Suppose your client, a lawyer, has been sued for malpractice. Could the alleged malpractice be a basis for discipline? Alternatively, is a disciplinary complaint likely to give rise to a malpractice suit? This article will attempt to shed some light on the distinction between attorney malpractice on one hand and professional misconduct on the other, as well as the types of conduct that may constitute both.

1. What is attorney malpractice?

Simply stated, attorney malpractice is a failure to exercise ordinary skill and knowledge, where that failure damages a client. “To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney ‘failed to exercise the ordinarily reasonable skill and knowledge commonly possessed by a member of the legal profession’; and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages.” Schurz v. Bodian, 2012 WL 502680, *1 (N.Y. App. Div. 2012) (internal citations omitted). See also Legacy Healthcare, Inc. v. Barnes & Thornburg, 837 N.E.2d 619, 624 (Ind. Ct. App. 2006). (attorney malpractice claim involves “failure of the attorney to exercise ordinary skill and knowledge (the breach of the duty).”).

2. What is attorney misconduct?

By contrast, attorney misconduct is the failure to comply with the rules of conduct adopted by a court to which an attorney has been admitted to practice. Because all states except California have adopted some version of the American Bar Association’s Model Rules of Professional Conduct (the “Rules of Professional Conduct”), they will be the focus of this article. A failure to abide by the rules subjects the attorney to discipline by the highest court of that jurisdiction. “Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process.” Rules of Professional Conduct, Preamble, ¶ 19. See also Rule 9, American Bar Association’s Model Rules for Disciplinary Enforcement (“Enforcement Rules”) (“It shall be a ground for discipline for a lawyer to: (1) violate or attempt to violate the [State Rules of Professional Conduct], or any other rules of this jurisdiction regarding professional conduct of lawyers…”). The Enforcement Rules also provide for discipline for refusal to cooperate in the disciplinary process itself. See Enforcement Rule 9 (3), providing for discipline for disobeying a subpoena or order from a bar disciplinary authority.

Of course, the potential consequences of an attorney discipline case are very different from those of an attorney malpractice case. In the worst outcome of an attorney malpractice case, the attorney must pay monetary damages to the plaintiff. By contrast, attorney discipline actions place the attorney’s law license in jeopardy. An attorney who has been found to have violated the Rules of Professional Conduct faces a range of sanctions from a private reprimand up to disbarment, depending on the severity of the violation. See Enforcement Rule 10.

3. Does malpractice equal misconduct, or vice versa?

As noted above, attorney malpractice occurs where an attorney fails to exercise ordinary skill and care, and thereby causes damage to a client. Rule of Professional Conduct 1.1 provides "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

Furthermore, Rule of Professional Conduct 1.3 provides "A lawyer shall act with reasonable diligence and promptness in representing a client."

Thus, it would seem that Rule 1.1 and Rule 1.3 may codify the requirement that an attorney exercise ordinary skill and care, and that failure to do so may constitute misconduct as well as malpractice. It is difficult to imagine a failure to exercise ordinary skill and care that is not also a failure to employ the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Some courts have indeed treated isolated mistakes as misconduct and punished it accordingly. For instance, in Board of Professional Responsibility, Wyoming State Bar v. Vreeland, 2012 WL 662236 (Wyo. 2012), an attorney represented a client in a criminal trial. Id. at *1. The jury returned a conviction on February 4, 2010. Wyoming Rule of Criminal Procedure 29(c) required that a motion for judgment of acquittal be made within 10 days of the jury’s verdict, and Rule 33(b) required a motion for new trial to be filed within 15 days of the verdict. However, Vreeland did not file the motions for judgment of acquittal and for a new trial until March 3, 2010; hence, the motions were untimely. Id. The Wyoming Supreme Court found that Vreeland violated Rules 1.1 and 1.3 of the Wyoming Rules of Professional Conduct (based on the Model Rules) and imposed a sanction of public censure. Id. at *2. See also Board of Professional Responsibility, Wyoming State Bar v. Dunn, 262 P.3d 1268 (Wyo. 2011) (attorney received public reprimand for failing to file timely governmental claims notice and complaint); In the Matter of Brown-Williams, 2012 WL 366587 (Ga. 2012) (attorney received public reprimand for missing statute of limitations in workers' compensation case).

