Ethical Considerations Insurance

ETHICAL CONSIDERATIONS
By Gerry Schulze
Defense Lawyer Hypothetical
1
.
You are an insurance defense lawyer for Consolidated Federated. Consolidated
Federated is one of the stingiest insurers in the business, but eventually they pay your bills.
Getting them to spend an extra nickel on a defense, though, is like pulling hen’s teeth.
Another Consolidated Federated fender-bender comes across your desk. One Andrew
Volstead was rear-ended by José Cuervo. Your insured is Guillermo Cuervo, José’s brother, the
owner of the car.
José got a ticket for following too close and driving while intoxicated, his third.
Volstead’s lawyer demanded the limits. The policy excludes punitive damages, and Volstead
wasn’t seriously injured. He went to a chiropractor who treated him for two weeks and released
him. The total medical involvement was $625. Volstead’s attorney has, of course, sued both
José and Guillermo, alleging negligent entrustment. There’s a note from the adjustor. “This
guy wasn’t hurt. We’ve allocated $2,000.00 to the defense of this case. Spend it wisely.”
José and Guillermo come to see you. Guillermo tells you that the car isn’t really even
his. It’s just in his name because José couldn’t get insurance because of his driving record.

1
I didn’t make all of this hypothetical up. There is a Nevada Ethics opinion about the fact
situation in which a brother permanently “lends” his brother his car because his record for
getting DWI’s makes him uninsurable. State Bar of Nevada Standing Committee On Ethics And
Professional Responsibility Formal Opinion No. 9 (originally issued on 4/21/88, conclusion
amended 9/24/07). The brothers confess to their lawyer that the arrangement essentially is
fraudulent as to the insurer. The State Bar of Nevada Standing Committee on Ethics and
Professional Responsibility determined that the lawyer could not disclose the fraud to the
insurance company, was not obliged to withdraw on the ground that the fraud was complete, not
continuing, and that he was not required to, but probably should counsel Guillermo about the
adverse consequences of this fraudulent activity to the extent any further warning might be
necessary. I made up a few extra details. The names have been changed—well, you are free to
guess why I changed the names.

That’s why the insurance agent recommended that Guillermo buy his car and take out the
insurance in his own name.
“Besides,” José says,” this time I wasn’t really drunk. I was acquitted at trial.” José
hands you an order showing that a judge had actually entered a judgment acquitting him.
“It cost $10,000 for the expert witness, but he showed the judge that the police officer
had not correctly used the breathalyzer. José had just gotten off work, we had his former co-
worker flown in from Ohio! He couldn’t have had anything to drink for at least twelve hours.”
1. Do you have an ethical problem regarding the fraud that Guillermo and José have
just disclosed to you?
a. Can you tell the insurer about it?
b. Must you tell the insurer about it?
c. Must you remain silent about it?
2. Do you have an ethical problem with the budget that the adjustor has set for you?
3. Would it make any difference if the insurer might be able to avoid paying punitive
damages, but you know that the clever plaintiff’s lawyer can always drop the
punitive claim at the end of the trial and let the jury award a de facto punitive claim
in the form of high compensatory damages for mental anguish and pain and
suffering?
4. What if you’re not sure if the above strategy is legal or not, but there’s no way you
can afford to research it on the stingy budget your adjustor has given you?

Plaintiff’s Lawyer Hypothetical

O. Julius Bananaberry, Elspeth Bluenose, and Mr. and Mrs. Worthington Farnsworth IV,
all close neighbors and longtime friends, were returning home from a long night at the opera.
Mr. Bananaberry was driving. Ms. Bluenose was a passenger in the front seat. Mr. and Mrs.
Farnsworth IV were asleep in the back seat.
The vehicle they were driving was suddenly struck by a turnip truck driven by Hiram
Tweedle. The versions of the accident vary. Mr. Bananaberry insists that he was proceeding
along at the posted speed limit in his lane of traffic when his car was struck head on by a turnip
truck. He did not see the truck until just before the accident. Mr. Tweedle insists that the
Bananaberry’s Rolls Royce was weaving all over the road at a high rate of speed and the he was
just trying to dodge the car just before they collided, in his own lane. Ms. Bluenose says that the
accident happened in Mr. Bananaberry’s lane, and that Mr. Bananaberry had not been weaving,
but that he was going somewhat faster than she was comfortable with. She was about to suggest
that he slow down when the accident occurred. The Farnsworths say they do not remember
anything about how the accident occurred.
All four plaintiffs were taken from the scene by ambulance. They got a minimal amount
of treatment at the emergency room, so their bills there were only about $10,000 each.
Insurance would have paid $117.50. The hospital refuses to submit the claims to the plaintiffs’
health insurance companies.
Investigating Officer Seeley Booth found debris in both lanes, making it impossible to
determine the point of impact.
Mr. Bananaberry, Mr. Bluenose, and the Farnsworths are all injured in the accident.
Mr. Tweedle had minimum limits of $25,000 per person, $50,000 per accident on his turnip
truck.

