Zealous? Don’t Talk to me about Zealous! -1-
Wisner v. Laney is an important case on lawyer civility, but an opinion with a problem. First, the issue. As stated in the opinion, counsel for both sides went over the line. Plaintiff’s counsel was ordered to apologize to the jury for comments about the defense counsel.
Defense counsel still thought that the opponent went too far, and the trial court should have either called a mistrial or dismissed the case. That did not happen. As stated by Justice David, “Again, the trial court judge is in the best position to determine when enough is enough and whether or not the behavior of counsel would warrant a new trial.” and “we nonetheless express our displeasure with the conduct of counsel, particularly that of plaintiff’s counsel.” Also the court found: “Although plaintiff’s counsel’s behavior was most troubling, both attorneys should have acted in a manner more becoming of our profession.”
Now the problem: in the conclusion the court says: “The duty to zealously represent our clients is not a license to be unprofessional.” In the 2004 amendments to the Indiana Rules of Professional Conduct the Supreme Court deleted the word and standard of “zealous” representation from the Preamble, in favor of an “effective advocate” standard. The ABA Model Rules still use the term “zealous” three times in the Preamble. Section 2 of the MRPC states in part: “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” It is also found in Sections 8 & 9 of the MRPC. One example of the change in Indiana’s Rule 8 is: “a lawyer can be a zealous an effective advocate”.
So now the court reintroduces the issue of zealous advocacy in the most recent “civility” opinions issued by the court. Was that intentional by the court, or a lapse to the language lawyers used a decade or more ago?
1. Bad take-off on the Jim Mora Playoffs speech from 2001
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GROUP COUPON OPINION SPREADS
Alabama State Bar’s ethics committee joined Indiana in banning lawyers from participating in daily deal coupon programs such as Groupon. An issue that has been ruled on by several states, first Indiana and now Alabama have found the deal plans contain too many “ethical landmines” to pass muster.
Indiana’s 2012 opinion was the first to take aim on the practice, calling it fraught with peril, and identifying eight Rules in the Indiana RPC, plus one guideline that were in peril with the proposal. NY, NC and SC looked at fewer issues in approving the proposal. The Legal Examiner in Alabama had an article that hit the highlights of that state committee’s ruling.
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WHO IS THE CLIENT?
Ethical questions to the ISBA Hotline panel are often explored in more detail by asking the caller “Who is your client?” A recent Minn. case discussed in the Jan. Minn. Ethics Update takes that question a step further.
In Fredrikson & Byron v. Saliterman the law firm started working with the owner and CEO of “LOS” in an arbitration matter where LOS was one of the parties. Saliterman, the contact and CEO of LOS had separate legal counsel in the arbitration. He received LOS’s engagement letter, addressed to him, and it said, among other things, “Thank you for selecting F&B to represent you in the litigation matter concerning [LOS].”
When the matter was over, and LOS was insolvent, Saliterman was billed for the legal fees due. The question addressed by the trial and appellate courts was “Who was F&B’s client?” The appellate court decided that ambiguity in a fee agreement goes against the law firm, so F&B did not get paid.
The lesson? Make sure your engagement letters identify, by name, the client, such as, “In this matter the firm of XYZ is representing only [client’s name].” If you want a guarantor for payment, get a payment guaranty from the CEO in the CEO’s personal capacity, (or parent in a child’s matter) and not as the representative of the business entity.
Lawyers with Troubles 