By contrast, some courts have explicitly held that an isolated mistake is not a proper basis for discipline. For instance, in In the Matter of the Application for Disciplinary Action Against William E. McKechnie, 656 N.W.2d 661 (N.D. 2003), the Supreme Court of North Dakota addressed a mistake similar to the mistake made by Vreeland, but found that the mistake did not constitute misconduct. "In this case, McKechnie gave Follman incorrect legal advice about the statute of limitations and Follman's case was dismissed for failure to file within the limitations period. This evidence shows nothing more than an isolated instance of ordinary negligence, or error of judgment. We conclude there is no clear and convincing evidence that McKechnie violated N.D.R. Prof. Conduct 1.1." Id. at 669.

Even in jurisdictions whose highest courts have not specifically stated that isolated attorney mistakes should not give rise to discipline, attorneys are not typically sanctioned under Rule 1.1 or 1.3 for simple negligence. More commonly, it appears that attorneys are disciplined for violations of Rule 1.1 or 1.3 in addition to numerous other violations of the Rules of Professional Conduct that involve intentional misconduct, dishonesty, ongoing failure to communicate with clients, or chronic neglect of clients’ interests. For instance, in In Re Adinolfi, 934 N.Y.S.2d 94 (N.Y. App. Div. 2011), an attorney was sanctioned for violating New York Rule of Professional Conduct 1.3 where at least 26 of the attorney’s 103 cases before the Second Circuit Court of Appeals had been dismissed for failure to file a brief. Id.at 95.

Finally, the Preamble to the Rules themselves suggest that isolated mistakes should not subject a lawyer to discipline: “Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.” Rules of Professional Conduct, Preamble, ¶ 19. Thus, those courts that have either explicitly stated that an isolated mistake is not a basis for discipline, or at least typically decline to sanction lawyers for such mistakes, appear to employ an approach more in keeping with the spirit of the Rules.

What about the reverse question: can an act or omission that constitutes attorney misconduct give rise to a malpractice action? The Preamble to the Rules of Professional Conduct provides that violation of a Rule should not in itself give rise to a cause of action. “Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.” However, violation of a Rule can be evidence of the breach of the standard of ordinary care. The Preamble provides that though “[the Rules] are not designed to be a basis for civil liability,…[n]evertheless, since the Rules do establish standards of conduct by lawyers, a lawyer's violation of a Rule may be evidence of breach of the applicable standard of conduct.” Furthermore, some kinds of attorney misconduct have nothing to do with attorney malpractice. For instance, a felony conviction for operating a vehicle while intoxicated will certainly result in discipline, but would provide no basis for a malpractice claim.

Dina M. Cox is a partner with Lewis Wagner, LLP in Indianapolis, who focuses her practice on the defense of complex litigation, including legal malpractice, drug and medical device, product liability, consumer class actions, and insurance coverage and bad faith lawsuits.

Neal Bowling, attorney with Lewis Wagner, LLP, focuses his practice on complex business litigation as well as defense of lawyers in malpractice and disciplinary matters. He has extensive experience advising and representing clients in complex and challenging litigation including: securities matters; employment litigation involving breach of noncompete and wrongful termination claims; and representation of lawyers in malpractice actions and disciplinary investigations and proceedings. 

Bad lawyers’ jokes aside, most of us do not encounter blatantly unethical and/or unprofessional attorneys in the course of our practice and are fortunately left wondering where the basis for these jokes resides.  But then there are reports like the one in the Atlanta Journal Constitution last week.

I often find it curious that Law Day falls on May 1st.  Growing up, May 1st was always the day the news carried pictures of over the top parades in Red Square in Moscow where the USSR would display its missiles, goose stepping soldiers and mummified Politburo.  In hindsight, that seems quite antithetical to what I now celebrate on May 1st – the rule of law that sets our country apart from all others.  Being a lawyer should be and most often is a noble profession.  Incrementally, lawyers and judges shape the rules of conduct for society.  We protect the rights of individuals who are victims of crime.  We hold the government’s feet to the fire when it seeks to deprive a person of liberty.  We work to ensure that injured persons are fairly compensated when they prove their case to a jury of their peers.  We provide the vehicles for businesses to form, grow, prosper and provide jobs.  We protect assets at death so that heirs can enjoy the fruits of their loved ones’ hard work.  So on May 1, 2012, remember the great things lawyers and judges do for society and all of us, and not the punch lines of inane lawyer jokes.

