from complaint to closing, ethical issues from the ely v ......8/29/2017 1 © 2017 blank rome llp....

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© 2017 Blank Rome LLP. All rights reserved. Please contact Blank Rome for permission to reuse.

From Complaint to Closing, Ethical Issues from the Ely v. Cabot Case

September 7, 2017 Pittsburgh, Pennsylvania

8th Law of Shale Plays Conference

Amy L. Barrette & Jeremy A. Mercer


Court Admissions

Unauthorized Practice of LawPa. R. Prof. Con. 5.5(a) A lawyer shall not practice law in a jurisdiction in violation of the

regulation of the legal profession in that jurisdiction, or assist another in doing so.

Plaintiffs’ attorney improperly obtained General Admission to the Middle District of Pa. M.D. Pa L.R. 83.8.1.2 requires admission to the Pennsylvania Bar for applicants seeking General

Admission to the Middle District. At the time, Plaintiffs’ counsel was licensed in New York but not Pennsylvania Court revoked Plaintiffs’ counsel’s general admission and ordered all references to that attorney

on the docket to be removed subsequent to the entry of the order

8/29/2017 Source: Case 3:09‐cv‐02284‐JEJ‐MCC, Doc. No. 116.2

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Extrajudicial Statements

Trial PublicityPa. R. Prof. Con. 3.6(a) A lawyer who is participating or

has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

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Trial Publicity Pa. R. Prof. Con. 3.6(b)Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;(2) information contained in the public record;(3) that an investigation of the matter is in progress; (4) the scheduling or result of any step in litigation;(5) a request for assistance in obtaining evidence and information necessary thereto;(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest;

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Trial Publicity Pa. R. Prof. Con. 3.6(c) Notwithstanding paragraph (a), a lawyer may make a statement

that a reasonable person would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.

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Trial Publicity Pa. R. Prof. Con. 3.6(d) No lawyer associated in a firm or government agency with a lawyer

subject to paragraph (a) shall make a statement prohibited by paragraph (a).

(If you can’t say it, your partner can’t either!)

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ExtrajudicialStatements

Check the Local Rules, too!Middle District Local Rule 83.2 Extrajudicial Statements in Civil Proceedings.

(a) A lawyer representing a party in a civil matter triable to a jury shall not make any extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer or other person knows or reasonably should know that it will have a substantial likelihood of causing material prejudice to an adjudicative proceeding.

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The day after filing the complaint, plaintiffs’ counsel held and participated in a press conference on the front lawn of one of the plaintiffs. Plaintiffs’ counsel encouraged the plaintiffs to discuss evidence in the case: Questions by counsel:

“[H]ow about you tell the reporters what—the timeliness with which you have received thorough documentation of what’s in your water; never?”“And what did your doctor write on the prescription pad? What did he say was your diagnosis?” [Response by plaintiff] “My diagnosis was toxic exposure, and there are several other metals in there and I would have to go for heavy metal screening.”“Okay, well, let’s talk to this couple right here. Why don’t you tell us some of your—if you don’t mind, tell them how your deal‐making went and how rich you have become.”

8/29/2017 Source:Case3:09‐cv‐02284‐JEJ‐MCC,Doc.No.69,pp.10‐11.8

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Restriction on Free SpeechLimitations on attorney speech “are aimed at two principal

evils: (1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found.” United States v. Wecht, 484 F.3d 194 (3d Cir. 2007).

The substantial likelihood standard “fairly balances the integrity of the justice system with attorneys’ constitutional rights.” United States v. Scarfo, 263 F.3d 80, 93 (3d Cir. 2001).

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Discovery Misconduct

United States District Court for the Middle District of PA Code of Professional Conduct“2. I will treat with civility and respect the lawyers, clients, opposing parties, the court and all the officials with whom I work. Professional courtesy is compatible with vigorous advocacy and zealous representation. Even though antagonism may be expected by my client, it is not part of my duty to my client.”

8/29/2017 UnitedStatesDistrictCourtoftheMiddleDistrictofPennsylvaniaLocalRules,AppendixC10

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Conduct by plaintiffs’ counsel during court ordered site inspections Yelling “who the F#@% are you . . .” at defense counsel. Repeatedly yelling “screw you” when defense counsel asked

plaintiffs’ counsel to step away from a high pressure natural gas well as a safety precaution.

Calling defense counsel and consultants “retarded,” “morons,” and “stupid.”

Telling defense counsel to “get the F#@% off” properties defense counsel was permitted to inspect pursuant to court order.

Referring to the Defendant and its representatives as “the Devil.”

8/29/2017 Source: Case 3:09‐cv‐02284‐JEJ‐MCC, Doc. No. 69, p. 8 12

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Communication with Person Represented by CounselPa. R. Prof. Con. 4.2

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by a court order.

