ETHICS QUESTION OF THE MONTH
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Everybody’s Talkin’
Attorney will represents the family of Daniel, who died in a car crash. The driver of the other car, Elizabeth, was driving home from the company Christmas party of her employer, XYZ Corporation. Elizabeth fled the scene and hid at a friend’s house for three days before turning herself in to the police. She was booked for leaving the scene of an accident and administered drug and alcohol tests, which showed trace amounts of cocaine and alcohol.
Will files suit on behalf of Daniel’s family against: (1) Elizabeth for
negligence in causing the collision, and (2) XYZ, alleging that
Elizabeth was impaired when she left the Christmas party and her
impairment caused the collision. Defense counsel Marsha files an answer
and a motion for summary judgment, alleging there is no evidence that
Elizabeth was impaired, no evidence she was knowingly over-served at the
party, and that XYZ owed no duty to Daniel. Will is unable to persuade
anyone at the party to testify specifically about Elizabeth’s condition
at the Christmas party; he only elicits general comments that there was
widespread drinking and there appeared to be surreptitious drug use. The
trial court grants the motion for summary judgment on behalf of XYZ.
Will appeals to the court of appeals.
The court of appeals reverses the summary judgment, holding that the
evidence at least raises a fact issue about XYZ’s conduct regarding the
party being a cause of the collision. Marsha files a petition for review
in the Texas Supreme Court.
After the petition is filed, Will calls a press conference and sharply
criticizes XYZ for its “legal shenanigans” calculated to delay and avoid
ever facing a jury. To highlight XYZ’s misconduct, Will says he has
received reliable—but thus far anonymous—tips about the Christmas party
revealing that: (1) XYZ encouraged heavy drinking but made no
arrangements for alternative transportation nor did it warn partygoers
about drinking and driving; (2) XYZ’s CEO offered cocaine to female
partygoers in exchange for sex, and Elizabeth accepted the cocaine but
declined the sex, leading to a confrontation that ended in her leaving
the party in an emotionally fraught condition; (3) after leaving the
scene of the accident, Elizabeth called the CEO of XYZ, who picked her
up and hid her at his home until enough time had passed for her test
results to be inconclusive; and (4) despite this horrific conduct, XYZ
has only offered an “insultingly paltry” sum of money to compensate
Daniel’s family.
In response, Marsha calls a press conference of her own and denies
everything Will said about the XYZ party and its aftermath, pointing to
the utter lack of proof. Nonetheless, she says that, out of sympathy for
Daniel’s family and in the spirit of compromise, XYZ offered the policy
limits of its first layer of insurance, or $1 million, which Will turned
down as personally insulting to a lawyer of his stature.
Which is the most accurate?
A. Will’s and Marsha’s statements are both unethical.
B. Will’s statement is unethical, but Marsha’s is permissible.
C. Will’s statement is permissible, but Marsha’s is unethical.
D. Both statements are permitted under the Rules.
Answer
While many of the extra-judicial statements made by Will and Marsha would seem to violate Texas Disciplinary Rule of Professional Conduct 3.07(a), which prohibits statements that “will have a substantial likelihood of materially prejudicing an adjudicatory proceeding,” that rule does not apply to cases on appeal, per Ethics Opinion 683. The best answer is D. For more analysis of this issue, go to legalethicstexas.com/ethics-question-of-the-month.TBJ
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justices of the Supreme Court of Texas to educate lawyers about ethics
and professionalism. Lawyers can access the Texas Disciplinary Rules of
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DISCLAIMER
The information contained in Ethics Question of the Month is intended
to illustrate an ethics issue of general interest in the Texas legal
community; it is not intended to provide ethics advice that applies
regardless of particular facts. For specific legal ethics advice,
readers are urged to consult the Texas Disciplinary Rules of
Professional Conduct (including the official comments) and other
authorities and/or a qualified legal ethics adviser.
