PROFESSIONAL CONDUCT (ETHICS)

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

ATTORNEY FEES

 

A client may terminate his relation with an attorney at any time, notwithstanding a contract for fees, but if he does so, thus making the performance of the contract impossible, the attorney is not deprived of his right to recover on a quantum meruit a proper amount for the services which he has rendered; however, an attorney is entitled to no compensation if he is discharged because of his own wrongful acts.  Wolfe v. LaPorta, 52 Som.L.J. 112 (1993) (Cascio)

 

When a client terminates a relationship with an attorney who had a contingent fee agreement, the attorney can recover reasonable compensation up to the time he was discharged; when a client through his own action makes it impossible for the attorney to perform the contract, a quantum meruit recovery is permitted.  Wolfe v. LaPorta, 52 Som.L.J. 112 (1993) (Cascio)

 

Discussion of the factors to be taken into consideration in determining the fee or compensation payable to an attorney for the reasonable value of his services.  Wolfe v. LaPorta, 52 Som.L.J. 112 (1993) (Cascio)

 

The award of counsel fees is appropriate as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.  Toth v. Quemahoning Collieries, Inc., 52 Som.L.J. 285  (1994) (Cascio)

 

It is clear, that attorney's fees are not recoverable as an item of damages in the absence of express statutory allowance, or clear agreement of the parties, or some other established exception.  Blough v. Herring Motor Co., et al., 53 Som.L.J. 228 

 

Legal fees are typically excluded from recovery as restitution absent a clear statutory entitlement.  Commonwealth v. B.L.H., 54 Som.L.J. 366 (March 17, 1998) (Cascio, J.) 

 

Generally, counsel fees are not recoverable absent statutory authority or agreement of the parties.  Schlesinger v. Texas Eastern Transmission Corp., 55 Som.L.J. 27 (January 13, 1998) (Fike, P.J.) 

 

Language providing for the payment of any and all damages to the property of the Grantor will not suffice to permit the recovery of counsel fees.  Schlesinger v. Texas Eastern Transmission Corp., 55 Som. L.J. 27 (January 13, 1998) (Fike, P.J.) 

 

42 Pa. C.S.A. 2503(7) permits the awarding of counsel fees as a sanction for dilatory, obdurate, or vexatious conduct during the pendency of a matter.  Subsection (9) permits counsel fees to be awarded when a matter is commenced for an arbitrary, vexatious, or bad faith purpose.  Schlesinger v. Texas Eastern Transmission Corp., 55 Som. L.J. 27 (January 13, 1998) (Fike, P.J.) 

 

42 Pa. C.S.A. 2503(7) applies only to conduct during an action and subsection (9) has specifically been held to not refer to a defendant's pre-litigation conduct.  Schlesinger v. Texas Eastern Transmission Corp., 55 Som. L.J. 27 (January 13, 1998) (Fike, P.J.) 

 

CONFLICTS OF INTEREST

 

Rule 1.9 of the Pennsylvania Rules of Professional Conduct codifies the lawyer's common law duty to avoid conflict of interest.  Under the common law, an attorney owes a fiduciary duty to his client.  This fiduciary duty demands individual loyalty and prohibits the attorney from engaging in conflicts of interest.  An attorney may not represent conflicting interests.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike).

 

The test of whether an attorney has conflicting interests so as to preclude his representation of a party is not actuality of a conflict, but possibility that a conflict may arise.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

An attorney will not be permitted to represent conflicting interests unless those interests agree to be so represented.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

Under the common law an attorney is prohibited from undertaking a representation adverse to a former client in a matter "substantially related" to that in which the attorney previously had served the client.  The fact that the two representations involve similar or related facts is not, in itself, sufficient to warrant the finding of a substantial relationship so as to qualify the attorney from the representation, but rather the test is whether information acquired by an attorney in his former representation is substantially related to the subject matter of subsequent representation.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

If an attorney might have acquired confidential information related to the subsequent representation, Pennsylvania Rule of Professional Conduct 1.9 would prevent the attorney from representing the second client.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

Confidential information gained by one member of a law firm is imputable to other members of the same law firm. A former client seeking to disqualify a law firm representing an adverse party on the issue of the past relationship with a member of the law firm has the burden of proving: (1) that a past attorney/client relationship existed which was adverse to a subsequent representation by the law firm of the other client; (2) that the subject matter of the relationship was substantially related; (3) that a member of the law firm, as attorney for the adverse party, acquired knowledge of confidential information from or concerning the former client.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

Federal Courts use a substantial relationship test to determine, based on the nature and scope of the prior representation, whether confidential information that might have been gained in the first representation may be used to the detriment of the former client in the subsequent action.  The test is not whether counsel has actually obtained confidential information through its prior representation; the resolution of the question involves a comparison of the past and present representation to determine whether the counsel in question might have acquired information substantially related to the current litigation.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

A federal court analysis combines the "substantial relationship test" and the confidential information inquiry, making the question whether the confidential information might have been disclosed, a factor in determining whether a substantial relationship exists.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

In determining whether a substantial relationship exists, the first step is to determine the nature and scope of the prior representation and then to compare the issues in the prior representation with the nature of the present lawsuit.   The final step in the analysis is to determine whether confidential information might have been gained in the first representation that may be used to the detriment of the former client in the subsequent action.  In Re:             Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

In performing the substantial relationship analysis, the issue is not whether confidential information was actually communicated, but whether the attorney acquired knowledge of confidential information from or concerning the former client, actually or by operation of law.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

Under the substantial relationship rule it is not appropriate to investigate whether particular confidences may have passed between the client and the lawyer.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike).

