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Legal Ethics and A Civil Action
Kevin E. Mohr*
I. INTRODUCTION AND BACKGROUND ToA CIVIL ACTION
A student's performance in law school does not necessarily indi-
cate whether the student will be a good lawyer. Nor will a student's
enjoyment of law school portend that she will enjoy the practice of
law. Being a lawyer is not simply being able to cogently analyze a set
of facts. The practice of law does not ebb and flow with the regularity
of law school semesters or quarters. You do not receive grades at
regular intervals, nor does your work come in nicely discrete packets
with foreseeable
termination dates. Rather, you prove you can "be a
lawyer" by diligently representing your clients year after year, often
feeling fatigued and enduring acrimonious
interactions with opposing
counsel, yet still maintaining your ethical and moral compass.
As a litigator or trial lawyer, you usually cannot predict the slack
periods when you can sit back and reflect on what you are doing, as
you might between semesters while still in school. Even under the
most strict judge, you cannot always predict when a trial will end (or
even begin) or a case will settle. Even if you could, usually several
other cases await your immediate attention once it does. Intense peri-
ods of trial preparation and trial can last for months; during many
stretches you have to work most weekends just to keep on top of your
cases. This preoccupation with your clients' matters is especially true
when your efforts are focused on a single case, as illustrated in Jona-
than Harr's A Civil Action.
1
- Associate Professor, Western State University College of Law, Fullerton, California. J.D.,
Yale Law School, 1984; M.S., Human Biology, University of Wisconsin-Madison,
1977; B.A., Har-
pur College, State University
of New York at Binghamton, 1972. The author wishes to thank Brian
Mohr for reviewing and commenting on an earlier draft of this Article, and Edith Warkentine for
introducing him to the many possibilities for teaching ethics in A Civil Action. The author also
wishes to thank Hon. Edward
Wallin, Hon. David Weinberg and Hon. Ellen R. Peck for the gener-
ous contribution of their time to the Legal Ethics in A Civil Action panel from which this Article
sprang.
- JONATHAN HARR, A CIVIL ACTION
(First Vintage Books ed. 1996). All page refer-
ences in this Article are to this edition of the book.
Seattle University Law Review
Harr's book dramatically describes how a case can consume a
lawyer's life to the exclusion of all else. The book describes lawyers'
pursuit and defense of a toxic tort case that arose out of events in the
town of Woburn, Massachusetts. A statistically high number of chil-
dren and adults, all of whom drank water from the town's wells, con-
tracted leukemia. After determining that runoff from land owned by
W.R. Grace & Co. and a subsidiary of Beatrice Foods may have pol-
luted the wells, a Boston personal injury lawyer, Jan Schlictmann,
together with a public interest organization, Trial Lawyers for Public
Justice (TPLJ), filed suit on behalf of these Woburn residents (the
Woburn plaintiffs) against Grace and Beatrice. The book recounts
the problems the plaintiffs' lawyers confronted, not only in trying to
prove their case, but also in trying to overcome the formidable
defenses prepared by the principal lawyers for the defendants, Wil-
liam Cheeseman for Grace and Jerome Facher for Beatrice. Covering
the case from the filing of the complaint to posttrial maneuvers over
alleged discovery abuses, the book also devotes substantial space to the
interactions among the lawyers and between the lawyers and the judge
who presided over the case, United States District Judge Walter
Skinner.
Lawyers identify with this book, perhaps because, after an
opening section describing the families and their injuries, the narrative
presents the pursuit of the case almost exclusively from the lawyers'
perspective. The book is not episodic entertainment like "L.A. Law."
A Civil Action does not take place in a world where the firm's law
library functions primarily as a setting for interpersonal squabbles or
late-night trysts. Instead, it is a place of half-eaten meals at the office,
documents and files occupying any horizontal surface, and clothes
worn a second day. In scene after scene, the book depicts the sus-
tained pressure and the frustrations and doubts that can overwhelm a
lawyer as he pursues his client's claims.
The book also depicts a world that can leave the reader with the
impression that ethics took a holiday during the Woburn case, proba-
bly because it ends with the posttrial motions over the concealment of
the Yankee Environmental Engineering Report
2
and Riley's destruc-
tion of evidence.
3
The reader is left with the feeling that had this
- HARR, supra note 1, at 459-61. This was an environmental report that John Riley,
president of Beatrice's subsidiary, the J. Riley Tannery, had commissioned to investigate the
migration of waste from the tannery property to the city wells. The report supported the predic-
tions that Schlictmann's expert Pinder had made at trial. Id. at 460. Although the report had
been completed three years before trial, defendant Beatrice never produced it during discovery
despite Judge Skinner's finding that Schlictmann had properly requested it. Id. at 464.
- Id. at 469-87. In 1983, after Schlictmann had filed the complaint and three years before
[Vol. 23:
Seattle University Law Review
discussions of acceptable ethical behavior as set out in ethical codes.