Can you represent all of the plaintiffs? Under what circumstances?
If you meet them all at the same time, can you represent any of them?
If you already represent one of them on another matter, can you represent any of them in
regard to this accident?
Would it make any difference if Mr. Bananaberry failed to pay his automobile insurance
premium and his policy lapsed?
Assume Mr. Bananaberry’s chiropractor consults you about the case. He is willing to
send Mr. Bananaberry your way if you’ll agree to make sure his lien is protected.
Assume Ms. Bluenose comes to you about the case. Before litigation is filed, can you
call Mr. Tweedle and get a recorded statement from him?
Assume twenty years ago you represented Mr. Tweedle on a DWI. He was guilty as hell,
but you got him off somehow. In the course of the representation, he admitted to you that he had
been driving drunk a lot, but he’s going to go on the wagon and start attending AA. In fact, he
attended the same AA you attended—for about three months.
Rules of Professional Conduct
Ethical questions always start with the Rules of Professional Conduct. What are the
Rules of Professional Conduct but another set of “Rules”? How are the Rules of Professional
Conduct different from the Rules of Evidence, the Rules of Civil Procedure, or the Rule against
Perpetuities?
We call our Rules of Professional Conduct rules of “ethics.” I’m talking about these
rules today because we have a mandatory one-hour “ethics” requirement in our continuing legal
education obligation: “Every member of the Bar of Arkansas, except as may be otherwise
provided by these rules and, excepting those attorneys granted voluntary inactive status by the
Arkansas Supreme Court Committee on Professional Conduct, shall complete 12 hours of
approved continuing legal education during each reporting period as defined by Rule 5(A)
below. Of those 12 hours, at least one hour shall be ethics, which may include professionalism as
defined by Regulation 3.02.” Ark. R. Minimum Con't Legal Educ. Rule 3 (2009)
So what is this ethics hour supposed to be all about, anyway? Here it is:

Rule 3.02. Ethics

Ethics presentations shall be distinct segments no less than one hour in length, shall be
specifically designated separately on the program application and shall be accompanied by
appropriate documentation. Likewise, claims for ethics credit shall be designated separately
on certificates of attendance submitted to the Secretary.
Ethics shall be defined as follows: "Legal ethics includes, but is not necessarily limited
to, instruction on the Model Rules of Professional Conduct and the Code of Judicial
Conduct."
Ethics may include professionalism courses addressing the principles of competency,
dedication to the service of clients, civility, improvement of justice, advancement of the rule
of law, and service to the community.

Professionalism courses may include a lawyer's responsibility as an officer of the Court;
responsibility to treat fellow lawyers, members of the bench, and clients with respect and
dignity; responsibility to protect the image of the profession; responsibility generally to the
public service; the duty to be informed about methods of dispute resolution and to counsel
clients accordingly; and misuse and abuse of discovery and litigation.

Ark. Regulation Con't Legal Bd. Rule 3.02 (2009).

The ethics hour ought to also have something to do with the program.
The rule tells us that the Rules of Professional Conduct and a few relate issues are
entitled to an hour out of our twelve hour annual continuing legal education requirement. As
substantive law, these rules are not all that complex. They are, to be sure, vague, but I’m not
sure that they are conspicuously vaguer than some of the other broad rules of general
applicability. They are difficult to apply, and frequently there is precious little authority to go
on. We could look to the cases in which people get in trouble, but for the most part, with a few
exceptions here and there, those seem to be fairly obvious cases. The only thing that bothers me
about them sometimes is that I think the committee is too willing to take action on cases that in
my opinion, if I were on the committee, I think I’d leave to the legal malpractice bar. If someone
lets a statute of limitations run, sure, it’s probably a legitimate violation of the rules about
competence, but there’s always circuit court for those cases. That’s just me. I’m not likely to be
on the committee any time soon.
Back to the question: What is it about this relatively short set of rules that requires that it
dominate one twelfth of our annual continuing legal education requirement? It could be worse.
I’m licensed in Texas. There I have to do fifteen hours of CLE a year, three of which are in
ethics or professionalism.
2


2
I love lecturing and teaching CLE, and not only because it’s less boring than sitting here listening to
myself. If you’ve heard me enough, you’ll know it’s not. I’m just as boring to myself as I am to you. The subject
matter, on the other hand, isn’t boring at all. I really am personally devoted to the idea of CLE. Last year, the Bar
sent me notice that I had 66 hours of CLE.

To understand this requirement, I believe we have to look beyond the letter of the law
and seek out its spirit. Unfortunately, that is often an invitation to impose our own values and
prejudices on a set of rules, reading things into them rather than taking guidance from them. We
cannot read the Rules of Professional Responsibility as a moral code. It is a body of substantive
law. We are obliged to comply with the strictures of that substantive law, even if our personal
moral code might counsel us to act differently than the rules require. In many areas a cogent,
strong, and principled ethical argument can be made for behavior that would violate the code.
But if we are to practice law, we must set our personal moral beliefs to one side and live up to
our oath to follow the Code of Professional Conduct. Still, I think the aspiration of the ethics
hour is more than that we engage in a dispassionate analysis of the substantive requirements of
the Model Rules of Professional Conduct, and that we spend this hour discussing our “ethical”
obligations above and beyond the mere obligations imposed by the Model Rules. Which brings
us to the question, are there any moral or ethical obligations above, beyond, or different from
those imposed by the rules?
The drafters of the Preamble to the Model Rules seemed to think so. “The Rules do not .
. . exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile
human activity can be completely defined by legal rules. The Rules simply provide a framework
for the ethical practice of law.” Preamble, Arkansas Model Rules of Professional Conduct.
Scope. But what is the content of the additional moral and ethical considerations that should
inform a lawyer? Reasonable minds can differ, and the minds of lawyers are seldom limited to
the ideas that inhabit the hypothetical “reasonable mind.”
The Model Rules are a starting point. The Model Rules are the ethical rules that are
actually enforced—the violation of which will subject us to sanctions.
Most real ethical quandaries arise out of conflicting ethical obligations. The most
common situation in which this occurs is when a conflict of interest arises. We may owe
conflicting duties of loyalty to our clients and the legal system. We may owe conflicting legal
duties to different people.


