2014 National Lawyers Convention
Once upon a time, corporations, government departments, and other entities made their own decisions about how long to retain documents created or received in the course of business. Today, document retention policies can present difficult issues for the entities, for the lawyers who advise them, and for the courts that are called on to decide the consequences when documents are no longer available. Particularly in the electronic age, where computers die, people delete their emails, and backups are not always reliable, document retention cannot be counted on. What are an attorney’s obligations? Should a lawyer bringing suit write to the other side and warn that entity not to engage in normal document destruction and to back up particularly important data? Does the company being sued have to comply? These are some of the questions that the panel will address.
In-house lawyers may face particular difficulties. Does the lawyer represent only the institution, or does the lawyer also have obligations to the employees? Should the lawyer advise the employees to censor themselves in emails sent via the employer’s email system? Should employees be encouraged to communicate about work through their personal email instead? How does an in-house lawyer handle the conflicts between representing individuals who do not want to disclose discoverable emails for emails unrelated to ongoing litigation (perhaps because they made impolitic comments about their supervisors)?
Finally, the panel will discuss if there are special obligations for counsel representing government entities. Government records have a unique status. They document the conduct of public business and are necessary for transparency and, more formally, are subject to retention and preservation requirements. Should lawyers advise government clients that backups cannot be destroyed for years, contrary to current IRS policy? Should lawyers inform government employees that their personal emails, if discussing issues related to their work, may also be discoverable? How does the government’s duty of transparency to the public affect its disclosure obligations and the lawyer’s corresponding obligations to her client?
The Federalist Society's Professional Responsibility & Legal Education Practice Group presented this panel on "'The Dog Ate My Emails!': Document Retention Policies, Litigation Holds, and Legal Ethics on Saturday, November 15, during the 2014 National Lawyers Convention.
- Ms. Jamie Brown, Global eDiscovery Counsel, UBS AG, and former Associate General Counsel, Commodities Futures Trading Commission
- Mr. Daniel Epstein, Executive Director, Cause of Action
- Mr. Patrick Oot, Partner, Shook Hardy & Bacon L.L.P., and former Senior Special Counsel for Electronic Discovery Office of the General Counsel, U.S. Securities and Exchange Commission
- Mrs. Victoria A. Redgrave, Managing Partner, Redgrave LLP
- Ms. Julie Goldsmith Reiser, Partner, Cohen Milstein Sellers & Toll PLLC
- Moderator: Hon. Jerry Smith, U.S. Court of Appeals, Fifth Circuit
- Introduction: Jack J. Park Jr., Of Counsel, Strickland Brockington Lewis LLP; and Chairman, Professional Responsibility & Legal Education Practice Group
Mayflower Hotel Litigation Practice Group Podcast
The tragedy of asbestos continues to play out. The ensuing litigation has no counterpart in our history. Over 10,000 companies have been named as defendants, leading to 100 bankruptcies (and counting). While the litigation continues apace, it has undergone radical changes from the 1985-2003 period, when millions of nonmalignant asbestos claims, mostly of asbestosis, surged through the civil justice system. U.S. District Court Judge Janis G. Jack painstakingly documented that the litigation screenings which had generated approximately 90% these claims were permeated with fraud. As stated by Judge Jack:
"it [was] clear that the lawyers, doctors and screening companies were all willing participants [in a scheme] to manufacture. . . [diagnoses] for money."
Malignancies, most especially mesothelioma and lung cancer, account for a substantial percentage of the billions being paid out currently. Because of the unique nature of asbestos etiology and bankruptcies, trusts with assets of approximately $30 billion have been created from the assets of reorganized companies to compensate current and future victims of asbestos exposures.
Asbestos claimants today have two separate sources from which to seek compensation: claims against the trusts and suits against solvent defendants in the tort system. In “Fraud and Abuse in Mesothelioma Litigation,” 88 Tulane L. Rev. 1071 (2014), Professor Lester Brickman has examined the interplay between trust payments to claimants and tort claims. He presents evidence that plaintiffs and their counsel have routinely failed to identify exposures to the products of reorganized companies when suing defendants in the tort system even though they state, under oath, that the claimants had “meaningful and credible exposures” to the very products that plaintiffs have denied having exposed to in interrogatories, depositions, and trial testimony. Plaintiffs’ counsel steadfastly maintain that with a sole exception, there is no evidence that plaintiffs or their counsel have engaged in unethical or illegal conduct.
