Ethical Hazards in Personal Injury Practice and Civil Litigation

A CLE presentation for the Fayette County Bar Association

Benjamin Cowgill, Counselor and Attorney at Law

2333 Alexandria Drive, Lexington, Kentucky 40504

Telephone: (859) 225-5236  •  Fax: (859) 225-5237

E-mail: ben@cowgill.com

Web site: cowgill.com

CLE material only

 

I.     Plaintiff's Personal Injury Practice: An Ethically Hazardous Practice Niche

A.     Personal injury lawyers are disproportionately represented in:

1.      Bar complaints filed in Kentucky and elsewhere

2.      Disciplinary orders issued in Kentucky and elsewhere

B.     A combination of factors:

1.      A hazardous field of law

2.      A demanding type of practice

3.      An emotionally-invested clientele

4.      A need to depend on non-lawyer support staff

5.      A lack of adequate support system

6.      A set of professional conduct rules focused on litigation behavior

7.      A systemic bias in the disciplinary system

II.   Ethical Issues Relating to the Attorney-Client Relationship

A.  Competence, Diligence and Communication

Most bar complaints against personal injury lawyers:

•  Allege a lack of competence, but

•  Are actually prompted by inadequate communication, and

•  May reveal an arguable lack of diligence, and therefore

•  Result in disciplinary charges (if any) for violation of Rules 1.3 (Diligence) and 1.4 (Communication)

B.  Fee Agreements

1.  A contingent fee agreement must be in writing (Rule 1.5)

2.  A “non-refundable” fee must comply with KBA Ethics Opinion E-380

C.  Conflicts of interest in the representation of co-plaintiffs

•   Is another party clearly liable?

•   Are the co-plaintiffs competing in a zero-sum game?

•   Do the advantages of common representation outweigh the risks?

•   Can informed consent be obtained?

D.  Windows of risk in the attorney-client relationship

1.    The point of engagement

•   Avoiding inadvertent “employment” or unclear status

•   Clear use of conditional language

•   Engagement letter and fee agreement

•   Non-engagement letter

•   Controlling client expectations

•   The engagement letter as a teaching opportunity

•   The importance of communication in the first 90 days

2.   The filing of the lawsuit

3.  The settlement of the case

4.  The termination of the employment

III.    Ethical Issues in Litigation

A.    Significant Rules of Conduct Relating to Litigation

1.  Kentucky Rules of Professional Conduct (Supreme Court Rule 3.130)

a.  Duties to the client

Rule 1.1 – Competence

Rule 1.3 – Diligence

Rule 1.4 – Client communication

b.  Duties as an advocate

Rule 3.1 – Meritorious claims and contentions

Rule 3.2 – Expediting litigation

Rule 3.3 – Candor toward the tribunal

Rule 3.4 – Fairness to opposing party and counsel

Rule 3.5 – Impartiality and decorum of the tribunal

c.  Duties to others

Rule 4.1 – Truthfulness in statements to others

Rule 4.2 – Communications with persons represented by counsel

Rule 4.3 – Dealing with unrepresented person

Rule 4.4 – Respect for rights of third person

2.   State and Federal Civil Rules

Rule 11

Discovery provisions

Rule 26 

Rule 30

3.  28 U.S.C. § 1927

“Any attorney or other person admitted to conduct cases in any court of the United States … who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney’s fees reasonably incurred because of such conduct.”

4.  The courts’ inherent  power to sanction bad faith conduct in litigation

5.  Chambers v. NASCO Inc., 501 U.S. 32 (1991) [Supreme Court upheld award of $1 million against a client who had litigated in bad faith and used a variety of delay tactics, including repeated violations of trial court orders]

B.    Meritorious Claims and Contentions – Rule 3.1

1.  Relevant text of the Rule:  “A lawyer shall not knowingly . . .assert or controvert an issue . . . unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.”

2.  Significant portion of the official Comment: “ The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.”

3.  Relationship to other law:  “Ethical prohibitions against non-meritorious claims and defenses overlay a great deal with court rules and statutes that authorize monetary or other sanctions for unnecessary or groundless litigation.  Court-imposed sanctions for frivolous litigation and professional discipline for the same misbehavior are not mutually exclusive.”[1]

4.  Effect of client instructions:  “No matter how strongly a client urges a lawyer to pursue a claim or contention, the lawyer may not do so if he determines that it lacks merit….If the client insists on pursuing an action, defense or appeal the layer believes to e non-meritorious, the lawyer should seek to withdraw.”[2] 

5.  Case law:

Rule 3.1 has been construed to prohibit filing a meritless motion.  In re Hackett, La., 701 So. 2d 920 (1997); In re Caranchini, Mo., 956 S.W.2d 910 (1997).

