Legal Ethics - Roy M. Sobelson

• Publication year: 1999

Legal Ethicsby Roy M. Sobelson^*

I. Introduction

This Article covers the rules, cases, ethics opinions, and other matters decided by the Georgia Supreme Court, the Georgia Court of Appeals, and a federal district court between June 1, 1998, and May 31, 1999, that have most affected, or may affect, Georgia lawyers. Many eye-popping headlines about lawyers and their profession filled the survey period. Although very few of the underlying cases made or changed any substantive law, they may well have substantially altered the landscape of lawyering, creating or illuminating various pitfalls and land mines.

One Georgia lawyer, disbarred for murdering his landlord, avoided the death penalty only after he finally admitted his guilt.¹ Moreton Rolleston, considered by many to be something of a legend in Atlanta legal circles, continued his assault on the record for the longest time and most motions filed to avoid paying a malpractice judgment against him.² A judge in north Georgia, a convicted felon before he took the bench, was removed, at least in part, for improper actions in office.³ Two lawyers generated both local and national controversy when they collected a huge fee in a personal injury case, leaving their deceased client's family with virtually nothing. At least one of them found it impossible to comply with a judge's order to place the large sum in the court registry because he had already spent it.⁴ In another case, the Supreme Court noted with disapproval a district attorney's hiring of a capital murder defendant's lawyer during the criminal trial, but the court refused to reverse based on that conflict alone.⁵ Finally, in a criminal contempt matter arising out of discovery in a products liability case, a federal judge entered a consent judgment assessing a large monetary penalty against a litigant and its law firm and ordering the money to be used in a way that is probably unique in American legal history.⁶

II. Rules Changes

While there are some cases and developments of more immediate influence and interest, the most important development has not yet come to fruition. In the April 1999 issue of the Georgia Bar Journal, the State Bar of Georgia published notice of its intent to move to amend the lawyer discipline rules.⁷ In essence, the proposal would repeal Georgia's disciplinary rules, which are based on the ABA Model Code of Professional Responsibility ("Model Code"),⁸ and replace them with a modified version of the ABA Model Rules of Professional Conduct ("Model Rules").⁹ The proposed rules differ from the Model Rules, however, in several material respects. If these rules are adopted as proposed, they could cause some substantial changes in the way Georgia lawyers practice.

The Scope section of the proposed rules makes clear that their purpose "is not to give rise to a cause of action nor to create a presumption that a legal duty has been breached .... They are not designed to be a basis for civil liability."¹⁰ However, many courts have all but ignored this in recent years.¹¹

Proposed Rule 1.1 requires lawyers to provide competent representation.¹² Oddly, after stating that obligation, the proposed rule incorporates the Model Code's admonition that lawyers should not handle matters beyond their competence without associating another lawyer who is competent to handle it,¹³ a toothless tiger if there ever was one. The proposed rule also appears to apply to lawyers who take cases that they are competent to handle but who handle them in a sloppy manner. The rule specifically requires that lawyers handle all matters with "the legal knowledge, skill, thoroughness and preparation reasonably necessary,"¹⁴ thereby creating the possibility that a lawyer could be disbarred for handling a matter incompetently.¹⁵

Proposed Rule 1.5(e)¹⁶ is significant mostly because it would bring the rules into conformity with what may already be a widespread practice. The existing rules provide that a lawyer may share a fee with a nonpartner only if the two lawyers' shares of the fees reflect the amount of work each performed.¹⁷ Under the proposed rule, lawyers may agree to share fees either in proportion to their share of the work or by written agreement, as long as each lawyer assumes joint responsibility, the client is advised that the fees are being shared, and the total fee is reasonable.¹⁸

Proposed Rule 1.6¹⁹ deals with confidentiality, which is one of the most important issues regarding lawyer behavior. The proposed rule is an interesting hodgepodge of old and new rules. It defines confidential information as "all information gained in the professional relationship with a client, including information which the client has requested to be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client."²⁰ This definition departs from the existing rule by adding the word "including," which suggests that there are other types of information protected as well, but the proposed rule does not make that clear. Additionally, the existing rule explicitly protects confidences, which are defined as "information [protected] by the attorney-client privilege."²¹

When the ABA adopted the Model Rules in 1983, it deliberately omitted the distinction between a "confidence" and a "secret" in part because it was confusing to have two different categories of information, especially when one of them merely referred to the local law of attorney-client privilege.²² In their place, the Model Rules extended protection to "information relating to representation of a client."²³ The 1983 change had two main effects other than reducing the confusion created by the multiple categories. First, by covering all information relating to the representation, the Model Rules eliminated the need for a lawyer to determine whether disclosure of certain information would be detrimental or embarrassing or whether the client had requested that it be kept confidential. Second, and perhaps more important, it broadened the scope of protected information. The Model Code's phrase "information gained in the professional relationship" in Disciplinary Rule 4-101(A) could be read to include either a temporal limitation (i.e., only covering information gained during the representation) or a causal limitation (i.e., only covering information gained because of the representation). The use of the broader phrase "relating to the representation" eliminated any need to resolve that dilemma, to consult the law of attorney-client privilege, or to figure out any potential distinctions between "confidence" and "secret." However, adoption of the proposed rule would continue the existing ambiguities and create a new one—clarifying the significance of the word "including."

In at least one way, the proposed rule is superior to Model Rule 1.6. The proposed rule explicitly allows lawyers to disclose information when "required by these rules or other law, or by order of the Court,"²⁴ an exception only implied in the Model Rules.²⁵ In addition, the proposed rule differs radically from Model Rule 1.6, although there will undoubtedly be disagreement about whether the difference is good or bad. The proposed rule would allow disclosure "to avoid or prevent harm or substantial financial loss to another as a result of client criminal conduct,"²⁶ whereas Model Rule 1.6 allows disclosure that is necessary "to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm."²⁷ The proposed rule also makes one excellent addition to the Model Rule by specifying that "the lawyer must make a good faith effort to persuade the client not to act or, if the client has already acted, to warn the victim."²⁸

Conflicts of interest are very difficult for lawyers, and the rules have always been woefully vague in defining them, thus leaving even the most conscientious lawyer at risk of unwittingly violating the rules. On this count, Proposed Rule 1.7, while not making any radical change, does make one substantial improvement by explicitly stating that there are some situations in which conflicts may not be waived.²⁹ Perhaps the most serious of these situations is addressed in section (c)(2), which provides that a client cannot consent to representation that "includes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding."³⁰ Presumably, this rule would prohibit the oft-used, but criticized, practice of representing both husband and wife in a divorce.

Proposed Rule 1.9, which deals with representation of a client whose interests are materially adverse to a former client's interests, states the traditional "substantially related" principle.³¹ It does not, however, appear to incorporate the Yerby³² test, which broadens the disqualification by prohibiting the representation of a client against a former client in a matter of the same general subject matter and which arose while the lawyer represented the former client.³³ Because Yerby was decided by the supreme court and has never been overruled, the court's adoption of Proposed Rule 1.9 would surely draw the vitality of that principle into question.

Proposed Rule 1.10, which imputes disqualification of a lawyer to other lawyers in the firm,³⁴ would put a reasonable limitation on the effects of disqualification, basically opening the door to a limited form of screening. Specifically, it would provide that if a lawyer in a firm was disqualified from handling a matter, that lawyer's departure from the firm would eliminate the remaining lawyers' imputed disqualification, as long as no other lawyer in the firm had gained confidential information about the matter.³⁵ The current rule has never been clear as to whether a disqualification, once applied to any lawyer in a firm, applies to all other lawyers in the firm, regardless of whether they had access to information or...