A. Conflicts of Interest
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client will be directly adverse to another clients; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer,
(b) Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law:
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing,
Ark. Rules of Professional Conduct, Rule 1.7 Conflict Of Interest: Current Clients.
(b) A lawyer shall not use information relating to representation of a client to the
disadvantage of the client unless the client gives informed consent, in a writing
signed by the client, except as permitted or required by these Rules.
(e) 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; and
(2) a lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of the client.
(f) A lawyer shall not accept compensation for representing a client from one
other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional
judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by
Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an
aggregate settlement of the claims of or against the clients, or in a criminal case
an aggregated agreement as to guilty or nolo contendere pleas, unless each client
gives informed consent, in a writing signed by the client. The lawyer's disclosure
shall include the existence and nature of all the claims or pleas involved and of
the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for
malpractice unless the client is represented by independent legal counsel , or
(2) settle a claim or potential claim for such liability with an unrepresented client
or former client unless that person is advised in writing of the desirability of
seeking and is given a reasonable opportunity to seek the advice of independent
legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action or
subject matter of litigation the lawyer is conducting for a client, except that the
lawyer may:
(1) acquire a lien granted by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(k) While lawyers are associated in a firm, a prohibition in the foregoing
paragraphs (a) through (i) that applies to any one of them shall apply to all of
them,
Rule 1.8 Conflict Of Interest: Current Clients: Specific Rule

(a) A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
person's interests are materially adverse to the interests of the former client unless
the former client gives informed consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a substantially
related matter in which a firm with which the lawyer formerly was associated had
previously represented a client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and
1.9(c) that is material to the matter; unless the former client gives informed
consent confirmed in writing,
(c) A lawyer who has formerly represented a client in a matter or whose present
or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former
client except as these Rules would permit or require with respect to a client, or
when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would
permit or require with respect to a client.
Rule 1.9. Duties To Former Clients
1. Representing Adverse Interests
Rule 1.7 prohibits “concurrent conflicts of interest.” If the representation of one client
will be directly adverse to another client, or there’s a significant risk that the representation of
one or more clients will be materially limited by a lawyer’s responsibilities to another client, a
former client, or a third person by a personal interest of the lawyer, you ordinarily cannot
represent either client. There is an exception under subsection (b), but one of the requirements is
that the representation does not involve the assertion of a claim by one client against another
client represented by the lawyer in the same litigation or other proceeding before a tribunal.
[14] Ordinarily, clients may consent to representation notwithstanding a
conflict. However, as indicated in paragraph (b), some conflicts are
nonconsentable
3
, meaning that the lawyer involved cannot properly ask for such
agreement or provide representation on the basis of the client's consent. When the
lawyer is representing more than one client, the question of consentability
4
must
be resolved as to each client.
AR R RPC Rule 1.7 Comment
An interesting case on disqualification based on prior representation was Samontry v.
State, 2012 Ark. 105, 387 S.W.3d 178. This was a criminal case. As the Court explains:

3
For some reason, Microsoft Word’s spell check doesn’t think “nonconsentable” is a word.
4
It’s never heard of consentability either.
The facts leading up to this interlocutory appeal began on May 12, 2010,
when Samontry and Phouangmany were arrested for prostitution and promoting
prostitution. Jerry Richard, Samontry's ex-husband, was also arrested and charged
with promoting prostitution. Samontry and Phouangmany, who were represented
by Dan Hancock, and Richard, who was represented by Reggie Koch, were tried
by the Cabot District Court in Lonoke County. On October 4, 2010, Samontry
was found guilty of prostitution and second-degree promoting prostitution by the
district court, and Phouangmany was found guilty of prostitution. Richard,
however, was acquitted of all charges. Samontry and Phouangmany then retained
Koch as their attorney and appealed their convictions to the Lonoke County
Circuit Court.
Samontry v. State, 2012 Ark. 105, 2-3, 387 S.W.3d 178, 180 (2012).
The state moved to disqualify Koch on the ground that he had a conflict of interest arising
out of his previous representation of Richard. The defendants disagreed, saying that any conflict
had been waived. The Circuit Court granted the motion for disqualification. The defendants
appealed. The Arkansas Supreme Court reversed the Circuit Court’s disqualification order.
2. Loyalty to a Client vs. Conflicts of Interest That Arise After Engagement
Agreement's Signed
If a conflict arises after representation has been undertaken, the lawyer must
withdraw from the representation, unless the lawyer has obtained the informed
consent of the client under the conditions of paragraph (b). See Rule 1.16. Where
more than one client is involved, whether the lawyer may continue to represent
any of the clients is determined both by the lawyer's ability to comply with duties
owed to the former client and by the lawyer's ability to represent adequately the
remaining client or clients, given the lawyer's duties to the former client. See Rule
1.9. Comments [5] and [29].[5] Unforeseeable developments, such as changes in
corporate and other organizational affiliations or the addition or realignment of
parties in litigation, might create conflicts in the midst of a representation, as
when a company sued by the lawyer on behalf of one client is bought by another
client represented by the lawyer in an unrelated matter. Depending on the
circumstances, the lawyer may have the option to withdraw from one of the
representations in order to avoid the conflict. The lawyer must seek court
approval where necessary and take steps to minimize harm to the clients. See Rule
1.16. The lawyer must continue to protect the confidences of the client from
whose representation the lawyer has withdrawn. See Rule 1.9(c).