Recently, U.S. Bankruptcy Judge George R. Hodges, in In re Garlock Sealing Techs., 504 B.R. 71 (Bankr. W.D.N.C. 2014), found a “startling pattern of misrepresentation” “of exposure evidence,” thus sustaining Professor Brickman’s expert testimony in the Garlock bankruptcy. The committee representing the interests of plaintiffs and their counsel have appealed Judge Hodges’ Order.
The significance of Judge Hodges’ Order is yet to be determined. Already, Garlock has filed RICO actions against several of the law firms that obtained substantial payments from Garlock. Insurers and defendants are undoubtedly conducting investigations based on the revelations in Garlock and newly emerging evidence that may result in additional lawsuits being brought against plaintiffs’ counsel. If so, we may be entering a new era in litigation.
Litigation Practice Group Podcast
- Prof. Lester Brickman, Yeshiva University, Benjamin N. Cardozo School of Law
- Mark A. Behrens, Partner, Shook, Hardy & Bacon, L.L.P.
Cy pres (from the French cy pres comme —“as near as possible”) originated in the trust context, but has more recently been applied to class action litigation, as courts try to determine what to do with sometimes significant amounts of settlement funds remaining after all identified plaintiff awards have been made. In recent decades, courts have agreed to award such remaining funds to third party recipients who, while not parties to the underlying suits, are deemed worthy by the court. Sometimes, the courts have selected these third party recipients based on recommendations from the attorneys representing the plaintiffs. What are the legal underpinnings for such awards to entities or people not party to the underlying case? What are the policy considerations in making or prohibiting such awards? These and other questions were discussed by our experts.
- Prof. Brian T. Fitzpatrick, Vanderbilt University Law School
- Mr. Theodore H. Frank, Founder and President, Center for Class Action Fairness and Adjunct Fellow, Manhattan Institute Center for Legal Policy
[Listen now!] 2013 National Lawyers Convention
In 1990, the Supreme Court unanimously held that an integrated state bar association, which all lawyers licensed in a state must join, could not use the compulsory dues paid by its members to pursue political or ideological activities unrelated to regulating the legal profession or improving the legal system. Keller v. State Bar of California, 496 U.S. 1 (1990). The Court explained, “[T]he extreme ends of the spectrum are clear: Compulsory dues may not be extended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected to disciplining members of the Bar or proposing ethical codes for the profession.” Id., at 15-16.
In the nearly 25 years since the Court decided Keller, the entities empowered to promulgate ethical rules binding on the lawyers practicing in a state have imposed a variety of regulations, some of which are more closely and clearly related to the regulation of the legal profession than others. Requirements like continuing legal education and contributions to client security funds are generally seen to fall within the scope of permissible regulation. The imposition of mandatory diversity training in Minnesota and a requirement that law students perform a specified number of hours of pro bono work as a condition to their becoming licensed to practice in New York look different.
Should state regulation of the bar be limited to imposing rules whose purpose is the protection of client interests? Or, can the regulators impose rules designed to make lawyers “better” people in the belief that “better” people will better serve their clients? How far can the organized bar go in “proposing ethical codes for the profession?” To what extent do programs like mandatory diversity training and requiring law students to perform a specified number of pro bono hours serve the interests of clients?
The Professional Responsibility & Legal Education Practice Group hosted this panel on "Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection?" on Saturday, November 16, during the 2013 National Lawyers Convention.
Professional Responsibility: Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection?
10:45 a.m. – 12:15 p.m.
- Mr. Scott Johnson, Co-Founder and Contributor, Power Line Blog
- Mrs. Margaret A.? Little, Partner, Little and Little and Director, Pro Bono Center, The Federalist Society
- Prof. Thomas D. Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, The George Washington University Law School
- Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest/Public Service, The George Washington University Law School
- Moderator: Hon. David R. Stras, Associate Justice, Minnesota Supreme Court
- Introduction: Mr. Jack Park Jr., Of Counsel, Strickland Brockington Lewis LLP
[Watch or listen now!]