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February 27, 2023 Book Review

Professional Responsibility in Litigation, Third Edition

Edited by Douglas R. Richmond, Brian S. Faughnan, and Michael L. Matula, Reviewed by Mario S. Russo

Professional responsibility permeates every aspect of an attorney’s practice and should remain at the forefront of every attorney’s mind. Even the most ethical and conscientious practitioner, however, faces the occasional professional responsibility challenge. Such challenges can arise suddenly, within difficult circumstances, or years into a pending matter, and some initially may go unrecognized, potentially until it is too late. This especially holds true in litigation, which can span multiple years and involve numerous legal twists and turns. Litigators handling such matters can easily lull themselves into a false sense of security, believing they identified and addressed all relevant ethical issues at the outset of the representation (e.g., conflicts, avoiding frivolous claims, etc.) only to discover later that either they missed something or a new ethical matter has arisen. So, how can an attorney identify and navigate matters of professional responsibility when they arise? Enter Professional Responsibility in Litigation, Third Edition.

Authored by an experienced team of legal practitioners, each of whom approaches the subject matter practically and to the point, Professional Responsibility in Litigation takes readers through the life of a lawsuit from start to finish, offering practical examples of and advice on the numerous and significant professional responsibility challenges that can arise along the way. Now in its third edition, the book includes new chapters on conflicts of interest and accidental and impromptu clients as well as a newly-consolidated chapter on the ever-evolving topic of social media ethics. All other chapters have received substantial updates and, in some instances, have been condensed to maximize readability. As with prior editions, the third edition’s subject matter extends beyond legal ethics to the related topics of sanctions and professional liability, providing ample citations to authority to assist readers in their research.

By the end of the first chapter, the reader will have gained a basic understanding of conflicts of interest, including how to identify and classify clients, how to navigate concurrent conflicts of interest, and how to address potential conflicts arising from a prior representation or because counsel advocates, on behalf of one client, for a legal interpretation contrary to another client’s interests. Chapters 2 through 13 address other vital topics, including pre-suit investigations and the pursuit of frivolous claims; surreptitious investigations and discovery; compensating fact witnesses; concerns for lawyers regarding ex parte communications; social media and professional responsibility; civil and saber rattling; candor to the tribunal; false testimony by clients and witnesses; lawyers as witnesses; professional responsibility and liability in negotiations; ethics on appeal; and more.

Professional responsibility matters can be complicated and, at times, hard to identify. Moreover, answers to even the most seemingly straightforward professional responsibility questions can vary significantly depending on the specific facts and governing law. Professional Responsibility in Litigation, Third Edition, remains a valuable tool for practitioners needing guidance on challenging and often nuanced professional responsibility issues that can arise during litigation. I recommend it to all practitioners—novice and experienced, especially litigators—because you never know when such issues might arise. When they inevitably do, this book will surely serve as an excellent resource.

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Edited by Douglas R. Richmond, Brian S. Faughnan, and Michael L. Matula, Reviewed by Mario S. Russo

Mario S. Russo is an attorney in the Insurance Recovery, Litigation & Counseling practice group at McCarter & English, LLP, where he represents corporate policyholders. He currently serves as Editor-in-Chief of TortSource. He also serves as a vice-chair of the TIPS Cybersecurity and Data Privacy Committee, as an associate editor of the Tort Trial & Insurance Practice Law Journal, and on the TIPS Content Management and Outreach to Young Lawyers Standing Committees. He can be reached at [email protected]. The views expressed in this review are those of the author and not necessarily those of the firm or its clients.