Professionalism | The Better Chancery Practice Blog

The Limits of Limited Scope Representation

March 26, 2014 § Leave a comment

The traditional default setting for representation of a client in a legal proceeding is that, once you enter an appearance, you are in the case until the judge lets you out.

There was a change in the Mississippi Rules of Profesional Conduct (MRPC) 1.2(c), which now provides that: “A lawyer may limit the objectives or scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” The comment to the rule provides some helpful insight [Note that the comment in the West version of the rules is more detailed and to the point than the one posted online at the MSSC web site. I don’t know what causes the discrepancy].

With MRPC 1.2 in mind, then, how do you go about accomplishing limited scope representation in chancery court? There are no guidelines that I know of, and there is no Mississippi case law on point to my knowldge, so I am offering my opinion as to how you should handle limited-scope representation so that your obligation to the court and the client is, indeed limited:

First, and most importantly, have your client sign a contract or representation agreement that specifically spells out exactly what you are agreeing to do, where your representation begins and ends, and includes the acknowledgment by the client that he or she had been fully informed about it and agrees that it is reasonable under the circumstances. The written agreement is critical, because you don’t want it to have to come down to a credibility contest between you and your client; you might just get caught in that default setting mentioned above.
If the scope of representation involves filing pleadings, include in your filing some language informing the court of the limited scope, and include in the request for relief a prayer to be released from further representation after an order or judgment is entered. And, just to be certain, have your client sign off on the pleading. Then make sure your order or judgment specifies that you are released, and a better practice is to have your client sign off on it.
If the scope of representation involves personally appearing before the court for a limited purpose (e.g., solely to obtain a continuance for the client), before you appear in court file an entry of appearance with the clerk spelling out your limited representation. Then make sure the resulting order lets you out. Just because you have an agreement with your client that does not mean you do no have continuing responsibility to the court.
Remember, if the court does not let you out of the case by a specific order doing so, you are in it until the court does let you out.
Limited scope representation does not work in probate matters. Once you enter an appearance in most districts you are in it until the judge approves a replacement.

Unless and until you inject into the record that your scope of representation is limited, the court should assume that it is not.

The enforceability of a limited scope representation agreement is contingent upon the resonableness in the circumstances of limiting representation and the client’s informed consent. I think this means that a chancellor may, at any time that you try to invoke such an agreement, inquire into both prongs. My intuition is that most chancellors will enforce the limitation of representation where the client does not object. But where the client objects, and where there is no written agreement, you are in a case-by-case situation.

I have said before that I wish the bar would give lawyers more guidance about the practicalities and the ethics of limited scope representation. Even sample agreements that have worked in other jurisdictions would be helpful. Those kinds of things would be a benefit not only to lawyers, but also to clients with limited funds who could pay a lawyer to do some work in the case without shouldering the full burden of attorney’s fees, rather than going pro se all the way. Win-win.

SOL No Bar in an Egregious Undue Influence and Fraud Case

March 24, 2014 § Leave a comment

We talked here recently about the statute of limitations (SOL) applicable in an action to recover land procured by fraud. A 2002 MSSC case sheds further light on when that statute begins to run, and some other related aspects.

In 1979, 24-year-old Michael Cupit appeared uninvited at the home of Mary Lea Reid, a 78-year-old widow living in Liberty, MS. Cupit, who lived some 40-miles distant in Brookhaven, attributed the visit to his interest in antebellum homes and that some of his relatives had sharecropped on Reid’s land decades earlier. From that visit, Cupit contiinued to visit Reid, and he developed a strong relationship with her, despite his departure to commence law school that fall.

The relationship became intimate, according to witnesses and letters exchanged between the two, although Cupit contended that it was a mother-son relationship.

Cupit testified that he had had conversations with fellow law students about how to obtain Reid’s property.

In 1982, Cupit took Reid to a Brookhaven law firm with the intention of being adopted by Reid so as to cut off claims of any of her heirs. After the lawyer met with Reid, he suggested that an adoption was not necessary. Cupit then asked the lawyer to prepare a deed by which Reid conveyed her real property to Cupit reserving a life estate, which was done, and the deed was recorded.

The next day, Cupit assisted Reid in preparing a holographic will devising all of her property to him. As of the date when this was done, apparently, Cupit had been admitted to the bar. The chancellor found that Cupit, not Reid, was the client of the Brookhaven attorney, and that Reid was Cupit’s client.

