Copyright (c) 2012 All rights reserved. http://works.bepress.com/grace_giesel Recent documents in Grace M. Giesel en-us Sat, 24 Nov 2012 07:16:00 PST 3600 http://works.bepress.com/grace_giesel/22 http://works.bepress.com/grace_giesel/22 Tue, 12 Jun 2012 11:51:35 PDT The United States judicial system is in the midst of great and fundamental change with regard to funding litigation. Alternative litigation finance (ALF) entities have begun, with much more frequency and success, to provide funding for small matters such as individual personal injury claims and also larger commercial litigation matters between businesses. Historical obstacles such as the champerty doctrine have faded somewhat from the legal landscape in light of the notion that everyone deserves access to justice regardless of bank account balance. In this quickly developing ALF reality, new utilitarian questions have emerged. Perhaps the most important of these is the effect the involvement of ALF entities has on the attorney-client privilege and the work product doctrine. The desire to preserve privilege and work product protection will likely mold the shape of the day-to-day operations of ALF entities and the ALF market in general. This article considers the work product doctrine in the ALF setting while leaving to a later date a consideration of the application of the attorney-client privilege. Relying on cases involving independent auditors, this article concludes that courts are likely to find that materials evaluating litigation, even if created in the ALF setting, are protected by the work product doctrine. The article further concludes that courts are likely to find that work product doctrine protection is not lost when materials are shared with an ALF entity but only if the entity enters into a binding nondisclosure agreement. Absent such an agreement, sharing materials with an ALF entity may destroy work product protection.

]]> Grace M. Giesel Legal Profession Practice and Procedure Professional Ethics http://works.bepress.com/grace_giesel/21 http://works.bepress.com/grace_giesel/21 Mon, 24 May 2010 06:57:17 PDT Individuals who are related to an entity such as a corporation sometimes claim that when they communicated with the entity lawyer, they honestly and reasonably believed that the lawyer represented them. Thus, they claim that the attorney-client privilege applies and protects their statements from disclosure even when the entity has waived its privilege with regard to the communications. Many courts have given privilege claims by entity individuals harsh treatment. These courts, in the interest of protecting the entity, have required individuals to make proofs beyond that required by the traditional definition of the attorney-client privilege. In addition, these courts have ignored the traditional approach to the recognition of an attorney-client relationship which requires giving value to the honest and reasonable belief of the person in the position of client. Courts have erred by creating these special rules to protect the entity in this situation. This approach has contributed to an environment in which lawyers often do not use their best efforts to dispel the confusion of entity individuals about the lawyer’s relationship to the individual and the protections afforded the communications. This is so even though the tenets of professional responsibility provide a background requirement for lawyers of honesty and forthrightness. Courts should apply the traditional definition of the attorney-client privilege and should honor the traditional approach to recognition of an attorney-client relationship. Lawyers can protect their entity clients by giving very clear warnings, often called Upjohn warnings, to the individuals. Individuals who are told that the lawyer does not represent them and who are told that communications with the lawyer are not privileged, will have a difficult time arguing that they honestly and reasonably believed that the lawyer represented them and that the communications are privileged. The warning preserves the entity’s right to control the disclosure of the communications. More important, however, the individual is dealt with forthrightly and not misled. Lastly, this conduct follows the teachings of the tenets of professional responsibility for lawyers.

]]> Grace M. Giesel Evidence Professional Ethics Corporations http://works.bepress.com/grace_giesel/20 http://works.bepress.com/grace_giesel/20 Tue, 19 Jan 2010 11:07:52 PST Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/19 http://works.bepress.com/grace_giesel/19 Wed, 26 Mar 2008 11:47:54 PDT In the case of Brown v. Commonwealth, 226 S.W.3d 74 (Ky. 2007), the Kentucky Supreme Court has provided trial courts and lawyers, especially criminal lawyers, with some much needed ethical guidance. While the case itself was a criminal appeal, not an attorney discipline matter, the Court’s opinion provides insight into the ethical sticky wicket of the proper conduct of the lawyer for a criminal defendant when the defendant intends to commit perjury. Such a situation pits the constitutional rights of criminal defendants against the ethical duties of defense counsel to act with candor to the court.

