Legal Ethics - Jack L. Sammons

• Publication year: 1994

Legal Ethicsby Jack L. Sammons^*

The dominant event during this surveyed period¹ is not an event at all. It is instead a struggle so pervasive that its lurking presence is felt behind every important case and Formal Advisory Opinion ("FAO") decided this year. This struggle is between the two primary functions that the Georgia appellate courts perform in this area of law: the normal judicial function and the regulation of the legal profession.² This second function is a legislative and an interpretative one. Appellate courts in Georgia perform the interpretive function in both an advisory capacity through FAO's and in a judicial capacity through case law in which the courts profess to be relying upon rules, ethical regulations, and other norms applicable only to lawyers.

I have described this dominant event as a "struggle" because these two functions create what one author has described as competing hierarchies.³ The governing norms of the profession are usually shared, Koniak tells us, by which she means that there is little quarrel between the functions over who and what governs lawyers.⁴ But each function orders these shared norms very differently. For example in the regulatory function, appellate courts place the ethical standards of the profession very high in the hierarchy of governing norms, while in the judicial function these same standards are typically placed very low.⁵ Usually, these functions overlap and when they do, and when the courts recognize the overlap, each function demands that its particular ordering be honored. So a struggle ensues.

Even more dramatically, in some contexts this struggle is not just over the ordering of shared governing norms, but also over whether the governing norms of the other function are applicable at all. We can find good examples this year in case law involving the interpretation of contracts for legal fees,⁶ what roles our ethical standards are to perform in malpractice cases,⁷ and in one recent FAO concerning fee waivers by appointed criminal defense lawyers in plea bargaining.⁸ In each of these opinions, either the judicial function or the regulatory function seeks to deny the relevance of the governing norms of the other function.

Sometimes the governing norms are not in question and their ordering is not practically important because the norms each function would apply to the case produce the same results. We can see several examples of this as well this year, including one potentially important case determining whether penalty clauses for terminating an employment contract with an attorney are permissible.⁹ Even in these "more harmonious" contexts, however, appellate judges argue over which function is to be credited for the decision.

There is nothing new about this struggle, as courts that have fought in the long ethical battle with the SEC over disclosure requirements will confirm,¹⁰ and the recent emergence of its lurking presence from the shadows into the penumbra, if not the light, is certainly not a local phenomenon. For example, the nation had this struggle thrust upon it recently in decisions considering IRS fee-reporting requirements,¹¹ attempts to place ethical restrictions on the issuance of subpoenas against attorneys,¹² the enforcement of ethical regulatory limits on prosecutorial communications with represented defendants,¹³ and, somewhat earlier, in two United States Supreme Court cases approving the simultaneous negotiation of attorney fees in civil rights cases¹⁴ and "release/dismissal" plea bargaining.¹⁵ But the extent of this struggle in Georgia, something that may be driven by the Georgia Supreme Court's nationally recognized professionalism efforts and the court's role in issuing FAO's, is certainly noteworthy.

Even a casual reader of opinions could see that the Georgia appellate courts caught in this struggle are confused. As old methods of avoiding the struggle fail,¹⁶ the courts seem to slip from one hierarchy to the other and back again, often without readily discernable reason. Such confusion is not only understandable, but should be expected given the struggle's depth and complexity. For as appellate courts attempt to work out the relationship between their two functions with their competing hierarchies, they necessarily raise foundational questions about both functions.

Of course foundational questions are questions that most courts seek to avoid. For this reason, and for others, the struggle I am referring to is seldom noted explicitly or discussed straightforwardly by any Georgia court. Nevertheless, its lurking presence is now so obvious and growing so rapidly that I believe it will be the primary force shaping both ethics case law and FAO's over the next decade. If this is true, then I hope the reader will agree with me that I would be remiss in my descriptive task if I did not note this struggle well. I have tried to do so by making it the theme of this survey.