In 1983, Reid again visited the Brookhaven law firm accompanied by Cupit, this time meeting with a different attorney. The attorney met separately with Reid and took steps to satisfy himself of her independent will and competence. The product of this meeting was a will essentially identical in substance to the holographic will.

In 1986, Reid adopted Cupit.

In 1995, Cupit had Reid’s power of attorney transferred to himself.

Through the years, Cupit alienated Reid from her family and friends, and restricted their access to her.

Reid died in 1997, and Thomas Pluskat filed for administration of the estate. He was appointed administrator, and initiated an action to set aside the will, the deed, adoption, and power of attorney.

At trial, the chancellor found that Cupit had exercised undue influence over Reid, and that the will, deed, adoption and power of attorney should all be set aside. His opinion stated:

The Court finds that the evidence regarding Michael Cupit’s efforts to exclude most, if not all of the family members and some long-time friends of Mary Reid from her, together with Mary Reid’s strong desire to have a child which she had never had, coupled with the engaging and unique personality and tendencies of Michael Cupit, as observed by the court in the evidence as well as personal observations of Mr. Cupit throughout the course of the trial, combined so as to put Mr. Cupit in a position with Mary Reid that Mr. Cupit could and did over-reach and influence Mary Reid to his advantage and her ultimate disadvantage. Mr. Cupit’s influence, subtle and undetected by some of Mary Reid’s friends, was used in order to gain advantage of Mary Reid and to obtain her property consisting of approximately 205 acres of land, an antebellum home that had been in her family for about 140 or so years and substantial and unique family heirlooms located within the home as well as significant amounts of money from the time of Mr. Cupit’s law school days through the time of Mary Reid’s death. During a portion of this time, subsequent to Mr. Cupit’s beginning of the practice of law, he occupied a dual fiduciary role in that he was her attorney and counselor at law.

* * *

The Court finds as a matter of fact and law that the deed, will, adoption, and subsequent power of attorney granted by Mary Reid and /or pursued by Mary Reid and Michael Cupit were the direct result of Mr. Cupit’s efforts to obtain the property of Mary Reid to his own advantage and to her ultimate harm and disadvantage. Therefore, the Court finds that the deed and will were procured as a result of undue influence, overreaching, breach of a fiduciary relationship, breach of an attorney-client relationship, breach of a position of trust that Michael Cupit had gained with and over Mary Reid notwithstanding the fact that she was “strong-willed.”

Michael appealed.

His first issue on appeal was whether the administrator’s action to set aside the deed was barred by the SOL. In its decision in the case of Estate of Mary L. Reid: Cupit v. Pluskat, handed down May 30, 2002, The MSSC addressed it this way:

¶17. This Court has held that statutes of limitation in actions to recover land begin to run as soon as a cause of action exists. Aultman v. Kelly, 236 Miss. 1, 5, 109 So.2d 344, 346 (1959). However, § 15-1-7 has been construed to require possession by the defendants claiming its protection. Greenlee v. Mitchell, 607 So.2d 97,110 (Miss. 1992); Bowen v. Bianchi, 359 So.2d 758, 760 (Miss.1978); Trigg v. Trigg, 233 Miss. 84, 99, 101 So.2d 507, 514 (1958).

¶18. In Greenlee this Court held that the ten-year statute of limitations on action to recover land did not commence to run as soon as a cause of action existed, upon execution of deed pursuant to undue influence, but only when plaintiffs, the grantor’s heirs, had notice of the existence of an attempted deed, where the defendants had not taken possession in the interim. 607 So.2d at 110.

¶19. Here Cupit did not gain possession with the recording of the 1982 deed. Reid retained a life estate and remained in possession until her death. The only person who could have contested the deed during this period was Reid herself, who was in possession. Therefore, the statute of limitations did not begin to run against Thomas Pluskat until 1997 when Reid died.

¶20. As this suit was commenced well within ten years after Reid died and the defendant was not in possession during her lifetime, Cupit’s claim that the statute had run is without merit.

Cupit also argued that Pluskat had no standing to challenge the adoption, but the MSSC rejected that argument on the basis that it was a fraud on the court, and was part of a long-term scheme by Cupit to take advantage of Reid by fraud and overreaching. The court did conclude, however, that its findings as to the adoption “are specific to the facts of this case.”

