Atlanta Injury Law Blog

This morning I got a call from a man in ICU at one of our local hospitals. He said he has hit by a tractor trailer yesterday, and that he had two fractured femurs, a ruptured spleen, ruptured discs, crushed vertebra, etc., and asked if I could meet him at the hospital.  I agreed to see him this afternoon at the hospital, which is near my home.

When I arrived a little early at ICU, I found another lawyer at the nurses' station. Apparently he ran a little late and I ran a little early, so me bumped into each other. He had noticed that when the guy shifted his hospital gown, there were no bruises to correlate with the types of injuries he was describing. The nurse told us that this man had no traumatic injuries, but does have colon cancer.

The lawyer who was at the nurse's station said he had heard of someone with a similar story trying to get a $5,000 advance from another lawyer, who refused the request.  Apparently the guy was trying to shake down lawyers for "advances" on his great case.

Later I posted a warning on a couple of lawyer listservs and received responses from several other attorneys who had been hit with the same scam.  One admitted he had signed up the case before he figured out it was a scam.  None acknowledged having made any advances, which would be highly improper.

One of my more paranoid friends has suggested that this could be a trap set by the various “anti-lawyer” groups attempting to film the meetings clandestinely and then use the video for a TV documentary or commercials to argue for tort reform. I am more inclined to believe he was just a scam artist playing his own little independent game.

However, when a lawyer finds himself or herself in an interview with a potential client and "smells a rat," one should:

1. Politely but firmly decline any request for an advance of funds against a future recovery. See Rule of Professional Conduct 1.8 (e), which provides: "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; or
   (2) a lawyer representing a client unable to pay court costs and expenses of litigation may pay those costs and expenses on behalf of the client."
2. Be prepared to give a polite, respectful but firm lecture on your ethical duties as an attorney. See, e.g., Rules of Professional Conduct 1.16 (Declining or Terminating Representation) , Rule 3.1 (Meritorious Claims and Contentions), and Rule 4.1 (Truthfulness in Statements to Others).   In the unlikely event that you're on "Sixty Minutes," make it a speech that would make both your mother and your legal ethics professor proud.
   

Ron Ellington, a professor at the University of Georgia Law School, recently spoke to the inductees of Phi Beta Kappa at UGA. His remarks deserve wider distribution.  He points out how the smartest and wisest leaders of a previous generation were dead wrong on one big issue, and suggests how to recognize when we are wrong.

1. Be humble.
2. Be intellectually honest and strive for objectivity. Be open minded to evidence / facts that may challenge or run counter to your initial views.
3. Look for anomalies.

I grew up in rural Alabama and Georgia in the 1950s and 1960s, and began my legal career under a DA who instructed us to always strike all blacks from juries. When I decided to prosecute a black-on-black rape case in 1978, just as I had a white-on-white rape case, some of the folks around me thought I was crazy to defy stereotypical thinking. That's how things were in those days.

The more I deal with human beings of every possible racial, religious and ethnic background, the more convinced I am that stereotyping is fundamentally invalid.  Victoria Pynchon on the Settle It Now Negotiation Blog that focuses on mediation and other alternative dispute resolution has a good post on point. 

She starts by quoting a song that I sang every Sunday  as a small child on the front row of a little country church.  Even as a preschooler in rural Alabama in the 1950s, I found it puzzling, in light of the prevalent attitude of most adults in that time and place: "Red and yellow black and white they are precious in his sight Jesus loves the little children of the world."

She goes on to quote at length from a book by Ken Cloke, Conflict Revolution Mediating Evil, War, Injustice and Terrorism:

Prejudice is complex and operates on many levels. It can be found not only in insults and judgments, caricatures and stereotypes, but refusals to listen and communicate, stories of demonization and victimization, inability to experience empathy with others, and infinitesimal denials of humanity. It is reflected in personal selfishness and hostile relationships, bullying and aggressive behaviors, and ego compensations based on poor self-esteem. It is expressed through contempt, disregard, and domination, as well as through low status, inequitable pay, and autocratic power.

Prejudice commonly operates by stereotyping. People form stereotypes, in my experience, in eight easy steps:

1. Pick a characteristic
2. Blow it out of proportion
3. Collapse the person into the characteristic
4. Ignore individual differences and variations
5. Disregard subtleties and complexities
6. Overlook commonalities
7. Match it to your own worst fears
8. Make it cruel

If these steps routinely produce prejudice, it is possible to undo them, for example, by making people more complex than their stereotype permits, or distinguishing unique individuals within a group, or recognizing commonalities between people. It helps, in doing so, to acknowledge that everyone is equal, unique, and interesting; that everyone forms prejudices; that everyone can learn to overcome them through awareness, empathy, and communication; and that everyone can become more skillful in communicating across stereotypes and lines of separation created by fear.

Racial attitudes have advanced light years in my lifetime. While we have not reached "the promised land" in terms of eliminating prejudice, there is no comparison to the open, often vicious, legally sanctioned racism that was part of the world in which I grew up.  I remember in 1967, when my high school was desegregated (eight years before Tiger Woods was born, and when Barack Obama was six years old), telling a friend that in a hundred years race would be irrelevant.  We are 41 years into that century. I don't know if my idealistic, adolescent prediction will hit the mark, but we have certainly come a long way.

What do you think?

Saturday morning, at the request of a patient's family  who urgently want to provide for his care needs, I visited an intensive care unit at Grady Memorial Hospital to attempt to interview a man who became a quadriplegic in a recent traffic collision. Laying paralyzed in a bed, breathing through a tube, he was too sedated to respond to a sibling's attempts to wake him. We may have to have a family member appointed by the probate court to handle his affairs.  The previous afternoon, I had met with a father whose beautiful 16-year-old daughter went out on a date, the boy who was driving wrapped his car around a telephone pole, she had a bad head injury, and died a few weeks later in the hospital.  I don't know if the evidence will ultimately be sufficient for me to do any good for these folks, but I will explore all reasonable options.

The seemingly random cruelty of fate is tangible at such times. When I was in my teens, a popular TV show included each week the "flying fickle finger of fate award." It was presented as comedy then, but too often it is part of tragedy.  It seems that nearly everyone I represent has been presented this unwelcome "award."

Sometimes well-meaning people try to say that it was "the Lord's will" or "the Lord took her" when a person was killed or catastrophically injured.  As a long-time adult Sunday School teacher, I think that is warped theology. It's wrong to blame God when people break rules and cause tragedies.  Hurricanes and tsunamis are acts of God.  Truck wrecks are acts of men and of corporations, and they should be held accountable for the harm they cause.

Sometimes we can obtain justice for victims and their families. Other times all we can do is provide the comfort that someone who is knowledgeable cared enough to try. A trial lawyer is called to be more that just a gladiator.  We need to remember that highest source of law and of professionalism is a rule of unselfish love, of sincere concern for the highest good for the other person.  While we are not grief counselors or psychologists, we need to be able to help folks get through the ordeal of their loss.

