November 21st, 2012
Last year at this time I wished one and all a Happy Thanksgiving as I celebrated my fifth year blogging. And dressed up in a turkey suit for a local race.
I dressed once again in that turkey suit this past weekend, but have nothing new to add to my Thanksgiving wishes.
So read last year’s message and change “fifth” year to “sixth” year.
But one last thing to add: Please stay the hell away from shopping and spend time with the family.
You’re welcome.
November 20th, 2012
I’ve spilled a lot of pixels here over the last six years on the issue of tort “reform” and the claims from business and the medical profession that personal injury suits are killing them. I’ve made arguments, I’ve cited studies, I’ve pointed out hypocrisy.
But sometimes, nothing beats a good old fashioned graph, like the one at right. That’s right, just five percent of civil cases filed in the U.S. are tort cases. Most are contract matters, basically Business v. Business.
And then there is this other graph, at the left, showing the decline in medical malpractice payments over the last 10 years. You would think, if you listened to the doctors lobby, that the graph should be running the other way. But it doesn’t.
You can read more about the Facts v. Fiction of America’s ‘Litigation Explosion” at this link. It’s something to think about the next time the Chamber of Commerce comes out with its pseudo-scientific survey of….wait for it….corporate lawyers on their feelings about litigation. Seriously. Or maybe the American Tort Reform Association equally laughable “Judicial Hellholes” report that members of the media distribute as if it was news, even though it has “no apparent methodology.”
November 13th, 2012
Justice Antonin Scalia: "If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede."
Blogs can be funny things in that you never really know where they will lead, as Carolyn Elefant recently discussed when my face appeared on the sides of buses.
But now we have a real blast from February 2010: I had a very, very, very off-topic post about whether states had a right to secede from the union. (How many personal injury blogs have Secession as a blog category?)
It was as an oddball topic for this page for sure, as it dealt with something Prof. Eugene Volokh wrote on whether the issue of secession was resolved at Appomattox. In response I published a letter from Justice Antonin Scalia to my brother — that had been sitting in his drawer for a few years as a family curio — where Justice Scalia gave his very firm opinion that “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede”. The story of that letter is at the original post, and if you want the entertaining background you can get it there.
In the wake of the Obama-Romney election, however, that letter is back in the news. Yesterday Politico reported on people petitioning the government for the right to secede, because if you get 25,000 signatures you will get a response from the White House:
Using the Obama administration’s own We the People website, nearly two dozen petitions have sprung up asking the Obama administration for permission to withdraw from the Union.
The two most popular petitions, Texas and Louisiana, have both drawn more than 10,000 signatures each as of Monday morning. The Texas petition needs only 7,000 more signatures to trigger an official White House response.
That number has rapidly increased, as voters in 47 states who saw their presidential candidate come in second have been circulating petitions on the issue of secession. A quick Googling of Scalia No Right To Secede and you can see many bloggers have already hunted for original sources in the last 24 hours. And that, of course, leads back to the letter from Justice Scalia to my brother.
I’m sure I won’t be the first, or the last, to observe that a desire to secede based on the results of democracy seems a tad odd. Are the secessionists advocating dictatorship instead? Monarchy? Theocracy?
The only question I really have on all this is: When the White House says “No” to the secessionists, will they quote Justice Scalia as authority?
November 6th, 2012
Judge Theodore Jones. Photo courtesy of New York Court of Appeals.
New York Court of Appeals Judge Theodore Jones died suddenly last night of an apparent heart attack. He was just 68. Judge Jones ascended to New York’s high court by way of the Brooklyn courts, where he was highly regarded for his respect for both the law and lawyers.
That respect is reflected in the following introduction of Judge Jones delivered a few years ago by Evan Goldberg when the New York State Bar Association gave him an award. The remarks are reprinted here with the permission of Goldberg.
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Our speaker this evening is well known to us all. Judge Theodore Jones has long been a friend of the trial bar, after years of being a trial lawyer himself. He started in the Legal Aid Society, then went to private practice and began his career as a judge in the Juvenile Offender part of Kings County. All this helped shape his judicial character, as a jurist who honestly wants to help people.