Both the will and the deed were found by the chancellor to have been products of undue influence. The MSSC affirmed, saying:

¶25. Cupit argues that the chancellor erred in finding that Reid’s will is void because Reid was competent to make a will and there was no confidential relationship between the two of them.

¶26. As previously discussed, the chancellor found that a confidential relationship and an attorney/client or fiduciary relationship existed between Reid and Cupit. This finding is based on substantial evidence.

¶27. Once a confidential relationship is found, the beneficiary must disprove the presumption of undue influence by clear and convincing evidence. In re Estate of Dabney, 740 So.2d at 921; In re Estate of Smith, 543 So.2d 1155, 1161 (Miss. 1989).

¶28. To overcome the presumption of undue influence, the proponents must show (a) good faith on the part of the beneficiary, (b) the grantor’s full knowledge and deliberation of the consequences of her actions, and (c) the grantor’s independent consent and action. Mullins [v. Ratcliff], 515 So.2d [1183,] at 1193.

¶29. For many of the same reasons he found that the deed was a product of undue influence, the chancellor also found that Reid’s will was a product of undue influence. The attested will was an almost exact copy of the holographic will which Cupit helped Reid prepare. As discussed previously, the chancellor found that Cupit did not act in good faith in any part of his dealings with Reid. The chancellor also found that Reid did not receive independent counsel in the making of her will. We find that the attorney who prepared the will acted as a mere scrivener and that Reid did not receive independent counsel concerning her will. In re Estate of Moses, 227 So. 2d 829, 833 (Miss. 1969). We affirm the chancellor’s decision to set aside the will.

I commend the decision to your reading both as an object lesson in unethical, dishonest and rapacious conduct by an attorney, and as an exposition on the particular points of law in this case.

An interesting sidelight: two of the attorneys in the case have judicial experience. Current District 14 Circuit Court Judge Mike Taylor was one of the attorneys representing Pluskat. Former Mississippi Supreme Court Justice James Robertson was one of the attorneys representing Cupit.

Further on the Changing Landscape of Legal Fees

January 10, 2014 § 1 Comment

The subject of limited scope representation has been touched on here. Limited scope affects fees, but even more to the point is that the construction of legal fees is undergoing a metamorphosis in reaction to changing economics.

The following is from a 2013 ABA publication …

The Great Recession has ushered in an era of alternative fee arrangements, according to a recent article in GPSolo magazine. Every year, more clients and lawyers experiment with AFAs, and some skeptics become converts.

A recent report by Altman Weil shows that in 2009 only about 20 percent of the lawyers surveyed thought that nonhourly billing had become a permanent trend within the profession. By 2012 that number had increased to 80 percent.

The report went on to observe that AFAs were being employed by almost all firms responding to the survey. Yet a substantial number of these firms also reported lower profitability when using AFAs. This suggests that law firms and clients have not yet figured out how to turn AFAs into win-win propositions. If they do not, for financial reasons alone, it is likely that firms will embrace AFAs only if required by clients.

In this economy, at least for the short term, it appears that law firms will be forced to agree to alternative fee arrangements if clients demand those arrangements. Indeed, because of client interest, almost half of the firms surveyed by Altman Weil reported a year-to-year increase in the amount of nonhourly billing, as measured as a percentage of revenues.

As a result of the change in dynamics, law firms and clients have created numerous alternatives to the billable hour when pricing legal services. The most common are outlined below:

