Category: Legal Profession

The Ethical Implications of How You Obtain Evidence: Avoid “Pretexting” (And Also Everything Else Harvey Weinstein Did)

This week, the New Yorker ran an article, “Harvey Weinstein’s Army of Spies,” which talked about the ways that the embattled movie producer investigated the women making sexual harassment claims against him.

One of the stranger aspects, however, is that he used his lawyer, David Boies, to employ these investigators, who later pretended to be victims in order to gain the trust and sympathy of the targeted victims.

Sure, we can be appalled at the extreme measures employed, but, when his lawyer puts his signature on any aspect of it, it becomes even more troubling.

This blog isn’t about Harvey Weinstein-level counter-intelligence, but this type of thing occasionally comes up in real life law practice, particularly in domestic relations.

This is referred to as “pretexting,” and it involves some sort of ruse or deception to obtain information. Frequently, it will entail the creation of a fake social media accounts to “friend” or communicate with a witness or opposing party.

This is unethical behavior and, in Tennessee, violates the Rules of Professional Responsibility. Rule 4.1 provides that “a lawyer shall not knowingly make a false statement of material fact or law to a third person.” In addition to lawyer professional disciplinary proceedings, such actions can result in criminal or civil liability under the Gramm-Leach-Bliley Act and other mail/wire fraud statutes.

But, let’s be clear: Information that a person publicly posts online is perfectly ripe for the taking and use, including public posts and pictures. Similarly, information that a person privately posts but which a party has knowing permission to access can also be used.

The key is that a lawyer–or an investigator working for the lawyer–should not use deception or lie in order to obtain that access.  But, short of that, if it’s out there and it’s useful, download it, copy it, save it, and use it.

As an aside–and totally appropriate for this topic–I’ll be presenting the topic “Ethical Issues: Using Social Media/The Evidentiary Role of Technology,” at the Family Law Conference for Tennessee Practitioners in December 2017.

 

 

Court of Appeals Issues Friendly Ruling in Lawyer Malpractice Matters

The Tennessee Court of Appeals recently tackled an interesting issue of when a client “discovers” a lawyer’s malpractice.

The opinion is Mark Thomas v. Richard Myers, No. W2016-02581-COA-R3-CV (Tenn. Ct. Apps., Oct. 19, 2017).

The most interesting aspect of the case is that the lawyer’s defense, basically, admitted malpractice:

Q: And you were aware that you had lost, for lack of a better term, big time, a lot of money.
A: A great deal of money, yes.
Q: And you were aware that the evaluation by Richard Myers was wrong.
A: Yes.
Q: And you were aware that Richard Myers’ deceptions as to what a great case this was was wrong.
A: Yes. Yes.
Q: And you were aware that Richard Myers’ negligence and misrepresenting to you what the law was, what the facts could be presented as, and your great position in this lawsuit was wrong.
A: Yes.
Q: And you were aware on that day that he was not being truthful about the odds of winning.
A: Yes.
Q: And you were aware on the day that whatever risk outline he had given you, be it little, small, or none, was wrong, because the reality was you’d had a judgment rendered against you, so you knew he had misled you and deceived you.

A: Yes.

But, as a legal matter, the defense relied on the “discovery rule” to argue that, despite the lawyer “explaining away the loss” and saying that they’d ultimately win on appeal, the client “discovered” that he suffered an injury on the day that the adverse judgment was rendered at the trial court.

So, again, despite continued assurances from the lawyer that they’d win on appeal, the one-year statute of limitations for malpractice actions starts on the day of the adverse judgment. “At that point, the client is aware of the fact of injury.” Yikes.

This is an interesting decision, that clients will hate, but lawyers will love.

 

Davidson County Circuit Court Judges Enter Order to Review Writs of Restitution in Detainer Appeals

I posted a few years ago that a losing defendant in a detainer action isn’t required to post the “possessory” bond provided at Tenn. Code Ann. § 29-18-130(b)(2) in order to have a valid appeal.

While courts were split for years on this issue, the Tennessee Supreme Court’s December 2013 decision in Johnson v. Hopkins answered this question for good.  In short, the defendant who fails to post the possessory bond still has a valid appeal, but the defendant has no protection from a Writ of Restitution while the appeal is pending.

