Avoiding a Career-Ending Mistake The Line Between Witness by qwc99136


									                                                              Used with permission from
                                                              The Hennepin Lawyer
                                                              membership publication of the
                                                              hennepin County Bar Association
                                                              612-752-6600       thl@hcba.org

                                                  Avoiding a Career-Ending Mistake
                                                  The Line Between Witness Preparation and Coaching

                                                  In March 2006, Carla Martin was               subtle, quite common and perfectly law-        government and aviation witnesses.
                                                  instantly transformed from an unknown         ful techniques.” 2 This article examines       Martin’s limited responsibility included
                                                  government aviation attorney into a           Martin’s misconduct in the Moussaoui           arranging witness interviews and dealing
                                                  publicly reviled villain whose shocking       trial and discusses the ethical rules          with aviation witnesses and exhibits.
                                                  misconduct threatened to derail the high-     relevant to witness preparation.               She did not actively appear in the case
                                                  profile death penalty sentencing trial of                                                    or participate in the government’s legal
                                                  confessed al-Qaeda conspirator Zacarias                                                      strategy.
                                                  Moussaoui—the only person to appear           Carla Martin’s iMproper
                                                  before a jury in connection with the Sept.
                                                  11, 2001, terrorist attacks. What did Ms.
                                                                                                CoaChing of trial Witnesses                    On Feb. 22, 2006, approximately two
                                                                                                                                               weeks before the start of the sentencing
                                                  Martin do that led a federal judge to         In August 2001, just weeks before the          trial, the court entered a sequestration
                                                  conclude she had committed “egregious”        September 11 terrorist attacks, Zacarias       order directing, in pertinent part,
                                                  errors that “irremediably contaminated”       Moussaoui was arrested by the FBI              that “Fed. R. Evid. 615 (Exclusion
                                                  the Moussaoui trial and warranted seri-       due to his suspicious activities as a          of Witnesses) be and is in effect for
                                                  ous sanctions? 1 To put it simply—Martin      student at a Minnesota flight school.          non-victim witnesses who may be called
                                                  crossed the line separating acceptable        He was in custody when the Sept. 11,           to testify in this proceeding. Such
                                                  witness preparation from improper             2001, attacks occurred, but was later          witnesses may not attend or otherwise
                                                  witness coaching in violation of ethical      charged as a conspirator in the attacks        follow trial proceedings (e.g., may not
                                                  rules and an explicit court order. While      and pleaded guilty in April 2005 to            read transcripts) before being called
                                                  many commentators have criticized             conspiring with the 9/11 hijackers. In         to testify.” 3 In sum, the sequestration
                                                  Martin’s actions as unacceptable and          February 2006, Judge Leonie Brinkema           order explicitly prevented all but two
                                                  unfathomable, others have recognized          presided over the sentencing trial in the      government witnesses from, among other
                                                  that instead of being vilified, Martin        Eastern District of Virginia to determine      things, being present in the courtroom
                                                  could have “achieved much of what she         whether Moussaoui should receive the           or reviewing trial testimony prior to their
                                                  had set out to accomplish through more        death penalty or spend life in prison for      appearances as trial witnesses.
                                                                                                his role in the 9/11 terror attacks. The
March 2007 • The Hennepin Lawyer • www.hcba.org

                                                                                                government’s position in support of the        The sentencing trial began on Mar.
