Business Law Client Representation Discussion

Discussion 3: Client RepresentationQuestion 1.
How aggressive should a lawyer be in representing his or her client “zealously”? Read
the rest of Judge Land’s order in Note 3.31 “Hyperlink: A Question of Ethics” (Links to an
external site.). Do you think Orly Taitz’s conduct warranted a twenty-thousand-dollar
fine?
3.1 The Parties Involved
LEARNING OBJECTIVES
1. Identify the parties involved in litigation.
2. Explore the role of lawyers in our adversarial system.
3. Understand the roles and obligations of jurors.
The litigation system relies on parties bringing forth and defending their respective claims. As in the
game of chess, each move can take place only if a player makes a decision to move in a particular
direction; the game does not play itself. Courts, jurors, and witnesses are similarly moribund: it is up
to the players, in this case called litigants, to act decisively. Occasionally, a court may act sua sponte,
without a direct request from a party. A judge may decide, for example, to fine a party for bad or
unethical behavior. These actions are fairly rare. More commonly, judges act on a motion filed by
either party asking the judge to make a particular decision.
The party that begins the lawsuit is called the plaintiff in a civil case. The plaintiff is a victim that has
presumably suffered some sort of legal wrong that the law recognizes. The plaintiff brings suit
against the defendant—the alleged wrongdoer or perpetrator. Note that in a criminal trial, the party
that initiates litigation is the prosecution, representing the people of a state or, in federal cases,
representing the people of the United States. In a criminal trial the alleged wrongdoer is also called
the defendant.
Many cases involve multiple plaintiffs and multiple defendants. Civil procedure encourages, and
makes it easy for, parties to air all their grievances against each other at once. All parties, and every
possible claim (each claim is a separate violation of law) arising out of a single incident or series of
related incidents, should be identified and named in a lawsuit. For example, if you go to an offcampus party one night and witness a friend being harassed, you might feel the need to step in to
defend your friend. The harasser may then turn his attention toward you, perhaps taking a swing at
you. Let’s assume that the harasser is drunk and misses, but in return you take a swing and hit him,
knocking him to the ground. The harasser may file a lawsuit against you, alleging assault and battery.
The harasser is the plaintiff, and you are the defendant. The lawsuit filed in court would be
captioned Harasser v. You. You might decide in return to file a claim against the harasser, alleging
that the harasser started the fight and that you acted in self-defense. This is called a counterclaim,
and you are now the counterplaintiff, making the harasser the counterdefendant. In return, the
harasser may allege that he wasn’t really harassing your friend but trying to defend himself from
your friend’s unwanted advances. The harasser may sue your friend as a third-party defendant
through a process called joinder.
Except in some small-claims courts, parties hire attorneys to litigate most cases. Sometimes
individuals feel like they have a sufficient grasp on the law to proceed in litigation without a lawyer
or that they have sufficient legal training (or even a law degree) that hiring a lawyer would be a waste
of money. Individuals who represent themselves are called pro se litigants and can only proceed pro
se if the judge overseeing the case allows it. Abraham Lincoln once famously said, “He who
represents himself has a fool for a client.” The complexities of litigation require a cool and detached
mind to thread a route to success, and if you are representing yourself it is all too easy to allow
passion to cloud your judgment.
Attorneys are sometimes called members of the bar. The U.S. legal profession is unique in several
respects. In most countries, legal education is an undergraduate program followed by a period of
apprenticeship before an individual is allowed to practice law. Many countries also make a
distinction between attorneys who litigate in court and those who do not. In the United Kingdom, for
example, solicitors are lawyers who deal with ordinary legal matters outside of court, while Queen’s
Counsel (QC) are specially trained lawyers who are permitted to argue in court. In the United States,
lawyers undertake three years of graduate study resulting in the award of the Juris Doctorate degree,
or JD. Every year, more than thirty thousand students graduate from U.S. law schools with their JD.
They then sit for the bar exam in the state where they wish to practice. Since the practice of law in the
United States varies widely by different jurisdictions, lawyers are only permitted to practice in
jurisdictions where they are licensed. Some states permit lawyers from out of state, after a few years
of being in practice, to apply for bar admission without taking the exam through a process called
reciprocity. Other states, notably California and Florida, require attorneys to take the bar exam no
matter how long they have been in practice. If a lawyer is dealing with an issue or matter that takes
him or her out of state to litigate a case, he or she can ask to be admitted temporarily by a court in
that foreign state through a motion called pro hac vice. Once the lawyer passes the state’s bar exam
or is otherwise admitted, he or she is permitted to practice all aspects of law in that state, from
drafting wills and contracts to arguing a case before the U.S. Supreme Court.
