Professionalism in the Court CLE

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1 Professionalism in the Court CLE Moderator: Edward L. Weiner, Esq. Weiner, Spivey & Miller, PLC Speakers: Hon. Leslie M. Alden (Ret.) Fairfax County Circuit Court Hon. Glenn L. Clayton, II Chief Judge Fairfax County J&DR District Court Hon. Lisa A. Mayne Fairfax County General District Court

2 FAIRFAX BAR ASSOCIATION CLE SEMINAR Any views expressed in these materials are those of the individual authors and do not necessarily represent the views of any of the authors organizations or of the Fairfax Bar Association. The materials are for general instructional purposes only and are not offered for use in lieu of legal research and analysis by an appropriately qualified attorney. *Registrants, instructors, exhibitors and guests attending the FBA events agree they may be photographed, videotaped and/or recorded during the event. The photographic, video and recorded materials are the sole property of the FBA and the FBA reserves the right to use attendees names and likenesses in promotional materials or for any other legitimate purpose without providing monetary compensation.

3 Hon. Glenn L. Clayton, II, Chief Judge SPEAKERS BIOGRAPHIES Glenn L. Clayton, II became a judge on the Fairfax Juvenile & Domestic Relations District Court in October, 2006, when the court expanded from seven judges to eight. Prior to his investiture, he had practiced law in northern Virginia for twenty-eight years. As a lawyer, he represented both juveniles and adults, and served as a Guardian Ad Litem. He served as chair of the Juvenile Court Committee of the Fairfax Bar Association, co-authored several court-related publications, lectured at various legal seminars involving juveniles and Juvenile Court procedures, and volunteered for various Bar activities, such as the Devonshire Program and the Chocolate Lovers Festival. He also received the President s Award in In the community, he served in leadership positions on many youth clubs and organizations, coached various teams in those organizations for over a decade, and later served as an officer and director of the Robinson High School Athletic Boosters. Judge Clayton is also past president of the Bucknell University Alumni Association and a former university trustee. As a judge, Judge Clayton has served as the court s liaison on the new courthouse expansion project, and on matters involving criminal procedure. In July, 2012, Judge Clayton was elected as chief judge of Fairfax JDR Court and continues to serve in that capacity for Virginia s largest juvenile court. Statewide, Judge Clayton has been appointed to the Executive Committee of the Virginia Council of JDR Court Judges and is an active member of the National Council of Juvenile & Family Court Judges. Judge Clayton is married to Karen, his college sweetheart. They have three children: Scott, a graduate of the University of Virginia and the Kelly Business School at Indiana University; Mark, a graduate of Davidson College; and Caroline, a graduate of Miami University in Ohio. Hon. Leslie M. Alden (Ret.) Judge Alden is a 1978 graduate in business administration from George Mason University and a 1983 graduate from its School of Law. Before beginning her tenure as judge on the Circuit Court in Fairfax in 1996, she served as a judge on the General District Court from , and before that she practiced all aspects of commercial trial work in state and federal courts in the Northern Virginia area for twelve years. In addition, Judge Alden served as an Assistant City Attorney and City Prosecutor for the City of Fairfax for nearly ten years and was a shareholder in the firm of Verner, Liipfert, Bernhard, McPherson & Hand. Formerly, Judge Alden has served on the boards of directors of the Virginia Women Attorneys Association and Legal Services of Northern Virginia. She continues to be active with the Fairfax and other Bar Associations as well as with various judicial groups. For several years, Judge Alden has worked with the International Association of Women Judges, and served as its President from The IAWJ has 4500 members in 100 nations and promotes judicial education, equal access to justice, and the rule of law, in legal systems around the world. She has been a full time faculty member at the George Mason University School of Law since 2012, and acts as a neutral evaluator at Juridical Solutions, PLC, working in alternative dispute resolution.

4 Hon. Lisa A. Mayne Judge Mayne has been a judge in the Fairfax County General District Court since 2006 and served as a substitute judge for two years prior to that. Before joining the bench, Judge Mayne was a partner in the firm of Kelly, Mayne & Daughtrey in Fairfax, having practiced with the firm and its predecessors for twenty years, principally in the areas of insurance subrogation and defense, creditor s rights and collections. As an attorney, Judge Mayne served on several committees of the Fairfax Bar Association, including the Public Relations and Community Outreach Committees and as Chair of its General District Court Committee. Judge Mayne is a past President of the George Mason American Inn of Court, a past lecturer at the Mandatory Judicial Conference for District Court Judges and the Regional Conference for Substitute Judges, and was recently appointed by the Virginia Supreme Court to serve as a member of the Judicial Education Committee of the Judicial Conference for District Courts. She is a graduate of Pitzer College in Claremont, California and the George Mason University School of Law. Edward L. Weiner, Esq. Edward L. Weiner is founder of Weiner Spivey & Miller, PLC. He has been an active member of the Fairfax Bar Association since 1980 and serves as its current President. He has been a member of the Board of Directors of the Fairfax Law Foundation since January 2002 and as a past President. He currently serves on the Virginia State Bar Council of Local Bar Leaders. He was honored in 2012 by being appointed to serve on the Virginia Supreme Court Professionalism Faculty. Ed has over 33 years of proven successful performance representing plaintiffs who have been seriously injured. His achievements include numerous multi-million dollar verdicts and cases before the Virginia Supreme Court; winning precedent-setting appellate cases; and achieving a reputation as an effective trial attorney. He is a recipient of the FBA President s Award for Outstanding Service in 2008 and 2013.He has been consistently named one of Washington's "Best Lawyers" for Personal Injury by the Washingtonian and Northern Virginia Magazine, is AV-rated by Martindale-Hubble, and has been listed in SuperLawyers Magazine since A graduate of the State University of New York at Binghamton, Ed received his J.D. from the University of Richmond and his LL.M in International Law from Georgetown University Law Center. Ed is a member of the Board of Directors of the George Mason University Center for the Performing Arts, a 5-year platinum level fundraiser for the American Cancer Society and host of an annual Law Day celebration which benefits the Fairfax Law Foundation s Pro Bono programs. His brainchild, Jazz 4 Justice, is an annual concert that has raised more than $150,000 for the Fairfax Law Foundation since Recently, other universities and local bar associations have begun to foster this unique partnership between education, music, and law. George Mason University presented Ed with the Directors Award in 2011 for his contributions to the university s music program. Ed was honored in 2009 to receive a Leader of Law Award and the James Keith Award for Public Service. He and his wife, Maura, have two daughters, Maurissa and Brianna.