His rapid elevation, from Supreme Court, to Administrative Judge, to the Court of Appeals is a testament to the high regard his colleagues have for him. And his TV persona, exhibited during the infamous 2005 transit strike let other people in on what was, at that time, Brooklyn’s best kept secret; that when Judge Teddy Jones got onto a case, an equitable resolution was soon to follow.
When the trial bar lost Judge Jones to the Court of Appeals, we all grieved, because we need judges like him for our trials, but we took collective solace in the knowledge that he would be safeguarding the rule of law in a Court deserving of his inspired participation. Whether he’s penning a scholarly opinion or driving for the green on the golf course, he always devotes his impressive skill with full effort, skill and passion.
For me, personally, Judge Jones has always been available to lend his ear and offer advice. His inclusive, fathering approach is innate. He regularly attends the lawyer golf outings and he’s so good. How good is he? He’s so good, we don’t even have to pretend to lose. Um, not that we do that. Judge Jones is also quite the marksman, a skill he undoubtedly honed when he was a Brooklyn Court Street lawyer. His service as a captain in Viet Nam may also have helped.
Just two days ago, our association’s Diversity Committee gave Judge Jones a lifetime achievement award for his longstanding efforts to advance minorities in our profession. Whether he’s working with high school students, seasoned veterans, or anything in between, Judge Jones is everyone’s BFF. I was truly honored on behalf of our association, when Judge Jones agreed to be our speaker. Ladies and gentlemen, I present Associate Judge of the NYS Court of Appeals, the Honorable Theodore T. Jones, Jr.
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Update: From the New York Law Journal, a sampling of opinions from Judge Jones.
November 5th, 2012
Mark Bower
While this guest post is based on a hypothetical, the ethical issues raised are the type any lawyer may encounter in a medical malpractice case that implicates a hospital resident.
The author, Mark Bower, is not only a long-time medical malpractice practitioner whom I’ve known for decades, who has guest blogged in this space before (and again here), but he has also been a member of the Ethics Committee of the NY County Lawyers Association for 20 years. In other words, this piece is right in his wheelhouse…
——————————————By Mark Bower
Ordinarily, doctors sued for medical malpractice view their insurance company as their friend and protector, but sometimes, that is not at all the case.
Let us assume a hypothetical case for purposes of illustration: A hospital, its senior private attending physician, and an employed resident physician in training, are sued for medical malpractice (birth trauma). The hospital’s resident is a young obstetrician. There is a question as to who delivered the baby. The person who (mis)handled the delivery is the “target” of the malpractice claim.
Continue the hypothetical: To protect its senior attending, the hospital and attending physician both claim that the resident delivered the baby. To defend herself, the resident claims that the attending physician did it. This factual dispute cannot be resolved by the delivery record, and the mother’s recollection of the difficult birth is not accepted as reliable.
Because the hospital wants to protect the senior attending physician, hospital’s attorneys cannot simultaneously defend the resident physician. The insurer for the hospital must retain “independent” counsel to represent the hospital’s resident.
Let’s develop our hypothetical further. Let’s assume that eventually, the case is settled by the hospital’s attorneys. Because the hospital has vicarious liability for its resident, the resident does not have to contribute to the settlement from her own funds. The defense insurance company vests its settlement authority in the hospital’s attorneys, and does not want to pay for a second attorney to attend or participate in the settlement negotiations, particularly since the hospital’s insurance coverage will pay the resident’s share in any disposition anyway. As a result, the resident’s “independent” counsel does not appear or participate in the settlement negotiations.
Only after the settlement is finalized does the resident learn that the settlement payment was attributed to her. Because she has no out-of-pocket responsibility to pay any part of the settlement amount, she was not consulted. Nonetheless, because the bad outcome is attributed to her, she has to be reported to the NYS Health Department and the National Practitioner Data Base (NPDB). Those reports may impact badly on her future career, through increased malpractice insurance premiums, decreased employability, etc.
