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Professional Responsibility
University of Iowa School of Law
Elias, Bram Tate

Professional Responsibility

Bram Elias

Spring 2017

Security National Bank (as conservator for JMK) v. Abbott Laboratories (N.D. Ia. July 28, 2014) (Bennett, J.).

Who sued whom: JMK, a baby, via conservator Security National Bank (Ps), sued Abbot Labs

For what: Legal claim – Product liability (design defect, manufacturing defect, warning defect). Factual allegation – JMK ate baby formula made by Abbott Labs, formula had a bacteria

The instant dispute: What is Judge Bennett mad about, A) “Form” objections, B) witness coaching, and C) excessive interruption. (p6, 10-30) (Note: NOT bad faith. “I need not find that counsel acted in bad faith . . . .” p9) His response: An “out of the box” sanction (p31-33).

What is a “form” objection? “I object as to the form of the question.” No actual basis for objection. “Objecting to form is like objecting to improper.” (p12-13.) Examples: pp11-12. 115 times in two depositions; 50% of the depo pages. (p10-11)

No way for a judge to rule on these objections. (pp15-16, Theiss cite)

Authority: Fed R Civ P 30 (depos) and 32 (depos at trial), not PR rules or binding caselaw. But not specifically prohibited or disfavored by the rules! Basis for disfavoring is Rule 30’s advisory committee note that objections should be limited to grounds that can be immediately cured. The idea is that you’re not only saving the objection for the judge, but also allowing opposing counsel to immediately fix the problem so it doesn’t ever have to go to the judge. (p15)

Note that Judge Bennett acknowledges that he is basically the first judge to write an opinion prohibiting lawyers from doing this (pp 15 (“I would go further…”),17-18) . . . although there was a recent law review note on point. (pp31-32, re Matthew Jarvey note
Couldn’t explain the basis at trial (p13) and seemed to invent a post-hoc rationale a new basis when forced to explain in the sanctions process. (p12n12)
Note that some federal courts not only permit but require use only of “form” objections in depos! ED La, ED Tex, Minnesota, SDNY (p16-17). Counsel is from Chicago, although counsel’s firm does a lot of work in SDNY.
Counsel’s defense: “That was my training.” (p31)
Query: Given that there was no precisely on-point written authority against “form” objections, and assuming that Counsel was indeed trained to do what she did, are you bothered by Counsel’s use of form objections?
This is clearly something that enrages Judge Bennett: “Counsel just doesn’t get it.” (p12n12)
But this is not why Judge Bennett sanctioned Counsel. (p17)

Witness coaching.

What is witness coaching? Making an objection (or interrupting the deposition in some way) in a suggestive manner, per Fed R Civ P 30, so that the witness’s answers are affected. (p18) Examples: pp18-22, 24-29. Authority: Fed R Civ P 30. Caselaw, too. (p18)
Counsel’s defense: When Plaintiff’s counsel was “on the wrong track factually,” Counsel tried to help by “steering to the correct ground”; when things got bogged down, Counsel tried to “speed things up by helping to clarify.” (p29) Note counsel’s uncontroverted assertion that “plaintiff’s counsel seemed appreciative.”
Query: Do you think the fact that Plaintiff’s counsel was genuinely grateful, if true, should matter?
This is a basis for sanctions. (p30)

Excessive Interruptions

What are “excessive interruptions”? To use a technical, professorial term of art: Well, duh.
Examples: Counsel talks once per page (92 times) in one depo and thrice per page (381 times) in the other depo. (p30)
Authority: Fed R Civ P 30, plus binding caselaw (Craig, 8th Cir 2010) as well as local(ish) practice (Van Pilsum, S.D.Ia. 1993). (p30)
This is a basis for sanctions (p31)

Sanction: The “outside the box” sanction by video

Purpose: Not “negatively affecting Counsel’s pocketbook,” but rather “positively affecting Counsel’s practice” and “deterring others who might be inclined to comport themselves similarly” (p31)
Counsel must personally write the video (pp32-33)
Counsel or another partner must appear in the video (pp32-33)
Video must address… (pp32-33)

the impropriety of “form” objections,
witness coaching, and
excessive interruptions

The lawyer in the video must state that the video is part of a federal court sanction against a partner in the firm (doesn’t need to name counsel as the sanctioned partner) (pp32-33)
Video must be approved by the court (pp32-33)
Video must be made available to every lawyer at the firm (including branch offices worldwide) who engage in federal or state litigation or who merely work in a practice group where at least two lawyers have an appearance in any federal or state case. (pp32-33) (Note: firm, Jones Day, has offices in 41 cities, 19 countries, 5 continents. Over 2,400 lawyers, including 400 in Europe and 200 in Asia. Per firm website)
Within 90 days. (pp32-33)

The Big Idea: WHY IS THIS THE FIRST CASE WE STUDY IN THE COURSE?