In accord with the Lessons from Woburn Project's goal to make A
Civil Action and its associated materials into a powerful teaching tool,
the book's events vividly illustrate the ethical parameters within which
a lawyer must operate, ethical parameters that exist regardless of how
tired a lawyer may be or how antagonistic the opposing party may act.
Part II contains a brief overview of the mechanisms for regulat-
ing lawyers' conduct, the various responsibilities and functions a
law-
yer holds within our legal system, and the lawyer's professional duties.
After this brief overview, I discuss in depth several events in the book
that illustrate the roles and duties a lawyer has, and what a lawyer
should do in each event to fulfill her ethical obligations. Part III pre-
sents an event collateral to the Woburn case, Schlictmann's first trial,
and raises issues of the lawyer's duty of competence and the funda-
mental division of authority and responsibility between lawyer and cli-
ent in achieving the aims of the representation. Part IV focuses on the
Rule 11 hearing where Schlictmann contested allegations of barratry.
This part of the Article demonstrates the difference between the attor-
ney-client privilege and the lawyer's duty of confidentiality, two fun-
damental ethical concepts many practicing lawyers confuse, and which
can also serve as a springboard for a classroom discussion of the place
morality holds in the legal profession. Moreover, it reminds students
that common sense need not be left at the courthouse door.
Part V follows up on the theme of morals in the legal profession.
It uses the false deposition testimony of Barbas to introduce the classic
conflict between a lawyer's responsibilities
as a representative of cli-
ents and as an officer of the legal system.
It also familiarizes the stu-
dent with how lawyers may say or do one thing, but
intend something
entirely different. Finally, Part VI discusses legal fees, a topic dear to
the hearts of most lawyers and central to A Civil Action. This part also
introduces the kind of ethical ramifications that exist when a lawyer
professionally associates with nonlawyers to create a multidisciplinary
practice. The current ABA President has identified this issue as the
most important issue facing the legal profession today.'
The reader must remember that in some of these events, par-
ticularly the scenes that take place in the courtroom or between the
lawyers, the book is generous with details that permit a discussion of
the ethics within the context of the actual events.' In other instances,
- See ABA Commission on Multidisciplinary Practice, General Information Form, at
http://www.abanet.org/cpr/mdpgeninfo.html. The Commissioner's Report on Multidisci-
plinary Practice and supporting documents can be found at <http://www.abanet.org/cpr/
mdpfinalreport.html>.
8. See infra Parts IV.A., V.A., VI.
[Vol. 23:
Legal Ethics
however, the book is spare about what actually occurred. Not sur-
prisingly, this occurs most often when lawyer-client communications
are involved.
9
In those situations, one can hypothesize about what
may have happened and whether it comports with a lawyer's ethical
duties." Alternatively, the events can function as vehicles that can be
used to segue into other related topics in ethics. Taken as a whole,
they demonstrate that A Civil Action can be used not only to illustrate
a lawyer's ethical obligations, but also as springboards to discussions
of more general ethical and professional concerns. These discussions
will demonstrate that A Civil Action is a rich repository with which to
supplement a course in legal ethics."
II. BRIEF OVERVIEW OF PROFESSIONAL RESPONSIBILITY
To better understand the ethical issues that arise in A Civil
Action, it is helpful to briefly review the sources of regulation of the
legal profession, the different roles and responsibilities a lawyer has
within the legal system, the adversarial nature of that legal system, and
the duties a lawyer owes, not only to his client, but also to the legal
system.
A. Sources of Regulation of the Legal Profession
The legal profession is self-regulated, primarily through the vari-
ous codes of professional conduct the states have adopted during this
century.
12
The codes, which generally set forth minimally acceptable
9. See infra Part III.A.3.
10. I have relied exclusively on the book's descriptions of events. As more materials from
the case become widely available, it will be possible to supplement these descriptions for a more
complete discussion of the issues. See, e.g., LEWIS A. GROSSMAN AND ROBERT G. VAUGHN,
A DOCUMENTARY COMPANION TO A CIVIL ACTION (1999) (containing the pleadings and
other materials from the Woburn litigation).
11. My involvement with A Civil Action as a teaching tool began in Fall 1998 when I pre-
pared a handout for a panel discussion on "Professional Ethics and A Civil Action" at Western
State University College of Law. The panel, consisting of several distinguished judges and law-
yers, appeared before the law school's first year students, all of whom were required to purchase
and read the book before as part of their Professional Skills course. The handout addresses more
ethical issues arising in many other events in A Civil Action than there is space to discuss in this
Article. It is available at http://www.wsulaw.edu/general/index.htm or by requesting a copy
from the author.
- For a general discussion of the regulation of the legal profession, see generally
CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 2 (1986). As Wolfram notes, lawyers are
regulated not only through the formal mechanisms of bar discipline, but also through, inter alia,
the inherent powers of courts to regulate lawyers, federal antitrust laws, and malpractice actions.
