cheeseman knows that discovery has not yet begun, and even though he has not researched the matter in the least, he decides to file a Rule 11 motion for sanctions against Jan because he thinks Jan is a “blood-sucking” personal injury lawyer.
A: Argue against the motion with zealousness and competence. C: Argue against the motion with zealousness and competence and inform his client to file a lawsuit based upon the applicable rules of professional conduct. B: Argue against the motion with zealousness and competence and file a Rule 11 motion against Cheeseman. D: Argue against the motion with zealousness and competence and inform the Board of Professional Conduct about this motion. 50:50 2. What is Jan likely permitted to do based upon the Arkansas Rules of Professional Conduct? Choose the best answer. 10 9 8 7 6 5 4 3 2 1 $1 Million! $750,000 $500,000 $250,000 $50,000 $10,000 $5,000 $1,000 $25,000 $100,000
#2. The Rule 11 Motion…answers
A. Incorrect. This answer is correct, but it’s not the best answer. An attorney should always argue against a motion with zealousness and competence.
B. Incorrect. Arguably, this answer is also correct, but it’s not the best answer. The Rules do not require Jan to file a Rule 11 motion against Cheeseman for filing a frivolous motion.
C. Incorrect. This answer is incorrect. It is correct that Jan must argue against the motion with zealousness and competence. However, the Arkansas Rules of Professional Conduct do not include language that gives rise to a cause of action against an attorney who violates the rules.
D. Correct, This answer is likely the best answer. Cheeseman filed a motion that is likely frivolous. He knows that discovery has not been undertaken and has no basis for believing that Jan’s clients have no evidence to support their claim. Since the motion is likely frivolous, Cheeseman likely violated Rule 3.1. Further Cheeseman’s action likely amount to professional misconduct. Since Cheesman’s actions likely amount to professional misconduct, Rule 8.3 at least arguably requires Jan to report his misconduct to the appropriate authorities.
#2. The Rule 11 Motion…analysis
Cheeseman arguably violated Rule 3.1 by filing the motion for sanctions. While Comment 2 to Rule 3.1, the filing of a defense or similar action is not frivolous if the facts have not been fully developed, the comment also indicates that a lawyer must make good faith arguments to support his client’s position. The court only required Jan to file a complaint in accordance with notice pleading. Thus, Jan was not required to set out the specific facts that gave rise to his cause of action. Rule 3.1 requires a lawyer to defend a proceeding and/or controvert an issue that is based on law and fact. The Rule also requires a lawyer to defend a motion that is not frivolous. The filing of the motion against Jan was likely frivolous. While this question creates numerous Federal Rules of Civil Procedure, Rule 11 issues, which are outside the realm of Professional Responsibility, Cheeseman knew that he would not be able to see what evidence Plaintiff was going to present until discovery was undertaken. Thus, Cheesman could not likely argue the motion in good faith. Thus, Cheeseman likely violated Rule 3.1.
Since Cheeseman likely violated Rule 3.1, Cheeseman also committed professional misconduct. Cheeseman engaged in conduct that is prejudicial to the administration of justice. The court wasted valuable time entertaining Cheeseman’s motion.
Jan has knowledge of Cheeseman’s violation of the Rules of Professional Conduct. Jan’s knowledge of the violation, imposed a duty on him, under Rule 8.3, to report the violation to the appropriate professional authority. While the spirit of the rule does not call for the reporting of every violation of the rules, violations that create a substantial question as to a lawyer’s honesty, trustworthiness or fitness to practice law must be reported. Although Comment 3 to Rule 8.3 suggests that a requirement to report all violations would defeat the spirit of the Rule, the Rule does impose a duty on attorneys to regulate themselves by reporting serious violations.
As used in the rule, “substantial” refers to the seriousness of the offense. Jan has a sound argument that the filing of frivolous motions creates a substantial question as to a lawyer’s honesty, trustworthiness and fitness. Cheeseman’s likely violation of Rule 8.3 was very serious. He disrupted the whole litigation, causing Jan to bear additional expenses, which would ultimately be passed on to the client if he prevailed on the cause of action. Further, Cheesman’s own client likely bore expenses related to the filing and arguing of the motion. Apart from the financial costs, Cheeseman was presented with a claim, which if proven true, would implicate his client in the deaths of numerous people. Therefore, he should have, at minimum, made a reasonable investigation into the allegations to determine if harmful actions were occurring. Because of this apparent lack of concern for innocent life, Jan has a sound argument that Cheeseman’s rule 11 motion constituted a serious violation of the rules of ethics.
Soon after the Woburn litigation began, the parties began discovery. During this, many depositions of witnesses were taken by the plaintiffs’ attorney, Schlichtmann. Schlichtmann deposed numerous witnesses in search of someone who had seen barrels of TCE (the toxic chemical believed to have caused the cluster of leukemia) being dumped.