Contingent fees. This “old standby” has long been an alternative for hourly billing. A contingent fee is dependent on the results obtained. This obviously requires a clear understanding of what the results are. In personal injury cases, this determination is usually easy. It is a percentage of the amount recovered for the injuries sustained by the client. In other types of cases, however, defining successful results can be problematic.
Reverse contingent fees. A reverse contingency allows for compensation based on an avoidance of exposure to liability. Although in some cases it may be difficult to determine the amount of exposure escaped, it is not impossible. Most lawyers know how to place a value on their cases, and defense counsel relying on both personal knowledge and public reports of damage awards in their jurisdiction have become adept at assessing the likelihood of both liability and the amount of damages.
Fixed fees and flat fees. A fixed or flat fee is the price that a firm charges no matter how many hours its lawyers spend on a matter. A fixed fee may be the total fee for the engagement or may apply to discrete components of a matter, such as fixed fees for discovery, pretrial motion and the actual trial.
Blended rates. Blended hourly rates apply to all hours billed on a matter. The blend includes the lower rates of associates and the higher rates of partners. Unlike capped fees or fixed fees, it does not provide the client with budgeting predictability.
Percentage fees. A popular alternative fee arrangement is the percentage fee, either constant or graduated, and based on the amount of the transaction. Some courts allow fees to be determined by the value of the estate being probated. The fees for many bond issues are likewise determined by the percentage of the amount of bonds sold.
Combined approaches. Many alternative fee arrangements combine various approaches. Some firms create fee schedules based on a low blended hourly rate plus a contingency. Other firms base their fees on all the factors set forth in the ABA Model Rule of Professional Conduct 1.5. Alternative fee arrangements may even include an amount retrospectively set, based on the value received by the client.

GP Solo is a publication of the Solo, Small Firm and General Practice Division.

Some of these fee arrangements, such as contingent and percentage fees, have only limited applicability in chancery, due to MRPC 1.5(d)(1).

The article seems to imply that these “alternative” billing arrangements are interim, during the economic downturn, and that the old practices will be restored when prosperity is restored. I’m not so sure. Everyone likes to save money, and legal clients are not exempt from that desire. As new fee arrangements come into play, clients will become accustomed to leaner, more efficient, more economical legal practices and fees. It will be hard to return to the old ways.

Adapt and survive. Lawyers who cling to the old ways will be eclipsed by those who are willing to adopt more efficient ways of doing business. Lawyers who proudly proclaim that they don’t even know how to turn on a computer, and who rely on high-overhead staff to do work they could easily do themselves, will not be competitive in this 21st-century environment. Clients don’t want to pay the higher tariff for 19th-century-style representation when 21st-century technology affords cost-saving possibilities. Thus the pressure for what the article calls “alternate” fee arrangements, but what I would refer to as the new reality.

Thanks to attorney Marcus D. Evans for the raticle.

Some Etiquette Tips for Young Lawyers

October 31, 2013 § 6 Comments

Every chancellor has his or her own preferences about how lawyers should conduct themselves in court. You need to acquaint yourself with your chancellor’s likes and dislikes, and attune yourself accordingly. Some practices, though, are universal. Violate them and you will likely suffer the wrath — or at least the dissatisfaction — of your chancellor. Here they are:

Be on time for court. This is a cardinal rule, and violation can cost you, as spelled out in UCCR (that’s Uniform Chancery Court Rules, for the unitiated)1.05:

“When any civil action has been set for, or adjourned to, a particular day or hour, all officers, parties, witnesses and solicitors whose presence is necessary for the trial shall be present at the time set. Any negligent or willful failure to obey this rule shall be punished by contempt.”

In other words, you’d better have a reason for your tardiness that falls in a category other than negligence or willfulness, or you may pay the price. Tardiness is not only rude and disrespectful of the court, it’s also rude and disrespectful of all the others who are assembled awaiting your late appearance.

