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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 is not only the drafted document that be legal. In addition, the expected use of the document must be legally proper. The attorney must use due diligence to determine  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. As it applies to attorneys, see Insight Technology, Inc. v. Freightcheck, LLC, 633 S.E.2d 373, 377-78 (Ga., 2006); AmeriFirst Bank v. Bomar, 757 F. Supp. 1365, 1380 (S.D. Fla. 1991); and 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. Cf., 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).


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ABA has approved Corporate Counsel consulting their personal ethics!

That title may be an overstatement, but it focuses your attention. What do you do if your personal ethics revolts against what your client is doing? There are lots of options, but here is a "Read More link to a 2003 article that is worth re-reading for its discussion of one option. It is an option more lawyers should use.

Civility is a model for litigation success! Whether you are male or female, being the "civil" civil lawyer wins settlements and judgments.  "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 have advice based on their experience. Both of these two authors have had awards heaped on them because of their litigation success, not only within their state, but also nationally.

BEING NICE IS POWERFUL
By Elizabeth A. Starrs, a top trial lawyer 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.

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.

Ben Cowgill's Thoughts on Legal Ethics Now Available Again.

Ben Cowgill is one of the most thoughtful of that group of legal ethicists who are not law school professors. For a few months, his website Ben Cowgill on Legal EthicsBen Cowgill's had some of the best discussions of down-to-earth problems of the small firm legal practitioner.  His website was in the style of a professional legal journal, with the added ability of allowing professors and lawyers to directly add their comments to Cowgill's articles. However, the Kentucky Lawyer Advertising Commission apparently did not like electronic law journals to which commentators could post their responses and developments of the legal principles involved. Figuring that they could not shut down free speech but they could tax it out of existence, the Kentucky Commission ruled that a legal journal published electronically by a lawyer, which would allow other lawyers or law professors to post a comment thereon, was an "advertisement," for which the Commission would charge a $50 fee for every change to the advertisement. This effectively shut down the comments by others and the updates and new articles by Cowgill.

Fortunately, Ben Cowgill's observations are now available as a legal blog, to which you must subscribe via Facebook.at his Facebook page  Kentucky apparently feels there is a major advertising difference between an electronic law journal website hosted by a lawyer, and a Facebook page.

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

Bad Faith Claims against the insurer, arising out of suits against the insured - a handbook for both plaintiffs and defendant insurers. Insurers' bad faith liability arising out of suits against their insured.

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. The purpose is to prevent coaching of witnesses, as distinguished from preparing witnesses to testify. Sequestration

The Evidence Required to Prove the Validity of Legal Assistant Fees as a Compensable Component of Attorney Fee Awards Recovery of reasonable attorney fees for work done by legal assistant.

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.]

Links to more articles or resources on ethics for lawyers or corporate executives.