After striking out time after time, to everyone’s surprise Schlichtmann got a hit with Al. Al answered that he had seen the “solvent” being dumped onto the ground while he was hitting his 9 iron on a coffee break. Immediately everyone looked up in surprise! When Schlichtmann began further questioning, the defense lawyer Cheeseman asked Al, “do you want to take a break.” Al declined. Schlichtmann then asked if Al had seen who had dumped the chemicals. Al didn’t respond. During the next break, Cheeseman spoke with Al privately.
After the deposition, Cheeseman and Al talked in the alleyway. Cheeseman assured Al (who lives in Woburn and has several children who have had strange medical problems) that the “water hasn’t made anybody sick.” Al asks in reply, “how do you know?” Cheeseman asserts, “I just do.” Cheeseman then attempted to explain the leukemia cluster as a matter of chance. Al then informs Cheeseman, “I know what happened and I know who did it . . . but I’m not a rat.”
Cheeseman then told Al that if he knew something, then he should tell him (Cheeseman) in order to notify the proper authorities and have the area cleaned up. Al turned and walked away with a look of distrust.
Cheeseman never informed Schlichtmann of this encounter or of the fact that Al, a current employee of the tannery, had just told him that he “knew” who dumped the chemicals!
A: Attempt to convince Al that he should come forward with the names of those who dumped the chemicals. C: Tell Al to forget what he saw. B: Maintain the information in secrecy because to share it would be a violation of his duty of confidence under rule 1.6. D: Immediately notify Schlichtmann that Al was not completely forthcoming in his testimony, and that Al does actually know who dumped the chemicals. 50:50 3. After learning that Al knew who dumped the chemicals, what is the best course of action for Cheeseman under the Rules of Professional Conduct? 10 9 8 7 6 5 4 3 2 1 $1 Million! $750,000 $500,000 $250,000 $50,000 $10,000 $5,000 $1,000 $25,000 $100,000
#3. “I’m not a rat!”
Question 3 Answer and Analysis:
A. correct . . . Rule 3.3 (a)(3) says that “a lawyer shall not knowingly offer evidence that the lawyer knows to be false.” Here, when Al told Schlichtmann that he did not know the names of who dumped the TCE, Cheeseman did not know that Al in fact did. Therefore, he did not violate this part of the rule. However, the rule continues: “If . . . the lawyer’s client, or 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 . . . .” These remedial measures should be taken under consideration of protecting confidential information relating to the case. Here, Cheeseman should initially attempt to persuade Al to come forth with the names in order to correct his prior statement that he did not know the names. If that does not work, Cheeseman would then be faced with taking more overt, self-directed methods of disclosure, even to the point of informing the judge.
B. not correct . . . Although the information falls within the definition of confidential information under Rule 1.6, this fact does not preclude Cheeseman from taking remedial measures to correct the false statement, even if that requires revealing the information to the judge. Comment 10 to Rule 3.3 considers this type situation and demonstrates that the lawyer has a duty to reveal confidential information to the judge as a last resort.
C. not correct . . . This would actually be encouraging the client/witness to maintain in secrecy information that the lawyer knows to contradict prior false testimony. This could certainly be construed as an attempt to defraud the court. Therefore, the attorney must take some remedial action.
D. not correct . . . As discussed, when a lawyer knows that a client or witness has offered false testimony/evidence, the lawyer has a duty to take remedial measures. These measures may include persuading the client/witness to rectify the statements. If the client/witness refuses, the lawyer is given further options, as discussed in Comment 10 to Rule 3.3, which include withdrawal from representation when permitted, and as a last resort, disclosure to the tribunal. Despite the remedies given, the Rules do not contemplate an immediate, full disclosure to the opposing counsel. Although the Rules seek to avoid false testimony and evidence, they maintain adherence to the lawyer’s duty to keep information relating to the case confidential when at all possible. Here, immediate disclosure to the other side would fly in the face of the recommendations by the Rules’ comments.
Congratulations! You’ve Reached the $10,000 Milestone! Congratulations! Congratulations!
A: Do nothing, because it is the opposing attorney’s job to find out what each person actually knows. C: Do nothing, because he must always side with his client’s version of a story, so long as the lawyer hasn’t actual knowledge that the client is lying. B: Do nothing, because he has the discretion to always side with his client’s version of the story, so long as the lawyer hasn’t actual knowledge that the client is lying. D: Do nothing, because he hasn’t actual knowledge that the clients lied, and despite his suspicion, he is not ignoring an obvious falsehood. 50:50 4. Which of the following is the best course of action for Cheeseman to take if, after talking to Al, he becomes suspicious that his clients (the owner and employees) testified falsely as to their knowledge of dumping TCE? 10 9 8 7 6 5 4 3 2 1 $1 Million! $750,000 $500,000 $50,000 $10,000 $5,000 $1,000 $25,000 $100,000 $250,000
#4…”I’m not a rat”
Analysis of Cheeseman’s ethical dilemma…
Here, Cheeseman is faced with an ethical dilemma which could have profound effects. Al, an employee of Cheeseman’s client, and a witness in the deposition, has just told Cheeseman information that does not comport with that he gave during the deposition. This information could significantly harm Cheeseman’s case as every other witness had testified that they had seen no dumping of TCE. In the deposition Al said that he had, but did not know who did it. Just afterwards, he confesses to Cheeseman that in fact he did know, but would not tell.