In Davidson County Circuit Court, if a general sessions detainer judgment was appealed without that bond, the Court Clerk’s website actually had a form that would allow the landlord to immediately issue a Writ, no matter if the appeal was still under consideration.

And, as you might suspect, that’s a big deal, since what’s the point of fighting the landlord’s eviction if you’re not going to stay in the premises? My guess is that it wasn’t a matter of strategy, but, instead, an issue of ignorance by the litigants about how detainer appeals work.

I also know, from my experience, that it’s a quite a surprise when an appealing defendant discovers this mistake…which used to happen when the Sheriff showed up to execute on the Writ with movers in tow.

Potentially in response to this, the Judges of the Circuit Court recently entered an Order entered on February 24, 2017 that, for any Writ of Restitution filed with the Clerk while an appeal is pending, the Clerk must set a review hearing on the Writ before issuance of the Writ.

This is an interesting practice, that’s not based on the statutes or rules of procedure. I’d bet it’s based on the Judges getting sick of dealing with the frantic motions to quash filed after the Sheriff shows up at somebody’s door. All in all, it’s a good, practical procedure.

 

 

 

Grabbing a Tiger by the Tail: How the Taylor Swift Litigation Shows that Some Lawsuits Aren’t Worth Filing

Sometimes, it makes sense not to file a lawsuit, even if you have good claims, where there’s no easy victory and the lawsuit will ultimately cost more in time, legal fees, and distraction than you’ll ever recover.

We’re seeing a possible example of this with the lawsuit filed by Radio DJ David Mueller against Taylor Swift.  Mueller alleges that a false accusation by Taylor Swift to his bosses led to him getting fired. In the lawsuit, Taylor Swift quickly filed a counterclaim, alleging assault and battery while they posed for this picture.

If you’ll pardon the pun, this plaintiff has grabbed a tiger by the tail.

By filing this lawsuit, he stepped into near-certain litigation involving a motivated, deep-pocketed opponent who will put up a relentless fight in a lawsuit with no clear facts. In this case, there’s no easy victory and, worse, there’s no easy middle ground.  It’s his word versus her word, a fight over principle, and litigation like that is always expensive and impossible to settle without a jury (or judge) deciding who is right.

I recently had a very good client come to my office, with a new lawsuit for me to pursue. The facts were messy, with emotional claims on each side, with no clear facts showing either side was clearly right, and with no way to recover the attorneys fees if we won.

In the end, my best advice was to avoid the stress, expense, and distraction of waging this fight over a fairly small amount of money, even though I was confident we’d win in the end. In discussing emotional disputes, one my most respected law partners, Ed Yarbrough, once said, “If the client says it’s all about the principle, then I have no interest.”

Sometimes, the best way to win a fight is to know which ones aren’t worth fighting.

Why I Volunteer at Legal Aid

Last year, I spent all day on a Sunday in the outer reaches of Nashville, building a house for Habitat for Humanity. I don’t know much about building a house, roofing a roof, or using a nail gun. In fact, what I know about nail guns, I learned from a Bruce Willis action movie. Needless to say, I was not having a good time that day.

Even though it felt good to be volunteering and doing good in a general sense, it felt weird to be wasting time and destroying construction supplies on a table saw.

So, on that hot Sunday, I decided to not volunteer at any more construction jobs, and, instead, devote my time in a way that emphasizes my most valuable assets–my legal knowledge.

Since then, I’ve routinely volunteered at the Legal Aid Society of Middle Tennessee and the Upper Cumberlands.  I’m lucky to be really busy at work, and so I don’t volunteer as much as I could.

But, Legal Aid makes it easy: They offer free legal aid clinics at various times, days, and locations every month, and the commitment for volunteer lawyers is generally only a few hours at a time.

I know, I know–I’m basically telling you about the easiest, lease time-intensive way to help, but that’s a also good thing. A little bit of help goes so far. They need help staffing these clinics, and, in two hours, a lawyer can help 3-5 people who had been hopelessly lost in the legal system.

So, if you’re reading this blog and I’ve saved you any time researching a legal question, I have one request: Take that time saved and devote a bit of your time to your local legal aid clinic.

Read The Rules. Know The Rules. Start with Tenn. R. Civ. P. 54.02

When I first started practicing law, my mentor was a procedure savant. He knew the Rules of Procedure inside and out. In turn, I eventually learned the Rules.