Make sure your witnesses understand decorum. UCCR 1.01 says that all proceedings are to be conducted “with due formality and in an orderly and dignified manner.” A trial in chancery is not conducted like a trial in Judge Mathis’s court, although it seems like a significant number of laypeople think so. Tell them to avoid banter and talking to or seeking input from folks in the audience. Advise them to listen carefully to and answer the questions asked, and to behave always in a respectful manner.
Leave the Doberman act at home. No matter what you’ve seen in the movies, it’s not effective in a bench trial to try to treat witnesses like you were an attack dog. There’s no jury to impress. The judge will likely be unimpressed, and may even rebuke you for browbeating the witness. Sure, it’s okay to bear down and press the witness, testing credibility, but UCCR 1.01 says that “Bickering or wrangling between counsel or between counsel and witness will not be tolerated.” It’s a search for the truth, not theater.
Three people talking at the same time makes for a bad record. You have to educate your clients and witnesses not to speak over the questions or statements of others. It’s impossible for the court reporter to records that kind of thing accurately, if at all. And keep that in mind yourself. I have had to tell two lawyers and a witness all speaking at the same time to hush, and then I’ve had to tell them not to interrupt or speak over me while I am trying to set matters straight. We all have a responsibility to make a good record, but that’s impossible when everyone is speaking over one another.
Stand when addressing the court. This is another principle set out in UCCR 1.01. It makes good sense, because it not only shows respect for the court, but it demonstrates for all the laypeople present that this is not like a conversation in the living room; it’s a formal court proceeding.
Speak up. Many judges are as old as I am. That means that they — as did I — likely spent a youth of dissipation listening via headsets to the Rolling Stones with the volume cranked up to the max. As a result, our hearing is not the best. You grew up in an age where every conversation is amplified by some electronic device. Many courtrooms lack those devices, so you have to crank your own, personal volume up.
Fill in the blanks. Never present a judgment or property settlement to the judge with blanks that are not filled in. It wastes everyone’s time, causes confusion, and makes you appear to be unprepared. See UCCR 2.06.
If your case settles, tell somebody. If your case settles, or is rescheduled by agreement, or otherwise is not to be presented for some appropriate reason, notify the court administrator or chancery clerk, or the judge in advance. What would your reaction be if you drove 25, or 50, or 70 miles, only to learn that the trip was entirely unnecessary? What would be the reaction of someone who did that who had the power to hold you in contempt for it? See UCCR 3.12.

I could go on, but I hope you get the picture. Most of you do. Most lawyers, even new ones, grasp the idea of decorum and its importance to court proceedings. It’s a component of professionalism for the practitioner. It’s an element of preserving respect for the court.

Helping Your Client to Ease the Pain of Visitation

September 4, 2013 § 2 Comments

Yes, I said pain. What should be a joyous reunion for the children with the non-custodial parent is often fraught with anxiety and insecurity.

That’s because the children are aware of the animosity and tension between the combatant parents. Some children have seen angry confrontations and even violence between the two persons whom they love more than anyone else. They want to have a relationship with each parent, but they are afraid to hurt the feelings of one if they show any enthusiasm for the other.

You are in a unique position to influence your clients to do a better job in making it easier and healthier for the children in these situations. Here are a few suggestions for the custodial parent:

Reassure the child that you will be okay while he or she is away. A child I spoke with years ago told me she did not want to go visit with her dad because she was worried that her mother would be lonely and sad without her. Remember that children have seen their parents sad, crying, upset and emotional during the heat of the divorce. They feel it is their responsibility to try to fix it. The custodial parent can alleviate the child’s concern by assuring him or her in the few days leading up to visitation that the parent has plenty to do, and will be happy to see the child go off for an enjoyable visit.
Let the non-custodial parent participate in the children’s lives. The transition to visitation is much easier when the non-custodial parent is not a stranger who drops in every other weekend. Encourage the children to call the other parent, to send birthday and holiday cards, to Skype every now and then, to call with news like good grades or a smiley face for good behavior in school. Let the children invite the other parent to school and church programs, sports, and award preseentations.
Leave the visitation schedule free for visitation. Never schedule outings, events, or even sports activities during the other parent’s visitation without his or her permission.
Be flexible in scheduling. Both parents should yield to the other’s reasonable requests for rescheduling due to family reunions, weddings, family holidays, and the like. If the non-custodial parent can only schedule Disney World with the children during the first week in July, why shouldn’t the custodial parent give up her July 4 holiday for some other time?
Make exchanges amicable. Leave the drama at home when it comes time to exchange the children for visitation.
Share school pictures. Get extra copies for the children to give to the non-custodial parent, the grandparents and other members of the family. The little wallet-sized and 4×6 sizes are not that expensive. Get a few copies of the order forms to give to the other parent and family so that they can order as many and whatever size photos they want.
Listen to the children’s experiences when they return home. Show interest in their experiences, and encourage them to share their enthusiasm, but never pry into what is going on in the other home or use the children as spies.
Understand that parenting styles are different, and that’s okay. The children may come home with wide-eyed tales of being able to stay up to midnight, or to watch a scary movie, or being able to eat popcorn in bed. Reassure them that the rules can be different in different places, and the important thing is that they honor the rules set down by each parent.

You can come up with some more, based on your experiences as a family lawyer. The important thing is that you are not only a legal advisor; you are a wise counselor who can help defuse and heal some hostile situations. Clients remember that kind of help when their friends ask who they would recommend in their own divorce situations.

