January 22, 2020 Feature

Litigators Face Myriad of Ethical Pitfalls

By Nancy Kisicki

This article originally appeared in the ABA/Bloomberg Law Lawyers’ Manual on Professional Conduct in October 2019.

Claims related to litigation practice make up nearly a third of all of his company’s client notifications to their insurers, Douglas R. Richmond, Managing Director of Aon Professional Services said at a recent conference.

Litigation is rife with ethical pitfalls. In an October 2019 Aon Law Firm Symposium session titled “Recurring Professional Responsibility and Liability Traps in Litigation,” Richmond offered advice focused on problem areas that get litigators into trouble.

First, he advised, don’t communicate with a represented party. Lawyers need to understand that under ABA Model Rule of Professional Conduct 4.2, which forbids communications with a person known to be represented by counsel, only the represented person’s counsel can waive the right to invoke the rule. No exception excuses a communication when counsel is unavailable, and under most circumstances, no showing of prejudice is required to prove a violation. Richmond said that any lawyer approached by a represented person should disengage as quickly as possible.

Take precautions when hiring a private investigator, he counseled. Necessary steps include ensuring that the investigator is properly licensed, checking references, and researching the investigator online. Additionally, because the lawyer is charged with supervisory responsibility for the investigator under Model Rule 5.3, the investigator’s independent contractor status will not protect the lawyer from sanctions for improper tactics. The lawyer should tell the investigator what to do and what not to do.

Richmond also advised that when an organizational client’s employee who has been produced for a deposition asks, “Are you my lawyer?” saying yes, even “for this deposition only,” is a “really, really bad idea.” Creating an attorney-client relationship, whether implied or express, not only imposes duties and liabilities but risks creating a conflict with the organizational client.

Lawyers should also think carefully before stepping into a case as replacement counsel. Richmond recommended finding out why the prior firm is being replaced and being wary of a client who is not forthcoming or who is planning a malpractice action against prior counsel. The lawyer also should consider whether it will be possible to meet existing deadlines, and despite any urgency, should always check for any conflicts.

“Over the transom deliveries,” in which a lawyer is deliberately given purloined documents that appear to be privileged or confidential, pose additional challenges for litigators. Richmond proposed employing an “elegant solution” that follows the guidelines for safekeeping property under Model Rule 1.15: the lawyer should hold the documents separately from other documents, should promptly notify the person to whom the documents belong, and, if the lawyer plans to keep the documents, should continue to segregate the documents until any dispute over them is resolved.

Richmond also offered advice to protect lawyers withdrawing from a representation. He explained that “the trouble for lawyers, beyond waiting too long to withdraw, is that they say too much in moving to withdraw.”

He pointed out that the closer you are to trial, the harder it is to withdraw. Additionally, withdrawing lawyers continue to be bound by the duty of confidentiality. The motion to withdraw should simply reference “professional considerations.” Richmond advised that if pressed for more information, the lawyer should say “no more than you have to until you reach the tipping point where the court will let you withdraw.”

Richmond also addressed the problems that arise when a lack of experience is coupled with a lack of supervision. He advised that senior lawyers, who have supervisory responsibilities under Model Rule 5.1, should remember that newly minted partners still need supervision.

Finally, Richmond cautioned lawyers to steer clear of “saber rattling” tactics such as motions seeking sanctions, disqualification, or judicial recusal.

He observed that “some judges are surprisingly humorless when their capability to hear a matter is questioned.” From the opposite perspective, he advised that a motion by opposing counsel for sanctions or disqualification should not be casually discounted. The response may be to entrust the matter to the general counsel’s office, or to another disinterested lawyer, with the affected lawyer providing assistance.

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By Nancy Kisicki

Nancy Kisicki is Associate Counsel at the American Bar Association, Chicago.