Week 11 - Morally Challenging Practice Areas; Civility; Everyday Ethical Challenges

Being Civil in Litigation: Paramount v. QVC

Introducing the Jamail Addendum After deciding the Paramount v. QVC case on its merits, the Delaware Supreme Court added an Addendum criticizing the conduct of Joseph Jamail, a well-known Texas trial lawyer. Jamail was famous for winning Pennzoil's huge judgment against Texaco over Texaco's purchase of Getty Oil.

A Lesson for the Future The court said Jamail's behavior was so far from professional and civil that it deserved special mention. It offered the episode as an example of conduct that must not be tolerated or repeated.

The Liedtke Deposition On November 10, 1993, Delaware counsel for QVC deposed Paramount director J. Hugh Liedtke in Texas, with Jamail representing Liedtke personally. No Delaware lawyer appears to have been there for the defendants, and Jamail was never admitted to appear in the case.

Out-of-State Lawyers Must Follow Delaware Rules Out-of-state lawyers who get permission to appear in a single Delaware case are bound by Delaware's discipline rules. They must also review Delaware's Statement of Principles of Lawyer Conduct.

What Jamail Did Wrong The court found that Jamail improperly told the witness not to answer questions and was extremely rude, uncivil, and vulgar. He also got in the way of the questioning lawyer's ability to collect testimony the court needed.

The Transcript Excerpts The excerpts show Jamail telling the questioning lawyer, Mr. Johnston, to "shut up," saying "Nobody wants to socialize with you," and calling his questions "stupid". He also accused Johnston of running up his fees and told him not to talk to the witness except to ask questions.

Strong Advocacy Versus Bad Behavior The court said that firmly protecting a client's interests is a sign of professionalism, but it must be done in a courteous and civil way. A lawyer who acts like Jamail is not properly representing the client, although here no one asked the court for help and no one seems to have been harmed.

Why a Delaware Lawyer Should Have Been There Liedtke was testifying for Paramount, so under court rules the Paramount defendants should have had a Delaware lawyer or an admitted out-of-state lawyer at the deposition. A key purpose of these rules is to make sure the court can oversee lawyers and protect the fairness of its proceedings.

The Court's Response The court invited Jamail to come to Delaware within thirty days to explain why his conduct should not bar him from appearing in Delaware cases in the future. It also said Delaware's courts would strengthen their tools for dealing with this kind of misconduct and with admitting out-of-state lawyers.

Jamail's Reply and Reactions in Texas Jamail crudely refused to go, saying he would never explain himself to that court and that the court's own behavior was what had become suspect. Some Texas legal figures agreed with the court, but one law professor called the opinion "a trip back in time to the Victorian Age" and saw no "improper conduct".

Why Is Civility Declining? The notes discuss the argument that informal social pressure among lawyers kept behavior in check, and that this pressure weakens as the profession becomes more diverse and lawyers share fewer social ties. The notes ask whether this explanation is convincing, whether civility has also declined elsewhere (for example, in politics), and whether a close-knit legal community also shuts out outsiders.

Morrell v. State Background

Morrell v. State: The Facts Morrell was charged with kidnapping and rape, and his friend Wagner found a written kidnapping plan in Morrell's car and gave it to Morrell's lawyer, Cline. Cline arranged for Wagner to turn the plan over to the police, and Morrell later argued that this cost him effective legal help.

Legal Standard

The General Rule on Physical Evidence A defense lawyer who receives physical evidence from a client generally must turn it over to the prosecution, but should not reveal where it came from or how it was obtained. If a third person who is not acting for the client provides the evidence, even that protection against testifying about its source does not apply.

People v. Lee: The Bloody Shoes In Lee, a prosecutor got a search warrant for blood-stained shoes that a judge was holding under an agreement between the lawyers. The court found that the client's wife was not acting for the client when she gave the shoes to the lawyer, so the evidence was fairly used.

In re Ryder: The Hidden Money and Shotgun Lawyer Ryder moved his client's stolen money and a sawed-off shotgun from the client's safe deposit box into his own, planning to keep them until after trial. The court suspended Ryder, holding that the attorney-client privilege did not protect his actions, and suggested he may even have broken a law against hiding stolen property.

Court Reasoning

Morrell's Outcome The court held that Cline had to make sure the evidence reached the prosecution, so he did not deny Morrell effective counsel. Cline could have given the evidence to the police himself, and would have had to if Wagner had refused to take it back.

Alaska's Ethics Opinion and Evidence-Hiding Law Alaska law makes it a crime to destroy, change, or hide evidence of a crime in order to keep it from being found. Taking evidence from a non-client and keeping it where police cannot reach it would likely break that law, so the court concluded Cline violated no ethical duty.

Arthur Andersen v. United States Background

Enron and Its Auditor Enron grew quickly through aggressive accounting, and Arthur Andersen audited its finances, with a team led by David Duncan. In 2001, Enron's finances worsened and CEO Jeffrey Skilling unexpectedly quit.

The Shredding After the SEC told Enron in October 2001 that it was investigating, Andersen managers repeatedly told staff to "follow" the firm's document policy. Large amounts of paper and electronic documents were then destroyed, even as one partner wrote that "the problems are just beginning".

The Law Andersen Was Charged Under Federal law makes it a crime to "knowingly … corruptly persuade" another person to withhold or destroy records for use in an official proceeding. Andersen was convicted under this law, and the Supreme Court agreed to review the case because lower courts disagreed on its meaning.

Court Reasoning

Persuasion Is Not Always Wrong The Court noted that urging someone to withhold information is not always bad, such as a mother advising her son to use his right to stay silent. It also said businesses commonly have document retention policies, and telling employees to follow a valid policy is normally fine.

"Knowingly" and "Corruptly" The Court held that the law only punishes people who know they are doing something wrong. Because the jury instructions failed to make this clear, the conviction was reversed.

Destroying Evidence

Destroying Litigation Work Product In a case involving IBM, the court condemned a law firm's destruction of a database, rejecting affidavits from prominent lawyers who said the destruction was proper. The notes ask whether that view would hold if no court order required the documents to be kept, or if the documents were likely to be requested.

Spoliation Liability Lawyers and clients can face civil and criminal liability for intentionally destroying evidence, and Model Rule 3.4(a) deals with this directly. Some states let people sue for "spoliation" (destroying evidence), but California pulled back, finding other remedies sufficient.

Talking with a Represented Party

The No-Contact Rule Under Rule 4.2, a lawyer cannot speak with a represented person about the case without the other lawyer's permission or a court order. The rule is fairly clear for individuals, but deciding which employees of a company are off-limits can be hard and risky.

Is the Nurse a "Represented Person"? The key question is whether the head nurse counts as part of the represented hospital or is just a witness. Under the older rule, some courts limited the ban to top decision-makers (the "control group"), while others applied it more broadly to protect the opposing lawyer's relationship with the client.

Different Approaches and the Messing Case The Restatement applies the rule only to employees whose statements would legally bind the company, and courts' readings of Rule 4.2 vary widely. The 2002 comment changes removed the "admission" language, though many states kept it, and the text then introduces Messing, Rudavsky & Weliky v. Harvard College.