November 21, 2007

Karen A. Gould to Be New Executive Director of the Virginia State Bar

Karen A. Gould, a Richmond attorney, has been named the new executive director and chief operating officer of the Virginia State Bar, the agency of the Supreme Court of Virginia that regulates more than 40,000 lawyers.

Gould was selected by a Virginia State Bar committee after a nationwide search. Her appointment was approved by the Virginia State Bar Council, the bar’s governing body, and subsequently by the Supreme Court.

Gould will succeed Thomas A. Edmonds, who is retiring after 18 years in the position. She will begin on Dec. 1, 2007.

Gould served as president of the Virginia State Bar for the fiscal year ending 2007. An active volunteer at the bar for more than 15 years, she was chair of the agency’s Disciplinary Board, Continuing Legal Education Board, and Budget and Finance Committee, and she served on the district disciplinary committee that hears lawyer misconduct cases in Richmond.

She received a bachelor’s degree from the University of Virginia in 1976 and a law degree from the University of South Carolina in 1979. She clerked for U.S. District Judge Glen Williams of Abingdon, then was a litigator for the Virginia Attorney General’s Office for four years.

She entered private practice in 1984 at Crews & Hancock in Richmond, where she practiced for 20 years. Most recently, she was a partner with McSweeney, Crump, Childress & Gould PC. Her practice focused on defense of health-care providers in professional liability cases, workers’ compensation cases, and other litigation.

The Legal Ethics Hotline receives many calls and emails asking what are the ethical obligations when a lawyer departs one law firm to join another?

Lawyer mobility used to mean the journey over the course of a lawyer’s career in the same law firm from associate to partner. Now most lawyers will likely change firms or positions several times over the course of their career.

Whether the departure is amicable or not, there are several important ethical requirements for (1) the departing lawyer, (2) the old firm, and (3) the new firm.

Notice to the First and fore- most, the departing lawyer must give reasonable notice of intent to leave the firm promptly after making a commitment to join another firm.

Discussions of possible employment with the new firm.

Lawyers considering a lateral move to another firm will need to disclose limited information about the clients they have represented and the matters that they have handled during employment at the old firm so that the hiring firm may screen and check for possible conflicts of interest.

Firms worry whether conflicts of interest will be created when accepting a lateral hire.

The ABA tackled this issue in ABA Formal Op. 09-455 and later added Model Rule 1.6(b)(7) saying that, when engaged in serious negotiations for employment with a new firm, a lawyer may disclose limited information to the extent reasonably necessary to detect and avoid conflicts of interest.

Virginia has not adopted this amendment to Rule 1.6; however, it would seem that the lateral hire could disclose limited information under Virginia’s Rule 1.6 unless the client has directed that the information not be disclosed, or disclosure would likely be “detrimental  or embarrassing” to the client.

In most instances, the client’s identity and the general nature of the matter the lawyer is handling for the client is neither privileged nor “confidential” as defined by Rule 1.6(a).

Thus, the lateral hire should be able to disclose enough information for the new firm to check for conflicts but without breaching any duty of confidentiality owed to the lateral hire’s clients.

Generally, the lawyer need not obtain client consent before discussing possible employment at another law firm to disclose this limited information.

Sometimes a lawyer considers making a lateral move to a law firm that is an adversary in a pending case.

This may create a conflict of interest under Rule 1.7(a)(2) because the lawyer’s loyalty to the client in the pending matter may be materially limited by the lawyer’s conflicting and personal interest in securing employment with the adversary firm.

The lawyer must obtain informed consent from the affected client before pursuing earnest negotiations with the adversary firm.

If the client will not consent, the lawyer may not pursue employment discussions with the adversary firm until the pending case is concluded.

Notification of Affected Clients. Lawyers have an obligation under Rules 4 and 5.8 to communicate with a client about the impending departure of a lawyer who has had primary responsibility over that client’s active legal matter. Both the departing lawyer and the law firm have a duty to inform firm clients of any material change in the representation, including the departure of a lawyer that had primary responsibility for the client’s matter, and obtain the client’s informed decision as to how the client wishes the matter to be handled going forward.