                                                                                                death penalty focused on its contention        6, 2006. On the morning of March
                                                                                                that the 9/11 attacks could have been          13, prior to the start of that day’s trial
                                                                                                prevented had Moussaoui disclosed to           proceedings, the government informed
                                                                                                the FBI in August 2001 the real reasons        the court and defense counsel by letter
                                                                                                why he was enrolled in flight school and       that there was a “possible violation of
                                                                                                what he knew about al-Qaeda’s plans to         the sequestration order as it relates to
                                                                                                use airplanes in terrorist attacks. Critical   FAA witnesses.” 4 Specifically, late in
                                                                                                to the issue of aviation security would        the afternoon on Friday, March 10, the
                                                                                                be the testimony of witnesses from the         government had learned that Martin had
                                                                                                Federal Aviation Administration (FAA)          provided a copy of the transcript from
                                                           Shannon M. Awsumb                    (now part of the Transportation Security       the first day of the trial to a potential
                                                            Contributing Author                 Administration (TSA)).                         aviation witness. The government then
                                                    Ms. Awsumb is an associate attorney at                                                     investigated Martin’s contact with other
                                                    Anthony, Ostlund & Baer, P.A., where her    Carla Martin was a senior TSA attorney         potential aviation witnesses and learned
                                                    practice focuses on business litigation.    whose limited role in the Moussaoui            that Martin had sent e-mails with trial
                                                                                                trial was to act as a liaison between the      transcripts to seven potential trial wit-

nesses. The e-mails, among other things,      lawyers[.]” The court concluded that the      charges and disbarment, seven family
contained portions of the opening state-      errors in the case were so serious that a     members of September 11 victims, who
ments from both sides regarding FAA           portion of the government’s case had          have sued various airlines for failing to
evidence, as well as Martin’s opinions        been “significantly eroded” and that the      prevent the 9/11 attacks, have also filed
on various issues related to the case.        court “wouldn’t trust anything that Ms.       suit against Martin in federal court, alleg-
For example, in a March 8 e-mail to a         Martin had anything to do with at th[at]      ing that she “illegally coached witnesses
potential witness, Martin commented           point” in the case.9                          and otherwise attempted to shade and
that the aviation lawyers were “stunned                                                     alter evidence before the Moussaoui
by the opening,” that it had “created         As a sanction for Martin’s misconduct,        court” in order to help her “friends” in
a credibility gap that the defense can        the court entered an order precluding         the airline industry evade potential civil
drive a truck through,” and that as a         the government from introducing avia-         liability.10 The allegations stem from the
result, the government “MUST elicit”          tion-related evidence, including witness      fact that at the time of the Moussaoui
certain facts from the aviation witnesses.5   testimony and exhibits. The court’s           trial, Martin had been playing a similar
The government characterized Ms.              order effectively prevented the govern-       role as a government liaison with aviation
Martin’s interactions with the aviation       ment from proving a critical
witnesses as “reprehensible” and stated       aspect of its case regarding how
that it “frankly could not fathom why she     the FAA could have improved          The court first noted that it “didn’t
engaged in such conduct.” 6                   airport security had Moussaoui
                                              notified the government of           think in the annals of criminal law
On March 13, in response to the gov-          al-Qaeda’s plans prior to 9/11.      that there has ever been a case with
ernment’s disclosures that morning, the       Upon the government’s mo-
court commented that it had “never seen       tion for reconsideration, the        this many significant problems”….
such an egregious violation of a court’s      court decided to permit the
rule on witnesses as [had just] occurred”     government to introduce avia-
and that Ms. Martin’s conduct had led         tion-related evidence from witnesses who    witnesses in the 9/11 family members’
to the “very real potential” that wit-        it could prove were untainted by contact    civil suit against the airlines.
nesses would be “rehearsed, coached, or       with Martin. On May 3, 2006, the jury
otherwise, that the truth-seeking concept     declined to give Moussaoui the death
of a proceeding [had been] significantly      penalty and he was sentenced to life in       W           p
                                                                                             itness reparation v          .
eroded.” 7 The court requested briefing
from the parties to address Martin’s
                                              prison.                                       i           C
                                                                                           Mproper oaChing
misconduct. The defense filed a motion        As a result of her improper contact           In connection with any trial, counsel
to strike the death notice in the case or,    with the aviation witnesses, Martin           will likely spend hours working with
alternatively, to exclude the government’s    was placed on leave from her job with         witnesses and preparing them to testify.