Matt is a partner with Gallagher, Callahan & Gartrell in Concord, New Hampshire.  He is the DRI Immediate Past President.  He also sits on the Board of Directors for the NFJE and LCJ.

Not too long ago, I accepted a pro bono case in which I agreed to represent a woman who was seeking a domestic abuse order for protection.  I accepted the representation on a Friday and the hearing was set for the following Monday.  I was unable to reach her over the weekend, so I planned to meet her on the morning of the hearing.  When I arrived at the courthouse, I looked throughout the waiting area and saw a woman sitting alone in a conference room.  Guessing it might be my client, I knocked on the door and entered the room.  I asked her name and told her that I would be her lawyer.  She immediately burst into tears.  She then apologized and said that she thought I was going to tell her that I represented her abuser.  We prepared for the hearing and I was able to help her get the relief she and her children needed.  She thanked me for being her lawyer.  I walked out of the courthouse that morning with a renewed understanding of the impact that a lawyer can make on someone vulnerable, scared and poor.  She did not thank me because I was a particularly capable lawyer, or even because I was able to help her.  She thanked me because I showed up.   

This will be the first of two articles I will write on pro bono representation.  In this article, I will examine pro bono representation as a matter of professionalism.  I will leave the specific common ethical issues which arise in pro bono matters for the second article.

"Every lawyershall provide legal services to those unable to pay."

The unedited version of Model Rule 6.1 reminds lawyers of their "professional responsibility" to provide pro bono legal services.  See Model Rules of Prof'l Conduct R. 6.1.  The edits are simply my own wishful thinking, though most would not subscribe to the notion that lawyers should be forced  to perform work in which they are neither competent, committed, nor interested.  See Note, Amended Rule 6.1: Another Move Towards Mandatory Pro Bono? Is That What We Want?, 7 Geo. J. Legal Ethics 1139 (1994). In most states, pro bono representation remains an aspiration or goal – which makes it a matter of professional self-awareness and behavior, rather than a matter of ethics.  See http://www.americanbar.org/groups/probono_public_service/policy/state_ethics_rules.html.

Lawyers don't seem to have a great deal of trouble with a conceptual understanding and acceptance of the responsibility of the profession to do free work for the poor.  The difficulty is translating that understanding into a specific undertaking of pro bono work in a lawyer's everyday practice.  We can rationalize our inaction in hundreds of ways.  We have commitments to our clients, our practices, our families and our own individual wants and needs.  The Comments to Model Rule 6.1 tell us that "[e]very lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer."  Model Rules of Prof'l Conduct 6.1 cmt. 1.   We are all each other's peers in the estimation of this rule, no matter how famous or how busy.  We likely exaggerate the impact that taking on apro bono case will have on any of our commitments and we likely underestimate the impact that taking a pro bono case will have on the pro bono client, the way we think about our role in the profession and about ourselves.  

As lawyers, we are in a rather unique position because we have an exclusive license to do what we do.  Some other do-gooder can't just decide one day that she is going to represent an indigent client.  Accordingly, the field of potential representation is limited to "us."  Unfortunately, the number of "us" who do pro bono work is not great, so the field is further limited.  See Deborah L. Rhode, Cultures of Commitment: Pro Bono For Lawyers and Law Students, 67 Fordham L. Rev. 2415 (1999).  Although there are public defenders, poverty law centers, law students in clinics and others who partially fulfill the legal representation needs of the poor, the profession is left to fill the gap.  We aspire to do pro bono work, not because it is the right thing to do, or because it makes us feel good, or because the need is so great, but because it is part of the calling of our profession.  It is our job.  We have been given a unique and exclusive license to provide legal advice and representation.  No one else can do what we do.  Therefore, it is up to "us" to figure out how to solve the problem of the unrepresented poor. 