A sugar refinery explosion last week at Port Wentworth near Savannah has apparently drawn out of state lawyers like vultures trying to solicit victims' families, either violating or skating around the edge of Bar ethical rules. Greg Bluestein of Associated Press has reported that a Dallas, Texas, lawyer ran a full page ad in the Savannah Morning News soliciting clients from the explosion. The article also reports that lawyers have been soliciting victims' families at a burn clinic in Augusta. Friends in Savannah have passed along to me shocking rumors that lawyers from one of the largest corporate law firms in Atlanta were seen trolling the emergency room at Memorial Hospital in Savannah after the blast.

State Bar of Georgia General Counsel William P. Smith III traveled to Savannah on Thursday to investigate complaints of lawyers improperly soliciting victims of last week's Imperial Sugar refinery explosion. Smith said he plans to pursue disciplinary action against lawyers who may have broken State Bar rules—using reciprocity agreements with other states to pursue those who aren't licensed to practice in Georgia. But he said that newspaper ads alerting victims of legal options have not violated State Bar rules that prohibit in-person solicitation.

While the Georgia Bar has rules against direct mail solicitation of injury victims within thirty days of an injury, there is no such rule against advertising in media within thirty days.  I am on the Disciplinary Rules and Procedures Committee of the State Bar of Georgia.  Undoubtedly we will discuss this situation in the months to come. Something should be done about the predatory, vulture-like behavior of lawyers who swoop in immediately after a disaster.  That makes us all look bad.  At the same time,  we know that potential defendants in  truck crashes and mass disasters have their defense counsel and investigative teams swarming over a scene before the smoke clears while victims have no one looking out for their interests.  We should look for a way to strike a balance that puts a stop to unseemly, predatory conduct while protecting the critical interests of the victims.

As a trial attorney handling serious injury and wrongful death cases in  Georgia, I have an intense interest in seeing that my clients are dealt with fairly, that the playing field is relatively level, and that the court system works reasonably well.

Currently there is a proposal in the legislature to impose a sales tax on services, including legal services, as part of a plan to eliminate property taxes for support of education. That proposal arises from deeply held feelings that the tax burden falls unfairly upon property owners. As a homeowner, I share that sentiment every time I receive a property tax bill. But as a parent whose children graduated from excellent public high schools, I know what a bargain that can be compared to private school tuition. Georgia should improve, and not diminish, support for quality public education.

Whatever general revenue measures our legislators may choose to support the quality of public education needed to provide Georgia an economically competitive workforce, it is important to examine the ramifications in detail. Specifically regarding the proposed tax on legal services, our legislators should consider a broad range of potential unintended consequences on our system of justice and the delivery of legal services.

Conflict with duty of confidentiality. Under current enforcement statutes, the Georgia Department of Revenue, under its audit authority, could claim access to detailed client billing records which are confidential under Georgia Rule of Professional Conduct 1.6. This could create a serious conflict between lawyers' confidentiality obligations to clients and the requirement to respond to audit requests.

Burden on individuals but not businesses or governments that litigate against them. Individual Georgia citizens would bear the entire burden of the tax as currently proposed, while governments, corporations and insurance companies who litigate against them would be entirely free from the tax. This would make the playing field even more uneven in favor of corporate and governmental litigants and against individual Georgians.

Economic incentive to shift legal services – and law firms’ work, staff and investment – outside Georgia.  A tax on legal services would encourage sophisticated clients, and those in border communities, to use untaxed legal services outside Georgia. It would also create an incentive for Georgia law firms to perform more services outside Georgia, and to shift investment in facilities, staff and support services to other states. Given the ease of gaining admission in many other states by reciprocity, even the smallest firms might find it advantageous to do so. Determining which services are taxable in Georgia would be an administrative nightmare.

Burden on citizens’ constitutional right of access to courts. A tax on legal services would be a burden on the exercise of Georgia citizens’ basic, constitutional right of access to justice and to the courts.

“Misery tax”. The sales tax on legal services as proposed would amount to a “misery tax” levied on individuals and families in Georgia at times of misfortune and vulnerability. It is generally necessity rather than choice that leads Georgians to seek legal assistance in cases involving death, divorce, domestic abuse, end-of-life decisions, injury, accusation of criminal offenses, or bankruptcy.

 Effect on injury cases. Recovery for bodily injury is not taxable under either federal or state income tax laws, as our lawmakers have long recognized that there is no profit when an injured person involuntarily exchanges good health for a specified amount of money. The tax on legal services would erode the injury victim’s recovery for such injury, thereby making it even more difficult – and potentially more expensive – for corporations and insurance companies to reach reasonable compromise settlements. Moreover, an Georgian injured on the job gets no more than $450 per week in workers compensation indemnity benefits. If an attorney is required to obtain the benefits, a 25% attorney fee of $112.50 per week leaves only $337.50 for the injured worker. (The weekly benefit was recently increased to $500 per week for new claims, but you get the idea.)  A tax on legal services would further erode that meager benefit, thus increasing pressure to raise workers compensation benefits, a cost which eventually would be passed on to Georgia businesses.

Experience of other states. Apparently only Hawaii, New Mexico, and South Dakota currently tax legal services. Florida and Massachusetts enacted such taxes, but promptly repealed the measures when they proved to be unpopular and difficult to administer. Several other states, including Maine, Maryland, Ohio, and Vermont, as well as the District of Columbia, rejected similar proposals.

Constitutional questions.  There are numerous unresolved questions as to the constitutionality of the proposed tax on legal services, which the State of Georgia might well have to litigate over the next several years, including but not limited to the following:

    •    Access to courts. Would the proposed tax on legal services  impermissibly burden  access to and use of the state or federal courts in violation of Art. 1, § 1, ¶ 9 Ga. Const. of 1983, Article III of the U.S. Constitution and the 5th, 6th and 14th      Amendments to the U.S. Constitution?
    •    Equal protection and due process. Would unequal treatment of individuals and corporations, whereby a tax would be imposed on an individuals party’s access to the courts but no tax would be imposed upon a corporate party in the same litigation, be a violation of the Georgia Constitution under Art. 1, § 1, ¶ II  (equal protection) and under Art. 1, § 1, ¶ I (due process of law), and the 14th Amendment to the U.S. Constitution?
    •    Separation of powers.  Would the proposed tax on legal services constitute an unauthorized regulation of the practice of law by the Legislature in violation of the constitutional guarantee of separation of powers under Art. 1, § 2, ¶ III of the Georgia  Constitution?
    •    Tax on litigation in federal courts may violate U.S.  Constitution Supremacy Clause.  Would the proposed tax on legal services, in connection with litigation before the federal courts, violate the Supremacy Clause contained in Article VI of the U.S.  Constitution?
    •    Breach of confidentiality burdening right to counsel. Would the proposed tax on legal services breach the attorney-client privilege and confidentiality, and thus impermissibly burden the right to counsel under both Art. 1, § 1, ¶ I of the Georgia  Constitution and the 6th and 14th Amendments of the U.S. Constitution?
    •    Taxing some professions while exempting others may violate equal protection of law. Would imposing a tax on services performed by the legal, accounting, architectural and other professions, while exempting services rendered by the medical profession, be a violation of equal protection rights under Art. 1, § 1, ¶ II of the Georgia Constitution, and the 14th Amendment to the U.S.  Constitution?
    •    Burden on rights guaranteed in U.S. Constitution. Would the  proposed tax on legal services impermissibly burden the exercise  of rights secured by the 5th, 6th, and 8th Amendments to the U.S. Constitution?