FAA witnesses from testifying, on the         the TSA and is currently the subject          As such, it is important to recognize
grounds that Martin’s misconduct              of various investigations. Specifically,      the ethical considerations applicable to
constituted a deliberate attempt to           federal prosecutors are considering           witness preparation in order to avoid
influence the testimony of the aviation       filing criminal charges against her, and      unintentionally engaging in improper
witnesses.                                    the Disciplinary Board of the Supreme         witness coaching. One commentator
                                              Court of Pennsylvania (the state in           has described the distinction as follows:
On March 14, the court held an eviden-        which she is licensed) is investigating her   “Preparation is the challenging—and

                                                                                                                                           March 2007 • The Hennepin Lawyer • www.hcba.org
tiary hearing regarding Martin’s violation    conduct. In addition to possible criminal     often overlooked—process of helping a
of the court’s sequestration order and to
determine the extent to which the avia-
tion witnesses were tainted by Martin’s
misconduct. Martin did not testify at
the hearing. The court first noted that
it “didn’t think in the annals of criminal
law that there has ever been a case with
this many significant problems” and that
the evidence was uncontroverted that six
witnesses, two for the government and
four potential defense witnesses, were
tainted by Ms. Martin’s communications
in violation of the court’s written order
regarding the rule on witnesses.8 The
court characterized Martin’s conduct
as a “violation of the ethical canons for

                                                  witness to translate his or her knowl-        because witness coaching can be hard           party requests. In Minnesota state court
                                                  edge to the unnatural, often counter-         to detect and is rarely as evident as in       actions, such orders are issued pursuant
                                                  intuitive, language of question and           the Moussaoui trial, courts “‘must trust       to Minnesota Rule of Evidence 615 or
                                                  answer. Coaching is telling a witness         and rely on lawyers’ abilities to discharge    Minnesota Rule of Criminal Procedure
                                                  what to say.” 11                              their ethical obligations, including their     26.03, subd. 7. The federal and state
                                                                                                duty of candor to the court’; otherwise,       rule counterparts differ in that under the
                                                  Martin’s conduct in the Moussaoui             the adversary process, the judicial system     state rules, the decision whether to enter
                                                  trial represents an egregious example of      and the legal profession itself are in grave   a sequestration order lies in the court’s
                                                  witness coaching, thanks to the detailed      jeopardy.” 14                                  discretion rather than being automatic
                                                  e-mail exchanges memorializing her                                                           upon a party’s request.
                                                  contact with the aviation witnesses. In       An important starting point for ac-
                                                  most cases, however, improper coaching        ceptable preparation of potential trial        The contents of sequestration orders can
                                                  is not revealed until cross-examination       witnesses is a review of any court orders      vary from court to court and examination
                                                  of a witness at trial—if at all. Indeed, as   entered in a specific case. Courts often       of each order is critical for determining
                                                  one commentator notes, “[d]espite the         issue sequestration orders that require        what constitutes proper witness contact
                                                  notoriety of the occasional high-profile      the exclusion of witnesses from the            in each particular case. Indeed, proper
                                                  case like the Moussaoui trial, witness        courtroom and limit the access of wit-         contact with a witness in one case could
                                                  preparation takes place under the veil        nesses to information regarding the trial.     be improper conduct in another. In the
                                                  of the attorney-client privilege, making      “The purpose of the sequestration rule         Moussaoui sentencing trial, a compre-
                                                  it difficult to detect abuses, and making     is to prevent the shaping of testimony         hensive sequestration order was issued
                                                  it difficult for lawyers to see what their    by one witness to match that of another,       by the court, and Martin’s conduct
                                                  peers are doing and consider to be ac-        and to discourage fabrication and col-         unquestionably violated that order. As
                                                  ceptable.” 12 Another has similarly com-      lusion.” 15 In federal court, such orders      an attorney assisting the government in
                                                  mented that the line between permissible      are issued pursuant to Federal Rule of         its prosecution of Moussaoui, Martin had
                                                  conduct and impermissible coaching can        Evidence 615, which provides that a            no excuse for her ignorance of the order.
