And you thought your day was bad?

May 21st, 2008 by admin

Eclipse by Bruce A. CampbellIn Qualcomm Inc. v. Broadcom Corp.,1 a Federal Judge for the Southern District of California handed Qualcomm and six of its retained attorneys severe sanctions relating to “monumental” discovery violations after attorneys for Qualcomm failed to produce “tens of thousands” of e-mails until after trial. Specifically, the court stated that Qualcomm violated its discovery obligations by failing to produce more than 46,000 e-mails and documents that were requested in discovery (which Qualcomm agreed to produce). The court noted that Qualcomm failed to present any evidence attempting to explain or justify its failure to produce the documents. The court also found that it was likely one or more of the retained lawyers chose not to look into the correct location of the documents and accepted the unsubstantiated assurances of Qualcomm that its searches were sufficient. Of the eighteen attorneys representing Qualcomm, three were deemed responsible for the discovery failure because they handled Qualcomm’s discovery responses and production of documents, while three more were deemed responsible for the discovery violation because they did not perform a reasonable inquiry to determine whether Qualcomm had complied with its discovery obligations.

As sanctions, the court ordered Qualcomm to pay Broadcom for all of its attorneys’ fees and costs, which totaled $8.5 million dollars. To address the potential ethical violations, the court also referred six of Qualcomm’s retained attorneys to the State Bar of California.

If nothing else, the Southern District Court of California’s response to Qualcomm and its attorneys shows that discovery creates the risk of substantial potential exposure.

12008 WL 66932

Problems With Representing Family and Friends

April 24th, 2008 by admin

At some point, every lawyer receives a telephone call from a family member or friend that starts off with “I need your help with a simple will.” For many lawyers the legal issues involving in the drafting of a will, simple or not, are way outside the scope of the lawyer’s ordinary practice.

View a reprint of this article published in Texas Lawyer on April 28, 2008.

Stay Tuned . . .

December 10th, 2007 by admin

Bruce Campbell photo

Stay tuned for a discussion of the efforts by the ABA to create a uniform set of ethics rules governing lawyers throughout all American jurisdictions that will be published in the Texas Lawyer in late January 2008.

Is this a Sacred Cow?

October 3rd, 2007 by admin

The issue of sacred cows is important to any discussion of legal ethics. When we talk about sacred cows, more often than not, we are talking about a rule, idea or concept lacking in intellectual substance or foundation. Oftentimes rules, ideas or concepts are built up over time. Many times they are based on popular notions that fit society’s beliefs. Nevertheless, sometimes those beliefs or notions are wrong.

Frequently, when a sacred cow is held up to analytical scrutiny it will perish. In an ideal situation, sacred cows are ground into intellectual hamburger and quickly dismissed because they lack an intellectual foundation. Sacred cows sometime meet their demise because of a change in society. Nevertheless, some sacred cows survive quite a long time. Sometimes discerning whether an idea or rule is a sacred cow is difficult.

Legal ethics rules should not merely be someone’s interpretation of what a disciplinary rule should or ought to provide. Instead, each aspect of the disciplinary rules should be carefully scrutinized. The acid test is whether the rule makes sense in light of the totality of the scheme established by the disciplinary rules. A single ethical rule should not be considered in a vacuum. This is especially because the disciplinary rules set the floor level for what conduct is acceptable for lawyers and is consistent to create an overarching system of rules. Interpretations of the disciplinary rules should therefore be consistent with the comments and with other positive law. The problem is that quite often commentators, ethics committees and others can add gloss to the disciplinary rules that was never intended by the rules, and is inconsistent with the overall scheme of the rules.

Not long ago, one of the sacred cows of Texas legal ethics met its demise. For years, it was unethical for Texas lawyers to surreptitiously tape record telephone conversations with their clients and third parties. (“Be Careful What You Say: A Lawyer May Be Recording You!” Bruce A. Campbell. PLUS Journal, September 2007.) As is discussed below, for nearly thirty years the Professional Ethics Committee of the State Bar of Texas (the “Ethics Committee”) had asserted based upon their interpretation of the Rules that such tape recordings were unethical. Not long ago, the interpretation of the Ethics Committee changed. The question that still remains is should lawyers be allowed to record all other communications with clients and third parties without their knowledge. If a recording of a telephone call is permissible, does that mean that surreptitious recordings of in person meetings should also be permissible? We will have to wait for an answer to the questions of when recordings are permissible in situations other than telephone calls.

The problem with slaying ethical cows is that it adds more uncertainty to the practice of law. Nevertheless, ethical rules just like most things in life will be subject to change. Or as the head coach of the Dallas Mavericks used to say, “It ain’t over until the fat lady sings.” Hopefully we will continue to see the demise of sacred cows in legal ethics. And, hopefully we will not have too many unanswered questions in the meantime.

Character and Fitness Concerns? A Shattering Experience

September 14th, 2007 by admin

In our last post, we touched on the meaning of the term “legal ethics”. This time we will look at the prequel — that is, what types of issues can arise that will prevent an otherwise qualified applicant from becoming a lawyer, and thus being subject to the requirements of “legal ethics.”