Attorneys in the United States are broadly divided into civil and criminal attorneys; few lawyers excel
in both areas. Civil attorneys generally work in two different categories: in law firms, where they may
represent multiple clients, and as in-house counsel, where they represent only one client, their
employer. Most large corporations have an in-house legal department to control legal costs but may
still hire outside counsel for representation and advice in complex matters.
With the possible exception of politicians, no other profession is subject to more morbid jokes than
lawyering. William Shakespeare famously wrote in Henry VI, through a character speaking of a
utopian world, “The first thing we do, let’s kill all the lawyers.” In spite of this public animosity
toward lawyers, however, if there comes a time when someone needs a lawyer, it’s not uncommon to
hear them wish they had the most aggressive lawyer money can buy.
Perhaps part of the reason the public has a low opinion of lawyers can be traced to the ethical and
legal obligations of attorneys. Lawyers may be the most regulated of all the professional industries,
and they are required to comply with complex and sometimes rigid rules of professional conduct.
Unlike rules for other professions, the rules of professional conduct for lawyers are largely drafted
and enforced by the bar itself (other lawyers and judges) and almost never involve external
enforcement mechanisms. These rules govern virtually every aspect of the practice of law, and a
violation of these rules can result in disciplinary action from the state bar or supreme court of the
state in which the lawyer practices, up to lifetime disbarment. When President Bill Clinton, for
example, lied under oath about certain aspects of his extramarital affairs, he was suspended from
practicing law for five years in Arkansas and ordered to pay a $25,000 fine. These rules of
professional responsibility require attorneys to represent their clients with zealous advocacy.
Ordinarily, we associate the word “zealot” with extremists, but that is the standard by which lawyers
must represent their clients. This might clarify why some lawyers act the way they do.
One of the most sacrosanct rules of professional responsibility is the obligation to keep a client’s
secrets. The communications between a client and his or her attorney are absolutely confidential
under the attorney-client privilege doctrine. There are many privileges under the law, such as
the spousal privilege, doctor-patient privilege, and priest-penitent privilege. The attorney-client
privilege, however, is arguably the strongest of these privileges. The privilege belongs to the client,
and the attorney is not permitted to reveal any of these communications without the client’s consent.
A narrow exception exists for clients who tell their lawyers they intend to harm others or themselves,
but attorneys must tread very carefully to avoid violating the privilege. Many members of the public
feel that the privilege may be open to abuse and can’t understand, for example, why an attorney can’t
reveal a client’s confession to a heinous crime. Ultimately, the privilege exists for the client’s benefit.
Someone who cannot communicate with his or her attorney freely is unable to help the attorney
prepare the best possible case for litigation. You should note that in-house attorneys represent the
corporations they work for and not individual employees. If you communicate with an in-house
attorney for the company where you work, for example, that communication may not be
automatically protected by the attorney-client privilege.
Hyperlink: The Lynne Stewart Case
http://www.lynnestewart.org
Lynne Stewart, a human rights attorney, was assigned to represent Sheik Omar Abdel-Rahman, the
blind Egyptian cleric convicted of conspiracy in the 1993 World Trade Center bombing in New York
City. As part of her representation, she agreed to abide by certain conditions when communicating
with her client, including not speaking to the media. Ms. Stewart broke those promises and
inadvertently passed on a communication from her client to his followers around the world. She was
indicted and convicted of conspiracy and providing material support to terrorists. She was sentenced
to a twenty-eight-month prison term. Click the link to read more about her case, including the legal
documents involved. A very controversial aspect of the case involved the use of secret cameras and
recorders to listen in on her conversations with her client while he was in prison.
Figure 3.2Lynne Stewart
Source: Photo courtesy of Robert B. Livingston, http://en.wikipedia.org/wiki/File:Lynne_Stewart.JPG.