Revson v. Cinque, 70 F.Supp. 2d 415 (S.D.N.Y. 1999) (lawyer fined $50,000 for "Rambo" tactics throughout the course of the litigation including offensive and extortionate conduct in discovery), reversed in part, vacated in part, 221 F.3d 71 (2d Cir. 2000) (concluding that "the conduct relied on by the district court was not sanctionable").

Paramount Communications Inc., et al v. QVC Networks Inc., 637 A. 2d 34 (De. 1994) (criticizing attorney for "unprofessional," "outrageous" and "unacceptable" behavior during a deposition and ordering attorney to show cause within 30 days as to why he should not be barred from practice before Delaware state trial courts.)

C.   Expediting Litigation – Rule 3.2

1.  Text of the Kentucky Rule [SCR 3.130(3.2)]:  “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” 

2.   Text of official Comment: “Dilatory practices bring the administration of justice into disrepute. Delay should not be indulged merely for the convenience of the advocates, or for the purpose of frustrating an opposing party's attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.”

The comment indicates that a client has no interest in delay itself that is entitled to weight in assessing the propriety of the lawyer’s litigation tactics.

Thus, a tactic having no substantial purpose other than delay may be improper even if delay is in the client’s best interest.  See James Elkins, The Moral Labyrinth of Zealous Advocacy, 21 Cap. U.L.R. 735 (1992).

3.  Dilatory practices which may violate Rule 3.2

•  Failure to respond promptly or completely to discovery requests

•  Frivolous discovery requests

•  Concealment of evidence during discovery

•  Obnoxious and obstreperous behavior
 

4.  Case law:

Roadway Express v. Piper, 447 U.S. 752, 757 n.4 (1980) (although legitimate trial tactics may lengthen a lawsuit, “many actions are extended unnecessarily by lawyers who exploit or abuse judicial procedures, especially the liberal rules for pretrial discovery”).

Talamini v. Allstate Ins. Co., 470 U.S. 1067 (1985) (“If it appears that unmeritorious litigation has been prolonged merely for the purposes of delay ... an award of double costs and damages occasioned by the delay may be appropriate”).

Oklahoma Bar Association v. Bolton, Ok., 880 P.2d 339 (90-day disciplinary suspension for lawyer who failed to expedite litigation consistent with client’s interest)

Collins v. CSX Transportation, 441 S.E.2d 150, 153 (NC 1994) (“gamesmanship and actions designed to minimize adequate notice to one’s adversary have no place within the principles of professionalism governing the conduct of participants in litigation”)

Mahon v. Bethlehem, 160 F.R.D. 524, 526 (E.D. Pa. 1995) (counsel's refusal to communicate with plaintiff's counsel by failing to respond to phone calls, letters, or even motions was criticized as “unsuitable for a member of [the] Bar”).

Terrell v. Mississippi Bar, 635 So. 2d 1377 (Miss. 1994) (failure to respond to correspondence regarding discovery requests and trial date, failure to follow court's order mandating compliance with discovery requests, and delay in finalizing settlement agreement, constitute clear violation of Rule 3.2).

D.    Candor Toward the Tribunal – Rule 3.3

1.  Fundamental nature of the duty of candor: “Implicit in the lawyer’s role as an officer of the court is the general duty of candor.”  U.S. v. Shaffer Equipment Co.,  11 F.3d 450 (4^th Cir. 1993).  For there is no ethical violation more damaging to the “administration of justice or more hurtful to the public appraisal of the legal profession than the knowledgeable use by a lawyer of false testimony in the judicial process.”[3] 

2.   Significant practical effects

a.  Prohibition Against False Statements.  A lawyer may not knowingly make a false statement of material fact or law and may not offer false evidence.

b.  Affirmative Duty to Disclose.  A lawyer has a duty to disclose:

(1)  A material fact when necessary to avoid assisting a criminal or fraudulent act by the client and all material facts known in an ex parte proceeding

(2)  Adverse legal authority not disclosed by the opposing counsel

c.  Remedial action.  If a lawyer becomes aware of the falsity of material evidence the lawyer previously offered, the lawyer must take remedial action.  A lawyer may refuse to offer evidence the lawyer reasonably believes to be false.