AR R RPC Rule 1.7 Comment.
Can you protect yourself with an “advance waiver.” What’s that? Well:
Advance waivers are a kind of conflict of interest waiver. In a conflict of interest
waiver, clients give their consent for their lawyer or law firm to undertake certain
(or any) kinds of representations that are adverse to them. Consent allows lawyers
to undertake a class of representations, defined by the ethics rules of the
appropriate jurisdiction, that the lawyers could not undertake otherwise. In the
case of the Model Rules, this class of representations includes those “directly
adverse” to a client, and those giving rise to a “significant risk that the
representation of one or more clients will be materially limited” because of the
lawyer's other professional or personal obligations.
Michael J. DiLernia, Advance Waivers of Conflicts of Interest in Large Law Firm Practice, 22
Geo. J. Legal Ethics 97, 98 (2009) [footnotes omitted]
Consent to Future Conflict.[22] Whether a lawyer may properly request a client to
waive conflicts that might arise in the future is subject to the test of paragraph (b).
The effectiveness of such waivers is generally determined by the extent to which
the client reasonably understands the material risks that the waiver entails. The
more comprehensive the explanation of the types of future representations that
might arise and the actual and reasonably foreseeable adverse consequences of
those representations, the greater the likelihood that the client will have the
requisite understanding. Thus, if the client agrees to consent to a particular type of
conflict with which the client is already familiar, then the consent ordinarily will
be effective with regard to that type of conflict. If the consent is general and open-
ended, then the consent ordinarily will be ineffective, because it is not reasonably
likely that the client will have understood the material risks involved. On the other
hand, if the client is an experienced user of the legal services involved and is
reasonably informed regarding the risk that a conflict may arise, such consent is
more likely to be effective, particularly if, e.g., the client is independently
represented by other counsel in giving consent and the consent is limited to future
conflicts unrelated to the subject of the representation. In any case, advance
consent cannot be effective if the circumstances that materialize in the future are
such as would make the conflict nonconsentable under paragraph (b).

AR R RPC Rule 1.7 Comment 22.
3. Consultation and Consent
Informed Consent.[18] Informed consent requires that each affected client be aware of
the relevant circumstances and of the material and reasonably foreseeable ways that the
conflict could have adverse effects on the interests of that client. See Rule 1.0(e)
(informed consent). The information required depends on the nature of the conflict and
the nature of the risks involved. When representation of multiple clients in a single matter
is undertaken, the information must include the implications of the common
representation, including possible effects on loyalty, confidentiality and the attorney-
client privilege and the advantages and risks involved. See Comments [30] and [31]
(effect of common representation on confidentiality).[19] Under some circumstances it
may be impossible to make the disclosure necessary to obtain consent. For example,
when the lawyer represents different clients in related matters and one of the clients
refuses to consent to the disclosure necessary to permit the other client to make an
informed decision, the lawyer cannot properly ask the latter to consent. In some cases the
alternative to common representation can be that each party may have to obtain separate
representation with the possibility of incurring additional costs. These costs, along with
the benefits of securing separate representation, are factors that may be considered by the
affected client in determining whether common representation is in the client's
interests.Consent Confirmed in Writing.[20] Paragraph (b) requires the lawyer to obtain
the informed consent of the client, confirmed in writing. Such a writing may consist of a
document executed by the client or one that the lawyer promptly records and transmits to
the client following an oral consent. See Rule 1.0(b). See also Rule 1.0(n) (writing
includes electronic transmission). If it is not feasible to obtain or transmit the writing at
the time the client gives informed consent, then the lawyer must obtain or transmit it
within a reasonable time thereafter. See Rule 1.0(b). The requirement of a writing does
not supplant the need in most cases for the lawyer to talk with the client, to explain the
risks and advantages, if any, of representation burdened with a conflict of interest, as well
as reasonably available alternatives, and to afford the client a reasonable opportunity to
consider the risks and alternatives and to raise questions and concerns. Rather, the writing
is required in order to impress upon clients the seriousness of the decision the client is
being asked to make and to avoid disputes or ambiguities that might later occur in the
absence of a writing.

AR R RPC Rule 1.7 Comments

4. Ethical Traps in Representing the Insured at the Insurer's Expense

Cuervo hypothetical.

5. Conflicts of Interest With Former Clients – Defining “Substantially Related”
Matters

[2] The scope of a “matter” for purposes of this Rule depends on the facts of a
particular situation or transaction. The lawyer's involvement in a matter can also
be a question of degree. When a lawyer has been directly involved in a specific
transaction, subsequent representation of other clients with materially adverse
interests in that transaction clearly is prohibited. On the other hand, a lawyer who
recurrently handled a type of problem for a former client is not precluded from
later representing another client in a factually distinct problem of that type even
though the subsequent representation involves a position adverse to the prior
client. Similar considerations can apply to the reassignment of military lawyers
between defense and prosecution functions within the same military jurisdictions.
The underlying question is whether the lawyer was so involved in the matter that
the subsequent representation can be justly regarded as a changing of sides in the
matter in question.[3] Matters are “substantially related” for purposes of this Rule
if they involve the same transaction or legal dispute or if there otherwise is a
substantial risk that confidential factual information as would normally have been
obtained in the prior representation would materially advance the client's position
in the subsequent matter. For example, a lawyer who has represented a
businessperson and learned extensive private financial information about that
person may not then represent that person's spouse in seeking a divorce.
Similarly, a lawyer who has previously represented a client in securing
environmental permits to build a shopping center would be precluded from
representing neighbors seeking to oppose rezoning of the property on the basis of
environmental considerations; however, the lawyer would not be precluded, on
the grounds of substantial relationship, from defending a tenant of the completed
shopping center in resisting eviction for nonpayment of rent. Information that has
been disclosed to the public or to other parties adverse to the former client
ordinarily will not be disqualifying. Information acquired in a prior representation
may have been rendered obsolete by the passage of time, a circumstance that may
be relevant in determining whether two representations are substantially related.
In the case of an organizational client, general knowledge of the client's policies
and practices ordinarily will not preclude a subsequent representation; on the
other hand, knowledge of specific facts gained in a prior representation that are
relevant to the matter in question ordinarily will preclude such a representation. A
former client is not required to reveal the confidential information learned by the
lawyer in order to establish a substantial risk that the lawyer has confidential
information to use in the subsequent matter. A conclusion about the possession of
such information may be based on the nature of the services the lawyer provided
the former client and information that would in ordinary practice be learned by a
lawyer providing such services.

