Legal Ethics & Malpractice Reporter, Vol. 2, No. 12

Published: 30 December 2021

                    Legal Ethics & Malpractice Reporter

Table of Contents

Featured Topic

No Quid Pro Quo: Settling Civil Claims While Criminal Charges Are Pending

New Authority

Maryland Judicial Ethics Committee Opinion 2021-10

Ethics and Malpractice Research Tip

New Articles Drawn from the Current Index of Legal Periodicals

A Blast from the Past

Lawyers, Conviviality & Professional Reputation

EDITED BY: Professor Mike Hoeflich

PUBLISHED BY: Joseph, Hollander & Craft LLC

Featured Topic

No Quid Pro Quo: Settling Civil Claims While Criminal Charges Are Pending

By guest contributor J. Nick Badgerow[1]

While it is thankfully not a common situation, civil claims sometimes do arise as a result of alleged criminal conduct. This leads to a civil lawsuit against a defendant and a related, parallel — but unconnected — criminal charge against the same defendant, arising from the same common nucleus of operative facts.

Parties to civil litigation are generally free to settle existing or potential claims. This freedom to settle can yield many benefits: it alleviates the public and private costs of civil trials, eliminates the uncertainty and delay of litigation, and allows parties, through contract, to negotiate the remedies they desire. Settlement provides parties to a dispute a high degree of autonomy in resolving their affairs. This is why settlement is consistent with the public policy.[2]

The defendant presumably wants to settle the civil case, but understandably would be disinclined to pay, or at least would be motivated to pay less than full value to settle, a civil claim with the threat of the ongoing criminal charge over his/her head. Thus, negotiations to settle both cases, rather than just the civil case alone, would be beneficial.

By the same token, a civil plaintiff must realize that s/he is in a position to demand more if the settlement of the civil case could be coupled with a dismissal of the criminal charge. Certainly, the civil case would appear to be all the stronger because of a related criminal prosecution.

For these reasons, settlement of the civil case benefits each side, and allows each party to control his/her own destiny.

[1] J. Nick Badgerow is a partner with the firm of Spencer Fane LLP in Overland Park, Kansas. He has practiced civil litigation for more than 45 years in the state and federal courts of Kansas and Missouri. Nick was a member of the Kansas Judicial Council (24 years); member of the Kansas State Board of Discipline for Attorneys (16 years); member of the Kansas Supreme Court Commission on Professionalism; Chairman, Kansas Ethics 2000 Commission; Chairman, Kansas Ethics 20/20; Chairman, Kansas Bar Ethics Advisory Committee (14 years); Chairman, Johnson County Bar Association Ethics and Grievance Committee (29 years). Nick is co-author of the KBA Employment Law Handbook and an author and the editor of the KBA Ethics Handbook, Third Edition (2015). Nick has published more than 80 law review and law journal articles and presented more than 200 seminars, mostly on the subjects of attorney ethics, liability and professional responsibility. Nick received the Distinguished Service Award from the KBA in 2020.

[2] “The law favors the compromise and settlement of disputes, and when parties, in the absence of any element of fraud or bad faith, enter into an agreement settling and adjusting a dispute, neither party is permitted to repudiate it. (Lewis v. Kimball, 103 Kan. 173, 173 Pac. 279; and Massey-Harris Co. v. Horn, 132 Kan. 206, 294 Pac. 666.)” Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, 310, 349 P.2d 931 (1960).

New Authority

Maryland Judicial Ethics Committee Opinion 2021-10

As we approach the beginning of the third year of the COVID-19 pandemic, it becomes increasingly clear that many of the ethical problems that lawyers and judges face today were nearly unthinkable in the “Before Times.” Rarely before the pandemic would anyone have needed to ask whether a judge may ethically perform a “simulated public marriage ceremony” in the interest of public health. But that is the issue addressed by Maryland Judicial Ethics Committee Opinion 2021-10 (issued June 7, 2021).

One of the most pleasant tasks many judges undertake is officiating marriage ceremonies. In the case of Opinion 2021-10, a former law clerk asked a judge whether the judge would be willing to perform two ceremonies because of the desire not to endanger anyone by having a large gathering amidst the pandemic. The judge was asked to first perform a private marriage ceremony for the former clerk and soon-to-be spouse and then later, when the pandemic was over, perform a public ceremony attended by friends and family. The sticking point for the Ethics Committee was that the second ceremony was to be a “sham” since the couple had asked the judge to keep the first, legally effective ceremony secret so that friends and family would believe that the second, public ceremony was the “real” marriage ceremony.

When asked whether this situation would be unethical, the Maryland Judicial Ethics Committee decided that it was, in fact, a violation of the Maryland Code of Judicial Ethics.

Ethics & Malpractice Research Tip

New Periodical Literature Drawn from the Current Index of Legal Periodicals

This month we have a large number of new articles on legal ethics thanks to the publication of several symposium issues by law reviews. The contents of these symposia are listed in the Current Index to Legal Periodical as well as on the law review web pages, which often have links to the articles themselves.