3.  Discovery proceedings

In civil litigation, perjury is most likely to occur before trial, in responses to discovery such as written interrogatories or at depositions.

Testifying falsely in a sworn deposition is perjury. 18 U.S.C. §  1623.

The ABA has stated that a lawyer in a civil case who learns that a client lied in discovery must take all steps to rectify including, if necessary, withdrawal, disaffirmance of the work product, notification to opposing counsel, or, if all else fails, direct disclosure to the court. ABA Formal Opinion 93-376 (1993).

Many state ethics committees have held that client perjury during discovery proceedings triggers a duty to act. 

4.  Case law

Mississippi Bar v. Land, 653 So.2d 899 (Miss. 1994)  - lawyer suspended for one year because he provided false and deceptive answers to interrogatories.

In re Shannon, 876 P.2d 548 (Ariz. 1994) – lawyer violated duty of candor by changing a client’s answers to interrogatories, without the client’s consent, before filing them.  “Although the lawyer urged that the revised answers were ‘true,’ the truth of the answers was not the issue; the ethical violation was based upon the lawyer’s submitting answers to interrogatories that the lawyer knew did not reflect the client’s position.”

U.S. v. Shaffer Equipment Co., 11 F.3d 450 (4^th Cir. 1993)  - two U.S. Attorneys in Superfund case violated their duty of candor to court by failing to disclose that EPA’s on-scene coordinator misrepresented his academic credentials.

E.     Fairness to Opposing Party and Counsel – Rule 3.4

1.   Falsification, alteration, concealment or destruction of evidence

Model Rule 3.4(a) prohibits ‘unlawfully’ destroying, altering, concealing or obstructing access to evidence having ‘potential evidentiary value.’ It also directs lawyers not to counsel or assist such misconduct.  This provision clearly precludes acts that constitute a criminal offense, and arguable also precludes conduct that violates discovery laws or constitutes fraud.”  ABA Manual,  § 61:701

“With respect to witnesses, Model Rule 3.4 (a)’s prohibition against obstructing access to evidence bars a lawyer from procuring the absence of a witness.  More subtle efforts to dissuade a witness form testifying may also violate Rule 3.4(a), as well as other professional conduct rules.”  ABA Manual, § 61:7013.

“Model Rule 3.4(b) prohibits a lawyer from falsifying evidence.  A lack of intent to defraud or benevolent motive to assist a client does not preclude discipline.  This provision also prohibits a lawyer from counseling or assisting a witness to testify falsely.   Although extensive witness preparation is an essential and proper part of advocacy, a lawyer should have a factual basis for any suggestions or recommendations to the witness during the preparation session.”  ABA Manual, § 61:701

“The dilemma of counsel for both the demanding and producing party is a real one in close cases.  The discovering party has a duty under Rule 3.4(d)  to make only reasonable and non-abusive demands, but a duty to the client to demand production of everything useful that the law allows. The producing party has a duty – also under Rule 3.4(d) – to use reasonable efforts to ensure that their clients have complied with the discovery rules, but a duty to the client to resist illegitimate demands and also to ensure that nothing beyond what has been requested is in fact produced.”[4]

Many different acts have led to professional discipline for falsifying evidence.  The most common include:

•  Manufacturing documents,

•  Including false statements in affidavits, certifications or testimony,

•  Signing the client’s name on a document without indicating that the lawyer signed it for the client,

•  Falsely notarizing a document,

 •  Back-dating a document, or

 •  Altering a document, such as deleting, adding or changing language or substituting pages.[5] 

A lawyer cannot unilaterally and secretly rely on the attorney-client privilege to justify avoiding all mention of damaging information that otherwise must be produced under governing discovery rules.  Instead, the lawyer should file a motion for a protective order or file objections in discovery responses to permit the court to rule on the dispute.”  61:711  See FRCP 26(b)(5), which requires that a party wishing to withhold otherwise discoverable information by claiming it is privileged mush make the claim expressly and describe the information not disclosed or produced.