Id. at 20-21. In addition, Wolfram observes that there are informal mechanisms, such as "nega-
tive publicity and other expressions of peer disapproval, the cutoff of valuable practice opportu-
nities (firm membership or referral business), denial of access to centers of power and prestige
(bar association committee membership and officership), and preclusion from judicial posts." Id.
1999]
Legal Ethics
and the District of Columbia having adopted either the Model Rules
or the ABA code. I will also regularly refer to the California Rules in
analyzing the events.'" In addition to the Model Rules, the California
Rules, and the ABA code, a lawyer's duties may also be found in state
statutes and under other more generally-applicable areas of law, such
as the law of agency and the law of fiduciaries.
9
B. The Lawyer's Responsibilities and Roles Within the Legal System
A lawyer wears several hats within the legal system. Not only
does the lawyer represent clients, but she is also an officer of the legal
system and a "public citizen having special responsibility for the qual-
ity of justice."" In representing a client, a lawyer can perform various
functions: advisor, advocate, negotiator, intermediary, and evalua-
tor.
2
' Although we see lawyers performing each of the first three
functions in A Civil Action, we primarily remember them as advocates
for their clients-advocates devising their respective strategies and
arguing their clients' positions to each other or before Judge Skinner or
the jury. Given the adversarial model upon which the American sys-
tem of justice is based, it should not surprise us that the lawyers' roles
as advocates for their clients predominate in A Civil Action.
C. The Adversary System
The United States has an adversary system under which the par-
ties to a dispute each present to a trier of fact, traditionally a jury, their
versions of facts underlying the dispute. Under the adversary model,
the fact trier then distills the true facts from the parties' different ver-
- Aside from a certain parochialism, my decision to use the California Rules rests on the
large number of California law students and the fact that the State of California is home to more
lawyers than any other state.
In particular, California has the State Bar Act, CAL. Bus. & PROF. CODE §§ 6000-
(1990), which includes provisions setting forth ethical duties that govern lawyer conduct. See,
e.g., CAL. Bus. & PROF. CODE § 6068(e) (which sets forth a lawyer's duty not to disclose a cli-
ent's confidential information, a duty that is set out in both the Model Rules and Model Code,
but is not included in the California Rules).
- MODEL RULES Preamble para. 1.
- The Preamble to the Model Rules discusses these various functions:
As advisor, a lawyer provides a client with an informed understanding of the client's
legal rights and obligations and explains their practical implications. As advocate, a
lawyer zealously asserts the client's position under the rules of the adversary system.
As negotiator, a lawyer seeks a result advantageous to the client but consistent with
requirements of honest dealing with others. As intermediary between clients, a lawyer
seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a
spokes[person] for each client. A lawyer acts as evaluator by examining a client's legal
affairs and reporting about them to the client or to others.
MODEL RULES Preamble para. 2.
1999]
Seattle University Law Review
[Vol. 23:
22
sions of the
same story. To ensure that the adversary system func-
tions properly
and the parties are able to present their arguments to
the trier of fact persuasively, each is represented
by a trained advocate:
a lawyer. The advocate's job is not to reconcile her
client's version of
the facts with the opposing party's version, but rather to convince
the
trier of
fact to adopt
her
client's
version.
23
D. Duties of a Lawyer to the Client
Fundamental to the adversary system is the requirement that a
lawyer must serve her client with absolute loyalty. As the client's
advocate, the lawyer effectively steps into the client's shoes. Unless
her loyalty is undivided, unless all her resources at that moment in
time are devoted to the client's interests, she cannot be an effective
advocate. Thus, the justice system presupposes the lawyer's undi-
vided loyalty to her client.
24
1. The Duties of
Loyalty and Confidentiality
Because of its centrality to the effective functioning of the adver-
sarial justice system, the duty of loyalty is arguably the most funda-
mental of the lawyer's duties.
25
The ethical codes identify a
number of
other duties that foster the duty of loyalty. First, as already noted, a
lawyer is expected to be a zealous advocate for her client.
2
' Addition-
ally, to be
an effective advocate,
the lawyer
must be
both competent
27
and diligent.
2
'
To help the lawyer
represent the client competently
- See DAVID A. LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 50-103 (1988),
for a discussion and criticism of the underlying rationale for the adversary system.
- The Preamble to the Model
Rules notes: "[W]hen an opposing party is well repre-
sented, a lawyer can be a zealous advocate on behalf of a client and
at the same time assume that
justice is being done." MODEL RULES Preamble para.
- In short, aside from making her cli-
ent's argument, the lawyer need not concern herself with the effectiveness of the
system so long
as the other party has a lawyer.
- In the last two decades or so, a number
of commentators have questioned the view that
the adversary system requires rigid adherence to the client's position even if that will result in
injustice prevailing in a particular case. See, e.g., LUBAN, supra note
22, at 322-35; Deborah L.
Rhode, Ethical Perspectives on Legal Practice, 37 STAN.
L. REV. 589, 592 (1985); William H.
Simon, Ethical Discretion in Lawyering,
101 HARV. L. REV. 1083 (1988).
- See, e.g., State Bar
of Cal. Comm. on Professional Responsibility and Conduct, CAL
1987-93 (1987); CAL 1984-
(1984).