The South Texas Law Review publishes an annual symposium on legal ethics as well as articles on the subject throughout the year. The following articles are all from the twenty-sixth annual ethics symposium held last year. All are high quality and worth a read:

  • Lisa L. Dahm, “Ethics in Contract Drafting: Should We Fix What’s Broken or Start over and Create Something Better?” 61 S. Tex. L. Rev. 1 (2020).
  • Richard Wilson, “From Advocate to Party—Defenses for Lawyers Who Find Themselves in Litigation.” 61 S. Tex. L. Rev. 43 (2020).
  • Cedric Campbell, “Is Whistleblowing an Ethical Practice?” 61 S. Tex. L. Rev. 77 (2020).
  • Dean Helen Jenkins, “Thoughts on Ethics of an Estate Planner,” 61 S. Tex. L. Rev. 83 (2020).
  • Ross Sears II, “The Duties and Obligations of Lawyers,” 61 S. Tex. L. Rev. 89 (2020).

St. Mary’s Law School is well known for its strong legal ethics faculty led by Professor Michael Ariens and Dean Stephen Sheppard. The school publishes the St. Mary’s Journal on Legal Ethics and Legal Malpractice. The contents of volume 11, number 2 are now listed on the law review’s web page. It has a remarkably strong list of authors, including Professor Michael Ariens and Professor Peter Joy of Washington University School of Law. The articles include:

  • Michael Ariens, “Model Rule 8.4(g) and the Profession’s Core Values Problem,” 11 St. Mary’s Journal on Legal Malpractice & Ethics 180 (2021).

Professor Ariens is the leading historian of modern American legal ethics.

  • Ethan S. Burger, “Professional Responsibility, Legal Malpractice, Cybersecurity, and Cyber-Insurance in the COVID-19 Era,” 11 St. Mary’s Journal on Legal Malpractice & Ethics 234 (2021).
  • Jan L. Jacobowitz,”Negative Commentary—Negative Consequences: Legal Ethics, Social Media, and the Impact of Explosive Commentary,” 11 St. Mary’s Journal on Legal Malpractice & Ethics 312 (2021).
  • Vincent R. Johnson, The Informed Consent Doctrine in Legal Malpractice Law,” 11 St. Mary’s Journal on Legal Malpractice & Ethics 362 (2021).

This is an informative article on the rise of informed consent in legal malpractice law as well as a useful guide for practicing attorneys.

  • Peter A. Joy, “Ethical Duty to Investigate Your Client?” 11 St. Mary’s Journal on Legal Malpractice & Ethics 414 (2021).

This is a discussion of an important issue by one of the most thoughtful of legal ethics scholars in the United States today.

  • Joshua E. Kastenberg, “Sufficiently Judicial: The Need for a Universal Ethics Rule on Attorney Behavior in Legislative Impeachment Trials,” 11 St. Mary’s Journal on Legal Malpractice & Ethics 460 (2021).

In 2020 the Washington University Journal of Law and Policy published a symposium issue, “Celebrating 150 Years of Women at Washington University Law.” Two symposium articles should be reviewed by any lawyer concerned about gender diversity and legal ethics:

  • Karen Tokarz, “Pioneering Women Lawyers Who Changed the Legal Profession and influenced the Practice of Law, including Mediation Practice: From Barkeloo and Couzins to the Present,” 62 Wash. U. J.L. & Pol’y 15 (2020).
  • Kimberly Jade Norwood, “Gender Bias as the Norm in the Legal Profession: It’s Still a [White] Man’s Game,” 62 Wash. U. J.L. & Pol’y 25 (2020).

Finally, in this month’s list of recommended readings is an important new article on prosecutorial ethics:

  • Ira P. Robbins, “Sham Subpoenas and Prosecutorial Ethics,” 58 Am. Crim. L. Rev. 1 (2021).

Blast from the Past

Lawyers, Conviviality & Professional Reputation

December and January are months in which people have a tendency to celebrate the holidays with parties and other events, often where too much convivial spirit may lead to certain problematic activities. This is often true for lawyers. Rowdy and drunken behavior has always been considered to be inappropriate, if not unethical, for lawyers, and such behavior has often led to professional difficulties for lawyers who indulge too much in public.

Ann Fidler, in her brilliant study of law students and young lawyers, “Young Limbs of the Law”: Law Students, Legal Education, and the Occupational Culture of Attorneys, 1820-1860[3] quotes from an 1857 letter sent by an Ohio lawyer to another lawyer of his acquaintance:

The probability of your nomination for Supreme Judge was under discussion, when all present concurred in the opinion that it would be a good nomination, notwithstanding it was admitted that you had sometimes gone beyond the line of prudence in the mater of convivial drinking. But Watson remarked that he would like to vote for you…if you had paid him, as I now remember $35, in money and checks which you had borrowed of him and lost at cards on that occasion, and then Thompson said you owed him a bill at the bar of one dollar and fifty cents which he should like to have. I thereupon undertook to say that you certainly would pay them, if you owed them properly, and if you had not done it, it must have been that you were is such a spree, that you remembered nothing of it when you had slept it off.

We might well speculate that this type of behavior by a would-be judge in 1857 would meet with as much disapproval in 2022 as it did almost a century and a half ago. So enjoy the season’s parties, but not too much!

[3] PhD dissertation, University of California, Berkeley (1996) at 149.

About LEMR

The Legal Ethics & Malpractice Reporter (LEMR) is a monthly publication covering current developments in ethics and malpractice law. This popular, free publication, with close to 8,000 current subscribers, was envisioned by KU Law professor Mike Hoeflich, who serves as the publication’s editor in chief. In partnership with Professor Hoeflich, JHC’s legal ethics and malpractice group is pleased to publish this monthly online periodical to help attorneys better understand the evolving landscape of legal ethics, professional responsibility, and malpractice.

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