Legal Ethics - Patrick Emery Longan

• Publication year: 2001

Legal Ethicsby Patrick Emery Longan^*

I. Introduction

During this past year, the new Georgia Rules of Professional Conduct went into effect. The new Rules replace the multi-faceted regulatory regime that consisted of Standards, Directory Rules, Ethical Considerations, and Canons. The Rules follow the format of the American Bar Association's Model Rules of Professional Conduct, although they do not follow the Model Rule's substance in every respect.¹ Because the Rules went into effect on January 1, 2001, it will take some time to assess their impact on the practice of law in Georgia. In the meantime, the Georgia courts dealt with a number of important issues relating to the legal profession this past year. The cases involved questions of professional discipline, confidentiality of client identity, attorney fees and related matters, disqualification, and professionalism.

II. Professional Discipline

This past year the Supreme Court of Georgia dispensed discipline for the usual panoply of types of attorney misconduct. The court disciplined lawyers for mishandling their trust accounts,² for neglecting their clients,³ for deceiving clients or courts,⁴ for losing a law license in another state,⁵ for continuing to practice with a suspended license,⁶ for stealing from a client,⁷ for using runners to solicit business,⁸ and for receiving criminal convictions.⁹ As usual, some of these situations resulted, at least in part, from substance abuse, alcoholism, or mental illness.¹⁰ Two of the cases, however, were unusual in that they prompted dissents.

In re Erion¹¹ dealt with neglect of a client's case. The attorney took a $750 retainer and later requested and received another check for $2000. When the client was unable to contact the lawyer, the client placed a hold on the $2000 check.¹² Apparently, the lawyer's inattention did not prejudice the client's rights in the underlying litigation, but the client suffered the loss of the $750, experienced "needless worry and concern, and risked the loss of legal rights and remedies available to it."¹³ Chief Justice Benham filed a dissent in which Justices Sears and Carley joined.¹⁴ The dissenters' central point was:

In order for attorney discipline to be effective and to have meaningful impact, the process must have consistency. Our treatment of Erion is not consistent with our treatment of other similarly situated attorneys accused of violating ethical standards. Because that lack of consistency has produced an unfair result in the present case, [we] must dissent.¹⁵

The dissent referred primarily to In re Zoota¹⁶ to make its point. In Zoota the supreme court suspended a lawyer rather than disbar him even though he, like Erion, failed to do the work for which he had been paid, failed to communicate with the client, and failed to respond to the disciplinary action.¹⁷

Chief Justice Benham, joined in dissent by Justice Hunstein, again objected to the disbarment of a lawyer in In re Wood.¹⁸ The supreme court disbarred Wood for neglecting a client's personal injury claim for so long that the client lost whatever rights he may have had.¹⁹ The lawyer also repeatedly lied to the client about the status of the case that Wood filed but then voluntarily dismissed.²⁰ Chief Justice Benham's dissent again cited Zoota as an example of more lenient treatment for a similarly situated lawyer."²¹

The troublesome aspect of these two cases is that the court did not respond in either case to Chief Justice Benham's criticism. The per curiam opinions ignore the dissents entirely. The failure of the opinions to meet the Chief Justice's criticism creates the impression that the court cannot reconcile the treatment the disbarred lawyers received with the more lenient treatment received by others. If that is true, the court has been inconsistent and therefore unfair. If the court finds the cases distinguishable, it should say why and not leave the Bar and the public wondering why the lawyers were treated differently. At worst, these cases reveal unfairness in the disciplinary process. At best, they reveal inadequate concern for the public's right to understand the basis of an appellate decision.²² The court should have explained why Erion and Wood were disbarred when Zoota was not.

III. Confidentiality of Client Identity

The Georgia Supreme Court and the Georgia Court of Appeals each decided one case dealing with the revelation of a client's identity. In Tenet Healthcare Corp. v. Louisiana Forum Corp.,²³ a lawyer learned from one client that another client, Tenet Healthcare, might have claims against Louisiana Forum. The "tipster" made an agreement to share his information if he received a portion of the proceeds of the suit to collect the claim, but he requested that his identity be kept secret. The informant initially approached the lawyer because he was afraid he might have some "exposure" for some type of wrongful conduct. Tenet agreed to the arrangement and suit was brought, but Louisiana Forum sought the identity of the tipster in discovery. The attorney resisted the inquiry on the basis of attorney-client privilege and the attorney's ethical duty to keep client secrets.²⁴

The case ultimately turned on the question of privilege. The attorney's ethical duty to keep client confidences is subject to a proviso that confidences may be revealed when ordered by a court. The court's order, in turn, was a valid discovery order as long as the information was not privileged, because Louisiana Forum was entitled to discovery of any relevant, unprivileged matter, including the identity of a potential witness. The supreme court correctly recognized that client identity is usually not privileged, but that it can become so when revelation of the client's identity would be the "last link" for a criminal prosecution, or revelation would necessarily reveal substantive attorney-client communications.²⁵ The application of that rule to this case might pose difficulty: What "wrongdoing" brought the client to the lawyer in the first place, and what effect would revelation of identity have on that unknown, underlying problem? This client, however, was not able to make such a showing.²⁶ Even if there was a basis for concern, the court's decision would almost certainly have been correct because this client waived any right to secrecy when he agreed to allow pursuit of the matter in court and insisted on a cut of the action. A client otherwise entitled to confidentiality cannot hide behind it while seeking recovery from another party. The court decided this case correctly and did so without any overbroad holding about the application of attorney-client privilege to client identity.

The second case dealt with the privilege against self incrimination. In Begner v. State Ethics Commission,²⁷ an attorney was subpoenaed to testify before the Georgia State Ethics Commission. Previously the subpoenaed lawyer made an anonymous contribution on behalf of a client to a political candidate. Anonymous political contributions are illegal in Georgia. When asked for the identity of his client, the lawyer invoked his statutory and constitutional rights against self incrimination. The trial court that issued the subpoena responded by holding the lawyer in contempt.²⁸ The court of appeals reversed and remanded because the trial court did not make a preliminary finding whether particular questions might call for incriminating answers.²⁹ If the questions could call for the witness to incriminate himself, the court of appeals concluded, then the attorney has the right to decide whether to invoke the self-incrimination privilege.³⁰

Interestingly, the court of appeals went out of its way to dispose of the attorney-client privilege issue, although the litigants did not raise it on appeal.³¹ As discussed above, there are circumstances in which the identity of the client would be the "last link" to a client's past criminal conduct, and therefore, the identity of the client would be privileged. Here, however, the lawyer involved himself in the criminal conduct because he delivered the anonymous donation.³² Without much elaboration, the court of appeals correctly held the crime-fraud exception to the attorney-client privilege operated under these circumstances to block the assertion of the privilege.³³

IV. Fees and Related Matters

With respect to fees and related matters, the Georgia Supreme Court decided two cases worthy of note while the court of appeals decided one. In Magnetic Resonance Plus, Inc. v. Imaging Systems International,³⁴ the supreme court decided that the plaintiff was not a "prevailing party" for the purpose of a contractual provision entitling it to fees.³⁵ The trial court found defendant breached the contract and awarded damages measured by plaintiff's lost profits. Ordinarily, that award would have made plaintiff a prevailing party entitled to fees. The problem was the court of appeals set aside the damages, but not the finding of a breach. Another...