- See supra note
23 and accompanying text.
- "A lawyer shall provide
competent representation to a client. Competent representa-
tion requires legal knowledge, skill, thoroughness and preparation
reasonably necessary for the
representation." MODEL RULES Rule 1.1.
See also CAL. RULES Rule 3-110; MODEL CODE
DR 6-101. See also infra Part III.A.
- The Model Rules require that a lawyer "act with reasonable
diligence and promptness
in representing
a client." MODEL RULES Rule 1.3. The California Rules include diligence in
the definition of competence: "For purposes of this rule, 'competence' in any legal service shall
Seattle
University Law Review
duty to communicate the information
necessary for the client to make
an
informed
decision.
35
This brief review outlines
the broad parameters of the
attorney-
client relationship
that are central to the
functioning of the adversarial
system. This review, however, is far
from exhaustive. It has focused
on
the lawyer's role as a client representative
within our adversarial
legal system
and is intended merely to help
the reader appreciate the
illustrations that follow from
A Civil Action.
Nevertheless,
the reader should
recognize that a lawyer does
not
function
only as a client's representative.
A lawyer also functions as
an officer
of the legal system and, thus, is
expected to conform her
conduct to the
law.
36
The lawyer's responsibility
as an officer of the
legal system can sometimes conflict
with her role as client representa-
tive. As we
will see, this conflict arises with
some regularity in legal
practice and is
illustrated in A Civil Action.
37
III. DID THE LAWYER OVERSTEP
HIS BOUNDS?
One
incident that is collateral to the Woburn
case and that raises
important
ethical issues is the description of
Schlictmann's first trial
and the
events that lead up to the trial.
3
The case involved the
drowning
death of client Lowell Eaton's
son in a gravel pit. The
insurance company made
a settlement offer before trial and then
increased
the offer just before the case
went to the jury. Despite the
urging
of the experienced trial judge
to accept the offer, Schlictmann
insisted on hearing
the jury's verdict.
The author probably included this
incident to demonstrate
Schlictmann's
tenacity, a trait that would
play a large role in the
Woburn case,
39
and his confidence that he
and his clients would pre-
- MODEL RULES Rule 1.4; CAL.
RULES Rules 3-500, 3-510; CAL. Bus. & PROF. CODE
§ 6068(m) (1990).
- MODEL RULES Preamble
para. 4. In its entirety, paragraph 4 provides:
A lawyer's conduct should conform to the requirements
of the law, both in profes-
sional service
to clients and in the lawyer's business and personal
affairs. A lawyer
should use the law's
procedures only for legitimate purposes and not to
harass or
intimidate others. A lawyer should demonstrate respect
for the legal system and for
those who
serve it, including judges, other lawyers and public officials.
While it is a
lawyer's duty, when necessary, to challenge the
rectitude of official action, it is also a
lawyer's duty to uphold legal process.
Id.
- See infra Part V.
- HARR, supra
note 1, at 60-63.
For example, Reed, of Mulligan & Reed, said of Schlictmann:
"The kid is like a bull-
dog,"
and "once he gets hold of something, he doesn't let go."
HARR, supra note 1, at 66. These
later would become prophetic words.
During the settlement discussions with Grace after
Bea-
trice had been dismissed from case, Schlictmann
appeared to be the last person on the plaintiffs'
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1999] Legal Ethics
vail if he could only present his case to a jury.
4
" This relatively short
passage also raises two broad issues that will later resonate in the
Woburn case: (1) competence, or what cases can-or should-a lawyer
take and still be able to fulfill her duty to represent her client compe-
tently; and (2) communication, or how a lawyer should counsel the cli-
ent so the client can make the kind of decisions it is the client's right or
responsibility to make. Both of these issues are important to law stu-
dents, who will be practicing within a year or two of taking their Pro-
fessional Responsibility course. Many of these students will work in a
solo practice or a small firm and will be concerned about how, without
the guiding hand of a senior attorney, they can acquire the experience
and skill necessary to represent their clients competently.
The facts of the Eaton case are straightforward. Lowell Eaton's
son had drowned in a gravel pit owned by a construction company.
When Eaton approached Schlictmann to take the case several years
later, the boy's grandmother, the only witness to the accident, had
died, and the pit had been filled. Another lawyer had filed the suit
against the construction company, but the last time Eaton had called
him about the case, the lawyer told Eaton "to stop dwelling on the
death of his son," and that the case "was hopeless."
4
team to concede they probably could not win at trial and needed to settle the case. Id. at 439.
- Id. at 219.