We should encourage efforts to make our system of taxation more fair and efficient. At the same time, we should be careful to avoid the “law of unintended consequences," which could wreak havoc if a tax on legal services were enacted.

As a trial lawyer with something of a conservative streak, I keep up with what the tort reform folks are saying, and occasionally even agree on some point. The American Tort Reform Association is highlighting a study of online information about hazards of pharmaceutical products, published by the New York-based Center for Medicine in the Public Interest, as justification for calling upon State Bar associations to require that lawyers clearly identify themselves on Web sites they sponsor.

We do not use any of those online lawyer referral services, do not participate in any web site that does not fully identify this firm, and have no problem with disclosure of the sponsors of such sites.  On the other hand, it may be impracticable to list all participants in broad-based private or Bar-sponsored lawyer referral services. Both Georgia and the ABA Model Rules cover what is permissible in payment for use of lawyer referral services.  We are in the process of reviewing updates in the Georgia Rules of Professional Conduct, and I am on the Disciplinary Rules & Procedures Committee. I'm sure we will give this issue due consideration and try to strike a fair, realistic balance.

Yesterday, for the fifth consecutive year, I served as program chair for the Georgia Personal Injury Practice Seminar sponsored by the Institute for Continuing Legal Education in Georgia.  As always, I followed my father's advice to "surround yourself with people who are smarter than you" by recruiting as speakers some of the brightest lawyers in Georgia. As always, I learned far more from the other speakers than I taught in my own presentation titled simply, "Truck Wreck Cases."  While participation in CLE programs is time consuming, I find that I always get more out of it than I put in.

Though I have not personally encountered it yet, there apparently has been a recent proliferation of a defense tactic of offering to represent witnesses at no charge in order to limit the plaintiff attorney's access to the witnesses.  This may be particularly a problem in medical malpractice cases but it could occur in any type case.  In a recent Georgia case against a nursing home and its CEO, defense counsel contacted witnesses who had been subpoenaed for depositions and offered to represent them at no charge. The defense lawyer then wrote to plaintiff's counsel stating that he represented the witness so the plaintiff's attorney could have no further contact with the witness without going through the defense lawyer.  On October 24th, Judge Frank Jordan of the Chattahoochee Judicial Circuit entered an order finding this created a conflict of interest in violation of Rule of Professional Conduct 1.7 and disqualifying the defense lawyer from representing the non-party fact witnesses.  However, the court stopped short of disqualifying the defense firm from participation in the case or precluding the defense from contesting the issues on which those non-party witnesses would testify.  The Butler Wooten firm did a great job of stopping that defense tactic in its tracks.

Well, I've begun what some say is a "life sentence" on the Disciplinary Rules and Procedures Committee of the State Bar of Georgia, working on updating our Rules of Professional Conduct.  We meet every month or two in the former Federal Reserve Bank vault in the Bar Center (where cell phones don't work due  to the thick steel walls), deliberating on line-by-line comparisons of the current Georgia Rules (and Comments on the Rules) with the most recent edition of the American Bar Association Model Rules, cross references between the Rules, and variations adopted in other states.  It's actually more interesting than it sounds, as everyone else in the room probably a lot smarter than me.

Some people jokingly refer to "legal ethics" as an oxymoron.  It should not be.  At attorneys we work constantly with conflict -- either current or potential -- and conflict involves friction and a wide range of emotions.  With conflicts come ethical challenges, whether you are in law, business, politics, the military, or big time sports.  As an organized Bar, we have to set and enforce behavioral boundaries, thus the title "Rules of Professional Conduct." 

However, outwardly enforced rules of conduct cannot fully substitute for a virtuous character. None of us are perfect.  In the daily press of our work, all of us fall short of the ideal.  However, it is worthwhile for us to occasionally recall St. Augustine's list of the four Cardinal Virtues: justice, fortitude, prudence and temperance, as well as the three theological virtues, faith, hope and charity (or love). 

I'll undoubtedly write on these virtues in relation to the legal professional on another day.

Why do people distrust lawyers as a group?  I have seen examples this year -- mostly from one law firm that shall remain nameless -- of sharp practice that may or may not be punishable under the Rules of Professional Conduct but goes well beyond the bounds of decency and professionalism.

In one case, a lawyer from that firm enlisted the aid of the general counsel of the employer of a key witness, went with the general counsel to a key witness's work station, and together they prevailed upon the witness to change the story that he had given verbally to several people.  The employer's general counsel then accompanied the obviously nervous employee witness to the deposition to keep him in line.  The poor guy needed to feed his family and preserve his retirement.  That's called suborning perjury but I doubt we could ever prove it.

In another case, a lawyer from the same firm tried to slip in at the time of settlement -- after exhaustive negotiation over the terms of installment payments with collateral over a term of several years -- new documents and language on checks for the first installment of payments that would have had the effect of releasing all claims and all future payments. Slick. Very slick.

I had seen an order from a judge in another part of the state finding that lawyers from that firm had attempted to defraud the court and the opposing party. But I really didn't want to believe they could be that systematically unethical.

All this was done by bright, attractive, socially pleasant young lawyers, doing as they were trained to do in a prominent firm with attractively decorated offices.  It is just one more small, relatively trivial example of the banality of evil.

While none of us are perfect, and we are engaged in an adversarial system and subject to sometimes fierce competitive pressures, it is important for members of our profession to maintain basic integrity and demonstrate virtuous character in both professional and personal lives.

I found a  painting by Jeff Leedy a few years ago in an art gallery in Sausalito titled "Counsel Approaching the Bench," with two shark fins cutting through the courtroom carpet toward the judge's bench. (I encourage readers to follow the link above and purchase the print.)

This morning a client told me I was a sheep dog, not a shark.  My response was a bewildered, "huh?"  The client explained that it was an Army term. 

So I Googled the term and found the following at The World Can't Wait:

Most of the people in our society are sheep. They are kind, gentle, productive creatures who can only hurt one another by accident. We may well be in the most violent times in history, but violence is still remarkably rare. This is because most citizens are kind, decent people who are not capable of hurting each other, except by accident or under extreme provocation. They are sheep.

Then there are the wolves and the wolves feed on the sheep without mercy. Do you believe there are wolves out there who will feed on the flock without mercy? You better believe it. There are evil men in this world and they are capable of evil deeds. The moment you forget that or pretend it is not so, you become a sheep. There is no safety in denial.

Then there are sheepdogs and I'm a sheepdog. I live to protect the flock and confront the wolf. If you have no capacity for violence then you are a healthy productive citizen, a sheep. If you have a capacity for violence and no empathy for your fellow citizens, then you have defined an aggressive sociopath, a wolf. But what if you have a capacity for violence, and a deep love for your fellow citizens? What do you have then? A sheepdog, a warrior, someone who is walking the unchartered path. Someone who can walk into the heart of darkness, into the universal human phobia, and walk out unscathed.