Upon learning this, Cheeseman is faced with the dilemma of what to do with the information he has learned. He immediately tells Al that Al should tell him the names. If this were to happen, then Cheeseman would very likely have a duty to reveal those to the other side, so long as the proper discovery requests were made. Likely, Cheeseman’s initial response was an ethically proper one. He tried to persuade Al to give him the names and information so that it could be disclosed “to the proper authorities.” Cheeseman’s tone was one of reluctance, but nonetheless he made a proper request.
After this, a large dilemma still exists for Cheeseman. Arguably, once Al told Cheeseman that he knew “what happened and who did it,” Cheeseman was put on notice that his client, including the tannery owner and other employees, possibly testified falsely. Rule 3.3 (a) says that “a lawyer shall not knowingly . . . (3) offer false evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or 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 . . . .” (emphasis added). Comment 8 to Rule 3.3 explains that the “prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact.” (emphasis added).
This standard of “knowingly” is what presents Cheeseman with a dilemma. Rule 1.0 states that “‘knowingly,’ ‘known,’ or ‘know’ denotes actual knowledge.” In light of this, Cheeseman only has actual knowledge of the fact that Al testified falsely, and giving Cheeseman the benefit of the doubt, he did attempt to persuade Al to remedy that.
What remains unclear is the course of conduct that Cheeseman should take regarding the information Al gave him and how that relates to his client’s and other witness’s testimony. By telling of the dumping, Al at least gave warning that the other testimony, which denied any knowledge whatsoever of dumping, could be false. The owner of the tannery emphatically denied any knowledge of the dumping, as did numerous employees. Of course, Cheeseman did not see the dumping, nor did he learn of it from the others. By this alone, it would be reasonable for Cheeseman to believe that it did not occur. Yet, when Al contradicted that, and then informed him that he knew who did it, Cheeseman, arguably, should begin to question the truthfulness of the others’ testimony.
(Continued on next slide….)
#4…“I’m not a rat!”
Analysis of Cheeseman’s dilemma, continued….
What should Cheeseman do once he learned that his clients/witnesses’ testimonies do not match?
Cheeseman should consider the likelihood for truthfulness of each testimony. On one hand there is the owner and current employees of the tannery who said that they had seen nothing and knew nothing. On the other is Al, who did have knowledge of the dumping. Cheeseman must consider the possible motives behind each testimony. In doing so, there is strong support for the argument that the owner and current employees have a great deal to hide in testifying the way they did. Al’s testimony on the other hand would very likely NOT serve his interests as regards his employment, his workplace relationships, or his future at the tannery. Weighing these factors, Cheeseman could reasonably conclude that the owner and other employees had a much greater incentive to falsely testify than did Al.
Despite this, it does not automatically follow that Cheeseman should treat the testimony from the owner or employees as false. Nor does it follow that he would be required to take any remedial measures to rectify the suspicious testimony. As explained in Comment 9 to Rule 3.3, the rule “only prohibits a lawyer from offering evidence the lawyer knows to be false.” Stopping here, Cheeseman would have a good argument that although the others’ testimony seems quite suspicious, he doesn’t have actual knowledge that it was false. However, Comment 8 to Rule 3.3 says that “a lawyer’s knowledge that evidence is false . . . can be inferred from the circumstances.” See also Rule 1.0 (f).
Should Cheeseman infer from the testimony of Al, the motives of the owner and other employees, and the other facts in general, that his client and witnesses gave false testimony during the deposition? How far must Cheeseman go to make a reasonable inference? Comment 8 to Rule 3.3 sheds some light on this but still, the waters remain muddy: “. . . although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.” Here, the rules permit Cheeseman to give his client the benefit of the doubt, but the rules should not be read to allow Cheeseman to turn a blind eye to facts or inferences that may lead him to believe that the testimony offered by the owner and other employees was false.
Cheeseman’s most prudent course of action here would be to proceed very cautiously, with an eye for detail. He should inform each and every client that they must testify truthfully, and correct any false testimony. He is granted the discretion to determine the veracity of the given testimonies, but must do so in light of his duty to his clients, and most importantly, to the court. Very likely, Cheeseman may act ethically in siding with the owner and the employees. At this point, he could not simply assume Al’s testimony precludes the others’ being truthful. Yet, it should certainly make him treat each person’s testimony with skepticism and scrutiny.