This scenario raises the questions about the “independent” counsel’s duty to protect the resident despite the complete absence of personal contribution to a settlement, and whether there was possible ethical lapse and/or legal malpractice in this situation. We believe that in these circumstances, the “independent” counsel must appear at the settlement negotiations to defend and protect the resident, even though she has no personal financial “exposure” in the negotiations. If the resident’s attorney did not do so, and the result is that the resident gets a “black mark” with the Health Department or NPDB, the resident may have a legal malpractice claim against her own attorney.
Even where the settlement is paid by the hospital’s insurance coverage, and the resident does not contribute to the settlement payment out of her own pocket, the resident is at risk from the settlement, because she may still suffer career harm and indirect economic harm (damage to her reputation and professional standing, damage to future employability and insurability) that may follow and limit her professional advancement. Particularly because a resident doctor in training is at the beginning of her career, those harms may add up to large amounts of money over the course of a professional lifetime. As a result, the resident’s attorney has a duty to protect the client from these harms, regardless of whether she contributes to the settlement with her own funds or not.
The problem of conflicted loyalty that this case presented, is unavoidable. The insurance company typically does not want the “independent” attorney to impede or block the settlement, or try to shift the responsibility back to its other insureds, in particular in this hypothetical situation, to the more senior attending doctor. The “independent” attorney may depend on the insurer’s satisfaction with his work (and possibly the hospital’s, satisfaction as well), to get future work when the opportunity arises.1 The “independent” counsel may earn gratitude not shared by the resident doctor.2 The “independent” counsel has a personal interest in pleasing the insurer at the expense of his client. Such conflicts of interest are an inherent part of lots of defense work.
This divided loyalty is an unavoidable problem, but the resolution of it is easy, according to basic legal ethics: The attorney must act with undivided loyalty to his client (in this case, the resident in training), even if that conflicts with the wishes of the insurer that retained him, or the hospital whose good will he depends on.3 The attorney must act selflessly, including sacrificing his self-interest if necessary, to protect his client.
As a result, the courts generally condemn such acts of disloyalty to the client, and allow appropriate remedies against the attorney that allowed the others’ interests to advance, to the detriment of his own client.4
In our hypothetical situation, the fact that the settlement payment does not come from the resident’s pocket, seemed compelling to the “independent” attorney. That, and the carrier’s reluctance to pay multiple attorneys to attend settlement negotiations, is probably why the “independent” attorney would not attend the settlement negotiations and fight to prevent the settlement from being attributed to his client. Fighting back, to attribute the settlement to the senior attending physician, could make serious waves, and could even cause the settlement negotiations to fail. Invariably, “hospital politics” plays a back seat role in these circumstances. The fact that the resident can get harmed in other ways, despite not paying the settlement with her own funds, may get “lost in the sauce.”
The moral of this story is that if a client is assigned “independent” counsel by their employer or the employer’s insurance company, that attorney is charged with the legal and ethical duty to protect his client, not just from paying a settlement out of pocket, but from the other harms that come from having a settlement recording against the client; and the client may have a right to recover for those harms against her “independent” attorney, for failing to protect her against those harms.
1. The “independent” attorney looks to the insurer, not the client, for future work. “[T]he attorney’s relationship with the insurer is usually ongoing, supported by a financial interest in future assignments, and, like other long-term relationships, sometimes strengthened by real friendship.” See 4 Ronald Mallen & Jeffrey M. Smith, Legal Malpractice, §§ 30:3, at 150 (2010 ed.).
2. Barker, Miller et al, “Insurer Litigation Guidelines: Ethical Issues for Insurer-Selected and Independent Defense Counsel,” ABA Section of Litigation 2012 Insurance Coverage Litigation Committee CLE Seminar, March 1-3, 2012.
3. E.g., Restatement (Third) of the Law Governing Lawyers § 16 & cmt. e (perm. vol. 2000) (describing duty); Cinema 5, Ltd. v. Cinerama, Ltd., 528 F.2d 1384, 1386 (2d Cir. 1976) (attorney owes undivided loyalty to every client).; Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke L.J. 255, 311-12 (1995).
4. See, e.g., American Bar Association’s Model Rules of Professional Conduct, Rules 1.8(f), 5.5(c) (ABA 2011).