- Id. at 60. Did the first lawyer neglect the case? It is not clear from the facts whether
the lawyer had done much, if any, work on the case. This is another offshoot to explore: how
cases sometimes get put on the back burner, and when the time arrives to go forward with them,
the evidence has been lost or misplaced, and the case has become "hopeless." If this is what
actually happened in the Eaton case, then the first lawyer violated his duty to act diligently and
promptly on his client's behalf. See MODEL RULES Rule 1.3; CAL. RULE Rule 3-110. While a
discussion of case management may be better placed in a Law Practice course, failure to properly
manage files is the subject of numerous disciplinary complaints. This fact warrants at least a
general discussion in an ethics course. See, e.g., Raymond Marks & Darlene Cathcart, Discipline
Within the Legal Profession: Is It Self-Regulation? 1974 U. ILL. LAW F. 193, 195-217 (1974)
(reporting that for the year ending April 30, 1970, the Bar of the City of New York reported that
524 out of 966 disciplinary complaints, 54.6%, which the intake screeners had labeled prima facie
allegations with the disciplinary agency's jurisdiction, involved neglect). Sometimes a lawyer
does not neglect a case merely because she has forgotten about it. Lawyers may know a case is in
their files but will ignore it, seemingly hoping it will go away. Perhaps this occurs because the
lawyer originally told the client she had a good case, but after review now realizes what she
should have known when she accepted the representation: she cannot win the case. Despite
Harr's writing that many cases in many firms "die quietly in the files," HARR, supra note 1, at
66, for a lawyer to ignore a case in this fashion is a disciplinable offense. See, e.g., In re Ander-
son, 788 P.2d 95 (Ariz. 1990) (holding that it was a "knowing and callous" lack of diligence for a
lawyer to file suit, "do some discovery," but then fail to file pretrial brief and ignore client's let-
ters requesting he try to get case back on the docket); In re McCausland, 605 N.E.2d 185 (Ind.
- (holding that lawyer's failure to advise client he had no claim, failure to act promptly, and
failure to return file upon client's request was a disciplinable offense).
1999]
Legal Ethics
acquiring sufficient learning and skill before performance is
required."
47
In short, despite a lack of experience in a particular area
of law, a lawyer generally should be able to apply the research and
analytical skills she acquired in law school to unfamiliar substantive
areas of law well enough to represent the client adequately.
4 8
Competent representation of a client in a trial, however, does not
rest solely on a lawyer's research and analytical abilities. Trial advo-
cacy is a skill in itself that improves with experience. It is not a skill
most lawyers can learn from reading books. A lawyer who goes to trial
on behalf of a client without any prior trial experience is probably not
acting competently. Where a lawyer is in a firm, she can usually gain
such experience as a second chair at trial. In the prosecutor's or public
defender's office, another lawyer from the office will often assist the
new lawyer in her first trial. How, then, can a relatively inexperienced
ily transcends any particular specialized knowledge. A lawyer can provide adequate
representation in a wholly novel field through necessary study. Competent represen-
tation can also be provided through the association of a lawyer of established compe-
tence in the field in question.
- CAL. RULES Rule 3-110(C), which provides in full:
If a member does not have sufficient learning and skill when the legal service is
undertaken the member may nonetheless perform such services competently by (1)
associating with or where appropriate, professionally consulting another lawyer rea-
sonably believed to be competent, or (2) by acquiring sufficient learning and skill
before performance is required.
- For example, David Boies, who recently represented the U.S. Department of Justice in
its antitrust trial against Microsoft, has established a reputation as a formidable trial lawyer
across a broad spectrum of law. In the mid-1980s, he represented CBS in a libel suit brought by
retired General William C. Westmoreland. Boies believes that he can learn about any substan-
tive area of law:
Like other great litigators, Boies takes considerable pride in his ability to litigate any-
thing: an antitrust case, a contested takeover, a libel action. Prior to the Westmore-
land case, for example, he had never handled a libel suit-which caused initial anxiety
among the defendants. Mary Boies, an attorney herself and then a CBS vice president
for corporate information, recalls her colleagues there saying, "'David's a really good
antitrust lawyer, but what does he know about the First Amendment?' And I'd say,
'Well, it's a very short amendment. He will learn it."'
As Boies sees it, "It's not that hard to learn an area of the law. I know how to
communicate, read cases, organize facts. That is what a lawsuit is all about."
Cary Reich, The Litigator: David Boies, The Wall Street Lawyer Everyone Wants, N.Y. TIMES,
June 1, 1986, section 6, at 19. There are exceptions to the broad sweep of this "rule," that is,
there are probably areas of the law in which a lawyer should not-and in some instances, may
not-venture without specific training or background. Drafting and filing patent applications is
an area of law for which a lawyer must be specially licensed by the Patent and Trademark Office.
A lawyer attempting to practice in this area without being appropriately licensed would be sub-
ject to discipline. Some areas of law are highly technical and complex and have special courts for
resolving disputes. In these areas, a lawyer should assess a prospective client's situation and his
experience very carefully before accepting the client's case. Bankruptcy and tax law are two such
areas. In situations where the lawyer determines she should not take the case by herself, she can
refer the matter to a qualified lawyer or associate. See, e.g., MODEL RULES Rule 1.1 cmt. 2;
CAL. RULES Rule 3-110(C).
