Published in Litigation, Volume 43, Number 2, Winter 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information
or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written
consent of the American Bar Association.
10
protected, t he communications shou ld
be with someone in the law f irm equiva-
lent to a general counsel, and that s ome
level of formality for that po sition should
exist. Simila r formality requ irements
have appeared in other recent law-firm-
friendly de cisions.
If you happen to be practicing in any
of those many jurisd ictions where the
highest courts have not yet spoken, in-
cluding such major states as California
and New York, then proceed with cau-
tion because you can’t be certa in what a
court may say about privileg e within law
firms. A s a practical matter, law fi rms
should consider discour aging electron-
ic messaging or w ritten memoranda in
situations like those i n our scenario and
requiring early com munications to be
oral (meaning, among ot her things, no
lengthy voicemai ls).
Equally import ant is who informs the
client of the mistake and when? It may
be in the firm’s interest not to tell t he cli-
ent about its concerns (thus, the conf lict
under Rule 1.7(a)(2)). ABA Model Rule 1.4
solves that dilemma by requir ing lawyers
to keep clients informed about what they
need to know to make decisions in the
matter. The rule makes no exception for
disclosures that mig ht anger the client
or otherwise ha rm the law firm.
So, should Betty have cal led the client
with a mea culpa immedi ately upon see-
ing the offending para graph? Not neces-
sarily. But, as soon as the law f irm has
a clear and complete understanding of
the situation, which mig ht take days of
consultation, it needs to aler t the client.
A leading and frequently cited c ase that
discusses the inter play of Model Rule
1.7(a)(2) and Rule 1.4 is Circle Chevrolet
Co. v. Giordano, Halleran & Ciesla, 662
A.2d 509 (N.J. 1995) (in 1995 it was N.J.
Rule 1.7(b); it is now N.J. Rule 1.7(a)(2)).
What about telling the fi rm’s malprac-
tice carrier? That is a contract ual issue,
not an ethics issue. Suf fice it to say, the
law firm needs a pa rtner, like Ivan, or
other insurance professiona l, fully fa-
miliar wit h the policy and its reporting
requirements. Late reporti ng could jeop-
ardize the fi rm’s coverage.
What’s the lesson here? Law firm
lawyers need to be cautious about how
they communicate these duties a mong
themselves. They must also be mi ndful
of their obligations to keep clients in-
formed, even if it means infor ming them
of mistakes. q
LITIGATORS AND
JOURNALISTS
Litigators Can
Learn Much
from TV
Journalists
SCOTT ARNOLD
The author is an Assistant Crown Attorney in
Toronto, Canada. Any opinions expressed here
are his own and not necessarily those of the Min-
istry of the Attorney General of Ontario.
Whether you’re standing in a cour troom
or a TV studio, you have a limited a mount
of time to communicate and to g et your
points across in the most ef fective way
possible. With viewers in the sa me room—
or on the other end of a station’s signal
or web stream—you have to distill you r
message to its essence and put yourself
in the seats of your audience.
Litigators can lear n much from broad-
cast journali sts. My career as a TV news
reporter with the Gl obal News , befor e
becoming a lawyer, sure taught me a lot
about communication. I spent nearly a de-
cade covering everyt hing from crime to
politics to Groundhog Day, and among the
most important lessons I lea rned: Speak
in a way that’s conversationa l.
Here’s how too many prosecutors, for
example, might pose a question in f ront
of the jury:
“Officer Chan, d id you have occasion to
make observations w ith respect to the ac-
cused’s attire while conducti ng the initial
stages of your survei llance on the evening
in quest ion?”
This kind of fla bby, formalized word-
ing is all too common in cour trooms, but
think about it: Have you ever hea rd a TV
news reporter ask an eyewit ness such a
clunky question? Of course not. It doesn’t
take a journali sm degree but it can take