 “In cases involving claims of concealment or obstruction of access to evidence but not clear criminality, Rule 3.4(a) becomes harder to apply, because the American legal tradition views litigants as having no general duty to reveal damaging evidence or information to the other side.” ABA Manual, , 61:709

Some disciplinary cases support the view that is unprofessional conduct to conceal or obstruct assess to information which must be disclosed under civil discovery rules.

Florida Bar v. Burkich-Burrell, 659 So.2d 1082 (Fla. 1995) – lawyer disciplined for violation of 3.4(a0 when she notarized and filed answers to interrogatories failing to disclose a prior auto accident of which she had personal knowledge.

In re Dwight, 834 P.2d 382 (Kan. 1992) – lawyer violated Rule 3.4(a0 by failing to produce documents pursuant to discovery request and removing documents about discovery requests from the office mail before managing partner saw them.

 Mississippi Bar v. Mathis, 620 So.2d 1213 (Miss. 1993) – lawyer suspended for failing to disclose, in response to defendant insurance company’s request for autopsy on lawyer’s client’s deceased husband, that autopsy had already been performed covertly.

In re Herkenhoff, 866 P.2d 350 (N.M. 1993) – lawyer disciplined for obstructing opposing party’s deposition of lawyer’s client

Other case law:

Kentucky Bar Association v. Geisler, 938 S.W.2d 578 (Ky., 1997) (lawyer reprimanded for failing to disclose death of client to opposing counsel); see ABA Formal Ethics Opinion 95-397 (1995) “Duty to Disclose Death of Client”

In re Barrow, 294 S.E.2d 785 (S.C. 1982) – lawyers who knew about altered evidence were reprimanded for continuing through discovery without revealing it to opposing counsel or the court.

White v. Office of the Public Defender for the State of Maryland, 170 F.R.D. 138 (D. Md. 1997) (attorney's suit was dismissed with prejudice as sanction for her willful destruction of evidence)

In the Matter of Robert J. Forrest, 706 N.Y.S.2d 15, 17 (2000) (attorney suspended six months for failing to inform the arbitrator and opposing counsel in an insurance arbitration that his client had died).

2.      Frivolous Discovery Requests

 “Model Rule 3.4(d), which has no direct counterpart in the Code of Professional Responsibility, restates the general duties established by Rule 3.1 (meritorious claims and contentions) and Rule 3.2 (expediting litigation) in the specific context of pretrial discovery.  Since lawyers are also under a duty to comply with generally prevailing rules of civil procedure regarding such discovery, Rule .4 (d) might also be said to be a specific application of Rule 3.4(c) (obedience of rules of the tribunal).”[6]

 “Model Rule 3.4(d) addresses discovery abuse more specifically by making it unethical to file a frivolous discovery request or to fail to comply with a legally proper one.”[7]

 Improper conduct in discovery can lead to suspension from practice. Castillo v. St. Paul Fire & Marine Ins. Co., 828 F. Supp. 594 (C.D. Ill. 1992).

Kentucky adds the words “knowingly or intentionally” in subsections (a) through (d), and makes non-compliance with a discovery request unethical only if the lawyer acts “deliberately.”  The Kentucky Rule also omits subsection (f) of the Model Rule, regarding instructions to witnesses not to speak with another party.  Kentucky also adds a prohibition against threatening or presenting criminal or disciplinary charges soled to obtain an advantage in a civil or criminal matter.

“Once a lawsuit is pending, documents or other material relevant to a client’s claim or defense obviously carry ‘potential evidentiary value.’  Therefore, destruction of such evidence violated Rule 3.4(a) even if the conduct is not criminal and no discovery request has been made.”[8]

Mississippi Bar v. Land, 653 So.2d 899 (Miss. 1994) (lawyer violated Rule 3.4(a) by intentionally framing discovery responses to conceal damaging evidence that would have provided opposing party with new theory of liability).

 “Model Rule 8.4 [Kentucky Rule 8.3] on misconduct may come into play if a lawyer knows about document destruction but denies it or affirmatively takes advantage of the damaging evidence in pleadings, discovery responses or other aspects of litigation.  Such conduct by the lawyer arguably involves “dishonesty, fraud, deceit or misrepresentation” under Model Rule 8.4(c) [Kentucky Rule 8.3(c)].”[9]

3.   Failure to Comply with Discovery Requests

Rule 3.4(d) makes it unethical to fail to use reasonably diligent effort to comply with a legally proper discovery request. See In re Dwight, 251 Kan. 588, 834 P.2d 382 (Kan. 1992) (suspending lawyer who failed to produce documents and then misrepresented to court that documents had been lost in transit).

