Attorney ethical violations are on my mind this week as I read about the parents who lied and cheated and bribed their children’s way into admission to college. There were 50 parents, including 2 prominent movie stars (Felicity Huffman and Lori Loughlin) and an attorney, in the round up.
Attorney Gordon Caplan, a Greenwich CT resident and now former co-chairman of the global law firm Willkie Farr & Gallagher LLP, was placed on leave by the firm a day after he was among 50 people indicted by federal prosecutors in a massive college admissions scam.
According to the government, Caplan paid a crooked college admissions consultant $75,000 to ensure his daughter would get a higher score on the ACT, a standardized test some colleges use to rate students seeking admission. The money was wired into a bank account controlled by the FBI, unbeknownst to the parents.
Caplan’s challenge now is staying out of prison. It seems unlikely he will get to practice law again.
Attorney ethical violations don’t usually garner this kind of attention paid to the fraudulent actions of the parents. They are of a more common variety.
Do you know how you as an LNC can be caught up in an allegation with an attorney client?
First, some groundwork. According to Megan Zavieh, these are the three most common attorney ethical violations.
Rule 1.1 — Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. [American Bar Association Model Rule 1.1]
The attorney must know the area of law and be prepared for conferences, court and depositions.
Have you seen My Cousin Vinny? In this movie, the New York lawyer flies to Alabama to defend his cousin and friend who are accused of murder. Vinny has never tried a criminal case before and has little understanding of court procedure. Yes, it is Hollywood, and a very entertaining movie, and clearly illustrates his incompetence.
How can you get caught up in this attorney ethical violation?
Here’s how. The attorney is suing a doctor and asks you to find a nursing expert witness to testify against the physician. You are inexperienced and don’t realize the error in this approach. At the attorney’s request, you find a nurse. The court disallows the nurse, and the attorney runs out of time to find another expert.
The client sues the attorney for legal malpractice. So the attorney may bring you into the case as a defendant, pointing at your selection of a nurse expert.
2. Rule 1.3 — Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client. [ABA Model Rule 1.3]
The attorney needs to meet all deadlines associated with the case. Judges impose deadlines for discovery to end, and part of that is supplying reports or opinions of experts.
How can you get caught up in this?
You are an expert witness who missed a deadline to complete a report. The attorney misses the deadline to supply your report. The court disallows your involvement as an expert. The client sues the attorney. You get brought in as a defendant.
One of my clients missed a statute of limitation for filing a case. He contacted me after the deadline asking for a screen for merit. He said, “I don’t think here is anything in this case but the client wants to know.” I’m not sure if he knew he missed the deadline.
Our physician screener found merit, and I kept notes of the conversations. When the plaintiff sued the attorney for missing the deadline, I was called to give a deposition. Unfortunately, I had to read my notes into the record. The attorney ultimately settled the case.
3. Rule 1.7 — Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. [ABA Model Rule 1.7]
The attorney must not represent a party who is adverse to the attorney’s current clients. What sometimes happens is that the attorney takes on a case with a conflict of interest, but does not know about it.
How can you get caught up in this?
This ethics violation is directly related to the attorney’s practice, but you can run into a conflict of interest in your LNC practice. This can occur, for example, when you take on a case
- as an expert witness or non-testifying consultant that involves your employer or a facility within its system
- involving someone you know well – a friend, a personal physician
- for opposing counsel after having worked on the case for the other side
Avoid this last scenario by checking your database before discussing a case with an attorney. Attorneys expect you to be able to do this in seconds.
My story
I unknowingly got into a conflict of interest. My LNC business helped a plaintiff attorney who was representing a woman who delivered a baby. We logged the case in under the mother’s name and found a nursing expert who declared there were multiple deviations from the standard of care. The case involved a ruptured uterus and devastating brain damage to the child.
A year later, the defense attorney contacted us about the case, and used the baby’s name, which was decidedly very different from the mother’s name, different last name, different ethnicity. We searched for a nursing expert to review the case.
When the first expert could not defend the case, the attorney asked for another, and another. Three nursing experts could not defend the nurses.
Something triggered us to realize the mother and child were related. Horror struck, I called both attorneys, explained what happened, and apologized. I was deeply embarrassed. The attorneys were gracious.
As a result of this incident, I instituted an immediate practice of logging both the mother and baby’s names on our case files for all labor and delivery cases.
My advice to you – have your own professional liability insurance. I’ve used Nursing Service Organization, Legal Nurse Consultant policy. They have a self-employed part time rate which is affordable. They offer an expert witness rider also for those who testify.
Make sure, if you supply expert witnesses, that they understand the crucial importance of not missing deadlines for filing reports.
Know when to say “no” to an attorney who is asking you to do something wrong. There is a lot at stake and you’ve got to take the high road.