We know that the sheep live in denial. That is what makes them sheep. They do not want to believe that there is evil in the world. They can accept the fact that fires can happen, which is why they want fire extinguishers, fire sprinklers, fire alarms and fire exits throughout their kids' schools. But many of them are outraged at the idea of putting an armed police officer in their kid's school. Our children are thousands of times more likely to be killed or seriously injured by school violence than fire, but the sheep's only response to the possibility of violence is denial. The idea of someone coming to kill or harm their child is just too hard, and so they chose the path of denial.

The sheep generally do not like the sheepdog. He looks a lot like the wolf. He has fangs and the capacity for violence. The difference, though, is that the sheepdog must not, can not and will not ever harm the sheep. Any sheep dog that intentionally harms the lowliest little lamb will be punished and removed. The world cannot work any other way, at least not in a representative democracy or a republic such as ours. Still, the sheepdog disturbs the sheep. He is a constant reminder that there are wolves in the land. They would prefer that he didn't tell them where to go, or give them traffic tickets, or stand at the ready in our airports, in camouflage fatigues, holding an M-16. The sheep would much rather have the sheepdog cash in his fangs, spray paint himself white, and go, "baa."  Until the wolf shows up. Then the entire flock tries desperately to hide behind one lonely sheepdog. . .

Here is how the sheep and the sheepdog think differently. The sheep pretend the wolf will never come, but the sheepdog lives for that day. After the attacks on September 11, 2001, most of the sheep, that is, most citizens in America said, "Thank God I wasn't on one of those planes." The sheepdogs, the warriors, said, "Dear God, I wish I could have been on one of those planes. Maybe I could have made a difference." You want to be able to make a difference. There is nothing morally superior about the sheepdog, the warrior, but he does have one real advantage, only one. And that is that he is able to survive and thrive in an environment that would destroy 98 percent of the population.

This business of being a sheep or a sheep dog is not a yes-no dichotomy. It is not an all-or-nothing, either-or choice. It is a matter of degrees, a continuum. On one end is an abject, head-in-the-sand-sheep and on the other end is the ultimate warrior. Few people exist completely on one end or the other. Most of us live somewhere in between.

Since 9-11 almost everyone in America took a step up that continuum, away from denial. The sheep took a few steps toward accepting and appreciating their warriors and the warriors started taking their job more seriously. Its okay to be a sheep, but do not kick the sheep dog. Indeed, the may just run a little harder, strive to protect a little better and be fully prepared to pay an ultimate price in battle and spirit with the sheep moving from "baa" to "thanks".

We do not call for gifts or freedoms beyond our lot. We just need a small pat on the head, a smile and a thank you to fill the emotional tank which is drained, protecting the sheep. And when our number is called by "The Almighty", and day retreats into night, a small prayer before the heavens just may be in order to say thanks for letting you continue to be a sheep. And be grateful for the thousands - - millions - - of American sheepdogs that permit you the freedom to express even bad ideas.

I don't think I would qualify as a sheep dog in the same sense that soldiers, cops and firemen do.  However, I do spend a lot of time confronting bad stuff, and I do occasionally bark at folks I am trying to protect.

So thanks, my military friend, for honoring me with the title of "sheep dog."

Insurance defense lawyers have a tough job when the value of a plaintiff's case exceeds the amount of liability insurance coverage.

The tripartite relationship between insurer, insured and defense counsel is unique in the legal profession, variously described as “deeply and unavoidably vexing” and presenting an ethical dilemma that would “tax Socrates.”  See Charles Silver, Does Insurance Defense Counsel Represent the Company or the Insured?, 72 Tex. L. Rev. 1583, 1587 (1994);  Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255, 273 (Miss. 1988).  The insurance defense lawyer serves two masters – the insurer that hires him and controls the defense, and upon whose continuing good will he may depend for future business, and the insured client who did not choose him, will not pay him, and may never be in the position to refer him future business.  This presents inevitable ethical conflicts.  Nancy J. Moore, The Ethical Duties of Insurance Defense Lawyers: Are Special Solutions Required?, 4 Conn. Ins. L. J. 259 (1997-1998).

Generally, in the “tripartite relationship” of insurer, insured and defense attorney, insurance defense counsel may not subordinate the interest of either insurer or insured to the other.  If their interests come into conflict, defense counsel cannot ethically continue to represent either without making disclosure to both and refraining from taking sides with either against the other.  If there is a coverage dispute between the insurer and insured, defense counsel must not take either side.  See generally, Restatement (Third) of the Law Governing Lawyers § 215 (2000); Susan Randall, Managed Litigation and the Professional Obligations of Insurance Defense Lawyers, 51 Syracuse L. Rev. 1 (2001); Thomas D. Morgan, Whose Lawyer Are You Anyway?, 23 Wm. Mitchell L.Rev. 11 (1997); Douglas R. Richmond, Lost in the Eternal Triangle of Insurance Defense Ethics, 9 Geo. J. Legal Ethics 475 (1996); Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke L. J. 255 (1995); J. Kevin Owens, Wrestling with the Tar Baby: Ethical Obligations of Mississippi Insurance Defense Lawyers, 17 Miss. C. L. Rev. 359 (1997); Leo J. Jordan & Hilde E. Kahn, Ethical Issues Relating to Staff Counsel Representation of Insureds, 30 Tort & Ins. L. J. 25 (1994); Robert E. O'Malley, Ethics Principles for the Insurer, the Insured, and Defense Counsel: The Eternal Triangle Reformed, 66 Tul. L. Rev. 511 (1991).

Rule of Professional Conduct 1.2(4) provides that “[w]hen a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters covered by the insurance policy.”  However, the terms of an insurance policy may not limit the obligations owed by insurance company lawyers to insured clients, including the duty to inform the insured defendant of settlement offers and of the opportunity to settle within policy limits. See, e.g., Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255 (Miss. 1988).

The insurance company owes the insured a duty to use ordinary care and good faith in handling a claim against its insured.  See Smoot v. State Farm Mutual Automobile Insurance Co., 299 F.2d 525, 533 (5th Cir. 1962).  As Clarendon is well aware, it has a duty to give "at least equal consideration to the interests of the insured" and the "same faithful consideration it gives its own interest."  Southern General Insurance Company v. Holt, 200 Ga. App. 759, 409 S.E.2d 852 (1991);  Jones v. Southern Home Insurance Company, 135 Ga. App. 385, 217 S.E.2d 620 (1975); Great American Insurance Company v. Exum, 123, Ga. App. 515, 181 S.E.2d 704 (1971).  Even a negligent failure to compromise a claim may give rise to tort liability to the insured.  Delancy v. St. Paul Fire & Marine Ins. Co., 947 F.2d 1536 (11th Cir. 1991); Home Insurance Co. v. North River Insurance Co., 192 Ga. App. 551, 385 S.E.2d 736 (1989).  Failure to comply with a reasonable time limit for such settlement may also give rise to liability of a liability insurer for the full amount of a jury verdict in the underlying case.  Southern General Insurance Company v. Holt, 200 Ga. App. 759, 409 S.E.2d 852 (1991).  Here the only time limit was the return of the jury’s verdict.  See also, Kingsley v. State Farm Mut. Auto. Ins. Co., 353 F.Supp.2d 1242 (N.D.Ga. 2005); Ogle v. Nationwide Ins. Co. of America, 2006 WL 418148, *3+ (N.D.Ga. Feb 21, 2006) (NO. 1:04 CV 2802 GET).

