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America’s Sporting Theory of Justice.2007.web

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					America’s Sporting
 Theory of Justice

Rhode, Chapter Four
Issues

 “Sharp  practices” (which
  she categorizes as a civility
  problem)
 Confidentiality and the
  lawyer‟s duties to third
  parties
“Sharp Practices”

   “With alarming frequency, we find that
    valuable judicial and attorney time is
    consumed in resolving unnecessary
    contention and sharp practices
    between lawyers.”
   --Dondi Properties v. Commerce
    savings & Loan Ass‟n (N.D. TX. 1988)
 Example #1:

Pollack v. Fisons
One issue in the case

 What did Fisons know about
 the toxicity in children of
 theophylline, and when did
 Fisons know it?
          What the defense
           lawyers have
   Letter sent to two          Internal memo: stop
    thousand doctors: for        promoting theophylline
    asthma patients with         for asthma, and
    viral infections, use        promote cromolyn
    Intal, a cromolyn-           instead, because of
    based drug rather than       risks for patients with
    Somophylline                 viral infections

                                Does not mention
                                 Somophylline by name
Will justice be served
by the revelation of this
document?
       Federal Rule of Civil
          Procedure 34
   The request shall set forth, either by
    individual item or by category, the items to
    be inspected, and describe each with
    reasonable particularity.
   The response shall state, with respect to
    each item or category, that inspection and
    related activities will be permitted as
    requested, unless the request is objected to,
    in which event the reasons for the objection
    shall be stated.
First scenario:

Plaintiffs make no request for
documents related to
theophylline or Somophyllin
Oral Liquid
Second scenario:

   Plaintiffs request “genuine
    copies of any and all
    documents that pertain,
    relate, or refer in any way to
    theophylline, Somophylline
    Oral Liquid, Intal, and/or any
    cromolyn-based drug.”
Third scenario:
Plaintiffs request
   “genuine copies of „Dear Doctor‟
    letters sent by your company to
    physicians concerning theophylline
    toxicity in children, including but
    not limited to any such letter
    concerning Somophylline Oral
    Liquid.”
Fourth scenario:


   “Produce genuine copies of any
    internal reports or memoranda
    concerning toxicity of
    Somophylline Oral Liquid in
    children.”
Sharp practice not to
 produce in each of
  these scenarios?
Some alternatives

 Voluntary   “Professionalism
  Code”
 New Rule of Conduct
Professionalism Code:
Seventh Circuit #24

   We will respond to document
    requests reasonably and not
    strain to interpret the request
    in an artificially restrictive
    manner to avoid disclosure of
    relevant and non-privileged
    documents.
What good are such
professionalism codes?

(Rhode says, not much)
New Rule of Conduct?

 “A lawyer shall disclose adverse
  facts to a tribunal if they would
  probably have a substantial effect
  on the determination of a material
  issue.”
 Rhode, p.93
Confidentiality and a
 Lawyer’s Duties to
   Third Parties
When Rhode
wrote the book…
   Only exceptions to lawyer‟s
    confidentiality were:
    – Client consent
    – “Implied authorization”
    – Client is planning a criminal act that is
      likely to cause substantial bodily injury or
      death
    – Lawyer needs to reveal to collect fee or
      defend against charge of misconduct
A third dimension of
responsibility for the lawyer?

 We know lawyers have competing
  duties to clients and to the court
  system.
 What duties do they, and what
  duties should they, owe to third
  parties?
So far…

   We have seen that lawyers cannot
    assist in a crime or fraud, as part of
    the duty of fidelity to the law.
   We have seen the requirement that a
    lawyer must have a “substantial
    purpose” under Rule 4.4(a) before
    “burdening” a third party
   But a broader duty?
An example
(Rhode’s third, p. 106)
 Spalding  v. Zimmerman
 Should the lawyer have the
  obligation to tell the adversary
  that he has a life-threatening
  but fixable aortic aneurysm?
Today

   1.6 (b) A lawyer may reveal
    information relating to the
    representation of a client to the extent
    the lawyer reasonably believes
    necessary:
   (1) to prevent reasonably certain
    death or substantial bodily harm;
Should…

 The lawyer HAVE TO REVEAL
 (rather than just having the
 option) the condition?
Should we adapt our definition
of professionalism more
broadly to include a duty to
safeguard the (important?
vital? legitimate?) interests of
third parties?
What about this one…

   Lawyers know that the sta-rite drain
    system is dangerous and can kill
    children (John Edwards‟ fourth trial)
   Should they have the obligation to the
    public to reveal that information if the
    client will not?
Conclusion

				
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