Unit 9

Final Review & Zealous Representation

Let’s start the review with what the ABA is:

• A voluntary organization

• No authority to discipline

• Generated the Model Rules

The Model Rules• Not binding upon anyone

• Must be adopted by the state

• Vary by state

• Attorneys and their support staff must follow, comply with the rules

• If the staff does not follow the rules the attorney can be held responsible for the violation

• Paralegal and staff discipline is up to the attorney

•Designed to codify professional duties to act in best interest of client

•When citing cite to the rules as codified into state law, not the model rules

•Once codified into the rules of the state it is a violation if the conduct is done by the attorney or the paralegal, even if the paralegal is operating under the orders of the attorney.

•Meaning the attorney cannot have the violation done indirectly by the paralegal.

•Solicitation is precluded and it may not be done indirectly; e.g through a paralegal

Discipline

• Reprimand/Censure/ReprovalPublic or private

• Disbarment

• Suspension

• Issued by state not the ABA

Licensure

• Attorneys are licensed

• Paralegals are not required to be and therefore they do not need to take an exam to practice

• Discipline by the regulatory body is against the attorney, not the paralegal

Components of the Attorney license

• Education

• Exam – practical component

• Screening for moral character

• To retain the license continuing education is required in most states

Liability for violation of Rules

• Violation does not provide basis for civil suit

• Civil liability does not mean discipline

UPL

• When a party is not licensed may commit UPL

• An attorney can commit UPL by practicing in another jurisdiction

• Paralegals and laypeople can commit UPL

• Elements: Providing an opinion (such as applying facts to the law), area traditionally practiced by attorneys, commonly understood to involve the practice, appearance in court, signing pleadings, drafting pleadings for a non-lawyer, appearance in court

• Appearance before an administrative agency is different, as federal agencies are not the same as a state agency. Federal agency can permit a non-attorney to assist others.

• A business cannot represent itself through its owner

• It is not UPL to represent yourself

• It is not UPL to help a person fill in a form

• Selection of a form can be UPL

Fees:

• Attorneys cannot split their fees with non-attorneys

•Fees being split with other attorneys are regulated

•Cannot be used to create a referral

•Can be charged in different ways, including hourly, fixed fee or contingent on the outcome

•Cannot be negotiated by the paralegal, but they can explain them if authorized by the attorney

•Contingency fees cannot be used in criminal or family law cases

• Must be reasonable

•IOLTA programs to fund legal services for the poor are allowed

•Fees can vary due to factors such as novelty of issue, exigency in the completion of the assignment or due to other issues

•A retainer is used to guaranty payment

•Some but not all retainers are required to be put into a trust account

Paralegals can:

• Act as a conduit to provide information for the attorney

•Interview clients

• Draft pleadings for the attorney

•Advertise so long as the advertisement is not misleading and complies with the laws of the state

•Advertise to attorneys

•Can answer general questions of fact and law, but cannot apply the legal knowledge to facts

Attorney discipline can come for such things as:

• Violating the rules

• Breaching confidentiality

• Conflicts of interest

• Taking clients funds

• Sharing fees with non-lawyers

• Lack of diligence

• The actions of the paralegals and support staff

Paralegals need to

• Understand and comply with the same rules as attorneys

• Identify themselves and their role

Paralegals cannot

• Sign pleadings

• Provide legal opinions

• Conduct or even attend a deposition without the attorney

• Sign the pleading for the attorney

• Solicit clients

• Prepare pleadings for the non-attorney

• Have ex-parte communication with the other party

Confidentiality, Work Product and Attorney Client Privilege

• Confidentiality is broader than attorney client privilege

• It covers information related to the representation regardless of the source

• Attorney client privilege is not limited to matters directly between the attorney and the client, but the information must come from the client

• The attorney client privilege is a rule of evidence that prohibits attorneys from testifying as to information received directly from the client

•It lasts beyond the completion of the case

• Does not end with the death of the client

• Confidentiality is a disciplinary rule

• Attorney client privilege is an evidentiary rule

• Work Product is for matters in preparation for trial

• The protections do have limits

• Information may be shared in the need to know circle

• Even the name of the client you are representing is confidential

• Confidential information can be released to paralegals working under the attorney’s supervision

•Information is provided due to fiduciary relationship

Exceptions which allow disclosure

• To protect others from imminent harm

• The harm does not need to be physical but must be serious

• The exceptions for attorney client privileged material is far more limited

• Client authorization as it does not belong to the attorney, the firm or the state

• Protections belong to the client not the attorney

Representation of a client should not be taken if:

• It conflicts with a former client in a similar or related matter

• The attorney cannot adequately represent client

• The attorney or member of the legal staff is likely to be called to testify

• It conflicts with a current client

• The lawyer has a financial interest in client

• Personal relationship with client

Business Relationships

• Can cause a conflict of interest

• Is allowed but need independent attorney

• Like all waivers should be disclosed and authorized in written form

• Make a purchase from a client is a business relationship and should be avoided.