It is *not* because of the holding of the case. Note that Judge Bennett’s decision was overturned!
FOOTNOTE 8. On page 5. Reprinted here in its entirety:

“Iowa trial lawyers have a long and storied tradition and culture of civility that is first taught at the state’s two law schools, the University of Iowa College of Law and the Drake University Law School. I know this because I have taught and lectured at both of these outstanding law schools that produce the bulk of Iowa lawyers.Civility is then taken very seriously, nourished and lead by the Iowa Supreme Court, and continually reinforced by the Iowa State Bar Association, the Iowa Academy of Trial Lawyers, and all of the other legal organizations in the state, as well as senior members of the bar, law firm partners from large to small firms, and solo practitioners across the state.There is great pride in being an Iowa lawyer, and describing someone as an Iowa lawyer almost always connotes that lawyer’s high commitment to civility and professionalism. Of course, there are stinkers in the Iowa bar, but they are few and far between.”

The Iowa Lawyer I – how counsel could have been more “Iowan”

Be civil
Explain yourself – give the other side notice so they understand what you’re trying to argue
Choose your battles
Be clear with opposing counsel
Be respectful of witnesses and non-attorneys
Be prepared
No speaking objections (know the culture of your forum)

Mendez, 855 N.W.2d 156, (Iowa 2014)

Richard Mendez

Barred in: California. p2.

Practices primarily in: California, from an office in Burbank. (NOT an Iowa Lawyer. In so many ways.) p2. Iowa connection: In July 2011, takes over two branches of an immigration law firm, “ASESAL,” with offices in Des Moines and Nebraska. He kept most of ASESAL’s staff but renamed the organization “Law Offices of Richard Mendez”. p2. As a matter of immigration procedure, if you’re barred anywhere, you can practice federal immigration law anywhere, so the fact that Mendez can’t practice in Iowa isn’t a problem. p2.

Complaints by: clients, successor counsel (Jim Benzoni – famous DSM immigration practitioner), Iowa’s PR Board. p2.

Mendez’s Blanket Defenses

“There’s no way to know if someone is an Iowa client or a Nebraska client” p6. But… there is no dispute he provided legal services in Iowa. p6.
“Nebraska and Iowa have different rules on flat fees” p6

But… That doesn’t matter if you violated Iowa rules in Iowa. p7.

“I thought I would get a 5-person PR panel, and I only got a 4-person panel.” p6. But… No one cares. Under Iowa court rules, a deviation from the 5-person-panel procedure is only a problem if it cau

ustained? No. She did drive to Omaha, even if she missed the hearing.

Failure to Communicate and Conflict of Interest (G)(2)

Allegation: Mendez didn’t tell the client that the only way to proceed with his case after Mendez’s associate missed the hearing was to fire Mendez and file a complaint against him.
Sustained? Yes.

Improper Referral, Improper Division of Fees, Unreasonable Fee (G)(3)

Allegation: Mendez, without client’s permission, hired outside counsel to pursue a clearly frivolous appeal and paid outside counsel for the work.
Sustained? Yes.

Sanction and Disposition. pp12-14. Suspended from practice in Iowa for 60 days. (Mendez simply gave up his Iowa practice. Disbarred by the State of California in 2015 for similar conduct, plus some new villainies: for example, he bought a law office in Long Beach and then had a non-lawyer run it for him. The California Supreme Court also took explicit note of the Iowa decision against him.)

Wrap-up: The takeaway from the Mendez case (other than using it as a tool to look over what we’ll be covering this semester): ethics violations often travel in giant interrelated packs. Ethics violations tend to happen when things fall apart, and when things fall apart, everything falls apart.

Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn. 1962)

Background Facts (see optional reading pp.63-65 for details)

Who are the parties? (Did Zimmerman hit Spaulding? No!)

David Spaulding, twenty years old.
John Zimmerman, nineteen years old.
Florian Ledermann, fifteen years old (driving on a farm permit), and his dad John.
Note that defense counsel was selected by and paid by the defendants’ insurance, not by the defendants themselves. (But counsel never spoke to either the defendants or the insurers.)

What happened? August 24, 1956. Spaulding was one of six occupants in the Zimmerman car (along with John Zimmerman’s older brother and dad, Spaulding’s brother Alan, and Howard Leraas), all six of whom worked for a road construction company owned by the Zimmermans. The Ledermann car contained five people: Florian Ledermann and Florian’s younger sister and two younger brothers as well as his parents. The two cars met at an intersection with no stop signs. View was obscured by summer high corn. The accident killed John Zimmerman’s brother and Florian Ledermann’s sister, and seriously injured nine of the ten other people involved. David Spaulding suffered a concussion, broken clavicles (collarbones) and a crushed chest (and, it turned out, an aortic aneurysm). p.706-07 and Optional Reading.

Who sued whom for what? Who won? Spaulding’s father, as Spaulding’s guardian, sued both Zimmerman and Ledermann “for injuries sustained by [Spaulding] in an automobile accident,” presumably under a negligence theory. Spaulding at 706. The case settled for $6,500, within insurance policy limits (only insurance, and not the defendants, would pay). Id. at 708 (and see optional reading). The Trial Court had to approve the settlement because Spaulding was under 21, and did approve it. Id.