                                                  be “like the difference between dusk and      trial court may sequester witnesses on a       Had Martin simply investigated whether
                                                  twilight.” 13 As one court has noted,         court’s own motion but must do so if a         such an order was in place prior to
March 2007 • The Hennepin Lawyer • www.hcba.org

contacting potential trial witnesses, she        4) A lawyer may not request a person         testimony in violation of Missouri Rule
could have avoided the public infamy and            to refrain from voluntarily giving        of Professional Conduct 3.4(b).20
ridicule, and also the potential criminal           relevant testimony or information
and civil liability, she is faced with as a         to another party, unless:                 Although censure for witness coaching
result of her improper actions.                                                               is not common due to the difficulty in
                                                        a) the person is the lawyer’s         identifying and establishing improper
In addition to court orders that outline                client in the matter; or              conduct, the consequences for improper
proper conduct with regard to potential                                                       coaching can be devastating to a party’s
trial witnesses, there are ethical con-                 b) (i) the person is not the          case. As one court noted, as a result of
siderations relevant to proper witness                  lawyer’s client but is a relative     coaching, “[e]vidence can be excluded or
preparation. Specifically, Minnesota                    or employee or other agent of         stricken; lawyers can be excluded from
Rule of Professional Conduct 3.4(a) and                 the lawyer or the lawyer’s client,    the courtroom; adverse inferences can be
(b) provides that a lawyer shall not “un-               and (ii) the lawyer reasonably        drawn; juries can be instructed that the
lawfully obstruct another party’s access to             believes compliance will not          sequestration order has been violated; a
evidence” or “falsify evidence, counsel or              materially and adversely affect       party or witness can be held in contempt;
assist a witness to testify falsely[.]” Rule            the person’s interests.17             monetary sanctions can be imposed on
3.4(f) also provides that an attorney may                                                     parties or lawyers; disciplinary proceed-
not “request a person other than a client      Section 116 explains that in preparing         ings can be instituted.” 21 Further, as
to refrain from voluntarily giving relevant    a witness to testify, “a lawyer may invite     Martin learned in the Moussaoui trial,
information to another party unless: (1)       the witness to provide truthful testi-         engaging in improper coaching can have
the person is a relative or an employee or     mony favorable to the lawyer’s client.”        severe professional and personal ramifica-
other agent of a client; and (2) the lawyer    Preparation of the witness may include         tions, including possible criminal and
reasonably believes that the person’s          “discussing the role of the witness            civil liability.
interests will not be adversely affected       and effective courtroom demeanor;
by refraining from giving such informa-        discussing the witness’s recollection          In the end, the story of Carla Martin is a
tion.” The Comment to Rule 3.4 notes           and probable testimony; revealing to the       tragic example of what can happen when
that “[f]air competition in the adversary      witness other testimony or evidence that       an attorney is ignorant of the ethical con-
system is secured by prohibitions against      will be presented and asking the witness       siderations governing his or her conduct.
destruction or concealment of evidence,        to reconsider the witness’s recollection or    To avoid committing the same mistakes
improperly influencing witnesses, ob-          recounting of events in that light; discuss-   Ms. Martin made, attorneys should be
structive tactics in discovery procedure,      ing the applicability of law to the events     aware of the ethical standards set forth in
and the like.” While Rule 3.4 sets forth       in issue; reviewing the factual context        Minnesota Rule of Professional Conduct
the general ethical guidelines for an          into which the witness’s observations or       3.4, and remain mindful during their
attorney’s interactions with witnesses,        opinions will fit; reviewing documents         interactions with trial witnesses. In
it does not elaborate as to specifically       or other physical evidence that may be         addition, particularly when an attorney
what an attorney may and may not do            introduced; and discussing probable lines      has a minor role in a trial, such as Martin
in preparing a witness.16                      of hostile cross-examination that the wit-     had, it is critical to determine whether a
                                               ness should be prepared to meet.” The          sequestration order has been issued in a
Additional considerations regarding            Restatement acknowledges that there is         particular case prior to engaging in any
witness preparation are set forth in the       “relatively sparse authority” on witness       interaction with witnesses. Had Carla
Restatement (Third) of Law Governing           preparation.18                                 Martin done so, she might have avoided

                                                                                                                                                          March 2007 • The Hennepin Lawyer • www.hcba.org
Lawyers. Similar to Rule 3.4, Section                                                         the career-ending mistakes she made in
116 of the Restatement (Third) of Law          Not surprisingly, there are few published      the Moussaoui trial. Indeed, while the
Governing Lawyers provides that:               Minnesota cases addressing improper wit-       ethical line between preparation and
                                               ness coaching. In 2001, the Minnesota          coaching is blurry, it is unfortunately easy
  1) A lawyer may interview a witness          Supreme Court suspended an attorney            to cross if an attorney is unaware of his or
     for the purpose of preparing the          from the practice of law for one year for      her ethical responsibilities.