Where the insurance company has refused to take advantage of opportunities to settle a claim within policy limits, the plaintiff wins a judgment for some multiple of the policy limits, and the insured is on the hook for the excess, the insurance defense lawyer should exercise great caution.  If the plaintiff's attorney asks for contact information to communicate directly with the insured defendant's corporate or coverage counsel regarding the insured's interests vis-a-vis the insurance company, the insurance defense lawyer should either facilitate that communication or report a potential malpractice claim to his own legal malpractice insurance company.

Here's another Georgia Rule of Professional Conduct that make need some revision.  Our Rule 4.3 differs from the ABA Model Rule 4.3 in ways that are well-intended but have unintended consequences.

ABA Model Rule 4.3 provides:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

In 2002, the ABA added the last sentence ("The lawyer shall not give legal advice...") to the rule. Before the 2002 amendments a similar prohibition had been part of the comment rather than the rule itself, and it had been absolute. In the amended version of the rule, advice-giving is prohibited only if the unrepresented person's interests may conflict with the client's interests.

Georgia Rule of Professional Conduct  4.3 adds a paragraph that, according to my cursory research, has not been adopted in any other states:

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
(a) state or imply that the lawyer is disinterested; when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding;
(b) give advice other than the advice to secure counsel; and
(c) initiate any contact with a potentially adverse party in a matter concerning personal injury or wrongful death or otherwise related to an accident or disaster involving the person to whom the contact is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the contact.
The maximum penalty for a violation of this Rule is disbarment.

Paragraph (c) was probably intended to protect injury victims from overreaching by lawyers on the defense side.  However, it does not protect injury victims from non-lawyer adjusters and investigators working for insurance companies and risk management offices of corporations, who are the people most likely to contact them for an adverse party. As a practical matter, it is only attorneys retained by (or for) injury victims and their families who are restrained by this rule. This rule prohibits the victims' lawyers from contacting an adverse party within 30 days to request insurance coverage information, put the putative defendant on notice  to preserve evidence, or to take a statement.

Rule 4.3 should be amended to provide a level playing field.  Perhaps that can be done by making the 30-day waiting period more even-handed in light of the practical realities.  A simpler approach would be to just adopt the 2002 version of the Model Rule.

On Friday morning, the Board of Governors of the State Bar of Georgia unanimously passed my motion to refer to the Disciplinary Rules & Procedure Committee the question of whether Rule 1.15(I)(b) should be amended so as to more clearly define specific interests of creditors of clients as to which an attorney may be required to provide notice, accounting or payment from a client's funds.

The State Bar of Georgia Formal Advisory Opinion Board published the "First Publication of Proposed Formal Advisory Opinion Request No. 05-R6" in the June 2007 issue of the Georgia Bar Journal, interpreting Georgia Rule of Professional Conduct 1.15(I)(b), which provides:

Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

I've not been able to find out exactly who asked for the interpretation of this rule or who actually drafted the proposed advisory opinion (pdf page 82 in June 2007 Georgia Bar Journal).  However, the opinion used broad terms without explanation.  It did not define what constitutes a "prima facie valid" claim and what claims of clients’ creditors are “presumptively enforceable.”   By its breadth and vagueness, the opinion would have implicitly supported threats by insurance companies to disbar lawyers who stand up for their clients against abusive demands by  the insurance companies for reimbursement.  All too often  when we try to settle cases, we have to deal with insurance companies that always demand reimbursement of medical benefits for which the insured had paid premiums.  Such demands are generally based upon obscure provisions in the fine print on about page 47 of contracts of adhesion of which the insured may not have even received a copy, and which are generally in conflict with Georgia's "full compensation" rule which is codified at O.C.G.A. § 33-24-56.1.

I know from experience how tedious it can be for lawyers who practice in the trenches every day to meet every month or two with a bunch of law professors and deliberate about the meaning of obscure provisions of the Rules of Professional Conduct.  While the Formal Advisory Opinion Board made a conscientious effort, in this instance the opinion issued had a disturbing range of negative potential effects. After studying the opinion, I posted an online petition to generate opposition.  The petition and the comments of lawyers signing it online raised numerous concerns, among which are:

•    creation of conflicts between lawyers and clients,

•    intrusion into attorney-client confidentiality & duty to advocate for clients,

•    allowing purported creditors with dubious claims to hold settlements hostage,

•    lack of clear guidance as to what constitutes "prima facie valid" claim and what claims of clients’ creditors are “presumptively enforceable”

•    lack of guidance about conflicts between medical insurance subrogation claims and the “full compensation” rule in Georgia law, and the “made whole” doctrine under 11th Circuit ERISA law.

•    lack of guidance about the distinction between a legal interest in a specific fund and the rights of a mere general creditor

•    lack of guidance about the right of a client to prefer one creditor over another such as, for example, preferring a child support arrearage over a obscure reimbursement provision in the fine print of a health insurance policy.

From talking with some members of the Formal Advisory Opinion Board, I understand that these concerns were expressed within that board, but some members insisted on publishing the opinion for comment anyway.  Well, there certainly were comments.

Rule 1.15(I) doesn’t have to be interpreted this way.  The Connecticut Bar Ethics Committee has interpreted this rule to limit its application to: (i) judgments; (ii) statutory or judgment liens; (iii) letters of protection; and (iv) consensual security agreements.

Friday morning at the State Bar annual meeting at Ponte Vedra Beach, Florida, the Board of Governors unanimously passed my motion

to refer to the Disciplinary Rules and Procedures Committee the question of whether Rule of Professional Conduct 1.15(I)(b) should be amended, and to advise the Formal Advisory Opinion Board to further study Proposed Formal Advisory Opinion Request No. 05-R6, to more clearly define the specific interests of creditors of clients as to which an attorney may be required to provide notice, accounting or payment from a client's funds, such as (i) judgments; (ii) statutory or judgment liens; (iii) letters of protection; and (iv) consensual security agreements.

Yesterday an attractive young lady appeared at my office without an appointment to solicit a relationship with a chiropractic clinic handling motor vehicle personal injury matters.  The relationship between some (though certainly not all) chiropractors and some bottom feeding lawyers is notorious.  Over the years I have heard numerous accounts of people whose names appear on accident reports getting calls from chiropractors' offices, where they are immediately matched up with lawyers who meet with them at the chiropractor's office.   When clients have eventually gotten wise to that racket and have found their way to me, usually their cases are severely damaged, often beyond repair.  Often I have had phone calls from chiropractor offices asking to schedule lunches, and I have politely declined.

I caught just a glimpse around the corner of the chiropractor's solicitor --  who could instantly rev up the engines of many a vulnerable middle aged male lawyer -- and instructed my assistant to tell her thanks, but we don't handle chiropractor cases. 