#5…the “ex parte” communication Attorney Jan Schlichtmann races into the Federal Courthouse. He finds Judge Skinner in his chambers along with the two defense attorneys, Cheeseman and Facher. Schlichtmann asks if the three had been conducting a meeting without his presence. Judge Skinner informs him that they had only been drinking coffee, waiting for Mr. Schlichtmann. Curiously, one of the defense attorneys, Facher, brings up an idea as to how the trial should proceed. He suggests that it be split into two parts: 1) the liability phase which will focus upon the geological evidence to show whether the defendants’ operations contaminated the water; and 2) the penalty phase. If under phase one, the jury finds a defendant not liable, the defendant will be dismissed from the trial immediately. If a defendant were found to be at fault, the trial would proceed to phase two. One of the defense attorneys, Facher, had previously made clear to Schlichtmann that he would “not allow” the plaintiffs to testify. Now, a plan emerges which may accomplish that! Schlichtmann, suspicious of the meeting he walked into and aware of the effects of Facher’s cunning plan, immediately objects to the plan. Regardless, Judge Skinner thinks it is a good idea and accepts it with very little discussion. Schlichtmann again objects to the plan as “Facher’s plan!” Judge Skinner angrily tells Schlichtmann that it “is my plan!” During the ordeal, the other defendant’s attorney, Cheeseman, sits quietly.
A: No, because an ex parte communication is only impermissible when the communication actually concerns the case. C: Yes, because Rule 3.5 clearly states “a lawyer shall not communicate ex parte with a [judge] during the proceeding. . . .” B: No, because the judge was there and that automatically makes the meeting permissible by court order. D: None of the above. 50:50 5. Could the brief encounter over coffee between Judge Skinner, Facher and Cheeseman, while waiting for Schlichtmann, be considered an impermissible ex parte communication? 10 9 8 7 6 5 4 3 2 1 $1 Million! $750,000 $500,000 $50,000 $10,000 $5,000 $1,000 $25,000 $100,000 $250,000
#5 … the “ex parte” communication #1
#5…answer and analysis:
A. not correct. The Rules do not differentiate between ex parte communications which concern the case/matter and ones that do not…both are prohibited.
B. not correct. The judge’s presence does NOT create the required “court order.” If this were the case, any ex parte meeting with a judge would be permissible.
C. correct … at least arguably, this could be considered an impermissible ex parte communication. The encounter consisted of a judge and the attorneys for the defense; but absent was the attorney for the plaintiff. By definition, it is an ex parte communication.
D. not correct
#5 … the “ex parte” communication
Schlichtmann certainly had a legitimate concern here. He comes upon a meeting in which the Judge and the two opposing attorneys are conversing. Schlichtmann immediately asks why the meeting is taking place without him and the judge trivializes it as a simple visit over coffee while they waited. The meeting becomes an issue because, all of the sudden, Facher introduces a new “plan” for the trial which will greatly affect the case; and with very little discussion, the judge adopts it as his own. From a skeptical point of view, Schlichtmann should certainly wonder if the discussion before he arrived considered this change in the trial’s procedure, because it significantly alters his strategy as he can no longer count on his clients’ testimony ever being heard by the jury.
The issue is whether the meeting violated Rule 3.5 as an ex parte communication between the defense attorneys and the judge. Rule 3.5 states “a lawyer shall not . . . (b) communicate ex parte with [a judge] during the proceeding unless authorized to do so by law or court order.” By the rule’s plain reading, this meeting, however brief and for whatever purposes (coffee or otherwise), constitutes an ex parte communication because one party was not present during a meeting between the judge and the opposing counsel. Comment 2 reinforces this by stating “[D]uring a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges. . . .” The Arkansas Annotations to the rules also support this: “Attorneys who engage in improper ex parte communications with a judge may be professionally disciplined. See Fitzhugh v. Committee on Professional Conduct , 308 Ark. 313, 823 S.W.2d 896 (1992).”
(Continued on next slide)
#5…the “ex parte” communication…analysis
The Rules do not expound upon what constitutes an ex parte meeting with a judge. Despite this, analyzing other prohibited ex parte meetings provides guidance as to how strictly this rule may be followed. For example, the rule also prohibits ex parte communications with jurors, and this prohibition is strictly upheld. One example occurred when an attorney sat with a juror over lunch, due to a lack of seating in the courtroom cafeteria. The two talked only of things not related to the case. Regardless, the communication was held to be unethical under the rules and an impermissible ex parte communication. The fear is that the juror would somehow be influenced by the attorney, even if that influence takes the form of something as simple as a personal fondness. Likewise, the same fear may exist here. As well, there is a fear that a judge may be prejudiced as a result of one attorney’s uncontested access to the judge. Additionally, however cordial, brief, or seemingly unharmful, such a meeting may certainly give an appearance of impropriety, and in Arkansas, that has a real effect in determining whether certain acts are ethically permissible.