Seattle University Law
Review
sole practitioner such as Schlictmann gain the necessary
experience?
One possibility is to associate with a more experienced trial
lawyer for
your first trial. This, in fact, is what the
ethical codes recommend.
49
Whether by teaching himself the law or associating with
a more
experienced lawyer, a lawyer need not reject a case merely
because he
is inexperienced. Nevertheless, we still need to ask
whether Schlict-
mann should have taken the Eaton case.
He had little experience in
personal injury cases (a "slip 'n fall" and a few workers' compensation
cases)."
0
He had never tried a case, and he had no experience prepar-
ing for trial."
1
In fact, we are told he "began reading
books on the
fundamentals of discovery
and trial practice.
' 5 2
The first lawyer had
assessed the case as "hopeless.
5 ' 3
Most experienced personal
injury
lawyers-including Schlictmann's friend and partner, Conway-
probably would have accepted the insurance company's offer to
settle
for $5,000. Nevertheless, the fact that the insurance company
offered anything demonstrates that Schlictmann, despite his inexper-
ience, was
able through self-education to put together a case that
convinced the insurance company that settling a "hopeless" case was
still in its best interest.
After his
trial victory, it is easy to say that Schlictmann made the
right decision in taking the Eaton case. Would we
reach the same
conclusion, however, without the benefit of hindsight? On the one
hand, we cannot overlook the
fact that when Mr. Eaton walked
through his office door, Schlictmann's
finances were in trouble. There
is always the danger that a lawyer will overestimate his abilities
or the
value of a case when "baby needs a new pair of shoes."
5 5
The eco-
- See MODEL RULES Rule 1.1 cmt. 2; CAL.
RULE Rule 3-110(C). At the law school
where I teach, many of our graduates open solo practices or join firms with just one or two other
lawyers after being admitted
to the bar. Many of my former students have related the fear they
felt when preparing for and conducting their first trial. They
have all stated that the single most
important factor in helping them prepare for and conduct the trial was their having taken a Trial
Practice course in law school.
All of them, however, said they consulted with a more experienced
lawyer.
- HARR,
supra note 1, at 59.
- Id. at 60.
- Id. at 61.
- Id. In later offering Schlictmarm $5,000 to settle, the insurance company's claims man-
ager appears to have seconded this assessment
by noting "[e]verybody in the case is dead-the
owner of the construction company, the boy's grandmother, the
boy. Without the grandmother,
you don't have a witness to the boy's death." Id.
- This of course assumes
Conway would have accepted the case in the first place. It is
likely he would not have done so. See HARR, supra note 1, at 126 (Conway would say, "You
measure your success by the cases you don't take.").
- In my Professional Responsibility
class, I emphasize that a lawyer's self-interest is often
implicated in a lawyer's practice. It can affect the lawyer's actions and the recommendations the
lawyer makes to
a client, whether it be to take a case in the first instance or to recommend that
[Vol. 23:
Seattle University Law Review
on a contingent, or outcome, basis. As the lawyer gains experience,
she will be better able to recognize such fruitless avenues and not pur-
sue them. Thus, she will be in a better position to represent clients
more efficiently. While learning these lessons, however, she will still
be able to represent her client adequately, just as Schlictmann ade-
quately represented his client Eaton.
The important point here is that each lawyer has to assess not
only her experience, but also her ability to learn the law and to teach
herself what she needs to know in order to adequately represent the
client. A lawyer who is more comfortable advising clients on business
transactions and has never felt comfortable in adversarial situations
probably should not have taken the Eaton case. Another lawyer, how-
ever, who, either during law school or in motion hearings, has come to
feel comfortable in court or court-like situations and
has confidence in
her ability to teach herself the nuances of discovery and procedure,
probably could take the case. Nevertheless, such an inexperienced
lawyer-indeed, someone like Schlictmann-probably should associ-
ate with a more experienced lawyer.
5 9
B. Communication
A second issue that Schlictmann's first trial raises is the lawyer's
obligation to communicate with his client. As already noted, commu-
nication between client and lawyer fosters the lawyer's duty of loyalty
and, thus, is necessary for effective representation.
60
Nevertheless, one
of the most common complaints that clients have about their lawyers
is that the lawyers ignore them and do not return their calls. In par-
ticular, clients complain that the lawyers fail to obtain the clients' con-
sent.
6
There are situations in A Civil Action directly related to the
Woburn case that raise issues concerning a lawyer's duty to communi-
cate.
62
The relatively straightforward facts of the Eaton case however,
- See
supra note 49. Schlictmann did, in fact, associate with a more experienced lawyer,
Roisman of Trial Lawyers for Public Justice (TLPJ), in the Woburn case. HARR, supra note 1,
at 76-77. His decision to associate appears to have been guided not only by Roisman's
superior
expertise, but also by his realization that he did not have sufficient resources to pursue this liti-
gation. Id. Thus, another lesson to be taken from both Eaton and Woburn is the importance of
the lawyer's assessment not only of whether he has the expertise, but also whether he has the
financial resources to pursue a case on the client's behalf in a contingency fee situation.