While I have no evidence that this particular solicitation was linked to any illegal practices, this small incident reminds me of a widespread and corrosive practice of illegal solicitation of injury victims by bottom feeding lawyers, chiropractors and "runners" who often work together.   If the leaders professional organizations do not take the lead to deter such illegal practices, we have only ourselves to blame if the improper practices flourish.

I have great respect and affection for the bar counsel whose job it is to handle attorney discipline cases in Georgia.  Unfortunately, they have had too little support from the Bar to aggressively go after lawyers whose conduct is not only unethical but criminal but who are not laid up as easy cases.  The result is that our disciplinary process is too often viewed as one that takes the "low hanging fruit," e.g., lawyers who screw up their trust accounts, fail to respond to grievances, or plead guilty to felonies.  We have not provided the resources and support to investigate and prosecute other cases that would provide a valuable deterrent to unethical and illegal attorney conduct.

The use of runners to solicit injury victims is clearly contrary to both Rules of Professional Conduct and Georgia criminal law. I keep hearing stories of injury victims being solicited in hospitals within days after a wreck, and of lawyers and their agents ("investigators," "patient service representatives," or whatever they call themselves this week)  buzzing around after a catastrophe.

So long as there is no effective deterrent to unethical and illegal solicitation of injury victims, those of us who conscientiously follow the rules are getting a double whammy.  First, we have a competitive disadvantage in getting business as so many cases are scooped up by those who systematically defy the rules.  Second, jurors who have heard about these solicitation practices may assume that we are all dirty.

We lawyers need to police our own, and the State Bar disciplinary process is the primary way we can do it.  If we fail to do so, can we blame members of the public for assuming we are all sleazebags?

 Rule of Professional Conduct 7.3, Direct Contact With Prospective Clients, permits restricted written communication with an injury victim after 30 days following an incident, but prohibits in person solicitation completely.  It provides as follows:

(a) A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer's firm, lawyer's partner, associate, or any other lawyer affiliated with the lawyer or the lawyer's firm, a written communication to a prospective client for the purpose of obtaining professional employment if:

(b) Written communications to a prospective client, other than a close friend, relative, former client or one whom the lawyer reasonably believes is a former client, for the purpose of obtaining professional employment shall be plainly marked "Advertisement" on the face of the envelope and on the top of each page of the written communication in type size no smaller than the largest type size used in the body of the letter.

(c) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in the lawyer's employment by a client; except that the lawyer may pay for public communications permitted by Rule 7.1 and except as follows:

(1) A lawyer may pay the usual and reasonable fees or dues charged by a bona fide lawyer referral service operated by an organization authorized by law and qualified to do business in this state; provided, however, such organization has filed with the State Disciplinary Board, at least annually, a report showing its terms, its subscription charges, agreements with counsel, the number of lawyers participating, and the names and addresses of lawyers participating in the service;

(2) A lawyer may pay the usual and reasonable fees or dues charged by a bar-operated non-profit lawyer referral service, including a fee which is calculated as a percentage of the legal fees earned by the lawyer to whom the service has referred a matter, provided such bar-operated non-profit lawyer referral service meets the following criteria:

(i) the lawyer referral service shall be operated in the public interest for the purpose of referring prospective clients to lawyers, pro bono and public service legal programs, and government, consumer or other agencies who can provide the assistance the clients need. Such organization shall file annually with the State Disciplinary Board a report showing its rules and regulations, its subscription charges, agreements with counsel, the number of lawyers participating and the names and addresses of the lawyers participating in the service;

(3)  A lawyer may pay the usual and reasonable fees to a qualified legal services plan or insurer providing legal services insurance as authorized by law to promote the use of the lawyer's services, the lawyer's partner or associates services so long as the communications of the organization are not false, fraudulent, deceptive or misleading;

(d) A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.

(e) A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks to employ the lawyer does so as a result of conduct by any person or organization prohibited under Rules 7.3(c)(1), 7.3(c)(2) or 7.3(d): Direct Contact with Prospective Clients.

The maximum penalty for a violation of this Rule is disbarment.

Comment

Direct Personal Contact

[1] There is a potential for abuse inherent in solicitation through direct personal contact by a lawyer of prospective clients known to need legal services. It subjects the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter. A prospective client often feels overwhelmed by the situation giving rise to the need for legal services, and may have an impaired capacity for reason, judgment and protective self-interest. Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the lawyer's own interest, which may color the advice and representation offered the vulnerable prospect.

[2] The situation is therefore fraught with the possibility of undue influence, intimidation, and overreaching. The potential for abuse inherent in solicitation of prospective clients through personal contact justifies its prohibition, particularly since the direct written contact permitted under paragraph (b) of this Rule offers an alternative means of communicating necessary information to those who may be in need of legal services. Also included in the prohibited types of personal contact are direct personal contact through an intermediary and live contact by telephone.

Direct Mail Solicitation

[3] Subject to the requirements of Rule 7.1: Communications Concerning a Lawyer's Services and paragraphs (b) and (c) of this Rule 7.3: Direct Contact with Prospective Clients, promotional communication by a lawyer through direct written contact is generally permissible. The public's need to receive information concerning their legal rights and the availability of legal services has been consistently recognized as a basis for permitting direct written communication since this type of communication may often be the best and most effective means of informing. So long as this stream of information flows cleanly, it will be permitted to flow freely.

[4] Certain narrowly-drawn restrictions on this type of communication are justified by a substantial state interest in facilitating the public's intelligent selection of counsel, including the restrictions of sub-paragraph (a)(3) & (4) which proscribe direct mailings to persons such as an injured and hospitalized accident victim or the bereaved family of a deceased.

[5] In order to make it clear that the communication is commercial in nature, paragraph (b) requires inclusion of an appropriate affirmative "advertisement" disclaimer. Again, the traditional exception for contact with close friends, relatives and former clients is recognized and permits elimination of the disclaimer in direct written contact with these persons.

[6] This Rule does not prohibit communications authorized by law, such as notice to members of a class in class action litigation.

Paying Others to Recommend a Lawyer

[7] A lawyer is allowed to pay for communications permitted by these Rules, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer's services. Thus, a legal aid agency, a prepaid legal services plan or prepaid legal insurance organization may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in lawyer referral programs and pay the usual fees charged by such programs, provided the programs are in compliance with the registration requirements of sub-paragraph (c)(1) or (c)(2)of this Rule 7.3: Direct Contact with Prospective Clients and the communications and practices of the organization are not deceptive or misleading.

[8] A lawyer may not indirectly engage in promotional activities through a lay public relations or marketing firm if such activities would be prohibited by these Rules if engaged in directly by the lawyer.

In addition, OCGA § 33-24-53 establishes criminal penalties for improper referrals and recommendations to attorneys and health care providers in cases involving motor vehicle accidents; access to accident reports, as follows: 

 (a) In a claim arising out of a motor vehicle accident, a lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client; except that he may pay for public communications permitted by Standard 5 of  Bar Rule 4-102 and the usual and reasonable fees or dues charged by a bona fide lawyer referral service operated by an organization authorized by law and qualified to do business in this state; provided, however, such organization has filed with the State Disciplinary Board, at least annually, a report showing its terms, its subscription charges, agreements with counsel, the number of lawyers participating, and the names and addresses of lawyers participating in the service. Upon conviction of an offense provided for by this subsection, the prosecutor shall certify such conviction to the disciplinary board of the State Bar of Georgia for appropriate action. Such action may include a suspension or disbarment.