On the other hand is the argument that judges are more aware of such potential prejudices and are more experienced in separating their duty under the law, and their personal feelings. This argument would support the stance that this brief meeting did not constitute an improper ex parte communication. Yet, this argument does nothing to diminish the appearance of impropriety.
It is difficult to determine the extent to the Rules’ prohibition on ex parte communication. Is it absolute, precluding any communication whatsoever? Or does it take into consideration practicalities of situations? As here, brief ex parte encounters between judges and lawyers often occur simply as a result of timing. When situations like this occur, perhaps the content of the brief communication can serve as the key element in determining the permissibility of the communication and whether or not a violation has occurred. By the rules’ plain meaning, this encounter falls within the definition of an ex parte communication and therefore could be considered improper under the rules.
A: He must report this as a violation of Rule 3.5 (b). C: He should not report this as an ethics violation because ex parte meetings, by definition, must focus upon the subject of the litigation. B: He must not report it even if it is a violation of Rule 3.5 (b). D: He should seek counsel from another, independent attorney in order to better ascertain whether this is an improper ex parte communication. 50:50 6. Schlichtmann walks into chambers and Judge Skinner and the defendants’ attorneys are talking. Just afterwards, the “new” plan for trial is outlined and adopted by the Judge. What is the best course of action for Schlichtmann to take if he believes this was a prohibited ex parte communication? 10 9 8 7 6 5 4 3 2 1 $1 Million! $750,000 $500,000 $250,000 $50,000 $10,000 $5,000 $1,000 $25,000 $100,000
#6 … the “ex parte” communication
Question 6 answers & analysis:
A. not correct. Rule 8.3 says that a lawyer “shall” report a violation of another lawyer if the violation “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer. . . .” By including the word “substantial,” the Rules contemplate a certain level of reporting discretion. Comment 3 states, “a measure of judgment is … required” when deciding whether or not to report a violation. Therefore, requiring that Schlichtmann must report this is an incorrect response.
B. not correct. Again, the rules contemplate discretion on the part of the attorney. Therefore, this is not correct because the answer mandates a certain action.
C. not correct. The Rules do not differentiate ex parte communications pertaining to the proceeding and ones that do not; though likely, this should be considered by an attorney when deciding whether to report the communication as an improper ex parte communication.
D. correct. As discussed, the rules permit a level of discretion on the part of an attorney in reporting violations of the Rules. Here, there was arguably an improper ex parte communication. However, Schlichtmann may not be clear as to whether the impropriety reached the level allowing him to report the violation in good faith. Therefore, he should contact independent counsel in order to get advice.
#6…the “ex parte” communication #2…analysis
Question 6 analysis :
Here, Schlichtmann is faced with multiple dilemmas, ethical and practical. First, he must decide whether the meeting in his absence constituted an impermissible ex parte communication between the judge and the defense. Assuming that he thinks it is improper, his next dilemma is determining the correct action to take. Rule 8.3 says that a lawyer “shall” report a violation of another lawyer if the violation “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer. . . .” By including the word “substantial,” the Rules contemplate a certain level of reporting discretion. Comment 3 states, “a measure of judgment is … required” when deciding whether or not to report a violation. This shows that Schlichtmann has discretion, under 8.3, in reporting a violation.
When discretion is given, many considerations must come into play. One, Schlichtmann must consider the violation under the language of the rules. Did the ex parte communication raise “a substantial question as to the” other lawyers’ “honesty, trustworthiness, or fitness as a lawyer . . . ?” Arguably, if very experienced lawyers allow such a meeting to take place, there is at least some question as to their honesty as regards the specific matter. This is very likely not a rule which happened to slip the minds of the participants. Yet, if indeed the communications consisted of nothing but small talk, it may be quite difficult to argue that the violation, though technically against the Rules, raises a “substantial” enough question to justify bringing a claim of an ethical violation.
#6 … the “ex parte” communication … analysis
Question 6 analysis continued…
Additionally, Schlichtmann must consider the potential effects upon his clients if he were to make a claim that the ex parte communication violated the Rules of Professional Responsibility. If he were to make such a claim under 8.3, it would implicate both defense attorneys (one of which is a Harvard professor) as well as Judge Skinner, a well respected Federal Judge. Very basically, if Schlichtmann reported the meeting to the ethics committee, he would most assuredly anger the judge by calling his ethics into question. This would very likely give the judge great incentive to scrutinize Schlichtmann under the court’s proverbial microscope, looking for any violation and not giving Schlichtmann the benefit of any doubts. This in turn would make his representation of his clients more difficult and put them at risk of bearing the brunt of the judge’s scorn for their lawyer. Schlichtmann should definitely consider such consequences before taking any action.