This communication, however, must not occur until after the attorney has first given notice to the firm of the impending departure and an attempt to meet and confer with members of the old firm about how and to whom notice shall be given. Rule 5.8(a)(1).

See, e.g., Restatement of the Law (Third) of The Law Governing Lawyers, sec. 9(3) (2000) (lawyer leaving firm may solicit firm clients prior to leaving only after lawyer has informed the firm of the lawyer’s intent); Ohio Supreme Court Ethics Op. 98-5 (1998) (departure should be discussed between firm and departing lawyer before client is informed); Pennsylvania and Philadelphia Joint Ethics Op. 2007-300 (in most cases, client notice should not precede notice to lawyer’s firm); and Fla. Rule of Prof. Conduct 4-5.8 (prohibits a departing lawyer from sending notice until after a good faith effort to negotiate a joint notice).

While both the departing lawyer and the old firm have a duty to notify active clients over whose matters the departing attorney has had primary responsibility, the best practice is for both to issue the notice jointly.

Whether

issued jointly or separately, the notice should be neutral, making clear the op- tions from which the client may choose: the departing lawyer, the firm or neither. Even if the departing lawyer does not in- tend for any clients to migrate with him or her, clients should be informed of

the lawyer’s departure if the lawyer had primary responsibility for handling the client’s matter.

While these requirements are not always followed, lawyers who solicit firm clients before announcing their departure are in effect competing with their own firm and may face a civil action alleging breach of fiduciary duty, tortious interference with contract, and unfair competition. Examples of imper- missible actions when planning to leave a firm include: (1) soliciting firm clients pre-announcement; (2) soliciting firm employees pre-termination to join the departing lawyer; (3) lying to the firm or being deceptive about plans to leave; (4) using firm property or resources with- out permission before announcement, i.e., copying client files, downloading client data and removing firm property in order to solicit clients.

ABA Formal Op. 99-414 (1999) provides guidance on the information that should be put in the announcement or notification letter to clients. The information clients typically should receive would include:

• Effect of Transition – an explanation for the lawyer’s withdrawal  possible future unavailability; the time frame after which the departing lawyer will no longer be available; current status of the client matter; and identity of person to contact regarding client file.

• Right to Counsel of Choice – the option to remain with the law firm, choose representation by the departing lawyer or choose representation by other lawyers or law firms.
• Liability for Fees and Costs – if the client chooses to terminate the law firm, information about any responsibility the client has for fees and costs already incurred.
• Refund of Unearned Fees and Costs

– how any advanced fees and/or costs deposits will be handled. See Rule 1.16(d).

• Transfer of Client File – how transfer of the client’s file will be handled and if the client may be charged a reasonable charge for copying the file for a succes- sor See Rule 1.16(e).
• Accounting of Client Property Held in Trust – a complete and accurate of all property and funds the law firm is currently holding in trust and whether the trust property will remain in the law firm’s possession a request for direction from the client.
• Overreach or attempt to persuade clients to stay with the old firm;
• Deny the departing lawyer access to contact information for migrating clients;
• Withhold the client’s file or refuse to allow the departing lawyer access to the file;
• Withhold or refuse to transfer un- earned fees held in trust by the old firm;
• Further communicate with clients that have given notice to the firm that they have chosen the departing attorney, except as to those matters discussed above in section 3 regarding the notification to See Rule 4.2.

1.9 (“Lawyers Moving Between Firms”).

When the lateral hire leaves the old firm, the clients left behind become former clients because the departing lawyer has effectively terminated the professional relationship if the clients have chosen to remain with the old firm. Any conflicts at the new firm must be analyzed under Rule 1.9.

For there to be a conflict, the new firm must be representing a client directly adverse to a client of the old firm in the “same or substantially related matter;” and, the lateral hire must have been personally and substantially involved in the representation of the old firm’s client or obtained confidential information about that client which the lateral hire would be barred from using or disclosing by Rule 1.9(c).

Under those circumstances, the lateral hire’s conflict is imputed to all the lawyers in the new firm under Rule 1.10. In Virginia, the imputed conflict can be cured only with the informed consent of the old firm’s client.