• It will have strict scrutiny and would require independent counsel to advise and must be at fair value.

Gifts

• Should not be solicited

• Small Gifts are permitted of nominal value, such as cookies for the holidays

• Limitations apply to lawyers and staff

• Cannot take if it causes a conflict

Prevention of conflicts is done with

• Ethical Walls

• Conflict checks

• Training

• Screening before hiring

• A lawyer will often be disqualified from a case if the case is substantially related to a prior representation in which the attorney represented the other side of the dispute.

A lawyer should decline representation if:

(i)the lawyer is likely to be called as a witness in the case;

(ii)the lawyer has a financial interest in the case; or

(iii)the lawyer has an intimate relationship with the client.

Conflicts

• Some can be waived

• Not all conflicts can be waived

• To waive need disclosure, should be in writing

• May need to have client independently represented

• Consent may not be sufficient

• Based upon the duty of loyalty

• An ethical wall may be an option to avoid a conflict

If believe you have a conflict….

• Stop representation

•Address issue

•Seek legal opinion from regulatory body e.g. Bar ethics panel

A title scheme when it comes to paralegals is the state defining the requirements to be a paralegal such as education and training

Advertising versus solicitation

• Solicitation is direct

• Advertising is to the general pubic

• Rules apply to what is done directly or indirectly

• The rules were narrowed due to the 1st Amendment

• Lawyers historically did not advertise as it was considered unprofessional

Malpractice

• Also known as professional negligence

• Elements: Duty, breach, causation and damage

• In theory a non-attorney can be held liable for Legal Malpractice

Competence

• Not clearly defined

• Added to the rules in the 1970s

• Lawyers should only take cases they are competent to handle

Zealous representation has limits

•Cannot commit crime such as concealing evidence

•Cannot act unethically or provide fabricated information

•Cannot conceal adverse case

•Cannot knowingly allow a witness to testify falsely

•Cannot commit obstruction of justice

•Must cooperate with opposing side

Pretexting is the use of fraud or deceit to trick someone into disclosing personal information is known as. Abusive litigation in the United States is mostly the product of a lack of professionalism. 

Lawyers who bring frivolous lawsuits who engage in abusive litigation tactics are unprofessional. 

They need to be better regulated by state supreme courts and better controlled by the trial judges who, in turn, are supervised by state supreme courts. . . . Lack of professionalism is a cancer which also infects office practice. -- E. Norman Veasey, Chief Justice of the Delaware Supreme Court, President, Conference of Chief Justices, Chair, Board of National Center for State Courts, and Chair, ABA Ethics 2000 Commission

What is the difference between ethics and professionalism?

Ethics is a set of rules that lawyers must obey.

Violations of these rules can result in disciplinary action or disbarment.

Professionalism, however, is not what a lawyer must do or must not do.

It is a higher calling of what a lawyer should do to serve a client and the public.

I was tired of the deceit. I was tired of the chicanery. But most of all, I was tired of the misery my job caused other people. Many attorneys believe that "zealously representing their clients" means pushing all rules of ethics and decency to the limits.

An attorney's word should be his or her bond.

The attorney should not knowingly misstate, distort or improperly exaggerate any fact, opinion, or legal authority and should not improperly permit the attorney's silence or inaction to mislead anyone.

Further, if this occurs unintentionally and is later discovered, it should immediately be disclosed or otherwise corrected.

Overzealousness interferes with the truth seeking mission of discovery and the lawyer's duty to comply with the discovery rules that are designed with that purpose in mind.

It is no excuse that a lawyer is employed to be a "hired gun" to engage in sharp practice and turn the representation into a "win at all costs' combat.

E. Christopher L'Hommedieu, Esq was subject to a disciplinary proceeding. On December 15, 2005, the Grievance Commission conducted a disciplinary concerning misconduct by the Respondent. This disciplinary proceeding was commenced by the filing of a Petition by the Board of Overseers of the Bar on September 21, 2005. Attorney L'Hommedieu filed an Answer to the Disciplinary Petition on October 25, 2005.