AR R RPC Rule 1.9

6. Principles of Imputed Disqualification
In First American Carriers, Inc. v. Kroger Co., 302 Ark. 86, 787 S.W.2d 669 (1990)
there was an eleven vehicle accident involving, among other vehicles, some tractor trailers. An
insurer for one tractor trailer, First American Carriers, called an attorney in a large law firm. He
did extensive work on the case. An insurer for another tractor trailer, owned by Kroger, called
another attorney in the same firm and asked him a question. He did a minimal amount of work
on the case, unaware that his partner was heavily involved in the case. The second lawyer both
worked the case for about a day until they found out they were both working the same case, at
which point the one who had done the minimal amount of work withdrew. He had never actually
talked to a client, but had dealt exclusively with the adjustor. No confidential information had
yet been conveyed. Nonetheless, new counsel for Kroger moved to disqualify the firm as First
American’s lawyer due to conflict of interest. The trial court granted the motion. The Supreme
Court affirmed.
An attorney hired by an insurance company to represent an insured is, of course, the
attorney for the insured, not the insurer, even if the attorney never so much as talks to the
insured. The case is a good illustration of just how seriously the Arkansas Supreme Court takes
this rule.
7. Conflicts Arising From Witness Contacts
See the discussion of Bulsara v. Watkins, in the discovery section.
8. Resolving Conflicts of Interest
The easiest way to resolve conflicts of interest would be to simply withdraw. That
creates its own problems sometimes, but often it’s the only way to avoid going forward with an
impermissible conflict of interest.
As discussed above, sometimes you can resolve conflicts of interest by getting your
clients to sign a waiver. This requires disclosure, which can often be a challenge.



B. Confidentiality
Rule 1.6. Confidentiality of information

(a) A lawyer shall not reveal information relating to representation of a client
unless the client gives informed consent, the disclosure is impliedly authorized in
order to carry out the representation or the disclosure is permitted by paragraph
(b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably
believes necessary:
(1) to prevent the commission of a criminal act;
(2) to prevent the client from committing a fraud that is reasonably certain
to result in injury to the financial interests or property of another and in
furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify injury to the financial interest or property
of another that is reasonably certain to result or has resulted from the client's
commission of a crime or fraud in furtherance of which the client has used the
lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal charge or
civil claim against the lawyer based upon conduct in which the client was
involved, or to respond to allegations in any proceeding concerning the lawyer's
representation of the client or,
(6) to comply with other law or a court order.
(c) Neither this Rule nor Rule 1.8(b) nor Rule 1.16(d) prevents the lawyer from
giving notice of the fact of withdrawal, and the lawyer may also withdraw or
disaffirm any opinion, document, affirmation or the like.
C. Ethical Traps When Lawyers Change Firms


D. When a Lawyer May Testify (The Dangers of Combining the Roles of Advocate and
Witness)
RULE 3.7. LAWYER AS WITNESS

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be
a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the
case; or
(3) disqualification of the lawyer would work substantial hardship on the client.


AR R RPC Rule 3.7
E. Communicating With Unrepresented Interested Parties

RULE 4.3. DEALING WITH UNREPRESENTED PERSON
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.
F. Attorneys' Fees
The Arkansas Supreme Court Committee on Professional Conduct rarely gets involved in
attorney’s fee disputes.
5
Occasionally there will be an issue that touches on attorney’s fees. For
instance, in theory the committee would get involved in a case involving an excessive or
unreasonable fee.
Gone are the days in which a lawyer could be disciplined for charging too low a fee.
There was a time, however, when minimum fee schedules were in effect, and it was actually an
ethical violation to charge less than the minimum fee set by the bar association for particular
services. See Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).

5
Telephone conversation with Stark Ligon, Executive Director, Arkansas Supreme Court Committee on
Professional Conduct. This conversation occurred three or four years ago. I must state that Judge Ligon was not
giving advice or opinion, just sharing information. The Committee is not allowed to give any form of advisory
opinion.
The State Bar of Texas addressed the question whether a lawyer retained by an insurance
company to defend its insured, ethically comply with litigation/billing guidelines which place
certain restrictions on how the lawyer should conduct the
defense of the insured. In Opinion 533, the answer was no.

The opinion listed examples of limitations imposed on lawyers:

1. Whether to hire an expert in the defense of the insured;
2. What. if any, legal research may be conducted by the lawyer in defense of the
insured;
3. What, if any, depositions may be taken in the defense of the insured;
4. Whether the defense counsel may investigate the claims made against the
insured;
5. Whether particular depositions may be videotaped;
6. Whether any motions, including, motion to dismiss or for summary judgment,
may be filed; and
7. Whether the lawyer or a paralegal should engage in the preparation of various
documents.
Texas, like most American jurisdictions, considers that an attorney hired by an insurance
company to defend an insured is the attorney for the insured and owes the duty to the insured—
the client—to exercise independent professional judgment to that client.
Texas has similar rules to Rule 1.8 (f). those above which permit another person to pay
for the lawyer’s services so long as there is “no interference with the lawyer's independence
of professional judgment or with the client-lawyer relationship.” This would require that the
insurance company’s decision-making involvement be limited:
When a lawyer has been retained by an insurer to represent an insured, the
representation may be limited to matters related to insurance coverage. (Rule
1.02, Comment 4). However, when restrictions in litigation/billing guidelines
direct and control legal services rendered by the lawyer to a client and how those
services are to be delivered, imposing such restrictions upon the lawyer would
result in a violation of the Rules by the lawyer. Although, the lawyer is free to
enter into an agreement with the insurer regarding his fee and services to be
rendered for the insured/client, such an agreement cannot override the ethical
responsibilities of the lawyer under the Texas Disciplinary Rules. In other words,
regardless
of such an agreement with the insurer, the lawyer must at all times be free to
exercise his or her independent professional judgment in rendering legal services
to the client.