Before someone brings it up in a comment: Yes, I am aware that sometimes the other parent is beyond reason and commits all manner of atrocities in the visitation process. That does not mean, however, that your client should not try to “wear the white hat,” and do the right thing. One one hand, it’s the best thing for the children, and it’s the right thing to do. And on the other hand, it always puts your client in a better standing with the judge when he or she has been the one to do right.

Settling for Something

September 3, 2013 § Leave a comment

We’ve discussed here the lawyer’s power to bind the client, as in a settlement announcement where the agreement was to dismiss the lawsuit with prejudice upon payment of a settlement sum. The specific case we focused on was Williams v. Homecoming Financial, a COA case handed down July 23, 2013.

In Williams, the disappointed plaintiffs felt that there was not enough money on the table, and sued to get out of the settlement agreement. The attorney countered that the terms of the settlement had been thoroughly discussed with and agreed to by the Williamses before the settlement was announced. They were unsuccessful in their quest to escape the agreement.

How and what you communicate with the client about settlement is critical. That’s because Mississipi Rule of Professional Conduct 1.2 specifies that there is only one decision in chancery court where the client retains absolute decisional autonomy, and that is whether to accept an offer of settlement. That means that your client calls the shots when it comes to how the case will settle.

An extreme case where the lawyer ran right over, around and through that autonomy is Culpepper v. Miss. Bar, 588 So.2d 413 (Miss. 1991), in which the attorney: (a) did not communicate the terms to the client before announcing it in open court; (b) failed to advise the court that his client thought the case was being settled on different terms; (c) did not disclose to the court that the settlement agreement was different from one his client had signed; (d) represented to the court that the parties had agreed to the terms of the agreed judgment, knowing that was not true.

Three clear duties arise from R 1.2:

The duty to communicate any offer or demand to the client, no matter how unreasonable;
The duty to confer with and avise the client about the pros and cons of settlement, and the strengths and weaknesses of both sides’ cases; and
The duty to zeaalously represent the client to accomplish the client’s settlement goals, unless the lawyer feels that they are so unreasonable, frivolous, or otherwise unmeritorious that withdrawal is warranted.

The autonomy of the client can be varied by contract, but not eliminated. For instance, the lawyer-client contract can provide that the lawyer may settle the case within certain parameters. That would be ethical. But an agreement that vests in the lawyer sole, final decision-making authority would be unprofessional, because only the client can make that final decision. See, Jackson and Campbell, Professional Responsibility for Mississippi Lawyers, 2010, § 8.4 – 5, pp. 8-6 – 8-8.

The only exception to the rule is in MRPC 1.14, which addresses how to deal with impaired clients.

It’s true that a lawyer should not let the client dictate the strategy and tactics of representation. But the end of the litigation is always within the client’s discretion. You have the power to bind your client, but if you invade the client’s province to settle, you may face some unpleasant consequences.

Ethics and Social Media

August 19, 2013 § 3 Comments

Facebook, MySpace, and Twitter, along with other social media sites, nowadays find their way into evidence in family law cases. Add in the texting, sexting and emailing that seems to be rampant, and you have a rich source of salacious proof that can prove fault and unfitness from every conceivable angle.

Most attorneys, I am told, advise their clients early on to shut down their social media pages and clean up their smart phones.

Are there ethical implications to that advice?

Well, here’s an item from the August 7, 2013, online ABA Journal that might be of interest:

A Virginia lawyer who advised a plaintiff suing over the death of his wife to clean up his Facebook photos has agreed to a five-year suspension.

Matthew Murray was unavailable for comment on his suspension because he was volunteering with a group performing maintenance on the Appalachian Trail, relatives told the Daily Progress. The Legal Profession Blog notes the July 17 suspension order, published online on Aug. 2.

Murray’s client, Isaiah Lester, had sued Allied Concrete for the death of his wife caused when a cement truck crossed the center line and tipped over on the Lesters’ car.

Murray had instructed a paralegal to tell Lester to clean up his Facebook page after lawyers for Allied Concrete sought screen shots and other information, the Daily Progress says. Lester deleted 16 photos, including one in which he held a beer can and wore a T-shirt that said “I (heart) hot moms.” Defense lawyers recovered the photos before trial and jurors were told about the scrubbed photos.

