Masters of the Courtroom SM

Transcription

1 Masters of the Courtroom SM Ethics The Hon. Martin L.C. Feldman, USDC EDLA Mary E. Howell Richard C. Stanley, Stanley Reuter Course Number: Hour of Ethics CLE December 11, :00 5:00 p.m.

2 HONORABLE MARTIN L.C. FELDMAN UNITED STATES DISTRICT JUDGE EASTERN DISTRICT OF LOUISIANA Judge Feldman graduated from Tulane Law School in 1957, where he was a member of the Order of the Coif, and Assistant Editor of the Tulane Law Review. Upon graduation in 1957, Judge Feldman became Judge John Minor Wisdom's first law clerk when Judge Wisdom was appointed United States Circuit Judge. Judge Feldman served as Judge Wisdom's law clerk in the Fifth Circuit U.S. Court of Appeals from 1957 to 1959 and, thereafter, practiced law in New Orleans until October of On October 12, 1983 he was appointed United States District Judge for the Eastern District of Louisiana by President Reagan, and served for years as the Chairman of the Fifth Circuit's Committee on Pattern Civil Jury Instructions. He is also a judge on the U.S. Foreign Intelligence Surveillance Court. Judge Feldman was a member of the Board of Directors of the Federal Judicial Center ( ), and was Chair of the National Conference of Federal Trial Judges ( ). He has been a visiting summer lecturer at Cambridge University, and is an Honorary Master of the Bench of the Inner Temple Inn of Court, London. Judge Feldman was Chair of the Board of Advisory Editors of the Tulane Law Review , and was a member of the Judicial Conference of the United States for the term. He was the U.S. District Judge member of the Quadrennial Anglo-American Legal Exchange in London, Oxford University, Washington D.C. and Boston. From 1994 to 2000 he was a visiting lecturer in Constitutional Law and War Powers at Syracuse University's Maxwell School of Public Administration. During the Fall of 2002, he was Princeton University's Distinguished Visiting Jurist in the James Madison Program of American Ideals and Institutions. He also lectures in the LLM program of the Europa Institut of the University of Zurich Law School.

3 Mary E. Howell is a 1973 graduate of Tulane Law School. She is in private practice as a plaintiffs civil rights attorney in New Orleans, Louisiana. She has handled numerous cases involving police misconduct and prisoners rights and has represented New Orleans street musicians for years. She has represented many victims of criminal civil rights violations and hate crimes, as well as whistleblowers who have exposed governmental corruption and wrongdoing. She has recently been involved in efforts to develop training for police officers in ethical decision making and peer intervention to prevent police misconduct, which is mandated by the NOPD Consent Decree. Meh. Bio17May14

4 Richard C. Stanley concentrates his practice in commercial litigation at the trial and appellate levels, and also in the representation of lawyers and law firms in legal ethics, malpractice and disciplinary matters. Mr. Stanley established the law firm of Stanley, Reuter, Ross, Thornton & Alford, L.L.C. in Previously, Mr. Stanley was a partner in the New Orleans firm of Stone, Pigman, Walther, Wittmann, L.L.C. Mr. Stanley received his B.A. from Louisiana State University summa cum laude and his J.D. from Harvard Law School cum laude. Upon graduation from law school, he served as a law clerk to the late Hon. Albert Tate, Jr. on the United States Fifth Circuit Court of Appeals. Since 1985, he has taught on the adjunct faculty of Tulane Law School, including courses in Legal Ethics, Professional Responsibility Seminar, and Criminal Process and Practice. Since 1996, he has been a member of the faculty for Trial Advocacy for Tulane Law School. In addition, Mr. Stanley has published articles on topics in constitutional law and antitrust law, acted as a speaker on numerous occasions on ethics topics for continuing legal education programs, and has participated as an Instructor in Constitutional Law for BAR/BRI.

5 12/8/2014 Problem Sets for Ethics Hon. Martin L.C. Feldman Mary E. Howell Richard C. Stanley Lawyer has enjoyed a long and successful career as a trial attorney. Over the past 12 months, however, Lawyer s conduct has changed noticeably. Lawyer has appeared late for conferences with the court and opposing counsel, at times was unprepared for motions, and exchanged clearly inadequate inserts for a pretrial order. Has the Lawyer violated any Rules of Professional Conduct? RULE 1.1. COMPETENCE (a) A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (b) A lawyer is required to comply with the minimum requirements of continuing legal education as prescribed by Louisiana Supreme Court rule. (c) A lawyer is required to comply with all of the requirements of the Supreme Court s rules regarding annual registration, including payment of Bar dues, payment of the disciplinary assessment, timely notification of changes of address, and proper disclosure of trust account information or any changes therein. RULE 1.3. DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client. Has a duty to report been triggered under Rule 8.3(a)? RULE 8.3. REPORTING PROFESSIONAL MISCONDUCT (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a question as to the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the Office of Disciplinary Counsel. What are the practical alternatives to address this situation? 1

6 12/8/2014 Lawyer recently went through a difficult divorce, and has doubled-down on his law practice. While his partners are delighted that his hours have increased, they are concerned that he has become unapproachable, angry and bitter. His partners have heard numerous reports from associates who have been the objects of his loss of temper and from opposing counsel who have been treated shabbily. Recently, a judge called his senior partner to inquire whether anything was wrong. Has the Lawyer violated any rule? Do the Lawyer s partners have any ethical duty in this circumstance? RULE 5.1. RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) Alawyer shall be responsible for another lawyer s violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at atime when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Does the Lawyer have an ethical duty to self-evaluate? RULE 1.16(a)(2). DECLINING OR TERMINATING REPRESENTATION (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (2) the lawyer s physical or mental condition materially impairs the lawyer s ability to represent the client; Lawyer was always a social drinker, but now has begun to drink more heavily at functions for the firm and even at client dinners, often to the point where he is barely coherent. 2

7 12/8/2014 Has Lawyer violated a rule? What is the appropriate response of his partners or his peers? Lawyer has had a long and illustrious career, and is wellrespected by the local judiciary. As a result, he is often called upon to act as local counsel on cases of national significance. At recent court hearings, however, Lawyer seems at times confused, losing his train of thought, or lapsing into periods of awkward silence. His partners dismiss these events as minor lapses, but several judges have taken note of the problem. What can a judge do in such circumstances? What can an opposing counsel do? What are the available options? 3

8 12/8/2014 Lawyer has committed a significant error in the representation of Client who was a long-time friend, and, in addition, has mishandled a significant amount of Client s money. Another lawyer in the firm who is his dear friend learns of these facts, and tells the first Lawyer to tell his client about the mistake, but not about the money. Lawyer does so, and Client threatens to sue the firm. The firm s General Counsel gets involved, and learns that Lawyer has not disclosed the financial fraud. Due to the error, Client demands that the firm continue to work for him for free, but also sues the firm and asks for all internal communications about the case. Can the Firm continue to represent the Client? RULE 1.7(a)(2) CONFLICT OF INTEREST: CURRENT CLIENTS (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. Are any of Lawyer s internal communications privileged? Does the Lawyer have the right to withdraw; the duty to withdraw? RULE 1.16(a) DECLINING OR TERMINATING REPRESENTATION (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation ti of aclient if: 1) the representation will result in violation of the rules of professional conduct or other law; 2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or 3) the lawyer is discharged.. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. 4