In spite of an attorney’s professional obligations to his or her client, it’s important to remember that
ultimately a lawyer’s first duty is to the administration of justice. The rules of professional conduct
are written with this goal in mind. The requirements for lawyers on civility, honesty, and fairness are
all written to ensure that lawyers represent the very best aspects of our judicial system. Let’s say, for
example, a client admits to his lawyer that he is guilty or liable in a case. The client then wants to
testify under oath that he is innocent. Although a lawyer cannot tell anyone what her client has told
her, the lawyer is also prohibited from knowingly suborning perjury. The attorney must either
convince the client to not testify, or withdraw from the case.
In the case in Note 3.31 “Hyperlink: A Question of Ethics”, an attorney goes a little too far in her
representation and draws a heavy fine from a judge as a result.
Hyperlink: A Question of Ethics
The Case of the Birther Attorney
Order Hon. Clay D. Land, U.S. District Judge, District Court for the Middle District of Georgia, Case
No. 4:09-CV-106, Rhodes v. MacDonald, at http://www.scribd.com/doc/20996403/Gov-uscourtsgamd-77605-28-0.
Throughout the presidential election campaign in 2008, persistent rumors swirled around whether
Barack Obama was born in the United States, a requirement under the Constitution to serve as
president. After the election, California attorney Orly Taitz launched a campaign to prove that the
president was not, in fact, born in Hawaii. Her bizarre tirades against the media and the courts
earned her this unusual reprimand from a federal judge. Click the link to read the entire order. Do
you believe that in their “zealous” representation of their clients, attorneys have the ethical duty to
pursue claims such as these?
Order
Introduction
Commenting on the special privilege granted to lawyers and the corresponding duty imposed on
them, Justice Cardozo once observed, “Membership in the bar is a privilege burdened with
conditions. [A lawyer is] received into that ancient fellowship for something more than private gain.
He [becomes] an officer of the court, and, like the court itself, an instrument or agency to advance
the ends of justice.” Competent and ethical lawyers “are essential to the primary governmental
function of administering justice.” For justice to be administered efficiently and justly, lawyers must
understand the conditions that govern their privilege to practice law. Lawyers who do not
understand those conditions are at best woefully unprepared to practice the profession and at worst
a menace to it.
When a lawyer files complaints and motions without a reasonable basis for believing that they are
supported by existing law or a modification or extension of existing law, that lawyer abuses her
privilege to practice law. When a lawyer uses the courts as a platform for a political agenda
disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice
law. When a lawyer personally attacks opposing parties and disrespects the integrity of the judiciary,
that lawyer abuses her privilege to practice law. When a lawyer recklessly accuses a judge of violating
the Judicial Code of Conduct with no supporting evidence beyond her dissatisfaction with the judge’s
rulings, that lawyer abuses her privilege to practice law. When a lawyer abuses her privilege to
practice law, that lawyer ceases to advance her cause or the ends of justice.
It is irrefutable that a lawyer owes her client zealous advocacy, but her zeal must be constrained
within the bounds placed on her as an officer of the Court and under the Court’s rules. Specifically,
Rule 11 of the Federal Rules of Civil Procedure expressly sets forth the outer boundaries of acceptable
attorney conduct. That rule prohibits a lawyer from asserting claims or legal positions that are not
well-founded under existing law or through the modification, extension, or expansion of existing law.
Rule 11 also prohibits an attorney from using the courts for a purpose unrelated to the resolution of a
legitimate legal cause of action.
Regrettably, the conduct of counsel Orly Taitz has crossed these lines, and Ms. Taitz must be
sanctioned for her misconduct. After a full review of the sanctionable conduct, counsel’s conduct
leading up to that conduct, and counsel’s response to the Court’s show cause order, the Court finds
that a monetary penalty of $20,000.00 shall be imposed upon counsel Orly Taitz as punishment for
her misconduct, as a deterrent to prevent future misconduct, and to protect the integrity of the
Court. Payment shall be made to the United States, through the Middle District of Georgia Clerk’s
Office, within thirty days of today’s Order. If counsel fails to pay the sanction due, the U.S. Attorney
will be authorized to commence collection proceedings. The Court does not take this action lightly,
and in fact, cannot recall having previously imposed monetary sanctions upon an attorney sua
sponte.