     witness to testify.                       sending a letter to a potential witness that
                                               attempted to obstruct another party’s          1
                                                                                                 Transcript of Evidentiary Hearing Before the Honorable
                                                                                              Leonie M. Brinkema, U.S. District Court Judge, United
  2) A lawyer may not unlawfully               access to evidence and for sending a letter
                                                                                              States v. Zacarias Moussaoui, No. 01-455 (E.D. Va. Mar.
     obstruct another party’s access to        to that witness’s employer, a portion of       14, 2006), at *217-18.
     a witness.                                which had no substantial purpose other         2
                                                                                                Adam Liptak, Crossing a Fine Line on Witness Coaching,
                                               than to embarrass the witness, in viola-       n.y. TiMes, Mar. 16, 2006. www.nytimes.com.
  3) A lawyer may not unlawfully induce        tion of Rules 3.4(a) and 4.4.19 The Eighth     3
                                                                                                 Order, United States v. Zacarias Moussaoui, No. 01-455
     or assist a prospective witness to        Circuit Court of Appeals has similarly         (E.D. Va. Feb. 22, 2006), at *1.
     evade or ignore process obliging          affirmed a district court’s disbarment
     the witness to appear to testify.         of an attorney for misconduct including                   Witness Preparation
                                               counseling his client to deny damaging                        Continued on Page 29

contingent on the efforts of those who                          decisions, projection of long-term financial situations),          39
                                                                                                                                        1 hoffMan & TesLer, supra note 13, at § 41:8.
support the process.                                            a CPA (tax implications, business interest valuation), an          40
                                                                                                                                        Chanen, supra note 37, at 55.
                                                                insurance consultant (post-divorce insurance planning),
                                                                property appraisers, a career/vocational consultant, a
                                                                                                                                        Id. at 56.
The collaborative law practice groups                           child development specialist, and communication skills             42
                                                                                                                                      Lawrence R. Maxwell, Jr., L.L.B, The Collaborative Dispute
are working hard to educate their com-                          coaches.                                                           Resolution Process Is Catching On in the Civil Arena, presented
munities about collaborative law. These                         14
                                                                     Schwab, supra note 4, at 360.                                 to IACP Core Collaborative Practice Skills Institute in
                                                                                                                                   Dallas (June 2005).
methods to raise awareness about col-                           15
                                                                  James K.L. Lawrence, Collaborative Lawyering: A New              43
                                                                                                                                     David A. Hoffman, Collaborative Law in the World of
laborative law have proven to be effective.                     Development in Conflict Resolution, 17 ohio sT. J. on disp.
                                                                resoL. 431, 436 (2002).                                            Business, The coLLaboraTive review, 6:3 (Winter 2003).
Collaborative law has now gained even
                                                                   Cox & Matlock, supra note 7, at 56. In Minnesota, “If
                                                                                                                                        Lande, supra note 33, at 1379.
more support from other professionals,
                                                                the parties to a collaborative law process reach impasse,          45
                                                                                                                                        Tesler, supra note 1, at 317.
such as religious leaders, mental health
                                                                they may use an evaluative or facilitative process to assist       46
                                                                                                                                        Cox & Matlock, supra note 7, at 58.
professionals, business and tax advisors,                       in breaking the deadlock, but they shall not utilize an
and even public service radio and other                         adjudicative process.” 14 Minn. Prac., Family Law § 25.6
media, who have also begun to promote                           (2d ed. 2005).
the movement.46                                                 17
                                                                   Pauline H. Tesler, Collaborative Law Neutrals Produce Bet-
                                                                ter Resolutions, 21 aLT. To high cosT LiTig. 1, 12 (2003).
