Hypotheticals for Ethical Issues. ABA Section of Labor and Employment Law 2nd Annual CLE Conference

Transcription

1 Hypotheticals for Ethical Issues ABA Section of Labor and Employment Law 2nd Annual CLE Conference

2 Hypothetical No. 1 Attorney Allen Able represented the joint labor-management board of trustees as sole legal counsel of a multiemployer pension plan for many years. Following a hotly contested union election on reform issues, new union trustees were appointed to the board. The new union trustees prevailed on the employer trustees to terminate Mr. Able s representation and hired new legal counsel to represent them in a lawsuit against the former union trustees for breach of fiduciary duties under ERISA due to some spectacularly bad investment decisions and receipt of improper benefit payments and expense reimbursements. The former union trustees filed a third-party complaint against Able for legal malpractice and breach of contract for legal services. Able has filed a motion to dismiss (F.R. Civ. P. Rule 12(b)(6)) on the grounds that he had no attorney-client relationship with only the former union trustees.

3 Questions Will he prevail? Were the former union trustees Able s clients? Does it matter what Able s engagement letter states? What if Able did not have an engagement letter? Post-termination, does Able have any continuing ethical duties to the former union trustees?

4 Hypothetical No. 2 Attorney Mary Exceptional is now operating her own law firm. Before her new venture into solo practice, Mary was an associate with another private law firm which represented a labor union, the Industrial Workers of the World, on collective bargaining, arbitration and grievance matters, but not benefit issues. In her new firm, Mary is requested to represent the widow of a former IWW member with respect to a benefit dispute with the joint IWW/Big Employers multiemployer pension fund. Mary agrees to informally assist the widow, who filed a pro se lawsuit, by ghost writing her pleadings. The attorneys for the pension plan discover Mary s role and seek to have her disqualified on the grounds of conflict of interest.

5 Questions Will the plan s attorneys prevail? Does Mary s prior employment give rise to any conflicts that will preclude her from representing the widow? Are there any ethical issues raised by Mary s undisclosed ghostwriting assistance?

6 Hypothetical No. 3 Attorney Earnest Money has agreed to represent a participant in a benefit claim lawsuit against an LTD benefit plan sponsored by his employer, Subprime, Inc., that is insured by a large insurance company, You ll Never Get Paid, Inc., which administers the LTD plan and determines eligibility for claims. In a conversation with the former claims director, who was fired 6 months before, Earnest learns that there are detailed claims processing manuals distributed to and used by the non-lawyer claims processing staff, that were prepared by the insurance company s outside legal counsel, Enormous and Everywhere, LLP, that describe in detail how claims are to be processed, with a stated expectation that the majority of all LTD claims will be denied. Earnest files discovery requests for productions of the claims processing manuals and a Rule 30(b)(6) deposition of a representative of the insurance company. The insurance company, through highly paid partners of E and E, objects to the discovery requests on grounds of attorney-client privilege.

7 Questions Is the fiduciary exception to the attorneyclient privilege applicable? Does it matter? Will an alternative objection of attorney work product be sustained? Is the insurance company a fiduciary for purposes of ERISA? Does it matter from what assets the insurance company pays the attorneys?