- See supra Part II.D.2.
- See, e.g., NATIONAL LEGAL MALPRACTICE DATA CENTER, CHARACTERISTICS OF
LEGAL MALPRACTICE (1989). The National Malpractice Data Center was created by the
American Bar Association to gather data to determine the extent of the malpractice problem.
The report covers data gathered during the period from 1981 to 1985.
- Probably the most striking illustration regarding a lawyer's duty to communicate with
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1999]
Legal Ethics
provide a better introduction to the duty to communicate and its rami-
fications, even though the book is thin on details about the advice
Schlictmann actually gave the Eatons about the insurance company's
offer.
63
The case provides a better example because the other facts-
such as Schlictmann's inexperience, the lack of percipient witnesses,
and Schlictmann's and the Eatons' relatively shaky financial situa-
tions--can generate a fruitful discussion on what information a lawyer
should include in her advice to a client where the client must make a
decision, such as deciding whether to accept a settlement offer.
- Division of Authority Between Lawyer and Client
The Model Rules recognize that "[b]oth lawyer and client have
authority and responsibility in the objectives and means of represen-
tation."
6 4
In general, a lawyer has the right to make tactical and pro-
cedural decisions in the case because of her knowledge of the law.
6
" In
contrast, the client should determine what the objectives of the repre-
sentation are, whether to file a lawsuit in the first place, and who will
be named as a party to the suit.
66
In addition, the client must make all
decisions that affect the resolution of the case or otherwise affect the
client's substantive rights, such as the decision to settle the case or
plead guilty.
67
As part of providing competent representation, lawyers have a
duty to communicate with their clients.
68
Of particular concern is that
her client revolves around the settlement negotiations between Schlictmann and Grace. HARR,
supra note 1, at 405-48, 451-54. The lawyers had been involved in negotiations for a while when
Tom Kiley, Schlictmann's friend and another personal injury lawyer who had provided support
throughout the Woburn case, said, "We've got a problem, Jan. I think you're ethically bound to
tell the families about the offer." Id. at 415. At that point, with a serious offer on the table, it
was imperative Schlictmann speak with the families before he pursued further negotiations. See
infra notes Part III.B. 1-2.
- See HARR, supra note 1, at 62 ("He told the Eatons about the offer. 'I think we'll win
the case,' he said, 'and I think we'll get more money from the jury."' Lowell Eaton told Schlict-
mann to do what he "thought best.").
- MODEL RULES Rule 1.2, cmt. 1.
- See, e.g., Blanton v. Womancare, Inc., 696 P.2d 645 (Cal. 1985); State v. Debler, 856
S.W.2d 641 (Mo. 1993); State v. Ali, 407 S.E.2d 183 (N.C. 1991). Note, however, that if a law-
yer and client disagree about tactical decisions in a criminal case, the lawyer generally must fol-
low the client's wishes. See, e.g., Ali, 407 S.E.2d at 189.
- Limitations exist, however, on the client's right to make these determinations. For
example, if the objective of the representation or the client's course of action is criminal or
fraudulent, or if it will cause the lawyer to violate her ethical duties, the lawyer may not assist the
client. MODEL RULES Rule 1.2(d), (e), cmts. 6-7.
- See, e.g., Navajo Tribe of Indians v. Hanosh Chevrolet-Buick, Inc., 749 P.2d 90 (N.M.
1988); Blanton, 696 P.2d 645 (holding that a client has authority to make decisions that affect
client's "substantive rights").
- See MODEL RULES Rule 1.1 (Competence), Rule 1.3 (Diligence), Rule 1.4 (Communi-
cation); CAL. RULES Rule 3-500 (Communication), Rule 3-510 (Communication of Settlement
1999] Legal Ethics
of any good faith settlement offer.
77
Indeed, California has a separate
rule that identifies the lawyer's duty to communicate settlement
offers.
78
- The Eaton Case-An Illustration in Communication
In the Eaton case, Schlictmann, who had expended $15,000 pre-
paring the case, rejected the insurance company's claim manager's
offer to settle for $5,000.
7
" Before closing arguments on the last day of
trial, the judge urged the parties to settle and suggested the defense
lawyer offer $75,000 to settle the case.
80
Schlictmann advised the
Eatons of this offer in the courthouse hallway. Although a court clerk
advised him to take the offer, noting that a jury had awarded only
$20,000 in a recent, arguably more compelling case," Schlictmann told
the Eatons: "I think we'll win the case and I think we'll get more
whether to waive jury trial and whether the client will testify"). See also MODEL CODE EC 7-7,
7-8; Blanton v. Womancare, Inc., 696 P.2d 645, 650-51 (Cal. 1985) (holding that although the
lawyer has implied authority concerning procedural matters, the client has ultimate authority
concerning decisions that affect the outcome of the case or the client's substantive rights).