As a sanction, a trial judge had ordered Murray and Lester to pay $722,000 to lawyers representing Allied Concrete for their legal fees. The judge had also slashed Lester’s $8.5 million jury award, but the Virginia Supreme Court reinstated the verdict, the Daily Progress reported in January.

The suspension order says Murray violated ethics rules that govern candor toward the tribunal, fairness to opposing party and counsel, and misconduct.

It seems to me that the transgression here was that the advice to purge the photos came after the discovery requests had been made.

Is it unethical to advise a client at that first interview, before any pleadings or discovery are filed, to take down questionable photos and posts from Facebook and MySpace? Is that destruction of evidence? It’s one thing to stop self-damaging conduct; it’s quite another to recreate and repair the past by doing away with, or even fixing, the incriminating items.

I don’t have an answer. I only have the question.

An earlier post on introduction of all forms of electronic evidence is here.

Thanks to attorney Marcus D. Evans.

LAWYERS AS WITNESSES

June 12, 2013 § 5 Comments

On two occasions this year I have seen lawyers take the witness stand and, with absolutley no objection from the other side — not even a quiver of objection — have proceeded to testify as to the merits of the matter at hand. In neither case was the testimony dispositive.

That flies in the face of my preconceived notion that lawyers who are representing a party in a case are not supposed to testify in that case, except as to attorney’s fees and, possibly purely procedural matters.

So I checked Jeffrey Jackson and Donald Campbell’s excellent Professional Responsibility for Mississippi Lawyers, MLI Press, 2010, and — voila! — here is what they say at § 25: 8, p. 25-10:

At trial, a lawyer is an advocate, and not a witness. A lawyer who is in the position of being a material witness would usually be disqualified from representation under [Mississippi Rules of Professional Conduct] Rule 3.7, which seeks to avoid jury confusion over the lawyer’s advocate and witness roles. If a lawyer acts as an advocate, she should not assert personal knowledge of facts at trial. Such assertions of personal knowledge are prohibited under [Mississippi Rules of Professional Conduct] Rule 3.4(e) except when the lawyer is otherwise properly testifying as a witness. [Footnote omitted]

The text alludes to juries, but I think it is applicable also to bench trials also where the lawyer takes the witness stand and acts as a material witness. The lawyer intends for the testimony to be taken as substantive and given probative weight, when the witness was — or should have been — disqualified from testifying in the first place.

The official Comment to Rule 3.7 says that, “A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” The Comment adds that the opposing party has an objection whenever the combination of roles may prejudice that party’s rights in the litigation.

The provision in Rule 3.7 that lawyers who are material (the word “necessary” is used in the rule) witnesses are disqualified has the obvious purpose of prohibiting lawyers from avoiding the witness stand by taking cover behind the advocate’s role and its prohibition against testifying.

With the exception of attorney’s fees, I don’t think it’s a good idea for lawyers in a representative capacity to take the witness stand.

WHEN FINANCIAL PROOF IS JUDGE ABUSE

May 22, 2013 § 10 Comments

The MSSC case of Collins v. Collins, decided May 9, 2013, includes a discussion of one of the most frustrating aspects of divorce trials from the viewpoint of the judge: the party who provides incomplete, incredible, and misleading financial information upon which the court is required to base a financial adjudication.

Perry Collins and his unhappy wife, Iretha, were locked in a divorce battle for more than four years. Perry, who changed lawyers almost as frequently as the wind changed, operated a sole proprietorship heating and air conditioning company. He admitted at trial that his 8.05 financial statement was “incorrect and contained omissions.” For example, he claimed that his business overhead was $300,000, which exceeded his receipts by more than $110,000. He also did not provide income tax returns because he had not filed any in the two years before trial. The opinion is silent as to why he could not provide copies of returns he had filed.

No doubt the chancellor was somewhat put out with Perry’s cavalier attitude toward the financial proof. She simply totaled his receipts, allocated half to overhead, and declared that one-half, or $94,459.57, was Perry’s adjusted gross income. She then socked him for $1,300 in child support.

