Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-3023" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2017/01/2017-300x209.jpg" alt="2017 Happy New Year type" width="300" height="209">You may have some holiday leftovers lurking in your fridge (potato latkes, Xmas goose, black-eyed peas, New Year&rsquo;s Eve caviar), and we too have some interesting ethics topics that we didn&rsquo;t have room for during 2016 &mdash; so here&rsquo;s a potpourri, touching on positional conflicts, coercive settlements and maybe how not to use your firm&rsquo;s letterhead.
Arguing damage caps, pro and con
The U.S. district court for the Middle District of Tennessee in October <a href="http://filehost.thompsonhine.com/uploads/Johnson_v._Crete_Carrier_Corp._c9c4.pdf">turned back a disqualification motion</a> aimed at Butler Snow, ruling that&nbsp;the firm&nbsp;could&nbsp; continue representing a&nbsp;personal injury plaintiff who was potentially contesting the constitutionality of the state&rsquo;s punitive damage caps, while&nbsp;at the same time asserting&nbsp;the caps defensively in&nbsp;at least one pending&nbsp;case for another&nbsp;client.
In its DQ&nbsp;motion, the trucking company defendant said those positions were inconsistent and&nbsp;raised a positional conflict in violation of Tennessee&rsquo;s version of <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients.html">Model Rule 1.7</a> and its cmt. [24].
Not so, said the district court.&nbsp; First, the trucking company waited until two months before trial to try to disqualify the law firm; it would cause severe prejudice to the&nbsp;plaintiff if&nbsp;she had to find new counsel.&nbsp; Second, the firm&nbsp;retained separate counsel to represent the plaintiff on all post-trial issues challenging the damage caps, an arrangement that plaintiff agreed to at the beginning of her representation.&nbsp; Third, there was no evidence that the potential conflict had actually affected the injury case, or was likely to&nbsp;compromise the firm&rsquo;s&nbsp;representation of clients who simply asserted the caps to limit their&nbsp;liability rather than expressly defending their constitutionality.
On all these bases, the court held, the firm&nbsp;could stay in the case, part of which has now been settled.
Threat to publicize sexual allegations
In November, an Arizona&nbsp;lawyer who threatened to use press releases to alert the public to sexual allegations in order to obtain a settlement <a href="http://filehost.thompsonhine.com/uploads/Strojnik,_Peter_K._026082_PDJ-2016-9083_cd03.pdf">consented to a 30-day suspension</a>.
In&nbsp;2015&nbsp;the lawyer filed a federal sexual harassment complaint on behalf of a client.&nbsp; In&nbsp;a letter to the&nbsp;defendant, he announced&nbsp;he had created a specific website regarding the allegations, and said he would put up a&nbsp;public &ldquo;shame on you&rdquo; banner near the defendant&rsquo;s&nbsp;restaurants.&nbsp; He also told the defendant&nbsp;that he had scheduled meetings with police and the federal Department of Justice about the alleged hiring of undocumented workers.&nbsp;&nbsp;In response to a settlement offer, the lawyer told the defendant&rsquo;s lawyers&nbsp;that he &ldquo;intended to destroy&rdquo; the defendant&rsquo;s businesses.
The judge in the federal case&nbsp;insisted that the lawyer stop his unprofessional behavior; the parties settled; and the state Disciplinary Judge accepted the lawyer&rsquo;s admission that his conduct violated Arizona&rsquo;s versions of <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons.html">Model Rules 4.4</a> (respect for the rights of others) and <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct.html">8.4(d)</a> (conduct prejudicial to the administration of justice).&nbsp;&nbsp;The lawyer&nbsp;also agreed to two years probation and to pay costs.
The rules in my home jurisdiction, Ohio, include <a href="http://www.supremecourt.ohio.gov/LegalResources/Rules/ProfConduct/profConductRules.pdf">Rule 1.2(e),</a> a specific prohibition against threatening criminal charges or professional misconduct allegations solely to obtain an advantage in a civil matter.&nbsp; Interestingly, the Model Rules lack an express prohibition, although this case illustrates that disciplinary authorities can get there via other rules.
Using firm letterhead
Last, here&rsquo;s a cautionary tale about using your firm letterhead for a personal legal dispute.
According to plaintiffs in a federal <a href="http://filehost.thompsonhine.com/uploads/Adams_v._Tillery__Pepper_Hamilton_72f7.pdf-+">complaint</a> filed in November,&nbsp;a Pepper Hamilton partner entered into a lease-to-own deal with a couple&nbsp;for a $750,000 house he owned.&nbsp; The couple terminated the contract and moved out, and the lawyer claimed that they&nbsp;owed about $10,000.&nbsp; The lawyer sent a demand letter for the money in September, using&nbsp;the firm&rsquo;s&nbsp;letterhead.
That drew a suit from the couple against both the lawyer and the law firm&nbsp;for allegedly violating the federal Fair Debt&nbsp;Collection Practices Act.&nbsp; &ldquo;Once [the lawyer] sent the Sept. 19 letter ... on [the firm&rsquo;s] letterhead, he was no longer acting as an individual collecting his own debt, but rather a debt collector subject to the FDCPA,&rdquo; the couple said in their complaint.
It remains to be seen whether that theory will fly &mdash; the case docket does not yet reflect any response to the complaint.&nbsp; But it points to an issue that you should probably think about in your personal dispute before&nbsp;putting a piece of firm stationery in the printer.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Batting clean-up on 2016:  positional conflicts, settlements and your firm letterhead