Part of the pro bono professionalism struggle has to do with getting a grasp on several  things which will help us recognize our obligation and our place in it. 

After considering the professional exclusivity that I just discussed, you must read Model Rule 6.1, or your state's corollary rule and reflect on the categories of representation which fulfill the aspirational goals articulated in the rule.  The breadth of the Model Rule was likely designed to cast the widest possible net.  It is unlikely that a lawyer could finish reading the rule and not be heartened by the wealth of opportunities which satisfy it. You can provide legal services to persons of limited means.  Model Rule 6.1(a)(1).  You can provide legal services to charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.  Model Rule 6.1(a)(2).   Your skill set, interest or expertise are reflected in the rule somewhere.

Next, you must gain an appreciation of the scope of the problem.  You can learn this empirically, by reviewing the annual reports of the courts in your state, or anecdotally, by talking to a judge about the need for representation that she sees every day in her courtroom.  Statistics and stories provide the window through which you can see your opportunity.  Taking yourself from understanding to action can only occur if you take a professional interest in the need for your help and gain an awareness of the critical nature of the need.

Once  you have understood the professional obligations and the need, you must use your lawyerly creativity and imagination to begin thinking of the theoretical ways you could meet your professional obligation to do pro bono work. The sky (capped only by the cloudy ceiling of your competency) is the limit.  You can be immediately competent to do what you do every day for free.  On the other hand, you can learn competency to do something that you have not done since law school, or train yourself to be competent to meet your lost calling.  If you are a trial lawyer, learn to advise a non-profit board.  If you are a medical malpractice lawyer, learn immigration law.  If you are an insurance coverage lawyer, represent kids in juvenile proceedings.   Sometimes, we forget about the breadth of our education and how it has prepared us to do many things.  We were trained to do so much in law school and like riding a bike, it often comes back to us as we reckon with the substantive and procedural issues in pro bono practice.You were trained to be a quick study and have the ability to work with the facts you have, within the applicable law.  You were also trained to dig deeply into the substance when time permits.  There are countless local and national organizations which would be happy to provide you with the training you need to begin undertaking pro bono representation.   Your local bar association undoubtedly has a section or committee which promotes pro bono representation and connects lawyers with organizations which need their help and will train you to attain competence to meet the needs of its clients.  A few of these are listed by DRI at https://www.dri.org/About/Cares, though your local bar association remains the most helpful resource.  Oftentimes, the same pro bono group which trains you will provide you with cases.  Unlike your daily practice, you will never, ever, struggle to find clients.

When you have selected your interest area, and developed competency (at least through training, because the experience will come),it is time to step over the threshold.  There is nothing particularly transformative about the process of getting to the point of pro bonorepresentation.  The transformation will only take place when you have done the work.  As a professional, you will need to treat the case as you would any other representation  for which you are paid.  You will need to run a conflicts check, you will need to prepare and discuss a letter of representation with your client and clearly outline the scope of your representation.  You will need to open up a file, investigate the case, meet with your client, collect evidence, and prepare for the trial or hearing (or prepare the will, or the articles of incorporation, or whatever it is that you have been retained to do).   Just as you would not handle a client who paid you $150 per hour differently than one who paid you $350 per hour, the client who pays nothing is entitled to nothing but your focused attention and most outstanding representation.    In fact, the financial, emotional and psychological vulnerability of your client will likely lead you to work that much harder to achieve your client's goals.

Professionals see pro bono representation as an entitlement of their position as lawyers, rather than a burdensome obligation borne by guilt.  Professionals don't require a rule or regulation to understand what it means to be a lawyer.  Professionals understand that pro bono is an integral part of being a lawyer.  As Justice Anthony Kennedy observed:

Lawyers, like all those who practice a profession, have obligations to their calling which exceed their obligations to the State. Lawyers also have obligations by virtue of their special status as officers of the court. Accepting a court's request to represent the indigent is one of those  traditional obligations. Our judgment here does not suggest otherwise. To the contrary, it is  precisely because our duties go beyond what the law demands that ours remains a noble  profession.

Read the rule.  Turn an aspiration into action.  Get trained.  Get a client.  Show up.