Although there may be some reasonable requirements related to third-
party payment for legal representation, such as when to submit statements for
legal services rendered or similar routine matters
not affecting the actual representation of the client, no restriction or requirement
by the third-party insurer can direct or regulate the lawyer's professional judgment
in rendering such legal services or affect the lawyer's responsibility to the
insured/client. As stated in Rule 5.04, Comment 5:

Because a lawyer must always be free to exercise professional
judgment without regard to the interests or motives of a third
person, the lawyer who is employed or paid by one to represent
another should guard constantly against erosion of the lawyer's
professional judgment. The lawyer should recognize that a person
or organization that pays or furnishes lawyers to represent others
possesses potential power to exert strong pressures against the
independent judgment of the lawyer. The lawyer should be
watchful that such persons or organizations are not seeking to
further their own economic, political, or social goals without
regard to the lawyer's responsibility to the client.

The Committee expresses no opinion as to the relationship between the
insured and the insurer regarding contractual obligations the insurance company
has to pay for legal services rendered. Those matters involve legal issues this
Committee has no authority to address. The Committee understands that an
insured can enter into different types of contractual relationships with an
insurance company; however, such agreements between the insured and the
insurer cannot affect or diminish a lawyer's ethical responsibilities to the insured
under the Texas Disciplinary Rules once the insured becomes the client of the
lawyer.

Based on this rationale, the Texas opinion concluded that agreements under which the
attorney agrees to limitations that interfere with the lawyer’s exercise of professional judgment
were impermissible under the Texas Rules of Professional Conduct.
Supplemental Hypothetical:
You're at a cocktail party, or at church, or maybe at a cocktail party at church, and
someone comes up to you:
SOMEONE: You're a lawyer, aren't you?
YOU: Yes.
SOMEONE: Can I ask you a question?
YOU: Sure, but the answer won't be any good unless you pay.
SOMEONE: Fair enough. There was this guy who got hit in the head by a box of
papers that someone threw out a window. Is that covered by insurance?
YOU: Have him come see me, we'll find out.
That someone sent Hiram Tweedle to you. Hiram is a sanitation engineer for Garbage
Us, the new private waste disposal company that has a contract with Saxon Heights,
Arkansas for garbage disposal. He was at the home of O. Julius Bananaberry, the notorious
mood ring baron, to pick up the garbage, when suddenly a box of papers fell on his head.
Hiram's medical bills were paid for by workers' compensation. He was off work for a
month. He had a ruptured disk. The orthopedic surgeon selected by his employer’s workers’
compensation carrier repaired the disk by surgery. He had physical therapy intermittently for
several months. He was hurt, but he got well. He returned to his job with Garbage Us.
However, now he's on a less dangerous route in nearby Gotham City.
It occurs to you that a third party claim against Bananaberry might be appropriate. You
investigate and you learn that Bananaberry told the workers compensation adjustor that he
looked out the window of his study, and dropped the box of papers to the ground. He denies
having seen Hiram, either before or after the accident. He first realized something was amiss
when he went down to throw the box into the garbage container and saw that the box was
already missing.
Woford Ubiquitous, the driver of the trash truck, witnessed the accident. Hiram was
going to pick up Bananaberry's trash when a box flew out the second story window.
Ubiquitous helped Hiram to safety, then retrieved the box and kept it. He turned it over to an
agent of Consolidated Federated Mutual Insurance Company of Sweet Haven, New
Hampshire.
Consolidated was not the workers compensation carrier. It must be Bananaberry's
carrier.
So you call Consolidated's local office, only to be told by adjustor Snidely Whiplash
that Consolidated denies coverage. "Why?" You ask. "I can't tell you that," answers the
adjustor.
Even if Bananaberry doesn't have coverage, he's a good defendant. He cornered the
market on phlogiston, the substance that makes mood rings function. With his control of
most of the phlogiston mining industry in the nation, it doesn't matter much whether he's
insured. So you sue him. You take care to furnish a copy of the complaint to the insurance
company.
Instead of one of the insurance defense lawyers you're used to, Bananaberry's personal
lawyer, Jacqueline Hyde, of Runne, Laquelle, and Hyde signs the answer.
You ask in discovery, does Bananberry have coverage? You learn that Bananaberry
asserts that he has coverage under not one but two policies issued by Consolidated, but
Consolidated asserts some kind of policy defense. You request a copy of the policies. On
reviewing them, you can't figure out why in the world Consolidated isn't defending.
At every step of the litigation, you forward copies of the documentation to
Consolidated. Periodically Consolidated drops you a line that they owe no coverage in this
case, but usually they just ignore you.
You get a judgment of $85,000. It's not as much as you would have liked, but enough to
make pursuing the case worth it to you and your client.
You send the insurer a copy of the judgment by certified mail, return receipt requested.
You are again ignored.
You now have to decide whether to execute on phlogiston mines, garnish Bananaberry's
lavish income, or pursue his insurance coverage.
Thirty one days after the certified letter you sent with the judgment was received, you
sue Consolidated. Consolidated answers alleging it owed no duty to pay because of the
criminal acts exclusion in its policy.
Then Bananaberry intervenes, asserting not only that Consolidated owes the coverage
and owes him his defense costs back, but also alleging that the claim was denied in bad faith.
Throwing a box of documents out a second story window without looking may be
stupid, but a quick survey of the statutes fails to turn up an offense of Defenestration of
Documents.
In discovery, you learn that the documents in the box had to do with Bananaberry's
cornering the market in phlogiston. Apparently some of the means he used to do that were in
violation of the antitrust laws. Fortunately for Bananaberry, the statute of limitations ran on
the last conceivable offense shortly before your trial.
Antitrust concerns must have been serious for Bananaberry. You learn in discovery that
Bananaberry was upset when Whiplash told him that he would be well advised to drop the
claim for coverage. Whiplash suggested that he would hate to see those papers turn up in the
hands of the Feds.
Consolidated takes the position that destruction of the evidence of his illegal business
practices constituted obstruction of justice, a crime. The policy contains this exclusion:
We do not cover any bodily injury or property damage intended by, or which may
reasonably be expected to result from the intentional or criminal acts or omissions of, any
insured person. This exclusion applies even if:
(a) such insured person lacks the mental capacity to govern his or
her conduct;
* * * * * *
(c) such bodily injury or property damage is sustained by a
different person than intended or reasonably expected; . . .