As the Orly Taitz case demonstrates, attorneys must take care to respect a court’s authority at all
times and conduct themselves in a civil manner. Most attorneys have no problem discharging this
obligation to the judge, but it is to the jury that they focus their attention the most. In our legal
system, the jury has a very special role to play in ensuring citizen participation in the administration
of justice. As the trier of fact, the jury has the duty of determining the truth in any given situation:
who said and did what, why, and when?
Do you know when someone is lying to you? Have you ever been lied to so well that you didn’t find
out about the lie until much later? Have your roommates or friends who were involved in a dispute
ever asked you to decide who should win? In essence, being a juror relies on those same human
skills. In every legal proceeding, each of two adversarial sides, absolutely opposed to each other,
claims that it is right and the other side is wrong. Our litigation system is a process by which each
side gets to present its case to a group of stranger citizens, and then ask them to decide who is lying
and who is telling the truth.
There are two types of juries. A grand jury is a group of citizens convened by the prosecution in
serious criminal cases to simply determine whether there is probable cause to believe that a crime
has occurred and whether it’s more likely than not that the defendant in question committed the
crime. The grand jury serves as a procedural step to prevent prosecutors from abusing their powers
of arrest and indictment, a sort of “sanity check” on the awesome power of government to accuse
citizens of crime. The grand jury requirement exists at the federal level and in some, but not all,
states. A grand jury typically meets for an extended period of time and can hear several different
cases in one day.
The grand jury does not determine guilt or innocence. A petit jury does that. This jury is impaneled
for a specific trial. During the trial, members of the jury listen to the evidence presented and then
deliberate as a group on what they believe the facts of the case are. They then apply the law, as
instructed by the judge, to the facts. There are typically twelve members in a petit jury in criminal
trials and from six to twelve members in civil trials, and generally speaking they must arrive at a
unanimous verdict.
The jury system is a jewel in our litigation system for it involves ordinary citizens in adjudicating all
sorts of disputes, from domestic family issues to complex business and insurance litigation to heartwrenching criminal cases. There are problems with administering this system, however.
Both grand and petit juries are drawn from citizen voter and driver license rolls. In high-profile
cases, it may be difficult to find citizens who have not heard about the case or who can be impartial
about the case, in spite of their promises to be open minded. When Enron collapsed in 2001, for
example, defense attorneys for former CEO Jeff Skilling argued strenuously that the trial should not
be held in Houston, where almost every citizen was affected in some way by the energy giant’s
collapse or knew someone affected. The question of juror bias was so serious that the U.S. Supreme
Court agreed to hear Skilling’s appeal based partially on this argument. Although the Court
eventually found that Skilling’s jury was adequately impartial, Justice Sotomayor noted in a
dissenting opinion that the “deep seated animosity that pervaded the community at large” caused her
great concern.Skilling v. United States, 561 U.S. ___
(2010), http://www.supremecourt.gov/opinions/09pdf/08-1394.pdf (accessed October 2, 2010).
Another problem arises from the burdens placed on jurors’ personal lives through their service.
While most states have laws that prevent an employer from firing a worker or taking any negative
work action, such as demotion, against the worker for being on jury duty, there is no legal
requirement that an employer continue to pay a worker on jury duty. The court system does not pay
juries for their services either (although some court systems pay a small amount, typically less than
twenty dollars per day, to cover food and transportation costs). Some citizens, such as those who are
self-employed, are therefore at great risk for losing personal income by serving on juries. Imagine
being on the O. J. Simpson criminal trial jury, for example—that trial lasted ten months. The effects
of jury service on a juror’s personal life can be staggering.
Another potential problem arises in the makeup of the jury itself. To provide a fair jury, courts
attempt to draw from a cross-section of society to reflect the diversity of the surrounding community.
Local court rules typically allow judges to excuse potential jurors for hardship or extreme
inconvenience. If these rules are too generous, then the only citizens left may be those without fulltime employment, such as students or retirees. Such a narrow cross-section of society would tend to
skew the reliability and trust of the jury system, and judges across the country are becoming
increasingly intolerant of attempts to evade jury service. The only professions that automatically
exempt citizens from jury duty are active-duty soldiers, police officers and firefighters, and public
officers.
In spite of these administrative problems, our jury system remains a cornerstone of litigation and is
often openly admired. In South Korea, for example, attempts to create a more open and responsive
democracy resulted in a novel and wholesale revision to the country’s court system: the adoption of
citizen juries.