Thomas A. Gilligan, Jr., is a shareholder with Murnane Brandt in St. Paul, Minnesota. Mr. Gilligan's trial and appellate practice focuses on product liability, employment and personal injury litigation in Minnesota and Wisconsin. Mr. Gilligan serves as publications chair for DRI's Lawyers' Professionalism and Ethics Committee and is a former investigator for the Ramsey County District Ethics Committee.

Many people will not be shocked by the title of this post.  However, a new report issued by an advocacy group for the U.S. Chamber of Commerce was recently released that was entitled, “The Plaintiffs’ Bar Goes Digital, an Analysis of the Digital Marketing Efforts of Plaintiffs’ Attorneys and Litigation Firms.”  The report found that marketing efforts were being camouflaged as forums or support group sites.   The report estimated that law firms had spent more than $50,000,000 on Google advertising in 2011.  The overwhelming majority of that was spent by Plaintiff’s firms.  However, despite the fact that the amount of spending does not rank with large corporations, it is disproportionate for the size of the industry.  The report is critical of the Plaintiffs’ Bar because of a lack of transparency that many of their sites were actually marketing for law firms.  

An issue that has recently flooded the pages of the New York Times is the rapidly increasing cost of attending law school, despite the economic climate this country is currently experiencing.  Law school tuition is rising four times faster than the cost to attend an undergraduate institution, yet the amount of students attending has also increased despite the heavy debt they will incur and the tight job market they will enter after graduating.  Many people in various legal positions have contributed their opinions to the debate of whether it is necessary for law schools to take action to lower costs, and if so, how that should be accomplished.  

The first law school in the United States was established in 1784 and the school viewed its students as apprentices, not as scholars.  However, in 1878 the American Bar Association (“ABA”) was formed and began enacting limitations on law schools.  For instance, in the 1890s the ABA pushed states to limit the number of people admitted to the Bar.  In 1906, the Association of American Law Schools also contributed to the transformation of law schools by adopting a requirement that law school consist of three years of study.

Since the formation of law schools, the organization of these institutions has experienced changes.  It is less common to see militant professors, as portrayed in the 1973 movie The Paper Chase, and more common to witness professors simply asking for volunteers in class and not berating students if they did not read an assignment.  Even the length of time that a person has to go to law school has changed.  Recently, schools such as Northwestern University School of Law have begun to offer an accelerated program in which a student can complete their Juris Doctor (“J.D.”) in two years instead of three.  

Despite all these changes, though, many people in the legal field are frustrated with how much it costs to attend law school as well as the make-up of law schools.  One common complaint, as detailed in The New York Times article, “What They Don’t Teach Law Students: Lawyering,” is that law students are leaving school with no practical training, leaving firms the task of having to prepare new associates to become lawyers on the firm’s dime, or that of clients.  Many suggestions have been offered as to how to remedy this issue in a way that would train law students to become lawyers and alleviate some of the financial costs law schools and students face.  One suggestion has been to decrease the amount of credits students must take.  Another proposal has been to replace the third year of law school with an apprenticeship, which was the focus of the first law schools, instead of forcing students to engage in more coursework.

A proposition that has generated a lot of discussion is the idea of replacing full-time faculty with adjunct faculty.  Currently, the ABA requires that its accredited schools have a ratio of twenty students or less to one full-time faculty member.  A ratio of thirty students to one full-time faculty member is not in compliance with the ABA standards, but many of these full-time professors do not have practical legal experience because law schools look to hire scholars and not people who have spent years practicing law.  On the other hand, an adjunct professor is an experienced practitioner by definition.  

Besides lacking practical experience, it is more expensive to employ full-time faculty as opposed to adjunct faculty.  About half of a law school’s budget is spent on faculty salary and benefits, and about eighty percent of that budget goes toward full-time faculty.  Alternatively, adjunct faculty make a few thousand dollars a year to teach a course.  