This exclusion applies regardless of whether or not such insured person is actually
charged with, or convicted of a crime.
Bananaberry also has a homeowners' policy. That policy contains a business pursuits
exclusion under which the insurer denies coverage The "business pursuits" exclusion of the
policy provides that the liability coverage does not apply "to bodily injury or property
damage arising out of business pursuits except activities therein which are ordinarily incident
to non-business pursuits."




THE FACEBOOK DISCOVERY HYPOTHETICAL
IN THE CIRCUIT COURT OF PULASKI COUNTY ARKANSAS
JULIET CAPULET PLAINTIFF, COUNTERDEFENDANT
V. No. 60 cv 549
ROMEO MONTAGUE DEFENDANT, COUNTERCLAIMANT
MOTION TO COMPEL
Comes the plaintiff, counterdefendant, Romeo Montague, by and through his attorney,
O. Will Laquelle of Runne Laquelle and Hyde, and for his motion to compel states:
1. This is a case involving a motor vehicle accident in which Romeo Montague was
severely injured through the negligence of Juliet Capulet. Plaintiff filed his original Complaint in
this matter on August 31, 2011. Defendant answered and counterclaimed.
2. Jurisdiction is properly in this Court.
3. On January 3, 2012, Plaintiff served interrogatories and requests for production
on the Defendant.
4. Defendant responded to Plaintiff's interrogatories on January 16, 2012.
Defendant objected to and refused to answer Interrogatory No. 17, and Request for Production
number 41 and 92 (See Exhibit A) and refused to execute the Authorization for Disclosure of
Online Data
5. Plaintiff’s counsel has attempted to resolve this dispute without requiring the
intervention of this Court. See Plaintiff’s correspondence (Exhibit B and D). To the extent the
tone of the aforesaid correspondence is intemperate, Plaintiff’s counsel offers his apologies,
but frankly Plaintiff’s counsel did not imagine that it would be necessary to bring these matters
to the attention of the Court at the time the letters were written.
6. Defendant has steadfastly refused to respond to the Interrogatory and has
stated his refusal in writing, thus requiring the intervention of the Court. Exhibit C and E.
7. The information sought is material to the issues to be litigated in this matter.
8. Plaintiff is entitled to discovery of the matter sought.
WHEREFORE, Plaintiff moves for an Order requiring Defendant to answer Plaintiff’s
Request for Production, sign Plaintiff’s authorization, and for all other just and proper relief.
Respectfully Submitted

________________________
O. Will Laquelle
Attorney for Plaintiff
RUNNE LAQUELLE & HYDE
8317 Ascension Rd.
Little Rock, AR 72204
Telephone: (501) 291-0369
Facsimile (501) 246-8550
[email protected]
runnelaquellehyde.weebly.com

CERTIFICATE OF SERVICE

On this _____ day of ______, 2013, I served a copy of the above and foregoing Motion
upon counsel for defendant, Matt Murdock, by electronic mail ([email protected]) and
facsimile (501-246-8570).


_________________________
O. Will Laquelle

EXHIBIT A

INTERROGATORY No. 17: Please state your Facebook password for your Facebook page
www.facebook.com/juliecmontague.

RESPONSE TO INTERROGATORY NO. 17: Objection. See Response to Request for Production No. 41 and
92. The same arguments are incorporated herein and adopted.

* * * *

REQUEST FOR PRODUCTION NO. 41: Please provide the Zip file of your Facebook page,
www.facebook.com/juliecmontague. Note: In order to do that, log onto your Facebook account by going to
Account>Account Settings>Download Your Information and download your content into a .zip file.
RESPONSE TO REQUEST FOR PRODUCTION NO. 41: Objection. This Request is burdensome and
oppressive, seeks information that is not properly discoverable, seeks information protected by the attorney-client
privilege, the work-product privilege, or any other privilege, protection, or immunity applicable under the governing
law. Defendant further objects to this Requests for Production of Documents as it is overly broad, unduly
burdensome, oppressive, and/or seeks information that is not relevant to the issues in this lawsuit or reasonably
calculated to lead to the discovery of admissible evidence. Further, much of the information is of a private nature
and involves confidences of not only Defendant, but acquaintances of hers.
* * *
REQUEST FOR PRODUCTION NO. 92: Please sign the attached Authorization for release of Online
Data.
RESPONSE TO REQUEST FOR PRODUCTION NO. 92: Objection. This Request is burdensome and
oppressive, seeks information that is not properly discoverable, seeks information protected by the attorney-client
privilege, the work-product privilege, or any other privilege, protection, or immunity applicable under the governing
law. Defendant further objects to this Requests for Production of Documents as it is overly broad, unduly
burdensome, oppressive, and/or seeks information that is not relevant to the issues in this lawsuit or reasonably
calculated to lead to the discovery of admissible evidence. Further, much of the information is of a private nature
and involves confidences of not only Defendant, but acquaintances of hers. Further, this is not a proper method of
discovery under the Arkansas Rules of Civil Procedure.
AUTHORIZATION & CONSENT FOR RELEASE OF INFORMATION

