The Seventeenth Annual Symposium on Legal Malpractice & Ethics

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Katina Zampas
Staff Writer
St. Mary’s Law Journal
St. Mary’s University School of Law

The Seventeenth Annual Symposium on Legal Malpractice & Ethics

Katina Zampas

On January 26th, 2018, the St. Mary’s Law Journal hosted its Seventeenth Annual Symposium on Legal Malpractice & Ethics.  This year, the Symposium took place at the Historic Double Height Courtroom at the Bexar County Courthouse, a courtroom recently reconditioned to its original 1896 version.  The Symposium brought in over seventy-five attorneys and guest speakers from all over the nation, including professors and practitioners.  All papers presented at the Symposium, except for one, are published in Volume 8 of the St. Mary’s Journal on Legal Malpractice & Ethics, the sister publication of the St. Mary’s Law Journal.  The Symposium brought the speakers’ papers to life through presentations containing greater detail, and it spurred lively discussion on some of the most relevant and timely issues in Legal Ethics.  Attendance at the Symposium has doubled over the past few years as it has gained well-deserved attention by attorneys and law professors with a special interest in legal ethics and professional responsibility.  In particular, Professor Vincent Johnson, a leading scholar in the Professional Responsibility field, has been instrumental in cultivating the Symposium to its current and prominent status.

The morning began with an opening blessing by Deacon Jack Nichols and was followed by welcoming remarks from St. Mary’s School of Law Dean Stephen Sheppard, who shared his perspective on ethical dilemmas attorneys face and advised, “We must serve our client’s longest and most enduring needs, not immediate whims.”  Dean Sheppard emphasized how dedicated St. Mary’s is to justice, peace, and zealous advocacy, and closed by congratulating those lawyers who are “doing it the hard way.”

The first speaker was Professor Susan Saab Fortney, one of the seven members of the National Conference of Bar Examiners Committee that drafts the Multistate Professional Responsibility Examination.  Professor Fortney focused on attorney accountability, taking responsibility for mistakes made in practice, and provided applicable practice tips and tricks when obtaining malpractice insurance, including how to navigate your malpractice policy, placing special emphasis on indemnification, the duty to defend, and exclusions.  Professor Fortney also reminded attorneys in a supervisory capacity to cultivate an approachable environment where young attorneys may seek advice when they inevitably face ethical dilemmas.

Following Professor Fortney, Professor David Caudill, a Professor at Villanova University Charles Widger School of Law, presented a comparative perspective on experts in the American legal system and those in the Australian legal system.  Professor Caudill distinguished between what the Australian legal system refers to as “dirty” and “clean” experts, making the distinction between a consulting expert and a testifying expert.  Interestingly, Professor Caudill also discussed an attorney’s need to consider her expert’s ethical dilemmas, for example, a scientist feeling pressured to produce a prompt and decisive opinion on a complex scientific issue.  In that vein, Professor Caudill advised the group about the dangers of manipulating or pressuring experts, and emphasized the importance of their unbiased, well-informed opinions.  Professor Caudill also posed thought-provoking questions, such as: Is evidence prepared for trial still good evidence?  Isn’t that precisely what forensic evidence is?

After a morning break Mr. Colin Flora, an attorney with Indianapolis-based firm Pavlack Law, LLC, discussed the intersection between ethical dilemmas and abuse of discovery in litigation.  Mr. Flora began with the inquiry of whether discovery should be combative or cooperative.  He then used Requests for Admission as a practical example of how attorneys may violate ethical rules through serving discovery requests that effectively harass, embarrass, or burden the opposing party.  Mr. Flora highlighted the local rules that apply in each jurisdiction and the importance of knowing the intricacies of the local rules in the jurisdiction in which attorneys practice.

Next, Professor Donald Campbell, the co–author of two leading treatises on professional responsibility, introduced the “Paragraph 20 Paradox” that considers whether the Model Rules create a private civil cause of action for a client to enforce substantive law against their attorney.  Although rules are enforced in the disciplinary context, attorneys may violate a rule of ethics without invalidating a substantive agreement, Professor Campbell explained.  He concluded that there is no bright line answer to this question, and proposed his ideal approach, which is to leave the Model Rules out of the inquiry altogether and, instead, ask whether the client has another common law substantive cause of action against her attorney.

Over lunch, Mr. George Spencer, an attorney at the San Antonio-based firm Clemenes & Spencer, focusing on professional malpractice, spoke about the effect of the decline of jury trials on the jurisprudence of legal malpractice.  Mr. Spencer explained that when the vast majority of cases settle outside of court, litigators suffer from lack of predictability and the jurisprudence lacks the trial and appellate decisions that shape the course of the law.

After the lunch break, Professor Katerina Lewinbuk, a Professor at South Texas College of Law, began with a play on Shakespeare’s “Let’s Kill All the Lawyers” by introducing her article, “Keep Suing All the Lawyers.”  Professor Lewinbuk raised the question of whether a claim alleging aiding and abetting a breach of fiduciary duty against a client is plausible in most jurisdictions.  Professor Lewinbuk explained different jurisdictions have handled these claims differently, which has caused a lack of consistency and predictability for attorneys who face potential liability for aiding and abetting a breach of fiduciary duty.

In the afternoon, Professor Joshua Kastenberg, from the University of New Mexico School of Law with a background representing judges, introduced Federal Judicial Councils and State Judicial Commissions which investigate allegations of judicial misconduct.  Professor Kastenberg focused his article and discussion on District Judge Stephen Chandler and his colorful time spent on the bench.  Professor Kastenberg emphasized there remain significant questions on how judges are held accountable for their actions.

Finally, Mr. Joseph Pileri, a teaching fellow at Georgetown University Law Center, spoke on the implications of representing a benefit corporation, highlighting that Texas is the most recent state to pass benefit corporation legislation.  Mr. Pileri instructed the attendees to ensure they understand the law governing the organization they represent before taking direction from a representative of the entity.  This is important because the attorney should not act contrary to the organization, and the client constituent may no longer be duly authorized.  Mr. Pileri left the attendees with a reminder that “a violation of the corporate form is a violation of fiduciary duty.”

Each speaker presented their unique expertise on a specialized issue of legal malpractice and provided valuable insights and practical take-away’s for practicing attorneys.  The presentations invited interesting and spirited discussions about the ethical dilemmas and unanswered questions attorneys face in practice.  In addition to the six hours of CLE credit attendees earn, the Symposium provides excellent networking opportunities, thought-provoking talks by practice-area experts, and a copy of the corresponding Volume 8 of the St. Mary’s Journal on Legal Malpractice & Ethics.

If you are interested in writing for the St. Mary’s Journal on Legal Malpractice & Ethics and speaking at the Eighteenth Annual Symposium on Legal Malpractice & Ethics in 2019, please email jlegalmalethics@stmarytx.edu.

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