With the current economic climate, it is vital that changes are made among different institutions, including law schools that will keep costs down.  While no method is a guaranteed solution, staffing more adjunct faculty is something that should be considered and this type of change would need to be initiated by the ABA.  Even though modifications to the organization of law schools may make law school administrations and professors uneasy, if adjustments are not made, the make-up of the legal profession may experience unwanted changes.  The New York Times article states that, “the nature of legal work itself is evolving, and the days when corporations buy billable hours, instead of results, are numbered.”  If law students continue on the path of failing to obtain practical experience, their chances of succeeding in this dismal market will remain poor.

A recent Seventh Circuit opinion indicates that plaintiffs' counsel in a class action suit that engages in misconduct will not likely be able to adequately represent the class.  In Creative Montessori Learning Centers v. Ashford Gear LLC, No. 11-8020 (7th Cir. Nov. 22, 2011), Judge Posner's opinion overturned the district court's class certification because the district court applied a standard that was too lenient for misconduct on the part of plaintiffs' counsel. 

The named plaintiff, Creative Montessori Learning Centers, sued Ashford Gear LLC for violating the Telephone Consumer Protection Act, 47 U.S.C. § 227.  The Act provides that the recipient of an unsolicited fax can be compensated up to $1,500 for each fax.  There are 14,573 other members of the class who collectively claim to have received 22,222 unsolicited faxes. 

Plaintiffs' attorneys, attorneys from Bock and Hatch, specialize in bringing suits under the Act, but used some unethical tactics to initiate the suit.  The attorneys contacted a fax broadcasting company that faxes advertisements on behalf of advertisers.  Then the attorneys asked the broadcasting company for information about faxes it had sent – and promised to keep the information confidential.  But instead of keeping the information confidential, the attorneys used the information to drum up lawsuits.  The attorneys found violators of the Act and potential plaintiffs.  Notably, the attorneys found Montessori, the named plaintiff, and misleadingly told them that a class action already existed.     

This behavior prompted defense attorneys to argue that the class should not be certified because plaintiffs' attorneys behaved unethically and would not be able to adequately represent the class.  However, the district court applied an egregious misconduct standard, and found that the conduct was not egregious and certified the class.  On appeal, the Seventh Circuit applied a different standard. 

The Seventh Circuit emphasized the importance of ensuring that plaintiffs' counsel can adequately represent a class.  The court noted that class plaintiffs lack the knowledge and monetary stake to allow them to monitor their lawyers.  Therefore, courts have to take great care in ensuring that plaintiffs' counsel will fulfill their fiduciary duties.  The court then held that the district court erred by applying an egregious misconduct standard; rather, any misconduct on behalf of plaintiffs' counsel should create a serious doubt that plaintiffs' counsel is fit to represent a class.  The court then remanded the case back to the district court so the district court could determine whether the class should be certified. 

With this decision, the Seventh Circuit is leaving less room for unethical conduct on the part of plaintiffs' counsel in class action litigation.  It is a decision that will likely be welcomed by defense counsel and class plaintiffs alike. 

William F. Auther is a partner with an active trial practice in business litigation and Kelly M. McInroy is an associate in the Phoenix office of Bowman and Brooke LLP.  

These days, many depositions are videotaped.  If a deposition is being videotaped, is there still a need for a court reporter?  Is a stenographic (“hard copy”) transcript necessary?  This issue is currently the subject of debate in Texas and across the country, with interest groups taking positions on both sides.

 On one hand, hard copy transcripts have practical advantages over video depositions.  First, hard copies allow attorneys to take part in their favorite pastime – copious amounts of highlighting and tabbing.  Additionally, most cases require careful attention to the facts, and hard copy transcripts make it easier to cite to the record.  In short, whether it is due to personal preference or the manner in which people learn, some people will probably always prefer working with hard copies.

At the same time, video depositions have unique advantages over hard copy transcripts.  In the era of C.S.I., jurors expect attorneys to use technology.  And video evidence is often more compelling and entertaining than a transcript.  Video depositions capture mannerisms, body language, and attitudes that would otherwise go unnoticed.  Because of this, adverse witnesses and opposing counsel are more likely to mind their manners when being videotaped.  Of course, there are exceptions to every rule, and video footage of a witness losing control can be pure gold.  For example, when the witness in the infamous Texas Style Deposition told the examining attorney that he had “a case of incipient verbal diarrhea,” a paper transcript would never have done it justice. 