Lateral Hire Conflicts of Interest for New

Notwithstanding efforts by the hiring firm to avoid conflicts when bringing in a lateral hire, the new firm may have to manage and resolve some conflicts. First, the new firm may represent clients adverse to a client at the lateral hire’s old law firm if the lateral hire was not personally involved in that client’s matter and did not gain any confidential information while at the old firm. See Comments [4]-[5] to Rule

While these requirements are not always followed, lawyers who solicit firm clients before announcing their departure are in effect competing with their own firm and may face a civil action alleging breach of fiduciary duty, tortious interference with contract, and unfair competition.

Time for Response – time for client to respond to the notice and the conse- quence if the client does not respond to the notice, such as the client is considered to remain a client of the firm until such time as the client gives notice otherwise. See Rule 8(d).

Obligations of Old Firm. The old firm must be careful not to interfere with a client’s autonomy and decision to migrate with the departing The client’s right to terminate the old firm and hire a successor lawyer is virtually absolute. It is improper, once the client has made the choice to go with the departing lawyer for the old firm to:

Tips For Effectively Dealing With Pro Se Litigants

In bringing or defending a lawsuit, a person may choose not to hire a lawyer, and instead to represent himself or herself. Such unrepresented parties are known as pro se litigants.

Given that most pro se litigants are not lawyers and do not understand court rules or the workings of courtrooms and litigation matters, litigating a case against a pro se litigant can be difficult and costly. However, an awareness of the unique challenges posed by pro se proceedings can help attorneys minimize such difficulties and associated litigation costs. A number of strategies that attorneys may find helpful in accomplishing this goal are discussed below.

Make Your Role Clear

In the course of a lawsuit involving a pro se litigant, there will likely come a time when the individual asks the opposing lawyer what he or she should do next. For instance, a pro se litigant may ask the lawyer how to respond to a motion or discovery request, or about court rules.

In responding to such questions, a lawyer must be very careful not to run afoul of the ethical rules. For instance, Rule 4.3 of the Massachusetts Rules of Professional Conduct provides that in dealing with an unrepresented individual, a lawyer must not state or imply that he or she is disinterested, and that the lawyer must make reasonable efforts to correct any misunderstanding an unrepresented person has about the lawyer’s role in the matter. Rule 4.3 also prohibits a lawyer from giving advice to an unrepresented person (except a recommendation to hire counsel) when the person’s interests reasonably might be in conflict with the interest of the lawyer’s client.

In light of Rule 4.3 (and similar ethical rules in other jurisdictions), a lawyer should be sure to explain to a pro se litigant, at the very beginning of a case, that the lawyer owes a duty to his or her client to zealously represent the client and, therefore, that the lawyer will always be acting in the best interests of the lawyer’s client. Further, if asked a legal question by a pro se litigant, the lawyer should refrain from giving legal advice or recommending to the individual what action to take in the litigation.

Calmly Explain The Actions Being Taken

Dealing with a pro se litigant can be frustrating. Many pro se litigants are not aware of court and procedural rules and do not bother to take time to learn the rules. Others think they know the court rules better than the opposing lawyer and accuse the lawyer of not following the rules. Some go as far as to file motions with the court based on trivial or nonsensical arguments, insisting the court sanction the opposing lawyer for allegedly not following the rules.

Such actions by pro se litigants can be annoying for lawyers and cause their clients to incur unnecessary litigation costs. Nonetheless, in dealing with such situations, it is important that a lawyer stay calm and carefully consider how best to respond. For instance, it might be helpful for the lawyer to explain to the pro se litigant the actions the lawyer is taking, the rules that allow the lawyer to take such actions, and why the lawyer is taking those actions.

While the lawyer must avoid giving the pro se litigant legal advice, by calmly explaining his or her actions to the individual, the lawyer may be able to make the litigation process less mysterious for the person, and thereby reduce the chances that the pro se litigant will file an unnecessary and costly motion based on a misguided argument that the lawyer did not follow the court rules.