Finally, Schlichtmann should consider his own professional reputation. If the reporting of such a meeting were deemed overly technical or frivolous by the legal community, the implications may be great for Schlichtmann as a lawyer, and most importantly, for the clients he represents. As discussed, he may not get the benefit of any doubt and may be ostracized by other attorneys.
Many considerations factor in to a lawyer’s decision to report a violation of ethics. Here, though the meeting is likely a technical violation, there are significant concerns that weigh against reporting the meeting as a violation. Due to the nebulous nature of the situation, Schlichtmann should consult an independent attorney as permitted by Rule 1.6 (b)(4) in order to seek advice and counsel prior to proceeding.
A: Schlichtmann C: Facher B: Judge Skinner D: Cheeseman 50:50 7. During the “ex parte” scene, which person acted in the most ethically responsible manner? 10 9 8 7 6 5 4 3 2 1 $1 Million! $750,000 $500,000 $250,000 $50,000 $10,000 $5,000 $1,000 $25,000 $100,000
#7 … the “ex parte” communication
Question 7 Answer & Analysis:
A. Correct . Here, Schlichtmann is the only person who did not communicate ex parte. All others were present during the ex parte communication, and despite its brevity, it constituted communication between one party to the proceeding with the judge outside of the presence of the other party.
B. Not correct . Judge Skinner permitted the meeting to begin without Schlichtmann. By the Rules’ plain meaning, this was an ex parte communication, however short and convenient it was. To avoid any appearance of impropriety, the Judge should not have permitted it to take place until all represented parties were present.
C. Not correct . Facher, by participating in this, placed his client’s interests in jeopardy, regardless of the favorable outcome. He should have waited on Schlichtmann to arrive before talking with the judge.
D. Not correct . Cheeseman also risked his client’s interest by merely being present in the meeting. He should have simply remained outside of the judge’s chambers until Schlichtmann arrived.
Considering the arguments for and against this brief encounter being an ex parte communication prohibited by Rule 3.5, the safest approach for an attorney in this situation would be to consider such a meeting as an ex parte communication and to avoid it. This conclusion is applicable to all parties. The attorneys for either side, by participating in such a communication, risk detriment to their clients. If such a meeting were reported and deemed to constitute a violation, any participating party could be disciplined. Also, because the “new plan” surfaced just after the meeting in question, there certainly exists an appearance of impropriety that could further taint the proceedings. Therefore, the most cautious thing to do would be for an attorney to not participate in such a meeting.
Jan’s firm takes the Woburn case on a contingency fee. The case essentially sends the firm into financial ruins. The firm has no stream of income coming into the firm. The firm had to take out loans, credit cards and even mortgaged the home of each partner in the firm to finance the litigation. Anne Anderson informs Jan of her goal in pursuing litigation. She wants the opposing party to apologize and make sure this doesn’t happen again. Jan tells Anne that the only apologies big companies like the opposing parties give are in the form of the money. Jan knows and also tells Anne that the likelihood of succeeding against Beatrice Foods, one of the opposing parties, is not very good. Moments before the jury is set to give its’ verdict as to Beatrice Foods’ liability, Beatrice Foods’ Counsel offers to settle for $20 million.
A: Reject the offer and withdrawal from the case. C: Settle with Beatrice Foods. B: Reject the offer and continue taking out loans. D: Communicate the settlement offer to the client and let the client decide. 50:50 8. The Settlement offer will cover all the loans, credit cards and mortgages taken out by Jan and leave $15 million in the hands of his client. What should Jan do? 10 9 8 7 6 5 4 3 2 1 $1 Million! $750,000 $500,000 $250,000 $50,000 $10,000 $5,000 $1,000 $25,000 $100,000
#8…do you want to settle?
A. Incorrect, Jan should not reject the offer if he, in good faith, believes that the party is not going to be found liable.
B. Incorrect, several ethical considerations raised. Jan should likely not reject offer if he, in good faith, believes that the party is not going to be found liable. An overall appearance of impropriety is created. If Jan doesn’t accept the settlement offer, the firm can not in good faith, continue taking out loans. The firm does not have an ability to repay the debt at the present time. The firm’s ability to repay the debt is contingent upon a settlement or a verdict for his client.
D. This answer would have been the best answer if time was not of the essence. Here, Jan can not inform his client of the settlement offer because the jury is deliberating.
#8. do you want to settle?
This scenario represents an overall appearance of impropriety. While contingency fee is valid in this instance, because it is not a criminal case, divorce, Jan faces a tough situation. While it appears that he violates Rule 1.5 if he accepts the offer without communicating it to the client, it is unlikely that the spirit of the rule is violated. Jan reasonably believes his client’s chance of recovery against Beatrice Foods is slim. While this scenario requires Jan to exercise his own professional judgment, Jan should likely accept the offer. Further, he is armed with the knowledge that the client’s objective is not to obtain a monetary judgment, but to obtain an apology and make sure that the incident is never repeated. Jan has previously communicated that corporations make apologies in the form of money. Jan did not violate any of the rules of professional conduct by accepting Beatrice Food’s offer. Further, Anne can use the money to help ensure that the problem never happens again. Jan made the settlement in good faith.
