Some Ethics Issues Involving Supervising and Subordinate Lawyers
Read all the hypos and be ready to jump in.
1. Document Review and Double Standards
John Steele is the Partner
Judge Brick is the Associate
Associate supervises document review and production. Brings troubling hot document to Partner before producing it. Partner reads document request and construes it quite narrowly, in a way that is arguably frivolous but possibly legitimate. Partner decides not to produce the hot document. Associate asks if you can review the documents under two different standards of if he should go back and re-do production decisions under the new, narrower standard. Partner says not to re-do prior decisions, that Associate should not produce the hot document, and Associate should sign the document production responses. Associate feels the Partner's construction of the document request is not tenable.
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2. Don’t Stand Idly By?
Judge = Judge Brick
Partner = John Steele
Associate = Evette Pennypacker
Associate stands next to Partner at oral argument when judge says that it appears that their client has not had any prior convictions. Partner and Associate both know that client has had a conviction in another state and that in the normal course the judge should have been aware of it. Obviously some clerical error has been made somewhere . Partner does not correct the judge's misimpression. Associate whispers to Partner, "should we speak up?" Partner says "no, it's a client confidence and besides we haven't said anything false here. If the judge doesn't ask us, we don't need to volunteer that fact."
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3. What is a Billable Hour?
Judge Brick = Partner
John Steele = Associate
Associate hopped in her car at 8:00 am, and arrived at court at 8:45 am for a 9:00 am settlement conference for client Acme in its suit against Baker. Partner arrives at the same time. Over lunch, the associate makes a 15 minute call on the David v. Echo matter, and spends 30 minutes working on a brief in that matter. A settlement is reached and Associate and Partner walk out of the courthouse at 5:00 pm. Associate starts tallying the billables for that day and asks the partner whether to bill the downtime when the settlement judge was hammering the other side and Partner, Associate, and the client Acme's representative were chatting about current events. Partner says that Associate should calculate from the time she opened her car door until 5:00 pm, because "but for" the settlement conference she would have spent all that time in some other productive capacity.
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4. Losing Faith in the Client?
Judge Brick = Partner
John Steele = Associate
Rene Robertson, a sixth year lawyer one year away from partnership consideration, has been working at a mid-sized law firm doing construction defect litigation. His boss, Paula Prentiss, has a large book of business and often leaves senior associates to mind her cases for months at a time.
Prentiss and Robertson have been representing Acme Construction, the defendant in a case alleging that substandard pipes have led to huge repair bills in an apartment complex. The plaintiff, Peninsula Properties, Inc., which is the property owner, is represented by Saunders & Saunders (S&S). Discovery has been tedious and hotly contested. Each side has filed motions against the other asking for sanction and penalties. Each has accused the other side of stonewalling and failing to produce documents. Some of the most important documents are the daily logbooks kept by Acme’s president, David Vladeck, which provide details of the construction project. Acme made copies of the log books and other relevant documents and sent them to Robertson, who produced them to S&S in response to document requests.
One afternoon, Robertson received a letter from S&S claiming that Vladeck’s logbooks had been altered from their original condition. S&S claimed that several entries favorable to Acme had been entered after the dispute arose, in an attempt to make it seem as if some of Acme’s construction decisions had been requested by the building’s architects. S&S claimed that a few of the key entries appeared to reflect information that Vladeck could not have possibly possessed at the time he supposedly wrote the handwritten entries in the margin of the logbook. When Robertson showed the letter to Vladeck, Vladeck was furious at S&S. "Those guys stop at nothing!", he screamed. "Now those liars are accusing me of this? Rene, you can’t let them get away with this. It’s not enough they’re after my money; now they’re trying to destroy me!" Vladeck added that logbooks are always works in progress and that it’s standard practice to go back and amend entries as more information is learned—but that Vladeck in no way falsified any information or made changes after the litigation started. Robertson wrote a letter back to S&S denying the accusation.
S&S wrote back again, demanding production of the original logbooks so that they might be examined by a specialist in detecting false documents and forgeries. Vladeck once again demanded that Robertson put an end to S&S’s false accusations and told Robertson to call Vladeck’s administrative assistant and have the original logbooks sent by messenger to Robertson. Robertson did so. The next day the assistant said he couldn’t find the logbooks anywhere, although he thought he had seen them recently in their normal spot on the shelves.
S&S moved for an order requiring production of the logbooks. Robertson argued that copies of the logbooks had already been produced, and that no further court orders were necessary. However, the judge seemed intrigued and perhaps even convinced that the entries in the margin of the logbook had been added after the lawsuit started. She ordered Acme to search again for all the logbooks and said that if they didn’t turn up, S&S could, if it wished, file a motion seeking severe sanctions against Acme. When Robertson told Vladeck about the hearing, Vladeck said that they’d search again. The next day Vladeck said that his assistant had found half the logbooks, but not the most critical ones, behind some cabinets. The logbooks that turned up had no entries with additions or amendments in the margin. Robertson was beginning to have doubts about his client, so he said he wanted to come down himself and see where the logbooks had been found. Vladeck screamed at Robertson and said, "whose side are you on anyway?"
Robertson called for a meeting with Prentiss and went over all the recent history. Robertson said, "look, I’ve been working very closely with Vladeck and I don’t believe my client at all anymore. Every explanation is too convenient. Every tough question makes the client get all defensive. I don’t trust him. My gut instinct tells me that my client altered the documents and is now covering it up. At the upcoming hearing I do not want to defend his factual position on the logbooks at all."
Prentiss said, "you have offered me no proof and only speculation that our client is lying. Guess what? That isn’t nearly good enough. If you can’t present the client’s case with zeal, tell me so right now. But make no mistake. This isn’t a firm where lawyers turn on their clients based on hunches without proof. Words cannot explain how disappointed I am in you.
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