Pretrial Ethics: a Day in the Life of an Ethical Lawyer

• Publication year: 2003
• Pages: 49

32 Colo.Law. 49 Colorado Lawyer 2003.

2003, October, Pg. 49. Pretrial Ethics: A Day in the Life of an Ethical Lawyer

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49

Vol. 32, No. 10, Pg. 49

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 49]

Ethics for Colorado Lawyers Special Issue

Pretrial Ethics: A Day in the Life of an Ethical Lawyer
by Lisa D. Williams

Lisa Williams is an attorney in the Qwest Legal Affairs Employment Law Group, Denver - (303) 672-2904 - and a member of the CBA Ethics Committee

Lisa Williams

Greta Greyhair, a partner with Acme, Best & Crown ("ABC"), arrived late for work Tuesday morning having taken an extra lap around East Podunk Park during her morning run. She had been running around the park with her closest friends almost every morning since her second year of law school - now, thirty years ago. In addition to spending time together and enjoying the outdoors, Greta and her friends relied on running as a release from the day-to-day pressure they experienced in their jobs. Greta felt especially stressed this day, and the extra lap did little to relieve her concerns

Greta had just received a letter from the Office of Attorney Regulation Counsel providing notice that she is under investigation by the Grievance Committee ("Committee"). She knew the allegations arose from a case she had recently won at trial. Greta represented Colossal Corporation, her client for more than twenty years, in a messy sexual harassment case. While the facts were bad, they were not the real problem. The real problem was opposing counsel, Sally Solo, a new attorney. Solo's practices, Greta believed, were shady at best and, often, downright dishonest. Needless to say, the highly publicized controversy (culminating in a three-week jury trial) was unpleasant for Greta, despite a good result for her client. While Greta believed the grievance filed by Solo was unfounded, she was not surprised Solo had filed it.

Greta sensed that Solo filed the grievance to distract from her own unethical and unprofessional pretrial conduct. In fact, during the course of the litigation, Greta had communicated to Solo on numerous occasions that her conduct violated the Colorado Rules of Professional Conduct ("Colorado Rules" or "Colo.RPC"). In that connection, Greta told Solo that she understood that she was a new lawyer and would allow her a reasonable opportunity to correct her violations before seeking sanctions. Solo's conduct only deteriorated during the course of the litigation, and Greta had planned to report Solo's professional misconduct.1 Unfortunately, it appeared that Solo had filed a grievance against Greta first.

Writing her reply to the Committee was going to take some time. Not only did she want to respond directly to Solo's accusations, she now felt it would be appropriate to point out Solo's unethical and unprofessional behavior. Greta took a sip of her smoothie and began to organize her thoughts.

Communicating with
Subpoenaed Witnesses

Greta considered the first allegation in the letter from Attorney Regulation Counsel that she unethically communicated with subpoenaed witnesses. Although she did communicate with subpoenaed witnesses, she reassured herself that she

fulfilled her responsibility to inform the witnesses that they did not have a legal obligation to submit to the interview.2 Moreover, she did not knowingly mislead them into disclosing privileged or confidential information that they would not otherwise knowingly reveal or be compelled to reveal.3

Greta finished her response to the first allegation and then added a description of Solo's unprofessional conduct. Early in the case, Solo issued subpoenas duces tecum "independently"; that is, without a return date "at a deposition, hearing or trial." A return date is required by Colorado Rules of Civil Procedure ("C.R.C.P.") Rule 45(a).4 Greta further explained that Solo also failed to provide notice of the subpoenas.

In a civil action, a lawyer may not issue or cause to be issued a subpoena duces tecum for production of documents or other tangible things at a deposition without first giving notice to every other party to the action.5 Also, the designation of the materials to be produced pursuant to the subpoena must be attached to or included in the notice unless a court order provides otherwise.6 Thus, Greta was unable to inspect and...