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On multiple occasions, plaintiffs’ counsel communicated with defendants’ employees concerning matters related to the litigation:During a PA DEP press conference, at which multiple media outlets were present, plaintiffs’ counsel began to question a representative of the defendant about why the company had drilled a new water well for a resident. The questions were designed to elicit admissions that defendants were responsible for water contamination.

Plaintiffs’ counsel admitted to multiple communications with a manager of the defendant concerning the subject of the litigation.

8/29/2017 Source: Case 3:09‐cv‐02284‐JEJ‐MCC, Doc. No. 69, p. 12.14

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Ghostwriting CourtFilings

In 2012 a group of the original plaintiffs who declined to settle their claims fired their counsel. Throughout 2013, those plaintiffs filed multiple documents wherein they stated that they were unable to obtain counsel to assist them and that they were acting pro se. The plaintiffs relied on their alleged pro se status to attempt to secure tactical advantages in the litigation, including extensions of time.




The content of the various filings and the metadata associated with the filings led defense counsel to believe that attorneys were ghostwriting plaintiffs’ filings.

The attorneys suspected of ghostwriting were not admitted to practice in the Middle District generally, or for the specific case.

8/29/2017 Source: Case 3:09‐cv‐02284‐JEJ‐MCC, Doc. No. 455, pp. 6‐10.16

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Defendants filed a motion to strike the filings and to require suspected ghostwriters to show cause why they should not be sanctioned for violating applicable ethics rules.

8/29/2017 Source: Case 3:09‐cv‐02284‐JEJ‐MCC, Doc. No. 455.17



Candor Toward the Tribunal ‐ Pa. R. Prof. Con. 3.3(a)(1) (a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law.

Unauthorized Practice of Law ‐ Pa. R. Prof. Con. 5.5(a) A lawyer shall not practice law in a jurisdiction in violation of the


Misconduct ‐ Pa. R. Prof. Con. 8.4(a) It is professional misconduct for a lawyer to:

(a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.


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The court found that the repeated statements that plaintiffs were acting pro se “were inconsistent with the duty of candor that all advocates owe to the tribunal, and to one another.”



Ghostwriting Court Filings

The court recognized that while many federal courts condemn the practice of ghostwriting, the issue remained unresolved in the Middle District. And, advisory opinions from the ABA and a joint opinion from the PA and Philadelphia Bar Associations have opined that the practice is permissible in certain circumstances.

Although it declined to weigh in on the permissibility of ghostwriting, the court found on narrower factual grounds that the conduct of plaintiffs’ counsel “fell short of the degree of candor expected by the Court in ways that potentially prejudiced many participants in [the] litigation and, thus, warrant[ed] some sanction.”


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The court noted that although the attorney had subsequently been admitted to practice law in PA, it “could not ignore the fact that [the attorney] engaged in this practice after having her general admission to practice law in this Court terminated when it was discovered that she had not satisfied the requirements for general admission.”

Unauthorized Practice of LawPa. R. Prof. Con. 5.5(a) A lawyer shall not practice law in a jurisdiction in violation of the





The court also found the senior ghostwriting attorney to be responsible for the junior attorney’s conduct:“The relationship between senior attorneys . . . and subordinate counsel . . . are defined by Rules 5.1 and 5.2 of the Pennsylvania Rules of Professional Conduct. Those rules place an obligation on the supervisory and more senior attorneys to assist their subordinate colleagues on adhering to the highest ethical standards. A critical component of this ethical duty entails ensuring that senior counsel provide more junior attorneys with the essential information which they need to properly exercise independent ethical judgment.”


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GhostwritingCourtFilings

Responsibilities of Partners, Managers and Supervisory Lawyers ‐ Pa. R. Prof. Con. 5.1(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:(1) The lawyer orders, or with knowledge of the specific conduct, ratifies the conduct involved . . .

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The Magistrate Judge recommended that the more senior attorney “be admonished for her lack of candor with the Court, the defendants, and [the junior attorney]. We further recommend that [the senior attorney] be required to bear some or all of [the more junior attorney’s] legal expenses that were incurred to defend herself in a matter that [the senior attorney] caused through her own conduct.”


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The District Court Judge modified the Magistrate Judge’s Report and Recommendation:

“What is far more troubling to this Court, and has been of great concern to us . . . is [the attorney’s] unprofessional and dishonest behavior towards the Court and her adversaries. From the first time [the attorney] appeared before us in open court, she has conducted herself in a fashion that is obdurate, unprofessional, and disrespectful. Moreover, her dealings with opposing counsel in hearings and discovery issues that have come before us are noteworthy for their lack of even a scintilla of collegiality. We are hardly surprised at the allegations levied by the Defendants in the instant motion.”




“[The attorney’s] presence in this action, both overt and secret, has been highly deleterious to the ends of justice. In short, [the attorney] wrote submissions wherein she knowingly misled the Court and opposing counsel by stating that the Plaintiffs were pro se.”