Lawyer's conduct during discovery can also furnish a basis for finding that the lawyer obstructed access to evidence in violation of Rule 3.4(a). See, e.g., In re Dwight, 251 Kan. 588, 834 P.2d 382 (Kan. 1992) (lawyer violated Rule 3.4(a) and (d)); Mississippi Bar v. Land, 653 So.2d 899 (Miss. 1994) (lawyer suspended for framing discovery responses so as to withhold potentially significant facts and evidence in his possession).

4.   Violation of Rules and Orders

 a.  “Knowing disobedience of a court order or rule, including ones related to discovery, is grounds for professional discipline.  Although the rule provides an exception for an open refusal based on an assertion that no valid obligation exits, courts typically insist that layers use the ordinary channels of motions and appeal to challenge orders they believe are erroneous.”[10]

b.  Court orders

(1)   Courts have uniformly interpreted Rule 3.4(c) to apply to non-compliance with orders as well as rules.  The Rule has been invoked to justify professional discipline in many difference factual contexts, including:

(a) Failing to comply with discovery orders

(b) Failing to appear for a scheduled hearing

(c) Failing to appear on an order to show cause

(d) Failing to amend pleadings as order by the court (see Kentucky Bar Association v. Goodrich, 851 S.W.2d 478 (Ky. 1993)

(e) Failing to pay discovery expenses as ordered

(f)  Failing to file a proposed order as directed by the court

(g) Violating a protective order

(2) Discovery orders

(1)   A lawyer's non-compliance with discovery requests may eventually lead to a trial court order mandating that the lawyer produce the requested information or documents.

If the lawyer still refuses, he or she may be found in violation not only of Model Rule 3.4(d) but also of Model Rule 3.4(c), which precludes knowing disobedience of court orders. See, e.g., In re Ames, 171 Ariz. 125, 829 P.2d 315 (Ariz. 1992); In re Disciplinary Action Against Peters, 474 N.W.2d 167 (Minn. 1991).

F.  Truthfulness in Statements to Others  - Rule 4.1

The duty extends to virtually any third person.[11] 

 “Rule 4.1(a) restricts a lawyer’s options when a third party asks a question and a truthful answer will hurt the lawyer’s client or undo some advantage.  The lawyer may refuse to answer but may not tell a lie.”[12]

Mississippi Bar v. Attorney ST, 621 So.2d 229 (Miss. 1993) – lawyer who surreptitiously taped a telephone conversation with a non-client violated Rule 4.1(a) when he flatly denied that the conversation was being taped.

 “A false answer cannot be justified by the lawyer’s duty to protect confidential information, as Rule 4.1(a) sets out an absolute duty to avoid knowingly making false statements, which duty is not qualified by the lawyers ‘s confidentiality obligation under Rule 1.56.”[13]

Kentucky deletes paragraph (b) of the Model Rule, which provides that a lawyer “shall not knowingly … fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting  a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”

Rule applies to lawyer’s statements to witnesses.  Copp v. Breskin, 782 P.2d 1104 (Wash. 1989)

Many cases involve falsely notarized affidavits or other documents. Lisi v. Resmini, 603 A.2d 321 (R.I. 1992) (lawyer violated rule by signing client’s names to interrogatories and directing tat signatures be falsely notarized).

© 2006 Benjamin Cowgill • All rights reserved

 

NOTES

This is a CLE article, not legal advice.

This article discusses issues that are highly fact-dependent and questions that can be approached in a variety of ways. It also addresses matters on which reasonable minds may differ and describes situations that necessarily require the exercise of good judgment.

Consequently, the author makes no representation about the "correct" interpretation of any rule of law discussed in this article or any warranty about how that rule will be applied to any specific set of facts. Likewise,  the information contained in this article should not be construed as a recommendation regarding the course of action anyone should pursue in a particular situation or as a prediction about what any decision-maker will do.

In short, any reliance upon this article is a matter of choice that lies entirely within the considered judgment of the reader. The reader is encouraged to seek the assistance of an attorney competent in the field of legal ethics regarding any situation that involves, or may involve, a serious issue of compliance with the Rules of Professional Conduct.