I. Overview

Other than by connection with our theme, many cases and FAO's issued this year are of limited interest because they only apply in limited contexts. But not all are. In the area of legal fees, along with Donohue v. Green,¹⁷ a routine case of contract interpretation finding that the phrase "[a percentage] of whatever amount may be recovered . . . plus all advances and expenses" in a contract for representation is too ambiguous on the issue of whether "advances and expenses" are due if nothing is recovered, we find AFLAC, Inc. v. Williams,¹⁸ a potentially important case prohibiting contractual penalties for terminating employment contracts with attorneys. The potential importance of this opinion is that it raises serious questions about the increasingly common practice of contracting for nonrefundable fees.

In the legal malpractice area, we see the supreme court poised to reconsider the role of ethical regulatory standards in determining misconduct. This important development should come soon in two certified appeals, one taken from the recent court of appeals decision in Allen v. Lefkoff, Duncan, Grimes & Dermer, P.C.,¹⁹ and the other from Tante v. Herring.²⁰ This year, the court of appeals also offered two more cases in an increasingly long line of opinions determining when a client-lawyer relationship sufficient to support a malpractice claim arises in real estate closings. In this very troubling area, the cases of Richard v. David²¹ and Williams v. Fortson, Bentley & Griffin²² disappoint by doing little other than reaffirming the odd importance of "the seeking or the giving of advice" as a criteria for determining the existence of the relationship and by reaffirming Georgia's overly rigid enforcement of disclaimers of representation.

In what I have dubbed the "badpractice" area (as opposed to malpractice because the direct harm is not to the client), we find FAO 93-3,²³ rightfully denouncing the tactic of a prosecutor asking for waivers of appointed fees as part of the plea bargain in a death penalty case, but raising troubling questions about the effect of FAO's in the process.²⁴ We also find Justice Benham of the supreme court attacking one lawyer's unfair use of notice service in Green v. Green²⁵ and using "professionalism" norms from within the regulatory function to do so; something that prompted Justice Sears-Collins to write a concurring opinion pointing out the dangers involved.²⁶

Readers get a reprieve from the notorious and well-populated area of conflict of interests this year because we had no cases of great significance. The appellate courts did face several allegations of conflicts in ineffective assistance of counsel cases including Redd v. State²⁷ and Pittman v. State²⁸ both of which considered the effectiveness of defendants' waivers, and Zant v. Hill²⁹ an opinion refusing, in at least some circumstances, to apply the automatic requirement of separate counsel for death penalty co-defendants to defendants with separate charges arising out of the same incident.³⁰ There were also two appeals from disqualification motions: Chapel v. State,³¹ disqualifying a criminal defense lawyer for his current and former representation of the county,³² and Billings v. State,³³ refusing to disqualify a District Attorney's office for an Assistant DA's prior representation of the co-defendant of a defendant currently prosecuted by the office.³⁴ Other than Zant, these conflict cases add little substance. Chapel and Billings are both problematic, but they are so because they perpetuate the well-reviewed problems of previous conflict of interests opinions. Accordingly, I have not reviewed these opinions here.

There were only three FAO's issued during the year as the supreme court³⁵ and the FAO Board of the Georgia Bar continued to inch along at a snail's pace. Besides FAO 93-3 on plea bargaining, the Board issued one apparently partial opinion that attempts to head off conflicts when a lawyer is in the familiar, but awkward, role of representing the insured and the insurer on a subrogation claim.³⁶ In the final FAO— one that was seven years in the making—the supreme court tells us that a criminal defense attorney must provide copies of transcripts to indigent clients upon termination of the representation whenever necessary to avoid foreseeable prejudice to the client.³⁷ The only interesting question about this FAO is why it took seven years.

From this last comment, it should be obvious that the supreme court and the Board do not issue FAO's in a very timely fashion. To assist readers in coping with the problems this creates for research, my research assistant, Ms. Renate Downs, and I, with the pleasant assistance of Ms. Carlene Raynor of the State Bar of Georgia, have tried to provide a reasonably accurate listing of all FAO's issued by the supreme court or proposed by the Formal Advisory Opinion Board since the creation of our current procedures. This listing appears immediately following the conclusion. I offer this listing in lieu of a detailed...