That’s my single biggest piece of advice for any litigation attorney: Know the Rules of Procedure. If you’re in state court, read the Tennessee Rules of Civil Procedure. Before you go to court, read that county’s Local Rules.

The key to success at anything is knowing the rules. Sports. Checkers. The practice of law. A strong, working knowledge of the rules of procedure puts you ahead of 85% of your fellow lawyers.

Recently, while reading a  Tennessee Court of Appeals opinion about final judgments and appeals, I was reminded of a lesson my old boss taught me about Tenn. R. Civ. P. 54.02.

Rule 54.02 applies in cases where are multiple parties and multiple claims for relief, but a party is able to resolve its claims as to part of the litigation. In that circumstance, Rule 54.02 allows the trial court deem the judgment as to that part of the case “final,” which means that the party’s appeal deadlines start to run and, more importantly, the plaintiff can proceed with collection on the judgment as to that party.

But, you don’t get Rule 54.02 relief unless you think to ask for it. Under the Rule, you have to (1) specifically request that the judgment be “final” and (2) use magic language by which the Court makes an “express determination that there is no just reason for delay” and an “express direction for the entry of judgment.”

The case I cite above is interesting, because the Judgment that was appealed included the Rule 54.02 magic language, but the Court of Appeals denied the appeal as premature, because there was still one loose end (the assessment of attorney fees). It’s interesting (and re-assuring) to see the appellate court look at substance over form.

Even though Rule 54.02 led this attorney astray, don’t forget to include that text in your Judgments. It’s most powerful when you have the chance to take a judgment against one liable party early in the case, but one of the other defendants shows up and contests his own liability. In that scenario, while you’re litigating the matter against one defendant, you can commence execution and collections on the other, without waiting until getting all the claims resolved.

Attorneys Fees Can be Recovered in a Tennessee Lawsuit, but only if the contract or statute allows them

I always tell clients that Tennessee is a creditor friendly state, and it is. But, just because it’s fair to creditors, that doesn’t mean a Tennessee Court will give a plaintiff everything.

I’m talking today about attorney fees. The general rule in Tennessee is that, unless you have an agreement in writing that you are entitled to recover your attorney fees, a court will not award those fees to you.

Here’s why: Tennessee follows the “American Rule” on awarding attorney’s fees which states that “a party in a civil action may recover attorney fees only if: (1) a contractual or statutory provision creates a right to recover attorney fees; or (2) some other recognized exception” applies. Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009).

The contract provision allowing attorney fees to be recovered has to be very specific. In the Cracker Barrel case, the contract at issue provided that the prevailing party should recover “all costs and expenses of any suit or proceeding.” The Tennessee Supreme Court held that this language was not specific enough to award attorney fees (instead, it allowed recovery of court costs and litigation expenses).

This is an important issue, as the ability to recover your expenses and costs as part of your action will be a big consideration in any decision to file a lawsuit. Lawyers are expensive. Keep that in mind on the front end, when you’re preparing a contract or agreement, and get very specific text allowing for recovery of attorney fees.

Is it OK to Google a Client? Of Course It Is. I’m Probably Googling You Right Now.

The American Bar Association Journal recently posted an article called “Is it OK to Google a client?” The story compares the act to a physician searching for information about patients online, which the story suggests is a violation of the patient’s privacy expectations.

Frankly, I was a little surprised at this article, because: (1) it’s the 21st century; and (2) when I get a call from a new client or a lawyer referring me work, the first thing I do is google them. Sometimes, I run the searches while I am talking to them on the phone.

Why? Because, as a lawyer, you are an extension of the client. A quick google search reveals their business page, news stories about them, and a general sense of “who they are.” By hiring you, a client asks you to advocate for their position. Wouldn’t it be relevant to see who it is that you’re going to stake some part of your professional reputation on?

Let’s be honest, the number # 1 test for a prospective client is “Is this a Crazy Person?” (Closely followed by: “Can this client pay my fees?”)

Once you represent them, it’d be malpractice not to have googled the client. What if the client was making statements online (or posting videos or photos) that have a direct bearing on their case? If you don’t find it, you can be sure that opposing counsel will.

Speaking of which, don’t think for a second that I don’t google opposing counsel and/or opposing parties. In fact, one of the best items a creditor can obtain on a credit application is an e-mail address, which I’ve called the 21st century fingerprint. Google, Facebook, Linkedin, and Twitter are all fair game.