Hyperlink: Korea Adopts Jury System
http://www.nytimes.com/2008/07/07/world/asia/07iht-jury.2.14299454.html
In 2007, with little public debate or preparation, South Korea adopted a jury system in certain
criminal and civil trials. For now, the jury’s decision is only advisory, and the court is free to reject it.
The result has been some confusion about the role of citizens in the legal system, some concern about
the methodology employed to implement the jury system, and an increase in transparency and
greater citizen participation in government affairs.
KEY TAKEAWAYS
The federal rules of civil procedure make it easy for parties in a lawsuit to identify and join other
relevant parties and to make legal claims against each other. The goal of civil litigation is to find the
truth. Litigants typically rely on lawyers to assist them in litigation. An attorney’s highest duty is to
the administration of justice. Lawyers are ethically bound to represent their clients with zealous
advocacy. A grand jury acts as a body of citizens to prevent abuse of discretion by prosecutors. A petit
jury sits in trials as the trier of fact to ascertain the truth through their observations of the presented
evidence.
EXERCISES
1. Can you think of a situation where an in-house attorney may advise you to retain your own
counsel?
2. Most rules of legal professional conduct are drafted and enforced by the bar itself, but the
Sarbanes-Oxley Act (passed in reaction to the Enron accounting scandal) imposed a legal
duty on lawyers to report acts of misconduct in publicly traded corporations. Do you believe
that the bar does an effective job of policing itself, or do you think external government
agencies should be more involved?
3. Read the legal documents available for the Lynne Stewart case at Note 3.28 “Hyperlink: The
Lynne Stewart Case”. Do you think that the U.S. government should be able to curb the
attorney-client privilege when the client is a convicted terrorist? Or a suspected terrorist?
4. How aggressive should a lawyer be in representing his or her client “zealously”? Read the
rest of Judge Land’s order in Note 3.31 “Hyperlink: A Question of Ethics”. Do you think Orly
Taitz’s conduct warranted a twenty-thousand-dollar fine?
5. Do you think that juries can be trusted to always arrive at the truth? Why or why not?
6. Do you think the U.S. jury system should be adopted by other countries? What factors do
you think should affect a country’s decision to adopt a jury system?
Question 2
Please respond to two other students’ post. Thanks.
1. Student
I feel lawyer should be aggressive to a certain extent some lawyers are overly aggressive when
often times it is not needed. I feel lawyers should be aggressive when it is needed, for example if
a defendant is charged with murdering someone and has not came to truth with his/herself or the
lawyer. I feel in this case the lawyer should be very aggressive. In other minimal cases such as
petty theft there shouldn’t be to much aggressiveness that should occur, but the lawyer should not
take it easy on the defendant either.
Yes I feel Orly Taitz’s deserves the $20,000 fine because the system and higher up’s would not
lie on her as well as make up any story for what she has done. I feel if the crime was committed
she should definitely be punished for it no matter what. All rules and laws should be followed in
order to obtain a steady career in the field of which she has signed up for.
•
1 Respond.
2 student
I feel that there is a line you should not cross when zealously defending your client. That
is going beyond what is your job of representing your client. In the case presented in
the chapter, the decision had already been made by the court and the lawyer went
beyond that because of her own political beliefs. This line from the reading sums up my
thoughts perfectly “It is irrefutable that a lawyer owes her client zealous advocacy, but
her zeal must be constrained within the bonds placed on her as an officer of the Court.”
Advocating for your client and acting in your own interest are two very different things.
There are times when clients do not have the full support of their lawyer and you can
see that represented in the court case. At that point, I think the lawyer is in the wrong.
The job of the lawyer is to fight for the client and defend their argument or position.
There is a certain fervor a lawyer need to present in court and if you lack confidence or
presence the court may view you as less convincing.
I do believe that Orly Taitz’s conduct deserved a fine. In essence, she was committing
slander against Barack Obama she had no valid proof of her claims and was actively
stating her believed falsehoods and presenting those to the public. I wonder if President
Barack Obama could have sewed her under those rules. I am not that knowledgeable in
legal matters but touting un-based statements to tarnish another person’s image
sounds like a crime in my understanding. I feel she got off easy by only receiving a fine
for her actions.
2. Respond