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Resources: Ethics

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Information contained in pages and articles on this site provides general information and does not provide legal advice on any specific legal matter or factual situation. This information is not intended to create or provide legal advice or a lawyer-client relationship. It is not legal advice.  Readers should not act upon this information without seeking professional counsel. Use of this site does not create an attorney - client relationship, even if you provide information to us by any means including using a contact form on this site. 

Articles that apply to either legal or corporate management ethics.

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This month's special tip. An attorney can be liable for aiding and abetting another's breach of fiduciary duty. It's not only the drafted document that be legal, the use of the document must be legally proper. The attorney must use due diligence in finding whether the document he/she drafts is being used by the client to breach a fiduciary duty the client owes to another.

This theory has been used in some states already. See Insight Technology, Inc. v. Freightcheck, LLC, 633 S.E.2d 373, 377-78 (2006) (Georgia); AmeriFirst Bank v. Bomar, 757 F. Supp. 1365, 1380 (S.D. Fla. 1991); Reis v. Barley, Snyder, Senft & Cohen, 484 F. Supp.2d 337, 350-52 (E.D. Pa. 2007). Cf., Alexander v. Anstine, 152 P.3d 497, 503 (Colo. 2007) (declining to decide whether an attorney can be liable for aiding and abetting the breach of fiduciary duty of another person.) The defendant attorney cannot avoid liability by arguing that no personal benefit was received by him/her. See In re Caribbean K Line, Ltd, 288 B.R. 908, 919 (S.D. Fla 2002) (corporate director liable for aiding and abetting breach of fiduciary duty although director did not personally benefit from breach).


Civility is a model for success!  Whether you are male or female, being the "civil" civil lawyer wins settlements and judgments.  So as the saying goes: "Illegitimi Non Carborundum" (Don't Let the Bastards Wear You Down) and you will be rewarded when "Obesa cantavit" (The Fat Lady has Sung). 

The following two articles are by "top gun" powerful trial attorneys with similar advice based on their own experience.  The experience of winners is hard to argue against.

BEING NICE IS POWERFUL
By Elizabeth A. Starrs, a top trial layer in the West.

When I was a relatively new lawyer, I began representing professionals in malpractice cases. When I attended depositions, I was often faced with the uncontrolled advocacy of other lawyers who were not only older and bigger than I, but condescending toward me. I did not have the same physical presence nor the same natural aptitude for one-upmanship. These tactics were unsettling to me. How in the world would I ever survive? I imagine there are more lawyers out there who are in similar situations and wondering why you ever wanted to be a lawyer in the first place when you’re not naturally aggressive and abrasive and you really don’t want to fight with opposing counsel all the time. Can a lawyer be nice and still be an effective advocate? Can you cooperate . . .?  The answer to both of these questions is . . . Read the Article as it appeared originally in an ABA ethics site.

WHY CHOOSE THE ROAD TO CIVILITY?
By John Tarantino, a top trial lawyer in the East.

Yes, I’ve heard the saying, "Nice guys finish last." However, based on my experience, nice guys (and nice women) most often finish first in convincing juries. (And they usually sleep better at night, too.)

Then and Now. I started work at nine years old, shining shoes. Today, more than 40 years later, I practice law. My current job pays much better than my first one, and I have many more benefits in my present situation. There are definite differences in the two jobs, but they also have some similarities. They both require hard work, long hours, dedication to detail and the ability to communicate well with people. Once upon a time, as I shined shoes, I learned that my personality – as well as the quality of my work – could go a long way in determining my tip. Today, I have learned from years of trying cases that my personality – as well as my legal acumen – can go a long way in determining whether a jury accepts or rejects . . . Read the Article as it appeared originally in an ABA ethics site.

Ben Cowgill is one of the most thoughtful of those legal writers on legal ethics who are not law school professors. Ben Cowgill's legal ethics site had posted some of the best thought available on down-to-earth problems of the small firm legal practitioner.  His site Ben Cowgill on Legal Ethics was intended to be like a professional journal, with content relating solely to current developments in legal ethics, attorney discipline and the law of lawyering.  For a few months, Cowgill's electronic legal journal for modern day lawyers gave us some of the best available articles on legal ethics in the practice of law

However, the Kentucky Lawyer Advertising Commission apparently did not like electronic law journals. Figuring that they could not shut down free speech but they could tax it out of existence, the Kentucky Commission ruled that lawyers' blogs fall under their rules for advertisements, which require a $50 fee per ad and a $50 fee for every change to the advertisement.  Cowgill's attempt to educate lawyers on ethics was shut down by the ruling, to the loss of the legal profession in general and the lawyers of Kentucky in particular.