 (b) With respect to a motor vehicle insurance benefit or claim, a health care provider shall not compensate or give anything of value to a person to recommend or secure the provider's service to or employment by a patient or as a reward for having made a recommendation resulting in the provider's service to or employment by a patient, except that the provider may pay the reasonable cost of advertising or written communication as permitted by rules of professional conduct. Upon a conviction of an offense provided for by this subsection, the prosecutor shall certify such conviction to the appropriate boards for appropriate action. Such action may include a suspension or revocation of the health care provider's license.

(c) With respect to a motor vehicle accident, no employee of any law enforcement agency shall allow any person, including an attorney, health care provider, or their agents, to examine or obtain a copy of any accident report or related investigative report when the employee knows or should reasonably know that the request for access to the report is for commercial solicitation purposes. No person shall request any law enforcement agency to permit examination or to furnish a copy of any such report for commercial solicitation purposes. For purposes of this subsection, a request to examine or obtain a copy of a report is for "commercial solicitation purposes" if made at a time when there is no relationship between the person or his principal requesting the report and any party to the accident, and there is no apparent reason for the person to request the report other than for purposes of soliciting a business or commercial relationship. All persons, except law enforcement personnel and persons named in the report, shall be required to submit a separate written request to the law enforcement agency for each report. Such written request shall state the requestor's name, address, and the intended use of the report in sufficient detail that the law enforcement agency may ascertain that the intended use is not for commercial solicitation purposes. The law enforcement agency shall file each written request with the original report. No person shall knowingly make any false statement in any such written request.  

 (d) A person may not receive compensation, a reward, or anything of value in return for providing names, addresses, telephone numbers, or other identifying information of victims involved in motor vehicle accidents to an attorney or health care provider which results in employment of the attorney or health care provider by the victims for purposes of a motor vehicle insurance claim or suit. Attempts to circumvent this Code section through use of any other person, including, but not limited to, employees, agents, or servants, shall also be prohibited. This provision shall not prohibit an attorney or health care provider from making a referral and receiving compensation as is permitted under applicable professional rules of conduct.

 (e) Any person who violates any provision of this Code section shall be guilty of a misdemeanor involving moral turpitude.

A few years ago, a lawyer friend of mine in Cobb County secured cooperation from the State Court Solicitor and law enforcement to set up a sting operation to catch a runner who had solicited him.  This resulted in the arrest of that runner and an investigative report on one of the Atlanta TV stations. The person arrested turned out to be a convicted felon from Florida who skipped bond prior to her court date.

I think the State Bar of Georgia ought to actively work with law enforcement agencies to catch not just the runners but the attorneys who are paying them. If we prosecuted and disbarred a few lawyers who illegally use runners, it would be a deterrent to other lawyers who think they have a free pass to use their law licenses in this manner. This is one reason I am taking another shot at election to the State Bar Executive Committee.

We have never used runners or media advertising.  Most of our clientele comes from word of mouth, web searches and referrals from other attorneys.

Occasionally we get requests for free advice from lawyers who are younger, or whose practices focus in another field of law, and who are struggling to figure out how to handle a complex personal injury or wrongful death case.  Eventually I sometimes ask if they have considered referring the case to someone who handles such matters routinely. 

A majority of my cases over the past 17 or 18 years have come by referral from other lawyers.  This occurs in three or four primary circumstances.   Many lawyers send their clients to us when they get a case outside their daily practice area.  Others ask for our assistance with they get a particularly complicated case in their practice area - a case that will require a tremendous commitment of time and/or money. For example, a lawyer handling car wreck cases may recognize the need for help with an interstate trucking case or a products liability case.  Other lawyers ask us to work with them when they obviously have the skills and money to handle the case but they simply have too many other irons in the fire to handle the case in a timely, responsible fashion. 

And of course there are cases that come from lawyers in other states who need to refer to a Georgia lawyer. Next week I will fly up north to meet with referring and cooperating lawyers to confer about a mass disaster case that occurred in Georgia.

It is extremely difficult to have the large number of files the average lawyer handles and throw into that mix a significant personal injury or wrongful death case.  A significant case can require hundreds or even thousands of hours of work, even for people who routinely handle those cases.  That can adversely impact all of their other clients and adversely impacts cash flow.  Then, in an effort to tend to those clients, the major case languishes, increasing the risk of error and potentially diminishing the value of that case.  Lawyers in that position should recognize that they are all their clients are much better off getting some help with that case on the front-end.

Georgia Rule of Professional Conduct 1.52 (e) authorizes fee sharing as follows:

A division of a fee between lawyers who are not in the same firm may be made only if:

    (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;

    (2) the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and

    (3) the total fee is reasonable.

We routinely share fees consistent with this rule, and pay out a lot of money in referral fees.  Once I calculated that one lawyer -- who is now retired -- had made over a million dollars in referral fees on cases where I had done the lion's share of the hands on work.  Referring lawyers are routinely pleasantly surprised when they receive a referral check and reflect on the number of hours they spent to earn the fee.  And when the referring lawyer gets to share the fun of a good trial in his hometown far from Atlanta, the rewards in be associated with a record verdict in the hometown can extend beyond the fee in that one case.

I think the referral system is a fair one.  It rewards lawyers who work in the trenches, develop relationships with clients,  and for one reason or another are not able to handle a given case at a given time.  It helps clients - it gives them access to a larger team of lawyers who often handle a larger volume of "bigger" cases, and therefore are more familiar with the particular challenges of those types of cases.  It does not cost the client more money - we charge the same fee whether a client calls us directly or the case is referred by another lawyer.  It works for everyone.

Finally, thanks to John Day for reminding me in his blog that this is even a question that needs to be addressed.

New York courts have amended lawyer advertising rules to allow attorneys to tout their "bona fide professional ratings" -- another example that New Jersey could be out of step if it adopts a proposed ban on services like "Super Lawyers."  Florida, Arizona and Philadelphia have said Super Lawyers or Best Lawyers ads are ethical.  Such listings are permitted in Georgia under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, which provides the rule against comparisons does not apply if the comparison "can be factually substantiated."  I include such designations in my CV, but frankly it's a little like being a member of Mensa, the "high IQ" club.  Once you're accepted you don't care much about it any more.

The New York Times reports that big New York City law firms have raised the starting salaries for kids just out of law school to $145,000.  (Large Atlanta firms raised starting salaries to $115,000 earlier this year.)  The $145,000 starting salary figure is striking to me because, without adjusting for inflation, it is exactly ten times my starting salary when I graduated from Emory Law School 29 years ago.  It's difficult to imagine how a new law school graduate could be worth that kind of salary, with the possible exception of a new patent lawyer with a Ph.D. in a particularly hot field of science or engineering. 