Present at the hearing were Assistant Bar Counsel Aria eee, representing the Board, and Attorney Jennifer Ferguson, with her client, respondent, E. Christopher L'Hommedieu. The complainant, Cynthia McConnell was also in attendance.

The Panel accepted comments from the parties and Ms. McConnell and reviewed counsel's proposed stipulated findings.

The Panel then issued the following disposition:

FINDINGS

1. Attorney L'Hommedieu of Lewiston, County of Androscoggin, State of Maine, was at all times relevant hereto an attorney duly admitted to and engaging in the practice of law in the State of Maine and subject to the Maine Bar Rules. Attorney L'Hommedieu was admitted to the Maine Bar in 1995 and has been practicing law in Lewiston, Maine since 1997.

2. On October 23, 2001, the Court suspended Attorney L'Hommedieu for violations of Maine Bar Rules 3.1(a); 3.2(f)(3)(4) and 3.7(e)(1)(i). See Bar 01-03, Board of Overseers of the Bar v. E. Christopher L'Hommedieu, Esq. 

3. On February 14, 2005 Cynthia McConnell filed a grievance complaint against Attorney L'Hommedieu.

The specifics of Attorney L'Hommedieu's conduct are outlined below.

a. On or about February 18, 2004 Attorney L'Hommedieu, onbehalf of his client (Henry McConnell/defendant), filed apost-Divorce Motion to Enforce (regarding contact etweenMr. McConnell and the minor children) in the LewistonDistrict Court. At that time, Mr. McConnell was stationed at an U.S. Air Force Base in Turkey. Ms. McConnell's attorney cross-claimed and eventually filed proposed child support orders, based on her estimate of Mr. McConnell's income.

b. On July 1, 2004, the District Court issued an "Interim Order and Order on Motions for Entry of Judgment and Sanctions". A copy of that Order was received from the court by Attorney L'Hommedieu on July 6, 2004. Contained within the Interim Order was a direction for the "Defendant to file a Child Support Affidavit with income from all sources ... within 20 days of the date of the Order".

c. Issued with the Interim Order was an "Interim Child Support Order" which increased Mr. McConnell's child support obligation.

d. Attorney L'Hommedieu failed to file Mr. McConnell's child support affidavit within that court-ordered time. Although by August 6, 2004, Attorney L'Hommedieu had two copies (faxed by his client) of the affidavits, he chose to not so inform the court or to then file the affidavits. Instead, he determined whether the "employment fringe benefits" portion which his client completed, was truly considered income.

In his response to the Board, Attorney L'Hommedieu stated as follows:

"After the 8/3/04 [case management] conference, the undersigned received a faxed copy of Henry's new child support affidavit. Henry had included in this affidavit employment fringe benefits of up to $27,384.00, an extraordinary figure. It was in no way clear what these fringe benefits were, and the undersigned was not convinced they needed to be included in Henry's child support affidavit."

f. Multiple other motions and letters were filed by counsel for Ms. McConnell and by Attorney L'Hommedieu concerning discovery and procedural disputes, including a Motion for Default by Ms. McConnell's counsel seeking a child support order based on her estimate of Mr. McConnell's income. While in possession of his client's two child support affidavits, Attorney L'Hommedieu filed an "Offer of Judgment" using the lower child support figure proposed in Ms. McConnell's Motion for Default. However, Attorney L'Hommedieu now acknowledges that he had a duty to disclose accurately to the Court, irrespective of what Ms. McConnell had asked the Court for.

g. The offer of settlement was rejected by Ms. McConnell's attorney.

h. Attorney L'Hommedieu knew when he made the offer of settlement that his client's income, if the fringe benefits were included, was higher than what the complainant or her attorney had estimated the income would be and was higher than the income figure used by the District Court in the Interim Order.

i. On or about September 21, 2004 Attorney L'Hommedieu complied with the District Court's order by filing the faxed copies of his client's two child support affidavits. Thereafter, he received the original signed child support affidavits from his client. On or about September 29, 2004 Attorney L'Hommedieu filed the original, signed child support affidavits from his client.

Violation of M. Bar R. 3.1(a)

Like the previous grievance against Attorney L'Hommedieu, the current violations concern dishonest conduct. By reviewing his actions in total, it is clear that Attorney L'Hommedieu committed "conduct unworthy of an attorney". After Magistrate Oram issued the "Interim Order," Attorney L'Hommedieu was required to comply with that Order.