ABA approves Corporate Counsel consulting their personal ethics. That title may be an overstatement, but it focuses your attention where it should be —what do you do if your personal ethics revolts against what your client is doing? There are lots of options, but this article talks about one of them. . . . .
 

More Ethics Articles from Our Archives.

Organ Procurement Organizations Should Not Reject a Deceased's Organ Donation because the Family Objects.

Ethical Consideration and Malpractice Prevention  in Handling Insurance Claims

Conflict of Interest by Attorneys Appearing To Switch Sides from One Client to Another.

Attorney Client Relationships may Arise from Implications, even when the Attorney has Not Agreed to be an Attorney for the Person

Getting the Opinion In (or Out) [The Daubert-Joiner-Kumho Tests]. Expert Testimony Rules of Evidence for Court Witnesses: Seminars and Education Daubert Kumho Federal Rules

Bad Faith Claims against the insurer, arising out of suits against the insured - a handbook for both plaintiffs and defendant insurers. Ins. Bad Faith

The court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. Sequestration

The Evidence Required to Prove the Validity of Legal Assistant Fees as a Compensable Component of Attorney Fee Awards Reasonable Fees

An aid to those interested in the law of  presenting an expert's opinion under the Federal Rule of Evidence 703 and the similar state evidence rules.  Rule 703 Basis- Expert Opinion

Juror Perception of Expert Witnesses

Defending the Company Plus Its Employee: 
Guidelines for a Shared Counsel.

The ABA Corporate Responsibility Task Force Report recommends permitting lawyers more often to reveal confidences of corporate clients to persons outside of the organization.. The reasoning and research point the way for a lawyer to go to prosecutors with corporate information when greed runs rampant.

When a corporation is sued for the acts of an employee, the corporation or its insurer often ask the defense counsel to defend both the corporation and the employee. It certainly is more cost efficient for the corporation or insurer to only have one attorney handle the matter as joint defense. Frequently the employer wants to control the defense of the employee, so that a unified and powerful defense is raised to the claim. From sad experience, the company may have learned that the employee with a separate attorney often has a less then desirable defense, harming the company’s defense by stupid disclosures or maneuvers. Frequently the employee’s desire for joint defense arises because the employee has no insurance; naturally, the employee thinks it wonderful that the company-paid attorney is also "his" attorney. Furthermore, as we all know, the employee usually wrongly assumes you as the company attorney are also "his" attorney for the defense of any corporate activity. That is why you always start out your conference with the employee by telling him/her that you are not their attorney and they should not tell you anything they want to keep confidential. (Right? That is what you do, isn’t it?)

It is technically possible (and in most cases, ethically possible if sufficient precautions are taken and consents signed) to have one attorney represent both the corporation and the employees.  Specific guidelines clearly and comprehensively analyzing what the attorney should do in joint representation situations have been scarce. . . .Read the Full Article in PDF format
About the Author of this Article

Not in our BOC archives, but worthwhile articles at these sites.

The Open Compliance & Ethics Group  OCEG  provides guidelines, standards, benchmarks, tools and online resources/ OCEG has a straightforward, ambitious and timely mission: to help organizations align their governance, compliance and risk management activities to drive business performance and promote integrity

The Caux Roundtable
The CRT is an international network of principled business leaders working to promote a moral capitalism. The CRT advocates Principles for Business through which principled capitalism can flourish.

Center for Business Ethics at Bentley College (CBE) Business Ethics Online Library

Ethical Corporation  Ethical Corporation is an independent publisher and events producer on business ethics and corporate responsibility.

The Ethics Research Center has a great series of PowerPoint slides that illustrate key research findings in corporate ethics and corporate business cultures.  Sample a few at their website.  Available for free download. EthicsStat Archives you can view at the Ethics Research Center. [List courtesy of ERC.]