Legal Profession Interview 872224694

Field Interview

DUID 872224694

This paper is the culmination of an oral interview conducted on November15th, 2009. I originally learned about the incident described below during the summer of 2009, but had almost no details. When I received this assignment, I contacted the primary subject and asked him to sit for an interview on the matter. He agreed, providing that the interview would be confidential and that he be allowed to freely change names and dates concerning the other organizations, clients, and former clients involved. I readily agreed, and stated that I would further alter this information. Therefore, all names, dates, and locations recorded in this assignment have been through two permutations. The interview was not recorded, and no other witnesses were present. Although the ethics issues presented below appear to be resolved and do not present any outstanding unreported violations, some of the information involved would present acute embarrassment to all parties involved and must be treated as strictly confidential. As the entire incident occurred in Colorado, all “rules” quoted refer to the Colorado Rules of Professional Conduct, as adopted by the Colorado Supreme Court and enforced by the Court’s Office of Attorney Regulation Counsel. These rules are available online at http://www.cobar.org/page.cfm/ID/384/. The subject did not know these rules by exact number, but knew their contact and evidenced a great respect for the ability of a violation to affect his license. He referred to them by their content, calling Rule 1.6 “the confidentiality rule”, etc. I began the interview by reading the confidentiality acknowledgement included with the field assignment. The subject stated that he understood, and would participate. I then gathered the requested demographic data, which has not been changed: Gender: Male How many years have you been practicing law? 15 1

Field Interview

DUID 872224694

What is your practice setting? A small private practice, in the metro Denver area. (Subject is a Solo practitioner) Do you consider yourself a specialist? Yes, in the criminal defense bar.

The subject (“Mark”, hereafter) then provided the complete details about the main incident. In 2007, Mark was called by a potential client concerning a personal injury situation. Mark specializes in criminal defense representation, but advertises online and in various phone books. In his advertisements, Mark also lists personal injury representation. He worked as personal injury attorney for a medium size firm before opening his own small practice when the principal of the firm retired. Mark scheduled an initial free consultation with the caller in his office. The potential client, a middle aged woman, stated that she had suffered substantial neck and back injury as a result of a fall on a municipal bus when the bus abruptly stopped in traffic. She also stated that the bus driver had declined to summon medical assistance for her, essentially putting her off the bus at the next stop. Mark was aware that the quasi-governmental corporation that operates the bus line had a history of poor safety practices, poor hiring and retention policies, and had been successfully sued for injuries. He was interested in the case, and the potential client agreed to a contingency fee structure that Mark found reasonable ( under Rule 1.5) and met the further requirements of the Colorado Rules of Civil Procedure § 23.3. He agreed to represent the client, and she signed his standard terms and conditions letter. Mark then began preparing for the case and investigating the situation. The client provided him with details of the accident, medical documents and a list of witnesses. However, Mark began becoming concerned about the matter. The medical documents revealed only soft 2

Field Interview

DUID 872224694

tissue injuries that were impossible to date and seemed to reflect purely subjective issues such as “sciatic pain”. The client claimed to be unable to work, but had an unverifiable work and income history centered on a cash and tip salary generated at a family business. The witness list seemed extensive and detailed for an incident that did not involve police/ambulance response, but the client was unable to provide details about the driver of the bus. When Mark met with the client about these concerns, she seemed surprised by his diligence and stated that she just wanted the matter presented to the bus operator for a “quick and easy settlement.” Mark then became convinced that the client was pursuing a fraudulent claim, and refused to bring the matter forward as required under Rule 3.1 As no complaint had been filed, and there were no tight deadlines concerning a statute of limitations, he withdrew from the representation per Rule 1.16. Mark withdrew by phone call, and sent the client a summary letter. He also informed the client that she could pick up her documents at her convenience. No fees were due, and no monies had been exchanged. The client never came to pick up the documents, and did not return his phone calls on the matter. After several months, Mark removed the documents to a storage area where he retains his old files. After approximately one year, Mark received a letter from an attorney with a large and well known local law firm. The letter demanded the files, medical reports, witness lists, and witness interview transcripts, and any other information he had gathered about the former client’s injury case. The former client had sought other representation in the matter and was now represented by the large firm. Mark was concerned about three issues: (1) His work product, including two witness interviews and his notes about the possible specific bus involved, being used to press a fraudulent claim; (2) The costs of transferring this material to the large firm, including copying 3