As other commentators have noted, both video depositions and traditional hard copy transcripts have their place.  When used correctly, each form of “transcript” compliments the other.  Because of the limitations of videotape-only depositions, however, traditional hard copies (and court reporters) are here to stay . . .  for now.

On August 4, 2001, the American Bar Association's standing committee on ethics and professional responsibility issued formal opinion 11-461 entitled, "Advising Clients Regarding Direct Contacts with Represented Persons."  As a general rule under ABA model rule 4.2, a lawyer cannot communicate with a person that a lawyer knows is represented by counsel without the opposing counsel's consent to the communication.  This rule extends to the use of an intermediary as an agent to communicate with the represented person.  However, it is also sometimes useful for litigants or parties to a transaction to be able to communicate with each other even though they have their own counsel.  In such instances, the parties maintain the right to communicate directly.  Sometimes these communications may require a lawyer's assistance.

Advising your clients on this point is considered proper.  The primary question addressed in the newly issued opinion is whether a lawyer can advise and assist a client in communicating directly with a represented party without violating Rule 4.2.  The ABA Committee felt that there was tension regarding the lawyer's ability to assist the client and effectuating direct client to client contact. 

The ABA Committee had previously stated in formal opinion 92-362 that a lawyer can ethically advise a client to communicate directly with a represented adversary to determine if the adverse party's lawyer had informed them of a settlement offer.   In the new opinion, the committee states directly that "the decision to communicate directly with a representative person may be the client's idea or the lawyer's.  Some decisions and opinions suggest the counsel may be violating the rules prohibiting communication with a representative party by encouraging or failing to discourage a client speaking directly to the other party."  A concern remained under existing rules that a lawyer might run afoul of Rule 4.2 by "scripting" or "masterminding" a client's communication with a represented person.   The Committee stated that "what constitutes 'scripting' or 'masterminding' the communication is not clear, but such a standard, if too stringently applied, would unduly inhibit permissible and proper advice to the client regarding the content of the communication, greatly restricting the assistance the lawyer may appropriately give to a client."  The Committee concluded that without violating Rules 4.2 or 8.4, a lawyer can give assistance to a client regarding substantive communications with a represented party that could include what subjects are to be addressed regardless of whether the lawyer or the client proposes that the communication take place.  The lawyer may review, redraft and approve a letter or an outline for a conversation that the client wishes to use in the communications with the adversary.  The client may also request that the lawyer draft the basic terms and an agreement that he or she wishes to discuss with an adversary.   Nonetheless, some examples of overreaching do remain. 

The committee references several of them in its opinion stating that they include "assisting the client and securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel.  To prevent such overreaching, a lawyer must, at a minimum advise her client to encourage the other party to consult with counsel before entering into allegations, making admissions or disclosing confidential information.  If counsel has drafted a proposed agreement for the client to deliver to her represented adversary for execution, counsel should include in such agreement conspicuous language on the signature page that warns the other party to consult with his lawyer before signing the agreement."  

As discussed in the webinar presented by the Lawyers’ Professionalism and Ethics Committee in December of 2010 (available as a podcast from DRI), outsourcing certain “legal” activities (as well as offshoring those activities) is viewed with great mistrust in the legal community.  The Connecticut legislator’s recent attempt to regulate the industry, while certainly sympathetic, fails to comprehend both the activities generally being outsourced and the responsibilities of the supervising attorney.  The activities which are generally outsourced (and sometimes offshored ) frequently involve document review – an activity frequently assigned to paralegals within larger firms.  The responsible supervising attorney must be licensed to practice law in the appropriate jurisdiction.  That licensure requirement is the same for document reviews being performed by in-house paralegals, just as it is when the review is performed by outsourced personnel.

Indeed, we are anything but unsympathetic to the plight of graduates of law schools not having jobs upon graduation.  However, some of those same graduates might be able to find opportunities in performing work, such as document reviews, on an out-sourced basis.

Worldwide, the workforce is evolving and expanding into global markets.  The relatively-recent innovations of the internet and other technological advances perhaps speed those changes.  Rather than trying to resist change, we as a profession should strive to evolve with the changes to become a more professional and more efficient resource to our clients.