]]> Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/18 http://works.bepress.com/grace_giesel/18 Mon, 03 Mar 2008 08:31:18 PST Many are the court opinions stating that attorneys are agents of their clients. Traditional agency law allows principals to be responsible for actually and apparently authorized acts of an agent. Thus, one would expect courts to hold client principals responsible for authorized acts of agent attorneys. This article illustrates that some courts have exhibited significant reluctance to so hold, however. In the context of liability for torts such as abuse of process committed by attorney agents, some courts do not recognize traditional agency bases of client liability. Also, in the context of settlement, many courts do not apply traditional agency law in a traditional manner. Finally, in the context of waiver of the attorney-client privilege, some courts do not apply traditional agency principles. In each of these situations the courts deviate from traditional law to protect the client principal from liability that might otherwise occur as a result of the agency relationship. Courts appear troubled by viewing the relationship of lawyers and clients as a run-of-the-mill agency relationship. At the very least courts appear reluctant, in a paternalistic or maternalistic way, to hold a client responsible for an attorney's actions. This article concludes that such additional protection for clients is unnecessary in today's world of empowered clients. While there is no doubt that the relationship of attorney and client is a unique agency relationship, this relationship requires no special rules; the client neither deserves nor requires to be treated differently. Such a stance is more appropriate in today's environment in which user's of legal services are, in general, more sophisticated about the services provided by attorneys, and in many situations, intimately involved in the decisions made regarding the legal representation.

]]> Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/17 http://works.bepress.com/grace_giesel/17 Wed, 27 Feb 2008 07:36:05 PST Should Kentucky lawyers be required to report the misdeeds of other lawyers? Lawyers in forty-six states and the District of Columbia must report. Most of these jurisdictions have required lawyers to report the misdeeds of other lawyers since at least the 1970s. Until 1990 the ethics rules in effect in Kentucky required Kentucky lawyers to report the misdeeds of other lawyers. In contrast, the Kentucky Bar Association (KBA) Board of Governors has recommended to the Kentucky Supreme Court that it adopt an aspirational rule, not a rule requiring lawyers to report.

]]> Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/16 http://works.bepress.com/grace_giesel/16 Fri, 21 Sep 2007 07:35:35 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/15 http://works.bepress.com/grace_giesel/15 Fri, 21 Sep 2007 07:32:37 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/14 http://works.bepress.com/grace_giesel/14 Fri, 21 Sep 2007 07:30:26 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/13 http://works.bepress.com/grace_giesel/13 Fri, 14 Sep 2007 12:07:21 PDT Grace M. Giesel Contract Law http://works.bepress.com/grace_giesel/12 http://works.bepress.com/grace_giesel/12 Fri, 14 Sep 2007 12:04:17 PDT The corporate practice of law doctrine is illogical and out of step with the modern practice of law when the actual renderer of legal services is an attorney. This paper argues that conflict of interest rules and other rules of professional responsibiity should be used to regulate lawyer involvement in the corporate practice of law. The unauthorized practice of law corporate practice doctrine should be abandoned.

]]> Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/11 http://works.bepress.com/grace_giesel/11 Fri, 14 Sep 2007 11:51:59 PDT The issue of the enforceability of settlement agreements entered into by an attorney on behalf of a client is the subject of much confusing judicial comment. this article urges a return to traditional agency concepts. While not widely accepted in the United States, the position that retention of an attorney creates authority should be viewed as a logical and viable position not inconsistent with other rules of law or ethics.

]]> Grace M. Giesel Contract Law Professional Responsibility http://works.bepress.com/grace_giesel/10 http://works.bepress.com/grace_giesel/10 Fri, 14 Sep 2007 11:39:34 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/9 http://works.bepress.com/grace_giesel/9 Fri, 14 Sep 2007 11:35:43 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/8 http://works.bepress.com/grace_giesel/8 Fri, 14 Sep 2007 11:33:19 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/7 http://works.bepress.com/grace_giesel/7 Fri, 14 Sep 2007 11:31:19 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/6 http://works.bepress.com/grace_giesel/6 Fri, 14 Sep 2007 11:29:20 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/5 http://works.bepress.com/grace_giesel/5 Fri, 14 Sep 2007 11:26:31 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/4 http://works.bepress.com/grace_giesel/4 Fri, 14 Sep 2007 11:24:29 PDT Grace M. Giesel Professional Responsibility http://works.bepress.com/grace_giesel/3 http://works.bepress.com/grace_giesel/3 Fri, 14 Sep 2007 11:22:41 PDT Grace M. Giesel Professional Responsibility