The actual practice of collaborative                            18
                                                                     Lawrence, supra note 5, at 436.
law will also determine the success of                          19
                                                                     Lande & Herman, supra note 3, at 283.
the movement. The satisfaction of the                           20
                                                                     Cox & Matlock, supra note 7, at 66.
collaborative law clients will ensure col-                      21
                                                                   Gregory Firestone & Janet Weinstein, In the Best Interests                    Witness Preparation
laborative law is recognized as a credible                      of Children, 42 faM. cT. rev. 203, 204 (2004).
                                                                                                                                                      Continued from Page 7
process. And in turn, the satisfaction                          22
                                                                  1 Jay e. grenig, aLT. disp. resoL. § 21:53 (3d ed.
of the clients rewards the collaborative                        2005).                                                             4
                                                                                                                                      Letter from U.S. Attorney to the Hon. Leonie M.
law practitioners and motivates them                            23
                                                                     Lawrence, supra note 5 at 436.                                Brinkema, U.S. District Court Judge, United States v.
to continue advocating for the process.                         24
                                                                     Cox & Matlock, supra note 7, at 59.                           Zacarias Moussaoui, No. 01-455 (E.D. Va. Mar. 13, 2006),
                                                                                                                                   at *1.
With support, promotion, and effective                          25
                                                                   Isaacs, supra note 5, at 836. See also Cox & Matlock,
practice by its advocates, collaborative                        note 7, at 52 (explaining that fees for collaborative law vary
                                                                                                                                      E-mail from Carla Martin dated Mar. 8, 2006, attached
                                                                from $5,000 to $30,000, depending on how many issues               to the Letter, supra note 4.
law will no longer just have potential. It
                                                                are involved).                                                     6
                                                                                                                                        Letter, supra note 4, at *2.
will become a main method to remove                             26
                                                                     Annable, supra note 2, at 160.                                7
                                                                                                                                     Trial Transcript, United States v. Zacarias Moussaoui,
clients from the war zone of litigation
                                                                     Cox & Matlock, supra note 7, at 67.                           No. 01-455 (E.D. Va. Mar. 13, 2006), at *1002 and
and involve them in a peaceful process                                                                                             *1015.
to resolve conflict.
                                                                   Specifically, Comment 1 of Model Rule 1.3 states, “A
                                                                lawyer must also act with commitment and dedication to
                                                                                                                                      Transcript of Evidentiary Hearing, supra note 1, at
                                                                the interests of the client and with zeal in advocacy upon         *214.
  Pauline H. Tesler, Collaborative Family Law, 5 pepp. disp.
                                                                the client’s behalf.” Model Rules of Prof’l Conduct R. 1.3         9
                                                                                                                                        Id. at *216-17.
resoL. L.J. 322 (2004).
                                                                cmt. 1 (2005); see also Annable, supra note 2, at 164.             10
                                                                                                                                     Jerry Markon, Investigations, Lawsuits Still Dogging 9/11
   Zachary Z. Annable, Note, Beyond the Thunderdome—The         29
                                                                     1 hoffMan & TesLer, supra note 13, at § 41:11.                Lawyer, washingTon posT, July 10, 2006, at B01.
Search for a New Paradigm of Modern Dispute Resolution: The
Advent of Collaborative Lawyering and Its Conformity with the
                                                                     Model Rules of Prof’l Conduct R. 1.2 (2005).
Modern Rules of Professional Conduct, 29 J. LegaL prof. 157,    31
                                                                   Schwab, supra note 4, at 364. Further guidance is found         11
                                                                                                                                      Dan Small, Witness Coaching Fiasco, The naT’L L.J., Apr.