There is a huge gray area as to whether Jan can fund the lawsuit with loans. Rule 1.8(e) requires lawyers to abstain from providing financial assistance to a client in connection with litigation. Rule 1.8(e)1 provides an exception to the general rule barring financial assistance to a client by allowing the advancement of court costs and litigation expenses if the repayment of the costs and experiences may be contingent upon the outcome of the litigation. Since the rules are silent as to whether a lawyer can use funds that he borrowed from another source to fund the litigation, Jan should abstain because an appearance of impropriety is created. Jan should not continue taking loans to fund the case, because the firm does not intend on paying the funds back. Jan knows that settlement with Beatrice Foods will help pay for legal fees, because of the contingency fee agreement. The sources that Jan has borrowed funds from could potentially put a lien on the judgment.
Congratulations! You’ve Reached the $500,000 Milestone! Congratulations! Congratulations!
Suppose that after the suit, Cheeseman (attorney for the defendant tannery) discovers that his clients were illegally dumping the chemicals. Also, he personally believes, after viewing all of the scientific evidence, that the chemicals dumped by his clients are the true cause of the leukemia cluster and that the contamination persists. He goes to the client and urges them to perform a clean-up of the operation in order to stop the contamination and to protect people from future harm. However, the client refuses absolutely and warns Cheeseman that if he discloses anything to the authorities, he would breach his duty of confidentiality. Cheeseman is tormented by this dilemma. He wants to maintain his client’s information confidential, but he is convinced that their past illegal operations, their false testimony, and their unwillingness to clean up the result are actually killing children. At this point, no legal proceedings are taking place, and he is not permitting his client to offer false evidence. He knows that revealing such information, even in an anonymous manner, will likely cost his client millions of dollars in clean up costs and that quite likely his client will claim that this is a violation of the rules of ethics. He also knows that if he says nothing, the problem will persist, and other innocent children and their families will suffer exposure to quite possibly, sickness and even death. Yet, he is torn between his ethical responsibility to his client, and what he thinks is a moral obligation to try and prevent further loss of life.
A: do not reveal any information relating to the representation of the client C: do not disclose any information, but withdraw from representation in order to make yourself feel better B: anonymously call the proper authorities and alert them the necessary facts and the danger to the public D: urge the client to take the proper steps to avoid further harm 50:50 9. Given the hypothetical situation just described, which option could you advise Cheeseman to follow in order to remain within the rules of ethics? 10 9 8 7 6 5 4 3 2 1 $1 Million! $750,000 $500,000 $250,000 $50,000 $10,000 $5,000 $1,000 $25,000 $100,000
#9…Ethics vs. Morality?
Question 9…answers and analysis
a. Correct . . . This advice is sound under a reading of Rule 1.6 (a) which states that “a lawyer shall not reveal information relating to representation of a client unless the client gives informed consent.” Although the rule also gives some discretion to a lawyer in revealing such information to prevent a criminal or fraudulent act, the rules do not require it. So, this advice could be properly given for Cheeseman to follow.
b. Correct . . . Rule 1.6 (b) allows a lawyer the discretion to reveal confidential information “to the extent the lawyer believes necessary . . . to prevent, mitigate, or rectify injury to the financial interest 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.” Here, Cheeseman could likely reveal information if it were to prevent significant physical harm to persons (though the rules only specify financial and property interests), particularly because the harm would result from the client’s criminal acts, the cover up of which Cheeseman unknowingly advanced.
c. Correct . . . Rule 1.6 (c) makes clear that a lawyer may withdraw from representing a client by giving notice of withdrawal. Of course, certain limitations may apply, particularly if in the midst of litigation. In this hypothetical, the litigation has ended and Cheeseman has every right to withdraw based on his own moral judgment.
d. Correct . . . Comment 14 to Rule 1.6 suggests that a lawyer who is considering revealing confidential information “should first seek to persuade the client to take suitable action to obviate the need for disclosure.” Here, Cheeseman is torn between his ethical obligation as a lawyer, and his moral obligation as a decent human being who wants to prevent further loss of life. If he makes a disclosure, the clients would most certainly be incensed. Perhaps his most prudent course would be this one. . . to urge his client to reveal the information voluntarily and in a way least harmful to the client.
#9…Ethics vs. Morality?
Analysis of #9…Cheeseman’s ethical dilemma…p.1
Cheeseman has quite a dilemma. On one hand, he doesn’t want to reveal his client’s confidential information; and on the other, he feels a moral obligation to prevent his client from further harming innocent people.