- MODEL RULES Rule 1.4 cmt. 1. See, e.g., In re Cardenas, 791 P.2d 1032 (Ariz. 1990)
(finding that attorney failed to inform client of settlement offer prior to rejection of offer and
failed to explain matters to client in a manner that would allow the client to make informed deci-
sions).
- California Rule 3-510 provides in part:
(A) A member shall promptly communicate to the member's client:
(1) All terms and conditions of any offer made to the client in a criminal matter;
and
(2) All amounts, terms, and conditions of any written offer of settlement made to
the client in all other matters.
CAL RULES Rule 3-510. See also ABA Comm. on Ethics and Professional Responsibility, For-
mal Op. 70-326 (1970) (noting that lawyer should inform his client of all settlement offers made
by the opposing party).
- HARR, supra note 1, at 61. We do not know whether Schlictmann ever communicated
this offer to the Eatons. If he did not, it could have been a violation of the Model Rules, which
require the lawyer to communicate good faith offers to the client. Assuming the offer was made
in good faith and not just an attempt to test the waters (compare Facher's "bouncing ball" offer
later in the book, HARR, supra note 1, at 229-31), did Schlictmann violate his duty to communi-
cate such offers? It is possible Mr. Eaton had already authorized Schlictmann to reject offers
below a certain amount. It is also possible that the claims manager, who laughed when Schlict-
mann told him how much he had spent to prepare the case, withdrew the offer when he said,
"Maybe I'll come and watch this. I want to see the kid who blew the Eaton case." Finally, under
California Rule 3-510, a lawyer need only communicate "written" settlement offers. Here, the
offer was made over the phone. Even in California, however, if the offer could have been
deemed a "significant development" within the meaning of California Rule 3-500, then Schlict-
mann would be required to communicate it even if the offer was not in writing. "Any oral offers
of settlement made to the client in a civil matter should also be communicated if they are 'signifi-
cant' for purposes of rule 3-500." CAL. RULES Rule 3-510 Discussion.
- In a sidebar conference, the judge said, "I think seventy-five thousand dollars is fair."
HARR, supra note 1, at 62.
- The case involved a drunk driver who "ran down a kid playing on his own lawn." Id.
Seattle
University Law Review
money from the jury.
' 8 2
Eaton then told Schlictmann to "do what he
thought best."
83
Despite the author's
inclusion of only a few details of what
Schlictmann and
the Eatons discussed in deciding whether to accept
the settlement,
we can infer or hypothesize different scenarios that will
generate
an interesting classroom discussion. The remainder of this
part of the Article demonstrates
the directions in which the discussion
could go.
Model Rule 1.4(b) requires that the lawyer "explain a matter to
the extent reasonably necessary to permit
the client to make informed
decisions regarding the representation.
"84 Did Schlictmann's advice
comport with this rule? A
lawyer generally must explain the ramifica-
tions of a settlement offer. For example, if an accident
victim has sued
the insured client for damages in excess of the
client's policy limits but
has
offered to settle within the policy limits, the lawyer must explain
to the client that she risks personal
exposure for any sums beyond
policy limits that a jury may eventually award.
a 5
Did
Schlictmann
provide Eaton
with the kind of information Eaton needed to make the
decision to tell Schlictmann to "do what [Schlictmann]
thought best,"
in essence rejecting the settlement? If not, what
should Schlictmann
have told the Eatons?
We are told only
that Schlictmann told the Eatons he thought
they would win at trial and
the jury would award more money than
the
insurance company offered.
6
Schlictmann did not explain why he
thought the jury would award more money than the settlement
offer,
82. Id. 83. Id.
- Model Rule 1.4, Comment 1 elaborates on the information a
lawyer is expected to pro-
vide the client under the duty to communicate:
The client should have sufficient information to participate intelligently in decisions
concerning the objectives of the representation and the means by which
they are to be
pursued, to the extent the client is willing and able to
do so. For example, a lawyer
negotiating on behalf of a client should provide the client with facts relevant to
the
matter, inform the client of communications from another party and
take other rea-
sonable steps that permit the client to make a decision
regarding a serious offer from
another party.
MODEL RULES Rule 1.4, cmt. 1.
85. See, e.g., Lysick v. Walcom, 65 Cal. Rptr. 406 (Cal. Ct.
App. 1968) (holding that an
attorney's failure to communicate information to client so as to allow client to make
intelligent
decision regarding representation was a violation
of professional standards of care); Levier v.
Koppenheffer, 879 P.2d 40 (Kan. 1994) (holding that insurer's failure to inform client of settle-
ment offer and value of plaintiffs injuries breached duties
of good faith and communication);
Hartford
Accident & Indem. Co. v. Foster, 528 So. 2d 255 (Miss. 1988) (holding that a lawyer
retained by insurance company to
represent insured was obligated to advise insured that accident
victim, whose complaint
sought damages in excess of lawsuit, had made a settlement offer that
came within policy
limits).
86. HARR, supra note 1, at 62.
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