Be Polite And Professional

When dealing with a pro se litigant, it is important that a lawyer remain professional and not be rude to the individual, regardless of how upset or confrontational the pro se litigant may become. Being polite can be difficult when a pro se litigant is yelling and calling the lawyer names. The lawyer, however, must remember that most pro se litigants do not understand the system and take every decision in the case personally. As a result, their emotions can run high, and they are more likely to lose their tempers in dealing with opposing lawyers.

While it may be tempting for a lawyer to respond to such behavior with a rude comment, the lawyer should recognize that such actions are not likely to help his or her client’s case. Potentially, a pro se litigant might retaliate by filing a motion for sanctions, or even a complaint with the state bar. At a minimum, responding to such a complaint will entail unnecessary cost and distraction for the lawyer and, potentially, his or her client.

Moreover, if the lawyer allows his or her personal dislike for a pro se litigant to influence his or her actions, the lawyer’s ability to represent his or her client effectively could be compromised. Thus, it is critical that a lawyer remain composed and professional when dealing with a pro se litigant, even if the individual acts rudely.

Try To Resolve Issues With A Pro Se Litigant Before Seeking The Court’s Help

In a contentious litigation involving a pro se litigant, an attorney may be tempted to file a motion asking the court to sanction the pro se litigant for failing to comply with court rules. However, before filing such a motion, an attorney should carefully consider whether it is the most effective means of resolving the issue.

While pro se litigants are supposed to be held to the same standards as lawyers, in practice, many courts give pro se litigants a good deal of leeway and rarely sanction them for violating court rules, unless the violations are egregious or repeated. Thus, a more cost-effective strategy for an attorney may be to attempt to work through such issues directly with a pro se litigant, with a potential motion for sanctions reserved as a last resort.

Never Take A Pro Se Litigant Lightly

While many pro se litigants have little or no experience with the law or court procedures, others do have litigation experience or spend substantial amounts of time researching matters that they believe could be helpful to them in the litigation. A pro se litigant who was represented by counsel in an earlier lawsuit may even have pleadings from those matters, which the pro se litigant may revise and then file in the present litigation. Such pleadings may include well-supported arguments and persuasive case law, and should not be taken lightly by a lawyer simply because they were submitted by a pro se litigant.

In addition, unlike lawyers, who typically handle multiple cases at one time, pro se litigants are usually navigating only their one case. As a result, a pro se litigant may have a great deal of time to dedicate to researching and understanding issues relevant to his or her case.

Thus, a lawyer should not simply assume that a pro se litigant will be incapable of representing himself or herself competently. Rather, the lawyer should be prepared for the possibility that the individual will prove to be an effective advocate for his or her case.

Understand The Risks Of Negotiating With A Pro Se Litigant

Finally, settlement negotiations with pro se litigants can raise special pitfalls for attorneys. In the course of settlement negotiations, there is always a risk that an opponent may mischaracterize proposals or promises made by the other party. When both parties are represented by counsel, those risks are diminished to some extent, as attorneys are generally experienced with settlement negotiations, and the ethical rules prohibit attorneys from deliberately misrepresenting statements made by one another.

By contrast, pro se litigants are not bound by those ethical restrictions. Moreover, a pro se litigant typically has an inherent mistrust of the opposing lawyer. As a result, whenever possible, an attorney should have another person present as a witness to settlement negotiations with a pro se litigant.

Further, after a settlement has been reached with a pro se litigant, the individual may later claim – honestly or not – that there was a misunderstanding as to the terms of the settlement and, accordingly, that no agreement was reached. To minimize such risks, an attorney should ensure that any agreed-upon settlement terms are promptly memorialized in writing and signed by both parties. For instance, if a settlement is reached through a mediation, both parties should sign a written summary of the settlement terms before the mediation concludes. Alternatively, if a court hearing results in a settlement, an attorney may ask to have the settlement terms put orally on the court record.

* * *

Please contact us if you have any questions about the issues explored in this article, or if we can assist with any other litigation matter. The Firm has extensive experience in litigation involving pro se and represented parties alike, and we would be happy to help.