Serious concerns arise when an attorney reveals confidential information of his clients. The attorney – client relationship has come to have near sacred status in our society, and despite the fact that it often leave the lay person aghast, the policy behind the privilege is sound. The privilege encourages full disclosure which in turn allows attorneys to better represent their clients under the law. Regardless of sound policy though, Cheeseman is faced with a personal decision.
Cheeseman can choose to maintain his knowledge in confidence and he will not violate the rules of ethics. Rule 1.6 (b) makes it clear that even when a lawyer reasonably believes that revealing information can prevent a crime, fraud, or injury to another, the decision to reveal is discretionary. Very likely, this would be an approach most would follow. It is the traditional approach, it is accepted in the profession, and quite frankly, it likely serves the financial and professional interests of the attorney best.
Despite this, Cheeseman is not constrained to silence. He has certain viable arguments under Rule 1.6 (b) (1)-(3) that could allow him to reveal the confidential information. First, if the current acts of the client, in their inaction to clean up the chemicals violates any law, Cheeseman could argue that revealing the information is allowed to prevent the commission of a criminal act. Of course, this will depend upon statutory violations, but quite likely, the knowing and permissive act of contaminating groundwater with deadly chemicals will fall within some criminal statute.
#9…Ethics vs. Morality?... p.2
Second, Cheeseman could argue that revealing the information will prevent the client from committing a fraud reasonably sure to harm the financial interests or property of another and in which the client has used Cheeseman’s services. Because his client has already denied any act of contamination, and because it continues, the fraud by the client persists act would continue indefinitely. Additionally, Cheeseman’s belief that the chemicals from the tannery caused the deaths is based on a great deal of scientific evidence and would certainly be considered “reasonable.” Finally, he also has seen what type of harm this causes. Though the rules only specify harm to financial and property interests, it is quite likely that one’s person would be included. If not, certainly sickness and death have the most profound effects on one’s financial interests!
Third, under 1.6 (b) (3), Cheeseman has a sound argument that he could reveal information because he reasonably believes (based on the evidence he has seen) that such revelation could “prevent, mitigate, or rectify” the harm to innocent people which resulted from his client’s criminal and fraudulent activity while he represented them.
Apart from Rule 1.6, Cheeseman may also find support for revealing this information via Rule 1.13. Cheeseman represented his client through the entire litigation, and now that it is over, he still does. Under Rule 1.13, Cheeseman knows that one at least “associated with the organization is engaged in action related to [his] representation that is . . . a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the corporation.” In analyzing this rule in his contemplation of revealing information, Cheeseman should look to Comment 4 of Rule 1.13 which gives certain factors:
The seriousness of the violation and its consequences
The responsibility in the organization and apparent motivation of those involved
Policies of the organization concerning such matters
In doing so, Cheeseman will at least have support to his argument that he can ethically reveal this information. The nature of the violations here and their consequences are truly devastating. Additionally, he is convinced the organization is responsible, and because of the cost of clean up, he knows that the corporation has a great incentive to maintain its secrecy. Finally, he knows first hand the policies of the corporation regarding this matter…the corporation has fought tooth and nail to prevent any semblance of liability!
#9 … Ethics vs. Morality?...p.3
Despite these factors weighing in favor of Cheeseman’s desire to disclose, he must still argue that his disclosure under Rule 1.13 (b) is in “the best interest of the organization.” Here, Cheeseman can do so rather easily. Cheeseman’s client is the parent corporation that owns the tannery responsible for the contamination. His client is involved in many other activities which are well known to consumers. If consumers discovered that the corporation had surreptitiously evaded a legal and moral obligation to prevent further contamination, knowing that the contamination had caused several deaths and will likely cause more, the backlash could be devastating. Additionally, investors, particularly socially-minded ones, could easily revolt. Finally, if discovery of the situation occurred from an independent source, such as the EPA, the fines and clean up costs could be even greater. For these reasons, Cheeseman can validly argue that revealing the information would be in the long term best interest of his client, the parent corporation. Although the short term costs could be great, the corporation could likely avoid even more devastating effects of denial.
Considering these arguments allowing certain disclosure, Cheeseman could likely follow several paths. He could keep quiet. He certainly could withdraw from representation, particularly now that the case is over. He can also urge and counsel the client to take proper action. If this doesn’t work, he must consider alternatives. Comment 6 (d) to Rule 1.6 states that “a disclosure adverse to the client’s interest should be no greater than the lawyer believes necessary to the purpose.” Perhaps then, the “purpose” can dictate the course of action. Cheeseman’s purpose for disclosure is to ensure a proper clean up of the contaminated area. If all else fails, he may be left with no recourse but to notify the proper authorities responsible for such matters. In doing so, Cheeseman would most likely choose to do so anonymously and in a manner that reveals information that is only absolutely necessary to accomplish the purpose. This may minimize the negative effects such disclosure could have on his career . . . yet, when such overreaching matters of life, sickness, death, and moral decency are considered, one man’s career seems quite trivial.