Four or more years of college tuition, room, board and books, followed by three or more years of the same for law school leaves many students drained financially, mentally, and emotionally. It must be quite shattering to then learn that the Board of Bar Examiners either will not permit them to take the bar exam, or will not license them because of alleged character or fitness defects.

At or about the time most applicants enter law school they fill out an application that is submitted to the Board of Law Examiners. This application starts the process of review by the Board who assesses the character and fitness of the candidate to practice law. An applicant is required to possess good moral character. Nevertheless, there is an inherent difficulty in assessing “good moral character” to practice law. “Good moral character,” standing alone, can be “easily adapted to fit personal views and predilections, [and] can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.” Konigsberg v. State Bar, 353 U.S. 252, 263, 77 S.Ct. 722, 728, 1 L.Ed.2d 810 (1967). At best, what the Board does is look at past conduct of the applicant and makes a prediction about how the applicant will behave in the future.

The Board of Law Examiners is not without guidance in evaluating “good moral character.” TEXAS GOV’T CODE ANN. Section 82.028(c) authorizes the Board to conduct investigations, but expressly circumscribes the power of the Board in making this determination such that:

  • The board may not recommend denial of a license and the supreme court may not deny a license to an applicant because of a deficiency in the applicant’s moral character or fitness unless:
    • the board finds a clear and rational connection between a character trait of the applicant and the likelihood that the applicant would injure a client or obstruct the administration of justice if the applicant were licensed to practice law…. (emphasis added).

The purpose of requiring a candidate to have good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients or will result in obstruction of the administration of justice, or in a violation of the Texas Disciplinary Rules of Professional conduct. Tex. R. Gov. Bar Adm’n. IV(b).

The assessment of character and fitness looks at issues such as debt, chemical dependency, criminal records and dishonesty, among other things. The Board is to determine whether those acts show that an applicant has a negative character trait that is likely to cause the applicant to injure a client or violate the disciplinary rules. Such a character trait “usually involve[s] either dishonesty or lack of trustworthiness in carrying out responsibilities,” but “other character traits [may be] relevant.” RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b). There must additionally be “substantial evidence” of a “clear and rational connection between a character trait of the applicant and the likelihood that the applicant would injure a client [or violate the DISCIPLINARY RULES] if the applicant were licensed to practice law …” TEX.GOV’T CODE Section 82.028(c); RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b), XV(i)(5) (1992). The most salient character traits involve either dishonesty or lack of trustworthiness in carrying out responsibilities. RULES GOVERNING ADMISSION TO THE BAR OF TEXAS IV(b) (1992).

Assuming an adverse decision is made against a candidate by the Board of Bar Examiners, it that the end of the line? The short answer is probably not, but each situation is different and requires careful studied analysis. There have been instances when the Board’s decision has been wrong, and a court has overturned the decision of the Board.

For instance, in Board of Law Examiners v. Alritt, 2001 WL 838378 (Tex. App. — Austin, 2001) Arlitt had passed the Bar examination, but was not licensed because the Board found that Alritt had negative character attributes of dishonesty and lack of respect for the judicial process. The Board found that Alritt had filed contradictory statements under oath, failed to disclose involvement in an adversary proceeding in bankruptcy court and had been personally sanctioned twice. The district court found that the contradictory statements, made about her homestead and in the bankruptcy court, were not supported by substantial evidence. The two sanctions against Arlitt were for going to the court ex parte without giving notice to the other side and getting a bond released to her. The court found that because she was not yet licensed and “had not yet practiced law, was aware her ex parte conduct was improper,” but did not indicate a lack of respect for the judicial process, just ignorance. The court accordingly reversed the decision of the Board.

Similarly, in Board of Law Examiners v. Coulson, 48 S.W.3d 841 (Tex. App. — Austin, 2001) an applicant successfully challenged an adverse decision by the Board. In Coulson, the candidate disclosed in his application that he had undergone treatment for alcohol and substance abuse almost twenty years before. Upon receiving his probationary license, Coulson was told he would have to be evaluated by a social worker and a Board evaluator, and see a Master Addiction Counselor. Despite testimony by both counselors that Coulson did not suffer from chemical dependency, and similar testimony from his father, wife, employer and former classmate, the Board determined that “there was a clear and rational connection between the Applicant’s possible chemical dependency,… and the likelihood that he might fail to discharge properly his duties to a client, a court or the legal profession. In overturning the Board’s decision, the district court found that Section 82.038 of the Tex. Gov. Code required there to be a present chemical dependency before imposing a probationary license. The court of appeals agreed and found that there was insufficient evidence to find a present chemical dependency. The court of appeals reemphasized an earlier decision it had issued disapproving of the use of attendance at Alcoholics Anonymous (“AA”) to support a finding of present chemical dependency. The Court of Appeals pointed out that it would be hard to imagine how anyone could overcome the stigma of chemical dependency if the Board was allowed to use participation in AA meetings against a person who was still in recovery.