Field Interview

DUID 872224694

the case file; (3) The distribution of the client’s property- the medical files- to a third party without the client’s direct and personal permission to do so. Complicating these issues, Mark had a personal history with this firm not being forthcoming in refunding copy and courier costs to outside attorneys. Mark felt that he might be able to discuss the false claim with the other attorney at that point, under Rule 1.6(b)(3) and (b)(4), but was unsure if his minimal participation in the matter would qualify as a “use of his services” when the client was already represented by other council. Mark understood that if b(3) and b(4) were held not to apply in this situation, his disclosure about his suspicions could be viewed as a violation of Rule 1.6 and possibly subject him to civil liability. Mark began by contacting the client’s new attorney ( Mr. Firm). Mark asked Mr. Firm to have the client contact him. Mark stated that he wished to speak with the client, in the presence of Mr. Firm, so he could receive face to face permission to turn over the medical records and obtain a waiver so that Mark could discuss the issue with Mr. Firm. Mr. Firm responded by demanding the material and threatening Mark with a disciplinary complaint for “withholding client property”. Mark, upset, asserted that he would not be pushed around by Mr. Firm, and he could have the client files when Mark had a written waiver and a check for the $80 estimated costs of copying and couriering the files to Mr. Firm’s office. At this, Mr. Firm requested “professional courtesy” resulting in waiver of fees. Mark states that he found this request laughable coming on the heels of a threat and terminated the phone call immediately afterwards. Within a few days, Mark received a letter from the firm that included a check for the estimated costs and a demand from the former client to surrender any of her property to Mr. 4

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DUID 872224694

Firm. Mark was initially unsatisfied by the signed request, but was unsure if he, essentially opposed to the client’s claim, was allowed to contact her under Rule 4.2 for verification. Mark eventually responded by cashing the check and copying the files. He had this material couriered to the new firm, including the medical records, but removed the witness interviews and the notes about the specific bus. He noted these removals in the file, but did not indicate why he removed them. He included a statement in the file that he would proffer this material only after he had an opportunity to complete an informed consent warning/waiver with the client. Mark also included notes about the conversation with Mr. Firm in the file. He stated that he did this as “learning opportunity for Mr. Firm”. Mark has not heard from the client or Mr. Firm since, and has no idea about the possible disposition of the case. He feels that his three concerns about the situation were adequately addressed by the check, the letter, and the “informed redacting” of the files. Unlike the normal purge schedule for files, Mark intends to retain the files in this case indefinitely. At the conclusion of the narrative, I was struck by Mark’s lack of motivation for a permissive, unwaived, breach of confidentiality to the bus operator or the law firm under Rule 1.6. Mark responded to my questions about this by responding that bus operator’s financial well being was significantly less important to him than his reputation as a lawyer who guards his clients secrets unless disclosure is absolutely required, and that the other law firm needed to do “its own damn diligence and investigation”. Mark stated few lawyers would ever choose to reveal a client’s confidence unless death or serious injuries were almost certain to result, and felt that the permissive disclosures were included mainly as a “public relations” maneuver. I was also struck by the lack of civility from Mr. Firm in such a simple matter that did not pit Mr. Firm against Mark in any adversarial manner. Mark, who had worked in a smaller firm, 5

Field Interview

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stated that he felt the Rules of Professional conduct primarily existed in order to curb such aggression between lawyers and the “firm lifestyle” produced a “lot of anger” and a “lot of disdain for non-big firm lawyers”. I was impressed by the reflection and the caution evidenced by Mark, an attorney with no special expertise in ethics or the Colorado Rules. When confronted by challenging and unclear issues, Mark reviewed the rules, and took cautious actions that would keep him within the rules and be easily explainable to a reviewing agency. Finally, I learned that command of the content of the Rules is absolutely essential to a practicing attorney and must be retained past the MPRE. These issues were generated by a relatively minor matter that an active lawyer might confront daily. By failing to recognize the issues and the appropriate response, a lawyer could unwittingly risk their career.

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