 

Without an evidentiary record, a court is unable to make any factual findings with respect to the issue of whether there was actual contact or communication between an attorney and a client.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

As a result of the absence of a record, the court is left with the task of determining whether it must presume that confidential communication occurred as a matter of law, that is whether (a) the lawyer and the client ought to have talked about particular facts during the course of representation, or (b) the information is of such character that it would not have been unusual for it to have been discussed between lawyer and client during their relationship.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

The issue of conflict of interest never leaves a case.  The interest in protecting the client and the integrity of the system continues and is present throughout litigation.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike) 

 

DISQUALIFICATION OF COUNSEL

 

Disqualification is an extreme sanction, which should be imposed only after careful and thoughtful deliberation.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

A party seeking to disqualify opposing counsel bears the burden of clearly showing that continued representation would be impermissible.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

Any doubts as to the existence of a violation of the Rules should be resolved in favor of disqualification.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike).  

 

Federal opinions have engaged in a balancing test to determine whether disqualification is necessary.  The following factors are relevant to the determination: (i) plaintiffs' interest in attorney loyalty, (ii) defendants' interest in retaining their chosen counsel, (iii) the risk of prejudice to defendants, and (iv) the court's interest in protecting the integrity of the proceedings and maintaining public confidence in the judicial system.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

Given the lack of any evidence that any contact or communication occurred between a client and attorney, the court was unable to conclude that the petitioner demonstrated clearly that continuing representation was impermissible.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

When an individual is a sole client of an attorney, a court would have no hesitation in deciding that contact and communication must have occurred and that, consequently, the exchange of confidential information must be presumed and disqualification mandated.  However, when an attorney represents a number of litigants, a finding of constructive exchange of confidential communications with one particular client is more problematic.  In Re: Estate of Edward Beener, a/k/a Edward E. Beener, 59 Som.L.J. 64 (2000) (P.J. Fike). 

 

GENERALLY

 

An attorney is the agent of the client and therefore acts performed and statements made by the attorney within the scope of authority and employment are binding on the client.  Moore v. Younker, 54 Som. L.J. 235 (Apr. 10, 1996) (Fike, P.J.)

 

Even though an attorney's actions during client representation are presumed to be authorized by the client, an attorney has no authority to settle a client's case based upon a general power to handle the case.  Rather, an attorney must have authority from the client to enter a binding settlement on behalf of the client and must abide by the client's decision whether to accept the offer of settlement.  Pa. Rule of Professional Conduct 1.2(a).  Moore v. Younker, 54 Som. L.J. 235 (Apr. 10, 1996) (Fike, P.J.) 

 

A client may give its attorney apparent consent to enter into a settlement agreement on its behalf when the client is present and participates during negotiations for settlement, understands and ratifies the settlement agreement, and does not complain until some time after the agreement.  Moore v. Younker, 54 Som. L.J. 235 (Apr. 10, 1996) (Fike, P.J.)

 

The Crime-Fraud exception to the attorney-client privilege was not triggered when the defendant did not threaten to shoot anyone other than himself. Commonwealth v. David Allen Jenista, 64 Som.L.J. 18 (2008) (Cascio, P.J.).

 

Rule 1.6(c)(1) of the Rules of Professional Responsibility permits an attorney to divulge the client’s comments to prevent reasonably certain death or bodily harm to himself or others. However, the Rules of Professional Responsibility are not intended to govern or affect judicial application of either the attorney-client privilege or the work-product privilege. Commonwealth v. David Allen Jenista, 64 Som.L.J. 18 (2008) (Cascio, P.J.).

 

LEGAL MALPRACTICE – ASSIGNABILITY OF CLAIMS

 

Legal malpractice cause of action may be assigned, and the assignee has standing to maintain the action despite lack of privity.  Tunstall, et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.) 

 

There is a two-part test to determine if an assignee has a cause of action against an attorney: (1) The assignor has a cause of action against the attorney in the case; and (2) The claim is not for personal injury damages.  Tunstall, et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.) 

 

Personal injury claims are non-assignable.  Tunstall, et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.)

 

LEGAL MALPRACTICE – PREJUDGMENT INTEREST IN NEGLIGENCE CLAIMS

 

Prejudgment interest is not applicable in legal malpractice negligence claims.  Tunstall, et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.)

 

LEGAL MALPRACTICE – THEORIES OF RECOVERY

 

In order to establish a claim of legal malpractice, a plaintiff/aggrieved client must demonstrate three basic elements: (1) employment of the attorney or other basis for a duty; (2) the failure of the attorney to exercise ordinary skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff.  Tunstall, et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.)

 

A party can sue an attorney based upon both breach of contract and negligence.  Tunstall, et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.)

 

In a breach of contract cause of action, a party must plead that the attorney failed to follow specific instructions.  Tunstall, et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.) 

 

For a negligence action, a party must plead that the attorney failed to exercise the required standard of care.  Tunstall, et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.) 

 

An essential element of a legal malpractice negligence cause of action is actual loss by the plaintiff, rather than nominal damages, speculative harm or the threat of future harm.  Tunstall, et al. v. Boose, et al., 59 Som.L.J. 157 (2000) (Gibson, J.)

 

WITHDRAWAL OF COUNSEL

 

Pennsylvania no longer adheres to the "appearance of impropriety" standard; rather, the Rules of Professional Conduct require the existence of an actual impropriety.  United Leasing, Inc. v. Burton, 52 Som.L.J. 165 

 

It is accepted practice in this state that an elected part-time district attorney be permitted to maintain a private practice.  United Leasing, Inc. v. Burton, 52 Som.L.J. 165 

 

Plaintiff's choice of counsel is entitled to substantial deference; and where the objecting party presents no evidence of actual impropriety but rather bases his claim on unfair advantage, any potential problem with bias or partiality can be addressed and resolved at the voir dire stage.  United Leasing, Inc. v. Burton, 52 Som.L.J. 165