ALI-ABA Course of Study Eminent Domain and Land Valuation Litigation February 17-19, 2011 Coral Gables, Florida

Transcription

1 391 ALI-ABA Course of Study Eminent Domain and Land Valuation Litigation February 17-19, 2011 Coral Gables, Florida Ethics for Everyone: Some Things Old, Some Things New By Timothy P. Chinaris Faulkner University, Jones School of Law Montgomery, Alabama

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3 393 Ethics for Everyone: Some Things Old, Some Things New Presented by: Timothy P. Chinaris Faulkner University, Jones School of Law Eminent Domain and Land Valuation Litigation ALI ABA Conference Coral Gables, Florida February 18, 2011 I. Introduction A. Goals for our session B. Avoiding basic ethical trouble spots C. Eminent domain topics 1. Communication with represented governmental officials, and employees 2. Attorney s fees 3. Working together ethically with other professionals D. Emerging technology-related ethics issues for all attorneys 1. Florida Ethics Opinion 10-2: you are responsible for (almost) everyone 2. Cloud computing 3. Virtual law practice 4. Blogging 5. Judges and technology 6. Technology and trial conduct 7. Malpractice and disqualification issues 8. Unauthorized practice of law -1-

4 394 II. Avoiding basic ethical trouble spots A. A pervasive problem we have a failure to communicate B. Protect yourself by having and following written office procedures. See, e.g., Anthony E. Davis and Peter R. Jarvis, Risk Management: Survival Tools for Law Firms (2 nd ed.; ABA 2007). C. Sloppy office procedures can lead to more than just a bar complaint. See Garner v. Somberg, 672 So.2d 852 (Fla. 3d DCA 1996) (lawyer disqualification). III. Eminent domain practice issues Communication with represented persons and entities A. ABA Model Rule of Professional Conduct 4.2: In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. B. Basic questions: When is the rule triggered? Who does it cover? What types of communications does it apply to? C. A roadmap of the ethical issues: Florida Ethics Opinion 09-1 (approved December 2010) The situation: Law firm represents clients who have dealings with the regulator, State Agency. Some clients matters are in litigation, some are not. 2. State Agency has a general counsel. The general counsel wants all of Law Firm s communications (about any matters) with State Agency officials or employees (at any level) to go through general counsel s office. D. When does the no-contact rule kick in? 1. Is it necessary that the matter be in litigation? 2. Rule 4.2:... a lawyer shall not communicate about the subject of the 1 Access Florida Ethics Opinion 09-1 through the sunethics.com resource page < or directly from the Florida Bar website at -2-

5 395 representation with a person the lawyer knows to be represented by another lawyer in the matter Florida Opinion 09-1:... Rule should not be read to bar all communications with government officials and employees merely because the government entity retains a general counsel or other continuously employed lawyers. 4. BUT... Opinion 09-1 tries to strike a balance: Conversely, the rule cannot be read to allow lawyers representing a client to approach represented public officials and employees to make inquiry about a matter, the status of a matter, or obtain statements about a matter without affording such officials and employees an opportunity to discuss with government counsel the advisability of entertaining the communication. If the lawyer representing a client knows that the public official or employee is represented in the matter, the lawyer must obtain the prior consent of the government lawyer. If the lawyer representing a client does not know that the public official or employee is represented in a matter, the lawyer should inquire whether the person is represented in the matter. E. Who in a government agency is covered by the no-contact rule? 1. Just because the rule is triggered does not mean that it covers every communication with every official or employee of a represented governmental agency. 2. Control group approach see Comment to ABA Model Rule 4.2: In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. 3. Are there any exceptions for contacts with high-level elected or appointed government officials? a. ABA Rule 4.2 permits unconsented contacts that otherwise would be prohibited, when the contact is authorized...by law or a court order. b. Comment to Rule 4.2: Communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with -3-