159 (2005).                                                     in Comment 6 to Model Rule 1.2, which states, “A limited           3, 2006.
  John Lande & Gregg Herman, Fitting the Forum to the           representation may be appropriate because the client has           12
                                                                                                                                      Michael Yablonski, “The Murky Line Between Proper
Family Fuss, 42 faM. cT. rev.. 280, 281 (2004).                 limited objectives for the representation. In addition,            Witness Preparation and Witness Tampering,” American

                                                                                                                                                                                                     March 2007 • The Hennepin Lawyer • www.hcba.org
                                                                the terms upon which representation is undertaken may              Bar Association Litigation Update, at www.abanet.org/
  William H. Schwab, Collaborative Lawyering: A Closer
                                                                exclude specific means that might otherwise be used to             litigation/litigationupdate/2006/may_hottopics.html.
Look at an Emerging Practice, 4 pepp. disp. resoL. L.J. 351,
                                                                accomplish the client’s objectives.” Model Rules of Prof’l
355 (2004).                                                                                                                        13
                                                                                                                                        Liptak, supra note 2.
                                                                Conduct R. 1.2 cmt. 6 (2005).
  Joshua Isaacs, Note, A New Way to Avoid the Courtroom:                                                                           14
                                                                                                                                     Minebea Co., Ltd. v. Papsti, 374 F. Supp. 2d 231, 237 (D.
                                                                  Julie Macfarlane, Experiences of Collaborative Law: Prelimi-
The Ethical Implications Surrounding Collaborative Law, 18                                                                         D.C. 2005) (quoting United States v. Rhynes, 218 F.3d
                                                                nary Results from the Collaborative Lawyering Research Project,
geo. J. LegaL eThics 833, 834 (2005).                                                                                              310, 320 (4th Cir. 2000)).
                                                                2004 J. disp. resoL. 179, 213 (2004).
     Lande & Herman, supra note 3, at 281.                                                                                         15
                                                                                                                                        Id. (citing cases).
                                                                   John Lande, Possibilities for Collaborative Law: Ethics and
   Gay G. Cox & Robert J. Matlock, The Case for Collabora-      Practice of Lawyer Disqualification and Process Control in a New   16
                                                                                                                                        Yablonski, supra note 12.
tive Law, 11 Tex. wesLeyan L. rev. 45, 45-46 (2004).            Model of Lawyering, 64 ohio sT. L.J. 1315, 1325 (2003).            17
                                                                                                                                      resTaTeMenT (Third)       of     Law governing Law § 116
     Lande & Herman, supra note 3, at 283.                      34
                                                                     1 grenig, supra note 22, at § 21:50.                          (2000).
     Isaacs, supra note 5, at 838.                              35
                                                                  Tesler, supra note 1, at 334 (stating actual wording of          18
                                                                                                                                        Id. Reporter’s note to cmt. b (citing cases).
     Schwab, supra note 4, at 358.                              the official statute).                                             19
                                                                                                                                     In re Disciplinary Action Against Dvorak, 620 N.W.2d
     Isaacs, supra note 5, at 834.                              36
                                                                     Lande, supra note 33, at 1327-8.                              908, 907-08 (Minn. 2001).
     Tesler, supra note 1, at 319.                              37
                                                                   Jill Schachner Chanen, Collaborative Counselors: Newest         20
                                                                                                                                      In re Attorney Discipline Matter, 98 F.3d 1082, 1088
                                                                ADR Option Wins Converts, While Suffering Some Growing             (8th Cir. 1996).
  1 david hoffMan & pauLine TesLer, aLT. disp. resoL.
prac. guide § 41:6 (2005). Types of neutral experts that        Pains, 92 A.B.A. J. 52, 53 (June 2006).                            21
                                                                                                                                        Minebea, 374 F. Supp. 2d at 237.
could be used include a financial consultant (budgeting         38
                                                                     Cox & Matlock, supra note 7, at 63.


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