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“Such knowingly false statements not only violate the duty of candor, but they are breathtakingly brazen and cannot be lightly excused. In our view, the most appropriate sanction, tailored specifically to [the attorney’s] falsehoods before the Court, is to require her to attend and complete 5 hours of ethics‐based Continuing Legal Education.”



Consequences?

Despite this history, the attorney was generally admitted to the Middle District and acted as lead trial counsel.

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Eve of Trial

Pretrial Conduct – the Eve of TrialCourt excluded more than 300 categories of exhibits Failure to timely identifyMany never produced during a span of five years of discovery



Eve of Trial

“In this litigation we are now presented with a sad and shocking spectacle, a debacle and dilemma which is entirely of the plaintiffs’ own making. . . . We are now on the very eve of trial. At the eleventh hour, in a completely unexplained, and wildly kaleidoscopic fashion the plaintiffs have now begun submitting voluminous, contradictory, cryptic, confused and confusing exhibit lists, lists which contradict one another and contain thousands of pages of material, and hundreds of exhibits, many of which have long existed but have never been previously disclosed.”


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Trial Conduct

“Confusion erupts when a party fails to see their case as it is, but instead persists in attempting to present the case as they wished it to be.”

8/29/2017 Source: Case 3:09‐cv‐02284‐JEJ‐MCC, Doc. No. 799, p.1.31


Trial Conduct

“During trial, the plaintiffs, their witnesses and counsel continually strayed into forbidden territory by repeatedly hinting at evidence that had been excluded from the jury’s consideration, or by resorting to unorthodox questioning and argument from counsel at all stages of the case. This inappropriate conduct marred the trial from opening to close, impelled the Court repeatedly to conduct sidebars with the parties – 40 in total, lasting more than three and a half hours, often at the request of Cabot’s counsel –and, unfortunately, to admonish and reprimand plaintiffs’ counsel in the jury’s presence even during closing argument.”


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Trial Conduct

Questioning Witnesses Referred to evidence excluded by motions in limineCreated the impression that Cabot had something to hideResulted in 40 sidebars

8/29/2017 Source: Case 3:09‐cv‐02284‐JEJ‐MCC, Doc. No. 799, pp. 45, 50‐52.33


Trial Conduct

Closing StatementsReferred to matters excluded by motions in limineReferred to evidence not presented at trialSuggested to the jury that the Court made certain legal rulings or findings with respect to the defendant’s negligence, “risking the jury being led to believe that the Court had already in some manner found for the plaintiffs”

Hinted that plaintiffs were being pressured to settle their cases

Suggested that evidence was being withheld from the jury

8/29/2017 Source: Case 3:09‐cv‐02284‐JEJ‐MCC, Doc. No. 799, pp. 50‐5234

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Trial Conduct

Closing StatementsPlaintiffs’ counsel vouched for the credibility of plaintiffs’ witnesses: “The only credible, truthful, entirely truthful testimony that has been

presented here in this courtroom has been from the witnesses put on the stand during the plaintiffs’ case.”

Regarding landowner witnesses for the plaintiffs, the attorney stated that they were “impeccable witnesses, truth‐telling witnesses, people who are in obvious distress.”

About an expert, she stated that he was an “obviously honest man . . . . Dr. Ingraffea was so honest . . ..”



Trial Conduct

Closing StatementsFairness to Opposing Party and Counsel Pa. R. Prof. Con. 3.4(c)

A lawyer shall not . . . when appearing before a tribunal, assert the lawyer’s personal opinion as to the justness of a cause, as to the credibility of a witness, [or] to the culpability of a civil litigant . . ..

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Trial Conduct – Closing Statements

Prior to the attorney's rebuttal closing the court admonished her that her actions “could undermine any verdict that [plaintiffs] receive.” The court stated:

“And so I wanted to note for you before you engage in your rebuttal argument that there are several things that you should not do in argument.You should not invite speculation on things that are not in evidence and some of that occurred here in closing.You should not engage in personal vouching. You began to do that at one time, and I was required to address that with you.You should refrain from implying anything about settlements or resolution of other matters, such as saying that Cabot was required to do something, something that you said on a number of occasions in your closing.And you should refrain from speaking to any of the preliminary legal rulings made by this Court, such as suggesting that the Court had made a prima facia finding.All of those were in my estimation improper.”



Trial Conduct

“However, the Court does agree with Cabot that the weaknesses in the plaintiffs’ case and proof, coupled with serious and troubling irregularities in the testimony and presentation of the plaintiffs’ case –including repeated and regrettable missteps by counsel in the jury’s presence – combined so thoroughly to undermine the faith in the jury’s verdict that it must be vacated and a new trial ordered.”


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Amy L. Barrette – (412) 932‐[email protected] A. Mercer – (412) 932‐[email protected]

Questions?

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