In reversing on the point, the court said this about Perry’s less-than-adequate 8.05:

¶17. The chancellor’s concern with the document is justified. In fact, we have stated that failure to comply with Rule 8.05 constitutes a fraud on the court. See Trim v. Trim, 33 So. 3d 471 (Miss. 2010). However, if the chancellor makes such a finding, the appropriate remedy for such behavior is to hold Perry in contempt and enter appropriate sanctions – not to punish him by disregarding any other credible evidence provided by him to the court. See Uniform Chancery Court Rule 8.05 (“The failure to observe this rule, without just cause, shall constitute contempt of Court for which the Court shall impose appropriate sanctions and penalties”). Rule 8.05 allows evidentiary discovery in addition to the disclosure. Id. In short, errors or omissions in the form do not preclude consideration of other evidence presented to the chancellor. We therefore find that the chancellor was manifestly wrong when she arbitrarily determined Perry’s monthly income to the exclusion of the undisputed evidence he provided.

The “undisputed evidence” that Perry provided consisted of his 2009 “business bank records,” which the MSSC found had enough information for the judge to deduce that his overhead expenses were considerably more than the one-half that the judge found, so that his actual income was considerably less than what she concluded.

I am shooting from the hip here, but I believe I would have stopped the trial and told counsel to get busy and present the court with a truthful, accurate 8.05, using the business records, and I would not have let them go forward until they did so. In the alternative, I would have offered to appoint a CPA expert at Perry’s expense to do the job.

Dumping a pile of “business bank records” and an incomplete, discrepancy-riddled, incredible 8.05 on the court is judge abuse. It’s also malpractice, but that’s another story. I wish that the supreme court had said that, if you dump on the trial court like that, you get whatever you deserve. Instead, the court’s message is that the burden is on the judge. Knowing that, I don’t imagine chancellors will be so accommodating in the future as the chancellor was in this case. Pity.

WHAT IS THE FUTURE FOR LAWYERS?

May 17, 2013 § 4 Comments

If you haven’t noticed, the legal profession is at a pivot-point. The big firms have been downsizing for years, finding it more and more difficult to payroll armies of lawyers as damage caps and other litigation-discouraging measures have eroded the caseloads of both defense and plaintiffs’ firms. Corporate clients in a bad economy are relying more and more on in-house counsel and alternate dispute resolution as ways to cut legal costs.

Here in Mayberry, the everyday folk simply don’t have the money to pay big fees when a divorce or custody war looms. They look for cheaper ways, and the internet beckons with the alluring promise of bright success via fill-in-the-blank forms.

Against this backdrop, law school grads are finding more and more that there simply are no jobs. Those student loan repayments loom large as unanswered resumes and rejections pile up.

Richard Susskind, a UK lawyer who has studied the British and American legal systems, has been probing these and other developments to discern the future of the law and the legal profession as society moves inexorably deeper into the technological age. In his book, The End of Lawyers?, he raised the question whether lawyers had not become an anachronism, to be replaced by legal technicians handling routine legal matters, a handful of litigation specialists doing courtroom work, and platoons of document-analysis specialists, financial advisors, legal counselors, and others performing at greatly reduced cost the components of what lawyers do now for $300-$500 an hour. His point is that delivery of legal services will yield to the forces of economics and technology until it offers cheaper, more efficient ways to serve the public.

Susskind’s latest book, Tomorrow’s Lawyers: An Introduction to Your future, condenses all of the foregoing into a concise, quick read, readily accessible to any busy practitioner. The pocket-size book is only 164 pages of text, but it is crammed with provocative ideas. Susskind not only talks about the forces that are reshaping law and the practice, but also how they impact the courts and delivery of legal services.

This is a brilliant book. I commend it to all lawyers and judges, particularly those who will be involved in the legal system over the next 15-20 years. The forces of change that Susskind highlights will be either a sweeping tide of change or a sweeping tide that carries many away. We can ride it and adapt to it, or we can drown in it. We get to choose.

In my opinion, many of the ways we do business in our courts are straight from the nineteenth century. There have been some intrusions of technology, but for the most part Abe Lincoln and his contemporaries would likely find themselves right at home in our courts. We should not be afraid to examine the ways we plead, offer proof, take testimony and otherwise carry out due process in trials and hearings with a view toward streamlining the processes, making them less costly, and trimming months — if not years — off them.

I encourage you to read Mr. Susskind’s book and give this some thought. It’s your future.

Where Am I?