May 26, 2009
No Voice, No Violation
One of the difficult problems in applying disciplinary rules to professional lapses is determining whether litigations errors amount to ethical violations. In other words, is every act of potential legal malpractice an ethical violation?
In a recent report, an Arizona hearing officer recognized that there may be trial mistakes that do not amount to sanctionable behavior and recommended that most charges against the lawyer (other than failure to return the client file) be dismissed.
The accused lawyer had graduated from law school in 1988 after nearly twenty years as a paralegal. She then worked for various firms before going solo. She is highly respected, has never been the subject of a serious bar complaint and is 68 years old.
The lawyer represented a client whose survivors, after her death, had a claim against a "bed and board" healthcare facility and other defendants. The lawyer brought a wrongful death lawsuit on behalf of the surviving children. The case was assigned to a judge who kept to a strict schedule. There were problems in the case with uninsured defendants and with the health of the attorney's clients. The lawyer had attempted to respond orally to three motions in limine. The judge did not permit an oral response and treated the motions as conceded.
The judge (who seems like the kind of judge that makes me glad to be a law professor) would permit 12 trial days and kept "specific track of each party's allotted time." Time ran out on the lawyer and, as a result, she was not permitted to present a closing argument. As the judge said: "You [the lawyer] no longer have a voice in this trial." The judge's decisions were affirmed on appeal as not an abuse of discretion.
A settlement offer of $450,000 from the insured defendants was not accepted. Later, the same defendants and the plaintiffs settled for $350,000. The bar charged the attorney with failing to communicate the higher offer but those charges were rejected as unproven.
As to the charges of incompetence:
These disciplinary proceedings are not a substitute for a malpractice case...A lawyer's strategic decisions made in good faith are not necessarily malpractice. In the context of [this] case, the strategic decision made by [the attorney] in light of the trial judge's discretion are not necessarily ethical violations. Respondent's decisions may be considered by some as errors of judgement or negligent, but in these proceedings the proof required is clear and convincing. This Hearing Officer finds ethical violations have not been established.
The hearing officer recommends a censure and probation for two years for failing to timely provide the clients with the complete file. Her own testimony was that it was "shocking" that the file return took so lopng. (Mike Frisch)
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