August 19, 2008
A hearing officer in Arizona dismissed misconduct charges against an attorney who represented a client in civil litigation. The attorney chose a doctor to conduct a medical examination of the opposing party. The doctor wished to charge an additional $1,000 if opposing counsel insisted that the exam be videotaped. The rationale was that the doctor would have to take precautions to prevent HIPPA violations by clearing out other examination rooms to insure that the recording equipment did not pick up sounds from the adjacent rooms. Counsel did not want to pay the grand, and a motions hearing was held on whether the exam would be videotaped.
At the hearing, the accused attorney focused on other issues and did not advise the judge of the additional charge. Nor did opposing counsel so advise the judge. The lawyer informed the judge of the payment issue immediately after the motion had been granted. The judge got angry and the bar filed ethics charges.
The officer concluded that the omission was "the product of human error" as a result of the lawyer's focus on the issue whether good cause to videotape had been established: "it is understandable...that advocates sometimes get so focused on the main point of their argument that they lose sight of the fact that a completely different angle should be considered and addressed." The matter also was complicated by the fact that the motions hearing was conducted by telephone. (Mike Frisch)
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