A more startling comparison is with judicial salaries: federal appeals court judges, $175,100; federal district court judges, $165,200; federal bankruptcy and magistrate judges, $151,984. Almost all state trial and appellate judges are paid less.  While in a free market compensation levels are not always fair, rational or based on merit, there is something fundamentally offensive about paying new law school graduates about the same as seasoned judges with 30 or 40 years experience.

One effect of spiraling associate salaries may be to increase the tendency of large firms to over-litigate cases that should be resolved, in order to maximize billable hours. But that is nothing new.  I've seen platoon billing at big firms for many years.

These absurdly high salaries for new grads with no practical experience in the practice of law necessarily warp the economics of law practice.  While enabling the chosen few to rapidly pay down their tuition loans, I expect the range of unintended consequences for law firm economics and the economics of law practice generally will be largely negative. However, I feed my family by representing ordinary individuals and families, and get paid solely on the basis of productivity, I will watch this pattern with bemused detachment and leave the heavy analysis to others.

One of my long-term habits may be at least partially vindicated.  An article in today's New York Times suggests that coffee may be beneficial for health.  Researchers have found strong evidence that coffee substantially reduces the risk of diabetes, heart disease and cirrhosis of the liver.

Larger quantities of coffee seem to be especially helpful in diabetes prevention. In a report that combined statistical data from many studies, researchers found that people who drank four to six cups of coffee a day had a 28 percent reduced risk compared with people who drank two or fewer. Those who drank more than six had a 35 percent risk reduction.

Researchers found that a typical serving of coffee contains more antioxidants than typical servings of grape juice, blueberries, raspberries and oranges.

Of course there are some negatives too, as the article also notes.

Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the "Super Lawyers" listings violate professional responsibility rules against ads that compare lawyers’ services or create an "unjustified expectation about results."  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the "Super Lawyers" issue of Atlanta Magazine, "Legal Elite" issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."

The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.

A giant of the law entered the Father's house Thursday night.  The former dean at both Emory and Georgia State law schools, who laid the foundations for greatness at both institutions,  Ben Johnson, Jr. was 91.

Dean Johnson was born and raised in Atlanta where he graduated from Atlanta's Boys High School in 1932. He earned his undergraduate degree at the University of Georgia in 1937 after working his way through Emory University and what is now Georgia State University. After graduating first in his class from the Emory University Law School in 1939, he began his law career at the Atlanta law firm of Sutherland, Tuttle and Brennan; served as a naval intelligence officer during World War II; and went on to earn a Master of Law degree from Duke University. 

In 1949, he began his tenure of over thirty years as law professor and dean at Emory University. While teaching at Emory between 1955-1961, he served as Deputy Attorney General for the State of Georgia specializing in state tax litigation. In 1962, he was elected to the Georgia State Senate and served until 1969. His most significant achievement in the senate was as the principal author of legislation that resulted in the creation of the Metropolitan Atlanta Rapid Transit Authority (MARTA).

From 1961 to 1973 he served as the fourth Dean of Emory Law School.  Under his leadership, enrollment grew from 101 to 561, the faculty grew from 8 to 21, the library grew from 44,000 to 80,000 volumes, and the law school moved from its original building on the quad (now part of the Carlos Museum) to Gambrell Hall at the intersection of North Decatur and North Clifton.  He personally briefed and argued the landmark case that integrated Georgia's private universities, in an era when desegregation was viewed by most of his generation as anathema, then led the law school through desegregation.  The minority lawyers he cultivated in their youth became the first generation of minority lawyers and judges in Atlanta.

Dean Johnson introduced new programs focusing on engaging students in the ethical responsibilities of their profession, such as protecting the environment and promoting child welfare. Under his leadership the Emory Community Legal Service Center opened in 1967 as a federally-funded demonstration project which laid the foundations for the Atlanta Legal Aid Society.

In 1981, he became the founding dean of the Georgia State University College of Law.  His leadership gave the infant law school instant credibility in the legal community.   He led the Georgia State law school from its inception to its first graduating class and provisional accreditation from the American Bar Association in 1985.

When I entered Emory Law School in 1974 as a callow youth of 23 who looked about 16, Dean Johnson had just recently laid aside the duties of Dean.  To his face we called him "Dean," but behind his back we affectionately called him "Gentle Ben"  because, defying the popular stereotype of the intimidating law professor, he taught with kindness and patience.  He valiantly attempted to teach me Trusts and Estates.  Leading the class through the fine points of the Rule Against Perpetuities and the Rule in Shelly's Case, he told us every day, "inch by inch it's a cinch, yard by yard it's hard."  Not practicing in that field, I don't recall a lot of details of trust and estate law, but that daily admonition to persevere has stuck with me through the years.

Dean Johnson's son, Ben III, is managing partner of Alston & Bird and chairman of the Board of Trustees at Emory, carrying on his father's commitment to the law and to Emory.

Goodnight and farewell, Gentle Ben.  As folks used to say about my grandma down in the mill village, you've earned "stars in your crown."

All states allow a lawyer licensed in another state to be temporarily admitted to represent a client in a specific case, generally with the involvement of a local attorney in that state. The Latin term for this is admission "pro hac vice." I had been admitted pro hac vice for cases in other states from time to time, and frequently serve as local counsel in Georgia with lawyers from other states. The trend in recent years has been for the state bar organization to review and approve a "pro hac vice" application before a trial judge signs an order approving the application.

Georgia has now followed that trend. Effective 11/10/05, the Supreme Court adopted Uniform Rule 4.4. The purpose is basically to provide a standard procedure for confirming that lawyers from other jurisdictions are who they say they are, are in good standing in their home state, and are subject to the disciplinary rules like Georgia lawyers. You wouldn't want a lawyer who was disbarred or suspended in his home state to waltz into another state and start trying cases. Under this new rule, the Office of the General Counsel of the State Bar of Georgia has an integral role in out-of-state attorneys' applications for temporary appearances in State and Superior Courts in Georgia (i.e., Admission Pro Hac Vice).

Pro hac vice applicants must serve a copy of their notarized applications on the Office of the General Counsel of the State Bar of Georgia. The application fee for each application is $200, and can be paid by check or money order to State Bar of Georgia. There is no prescribed form for the application.

The full text of Uniform Rule 4.4 follows:

Insurance companies typically hire defense counsel for their insureds and manage the litigation. This can create ethical dilemmas for the defense lawyers.

Georgia Rule of Professional Conduct 1.2(4) provides that "[when a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters covered by the insurance policy." However, the terms of an insurance policy may not limit the obligations owed by insurance company lawyers to insured clients, including the duty to inform the insured defendant of settlement offers and of the opportunity to settle within policy limits. See, e.g., Hartford Acc. & Indem. Co. v. Foster, 528 So.2d 255 (Miss. 1988).

The tripartite relationship between insurer, insured and defense counsel is unique in the legal profession, variously described as "deeply and unavoidably vexing" and presenting an ethical dilemma that would "tax Socrates." Charles Silver, "Does Insurance Defense Counsel Represent the Company or the Insured?," 72 TEX. L. REV. 1583, 1587 (1994); Hartford Accident & Indemnity Co. v. Foster, 528 So. 2d 255, 273 (Miss. 1988).