The unpaid debts of an applicant have also been used as a basis by the Board to deny the applicant a law license. Although the Board may not use blanket rules barring from practice all applicants, who possess indicia of “financial irresponsibility,” failure to pay debts when due can be a basis to deny a candidate a law license. For instance, Board of Law Examiners v. Stevens, 868 S.W. 2d 773 (Tex. 1994) a candidate who had not paid taxes for 14 years and who had several unpaid judgments for unpaid debts, but who was licensed in Louisiana sought to obtain a Texas law license. The Texas Supreme Court pointed out that a fourteen-year failure to pay taxes and the failure to satisfy three overdue judgment debts constituted substantial evidence that the candidate had a demonstrated longstanding lack of financial responsibility. This was substantial evidence that the candidate suffered from a persistent inability to discharge, or unreliability in carrying out, significant obligations under the Texas Disciplinary Rules of Professional Conduct. The applicant was not permitted to obtain a Texas law license.

So what is the moral to the story of the character and fitness issue? An applicant who wants to become a lawyer must expect to be held up to the standards established by the Disciplinary Rules. The Board of Bar Examiners will make a prediction of whether the applicant is likely, in the present future, to violate the Disciplinary Rules or injure a client. The Board’s determination can be challenged, but if there is substantial evidence that supports the Board’s determination, then the Board’s determination is likely to be sustained. On the other hand, if the Board’s determination more closely resembles a blanket prohibition or lacks a rational foundation, then the Board’s determination may be overturned and the applicant may become a lawyer. Similar to our last post, which asked the question: what is legal ethics, here the heart of the issue turns on what do the Disciplinary Rules require. In our next post, we will begin the march through an examination of what the Disciplinary Rules require.

Legal Ethics Discussions

August 8th, 2007 by admin
What does the terminology “Legal Ethics” mean? Some would say the combination of those two words is an oxymoron. Nevertheless, in order to understand what legal ethics entails, it is helpful to understand what is meant by the terminology.

Ethics can be defined as the set of standards that allow us to evaluate human motive and conduct, and help us distinguish right from wrong. Some professions, law being one of them, have a separate set of professional rules that govern the actions of their members.

Almost a century ago the American Bar Association (“ABA”) reacted to claims that almost anyone could become a lawyer, and that the profession was losing its status. The fruit of the ABA’s efforts was the first code of professional ethics for U.S. lawyers, the Canons of Ethics, which was introduced in 1908. The Canons of Ethics set out rules governing the client-lawyer relationship, duties of a lawyer to the client, rules for interaction with non-clients, advertising, and other rules intended to maintain the integrity of the legal profession. The Canons of Ethics were adopted in various forms by the Bar Associates of the various states. Curiously, over the years there has been relatively little written about what is intended in general about legal ethics. Instead, the focus has been on particular conduct of specific lawyers and judging whether the conduct satisfied the ethical rules or not.

Nevertheless, about 60 years ago a New York court did discuss the definition of “legal ethics”. The context in which the court’s discussion occurred arose when a property owner accused the lawyer who had worked for the other side of being “unethical” without describing how. The lawyer filed a slander claim asserting that being called “unethical” besmirched his professional representation. In discussing the terminology legal ethics the court pointed out:

‘Legal ethics’ is defined in Ballentine’s Law Dictionary (1930) as ‘the usages and customs among members of the legal profession involving their moral and professional duties toward one another, toward the clients and toward the courts’. . .

The court further pointed out that Black’s dictionary defined “Legal Ethics” as:

‘that branch of moral science which treats of the duties which a member of the legal profession owes to the public, to the court, to his professional brethren, and to his client.’ Kraushaar v. Lavin, 42 N.Y. Sup. 857, 859 (NY. 1943).

The court in Kraushaar further observed that:

A person licensed to practice law must conform not only to the standards of ethical conduct generally but also to the professional standards of conduct which from time immemorial have characterized the legal profession. The latter are, in part, embodied in the Canons of Professional Ethics adopted in this state by the . . . Bar Association but, as stated in the introductory paragraph of the Canons, ‘the enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned. . . . (citations omitted).

As the court observed:

Membership in the bar is a privilege burdened with conditions. . . . There are four phases of qualifications for admission to the Bar: (1) Academic training; (2) legal training; (3) moral character; (4) belief in the form of and loyalty to the government of the United States.’ Upon admission the lawyer becomes ‘an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.’ In short, ‘the practice of law is not a business open to all, but a personal right, limited to a few persons of good moral character, with special qualifications ascertained and certified after a long course of study. Because of the nature of the duties performed by the lawyer moral character and general fitness are as essential after admission as ‘at the moment of admission’ and in disciplinary proceedings ‘the examination into character is renewed.’

In the upcoming editions we will explore many of the ethical issues with which lawyers must grapple or potentially risk the loss of their license.