What a strange article for the American Bar Association. I’m going to google the author now.

Don’t Sue the Messenger: Trustees Aren’t Necessary Parties in Foreclosure Injunction Lawsuits and can be Dismissed under Tenn. Code Ann. § 35-5-116

All my clients hate being sued. You know who else hates to be sued? My law firm.

With the economy going bad, I’ve seen more desperate debtors doing anything they can to fight off foreclosures, evictions, and collections, including filing a lawsuit against the creditor…and the bank’s lawyers.

This is most common in foreclosures, when the debtor tries to stop the foreclosure sale by filing a lawsuit. There are very limited bases by which a foreclosure can be stopped in Tennessee (See Tenn. Code Ann. § 29-23-202 ).

Of course, that doesn’t mean that a borrower won’t  fire off a quick lawsuit, trying to gum up the process by creating a little smoke screen diversion.

But, a borrower or borrower’s lawyer who is trying to enjoin a foreclosure doesn’t need to add the attorneys for the creditor as defendant. Generally, the bank’s lawyers are serving only as “Substitute Trustees” under the Deed of Trust, and the caselaw has consistently held that trustees under a mortgage aren’t necessary parties to such an action.

In response to repeated lawsuits filed by “over-zealous” debtors or “less educated” lawyers, the Tennessee legislature passed Tenn. Code Ann. § 35-5-116 in 2006.

That statute allows a trustee named in a lawsuit to file a verified answer, pleading that the trustee is not a necessary party “stating the basis for the trustee’s reasonable belief that the trustee was named as a party solely in the capacity as a trustee under a deed of trust, contract lien, or security instrument.”

In response, the plaintiff must then filed a “verified response” within 30 days setting forth all factual and legal basis to rebut the trustee’s denial.
The statute also provides a good faith savings clause, under which the trustee “shall not be liable for any good faith error resulting from reliance on any information in law or fact provided by the borrower or secured party or their respective attorney, agent, or representative or other third party.” See Tenn. Code Ann. § 35-5-116 (f).
Of course, this statute will not stop a borrower from suing everybody; most borrowers would sue the mailman  who delivers the foreclosure notice if they thought it would delay the sale. But, the statute provides a relatively efficient way for the trustees to have themselves dismissed from the lawsuit.

Attorney Liens: Because Every Lawyer Should Get Paid

I talk a lot about liens as a good way for a creditor to get paid. In state courts and bankruptcy courts, there often are two lines formed: one for those with liens; and the other for those without liens. And you can guess which one leads to the money.

Under Tennessee statutes, there are liens for all kinds of people: mechanics, artisans; dentists; jewelers; shoe repairers; cotton ginners; lithographers; baggage claim folks…just to name a few.

But let’s talk about attorney liens today.

Under Tenn. Code Ann. § 23-2-102, an attorney who files a lawsuit “shall have a lien upon the plaintiff’s or complainant’s right of action from the date of the filing of the suit.” (Or, per Tenn. Code Ann.  § 23-2-103, the attorney has a lien from the date that the attorney starts work on the case.)

This lien extends to two types of property. The first is a “retaining lien,” which gives the attorney the right to retain a client’s books, papers, or money coming into his possession during the matter until the client pays. The second is a “charging lien,” which is a lien for payment of fees against the judgment or recovery obtained in a case. For a good review of this, see Starks v. Browning, 20 S.W.3d 645, 650 (Tenn. Ct. App. 1999).

There’s some old caselaw out there that suggests that the attorney must have the lien noted in the Judgment to be valid. The Starks case above (involving the venerable Nashville lawyer, Bart Durham) says that requirement is not in the statute and is just an odd creation from old caselaw.

 

But, I say that it’s a good practice to note the attorney lien any– and every-where (in judgments, in notices filed with the Court, notices recorded in the Register’s Office), but it’s not legally required.

The statutes above don’t cover all situations where an attorney might have a lien; in fact, other specific statutes, like worker’s compensation matters, may have their own special rules. Additionally, nothing would stop a collection minded lawyer from obtaining a consensual lien as part of his or her client engagement documents, particularly where client resources may eventually be scarce.

 

Long story short, the attorney lien statutes are probably narrower than you thought they were, granting a lien generally only the lawsuit filed by the attorney. Any other, broader liens to secure repayment must be granted or taken under other statutes (judgment liens, consensual liens).