Violation of M. Bar R. 3.2(f)(3)(4)

Attorney L'Hommedieu knew that his client's child support affidavit was due and that Mr. McConnell's income was higher than the District Court or Ms. McConnell had estimated. While competent advocacy is expected of lawyers, overzealous representation can lead, as it did here, to a violation of the Code of Professional Responsibility. Attorney L'Hommedieu went too far in advancing his client's interests.

Violation of M. Bar R. 3.7(b); 3.7(e)(1)(i)

By withholding the affidavit and then proposing a settlement offer regarding child support, Attorney L'Hommedieu concealed information and mislead the parties and the District Court. As an officer of the court, Attorney L'Hommedieu was obligated to ensure that the District Court's information was accurate and he is presumed to know that complete candor with the court is the responsibility of every lawyer admitted to practice. See Board of Overseers v. William Fogel BAR 99-7.

CONCLUSION AND SANCTION

As Maine Bar Rule 2 outlines, the purpose of disciplinary proceedings is not punishment but rather, protection of the public and the courts from attorneys who by their conduct have demonstrated that they are unable to discharge properly their professional duties.

It appears that a reprimand serves those purposes.

Therefore the Panel concludes that the following violations occurred:

a. Attorney L'Hommedieu violated M. Bar R. 3.2(f)(3)(4);

b. Attorney L'Hommedieu violated M. Bar R. 3.7(b); 3.7(e)(1)(i);

c. Attorney L’Hommedieu's foregoing violations also constitute conduct unworthy of an attorney in violation of M. Bar R. 3.1(a).

Having made findings of misconduct subject to sanction under the Bar Rules, M. Bar Rule 7.1(e)(3)(C) directs this Grievance Commission Panel to consider certain factors in determining the appropriate sanction. These factors are:

i. whether the attorney has violated a duty owed to a client, to the public, to the legal system, or to the profession;

ii. whether the attorney acted intentionally, knowingly, or negligently;

iii. the amount of actual or potential Injury caused by the attorney's misconduct; and

iv. the existence of any aggravating or mitigating factors.

The Panel has accordingly considered the foregoing factors and finds that Attorney L'Hommedieu has violated duties owed to the client and the legal system. He acted knowingly and purposefully, causing actual injury to the court and to the minor children, whose primary caretaker did not receive the adjusted support amounts in a timely fashion.

As an aggravating factor, and as noted above, in December 2001, Attorney L'Hommedieu previously was suspended for engaging in dishonest conduct. As a mitigating factor, Attorney L'Hommedieu is remorseful and acknowledges that his overzealous representation of Mr. McConnell prevented him from complying with his duties to the District Court.

A Corvallis defense attorney is back on the job after a highly unusual legal tactic cost him a 30-day license suspension. Clark Willes was in Benton County Circuit Court in August 2006 representing a young man named Brian Shreeve, who was charged with disorderly conduct.

A witness in the case was asked if he could identify Shreeve as the man seated next to Willes at the defense table. The witness was unable to do so.

After cross-examining the witness, Willes dramatically announced that, in fact, the man at the defense table was not the defendant but someone else entirely. He then asked the impostor, identified as Tyler Cleve Perry, to leave the defense table, where he was replaced by Shreeve, who had been sitting in the gallery. Willes told the court that he was just "having a little fun," but neither Judge David Connell nor prosecutor Gerald Waite was amused.

Both filed ethics complaints with the Oregon Bar Association.

Connell's displeasure did not extend to Shreeve, who was found not guilty. Willes, however, was not so fortunate. An investigation by the bar's disciplinary office concluded last month that he had violated several procedural rules and one state law. Willes' license to practice law was suspended for 30 days.

That suspension is now over, and Willes is free to resume his practice, which includes court-appointed legal work as a member of the Benton County defense consortium.

The consortium is a group of seven local attorneys who represent indigent clients under a contract with the state. Willes declined to comment Monday on the circumstances of his suspension. But Jennifer Nash, the head of the defense consortium, said the group plans no additional sanctions against him.

"This wasn't an issue, from our perspective, of a lack of competent representation," Nash said. "In fact, if anything, it was the opposite - it was a case of overzealous representation." Nash was quick to add she did not condone Willes' courtroom theatrics, but she also noted that identification of defendants can be tough to challenge at trial.

"Different lawyers have different ways of handling cases," Nash said. "Clark's style tends to fall on one end of the spectrum."

In a little more than two decades of practicing law in Oregon, this is the second time Willes has been disciplined by the state bar association, which reprimanded him in 2003.