Customer or Client’s Full Name Date of Birth


______________________________________________________________________________
Customer or Client’s Screen Name Customer or Client’s email address



Social Security Number Driver’s License Number

This Authorization and Consent for Release of Information is to comply with the Stored Communications Act, 18
U.S.C. §§ 2701-2712, particularly 18 U.S.C. § 2702(b)(3). Any Internet Service Provider, electronic mail provider,
online social network, online dating service, or other provider of electronic data services is hereby requested and
authorized to disclose any and all information about me to O. Will Laquelle, Attorney at Law, RUNNE LAQUELLE &
HYDE, 8317 Ascension Rd. Little Rock, AR 72204, Telephone: (501) 291-0369, Facsimile (501) 246-8550,
[email protected]. I authorize the release of the following:

 All stored electronic mail in my account
 All stored electronic messages in my account
 All photographs or files that I have uploaded to my account or my page
 All content of my “page” or “space.”
 Any photographs tagged with my name, whether uploaded by me or by someone else
 Any data about my online activities, including online gaming
 My downloadable Facebook information zip file.

I understand that the purpose of the release of this information is for use in litigation in the case of Montague v.
Capulet , Pulaski Circuit Court No. 60 cv -549. This understanding does not purport to limit the purposes for which
the information may be used. It may be used for any purpose.

A COPY MAY BE ACCEPTED AS A SUBSTITUTE FOR AN ORIGINAL FORM




If not previously revoked, this consent expires on the 31
st
day of December, 2050.



Client/Customer Signature Date


EXHIBIT B
RUNNE LAQUELLE & HYDE
8317 Ascension Rd.
Little Rock, AR 72204
Telephone: (501) 291-0369
Facsimile (501) 246-8550
runnelaquellehyde.weebly.com

O. Will Laquelle
[email protected]

January 16, 2012

Matt Murdock
Marvel Law Firm
3772 Hotspur Avenue
Gotham City, AR 78787
VIA FACSIMILE: (501) 246-8570

Re: Montague v. Capulet, Pulaski Cir. 6- cv-549

Dear Matt:

What the hell is the matter with my Interrogatory No. 19, Request for
Production number 41 and 92 and why the hell won’t you make your client sign
my authorization? Why do you always have to make everything so God-damned
difficult?

You know this information is relevant. I am having to defend your
frivolous and retaliatory counterclaim. She complains that she can’t work,
but I’m led to believe there are pictures of her juggling oranges and
jousting at the Renaissance Fair on her Facebook page.

She refused to friend either me or my secretary, so I can’t get the
comments, IM’s and pictures any other way.


With warmest personal regards,




O. Will Laquelle
OWL/gs


EXHIBIT C

Marvel Law Firm
3772 Hotspur Avenue
Gotham City, AR 78787
(501) 413-7574
Fax: (501) 246-8570


Matt Murdoch
[email protected]
Extension: 109
January 17, 2012

O Will Laquelle
VIA FACSIMILE: (501) 246-8550


Re: Montague v. Capulet , Pulaski Cir.60-cv-549

Will:

Yes, I’m serious. This is a complete abuse of the system. There are some things that should be
kept confidential. People say all kinds of things on the Internet.

You know that download would encompass all of her private messages, including some from
friends that have nothing to do with this car wreck. Also, although I’ve tried to stop her, she keeps IM’ing
me about this case and all the things she can’t do any more. If you can find a judge stupid enough to
grant a motion to compel on this one, go right ahead and try. I think if you file a motion the judge will
sanction you under Rule 11 and probably hold you in contempt for insulting his intelligence.

Cordially,


Matt Murdock
Attorney at Law
MM/ss


EXHIBIT D

RUNNE LAQUELLE & HYDE
8317 Ascension Rd.
Little Rock, AR 72204
Telephone: (501) 291-0369
Facsimile (501) 246-8550
runnelaquellehyde.weebly.com

O. Will Laquelle
[email protected]


January 18, 2012
Matt Murdock
Marvel Law Firm
3772 Hotspur Avenue
Gotham City, AR 78787
VIA FACSIMILE: (501) 246-8570

Re: Montague v. Montague, Pulaski Cir. DR-549

Dear Matt:

I hereby request that you reconsider your objection to my Request for
Production No. 41 and No. 92. Your objections are without merit. The
information on a person’s social networking page is not protected by
privilege. Even if, as you state, your client has communicated with you on
Facebook, she has waived the privilege as Facebook is in no way a proper way
to communicate in confidence.

It would not be burdensome or oppressive for your client to comply. I
have given her instructions, and instructions are available on Facebook’s
highly informative help pages as well. It would take about a minute to order
the file and probably five or so minutes to download it, depending on your
client’s ISP.

Please forward the requested information so that we can avoid having to
bother Judge deSaisieve with this dispute.

With warmest personal regards,





O. Will Laquelle
OWL/gs




EXHIBIT E

Marvel Law Firm
3772 Hotspur Avenue
Gotham City, AR 78787
(501) 413-7574
Fax: (501) 246-8570


January 21, 2012
O Will Laquelle
VIA FACSIMILE: (501) 246-8550


Re: Montague v. Capulet Montague, Pulaski Cir. DR-549

Will:

The answer remains not just no but “hell” no.

There’s not a single reported decision in Arkansas authorizing such a wide-ranging and irrelevant
fishing expedition of a litigant’s Facebook account.

Cordially,




Matt Murdock
Attorney at Law
MM/ss
P.S. Don’t think you’re going to get away with not providing your first letter, because if you don’t, I will.