5 Montreal, Canada Ethics Panel on Professionalism in the Court Fairfax Bar Association Convention October 4, 2013

6 Ethics Panel on Professionalism in the Court CLE Fairfax Bar Association Convention Friday, October 4, :30-3:30 pm Montreal, Canada Moderator- Edward L. Weiner, Esq. Speaking Judges- Judge Mayne, Judge Clayton, and Judge Alden 1:30 1:40 Maintaining and Improving Standards of Profession 1:40 1:50 Attorney Conduct Toward the Court 1:50 2:00 Attorney Conduct Toward Opposing Counsel 2:00 2:10 Attorney Conduct Toward Witnesses and Jurors 2:10 2:20 Improper Criticism of Judges 2:20 2:30 Practice Pointers: Rules of the Road for Attorney Conduct Professionalism Hypotheticals 2:30 2:40 Courtroom Tactics Hypothetical (Roger Lukens) 2:40 2:50 Communications with Court Hypothetical (George York) 2:50 3:00 Obligation to Cite Adverse Authority Hypothetical (Susan Slater) 3:00 3:10 Conflict of Interest (Super Secretary) 3:10 3:20 Civil Litigation False Testimony of Expert Witness on Collateral Issue 3:20 3:30 General Practice Withdrawing Partners or Lawyers

7 This material is presented with the understanding that the publisher and the author do not render any legal, accounting, or other professional service. It is intended for educational and informational use by attorneys licensed to practice law in Virginia. Because of the rapidly changing nature of the law, information contained in this publication may become outdated. As a result, an attorney using this material must always research original sources of authority and update information to ensure accuracy when dealing with a specific client s legal matters. In no event will the author, the reviewers, or the publisher be liable for any direct, indirect or consequential damages resulting from the use of this material. The views expressed herein are not necessarily those of the Virginia State Bar. 1 st Printing, December nd Printing, November rd Printing, October th Printing, November th Printing, November th Printing, September th Printing, September th Printing, September th Printing, September th Printing, September th Printing, September th Printing, September th Printing, September th Printing, September th Printing, September th Printing, September th Printing, September th Printing, September th Printing, September th Printing September st Printing, September nd Printing, September rd Printing September th Printing September th Printing September th Printing September 2013

40 Professionalism Hypotheticals

41 Roger Lukens Roger Lukens represents the plaintiff in a medical negligence action. He is convinced that the defendant physician has destroyed a particular document and replaced it in the plaintiff's medical records with a different document that recites the plaintiff's medical history in a manner more favorable to the doctor's defense. Roger has no proof that this has happened, but is convinced by his unfailing intuition that the defendant physician has falsified the medical record. On cross examination, Roger seizes upon a plan to make an honest man out of this doctor. Roger reaches into his file and pulls out a blank piece of paper. After dramatically perusing it in front of the jury, Roger looks condemningly at the doctor and says, "Doctor, when you first took down the medical history of the plaintiff, you wrote something entirely different from what is revealed in your medical file today. Isn't that correct, doctor?" As the doctor squirms, Roger looks at the paper in his hand, then back at the doctor, and the doctor confesses to his alteration of the records. DISCUSSION: Is Roger's conduct proper? George York George York has just represented a defendant in a personal injury suit in which the jury returned a verdict for the plaintiff in the amount of $100,000. Since George does extensive defense representation in personal injury cases, he is most interested in discussing their deliberations with members of the jury. DISCUSSION: 1. May the lawyer ask the juror how the jury reached such a "ridiculous and unfair verdict?" May the lawyer tell the juror that verdicts like the one returned will increase everyone's insurance premium? 2. May the lawyer ask the juror what parts of the presentation of the case impressed him either favorably or unfavorably?

42 Susan Slater Mrs. Unfortunate sustains personal injuries allegedly because of the negligence of Reckless Randy. She sues Reckless Randy in the Circuit Court of Arlington County, claiming he is liable to her for $1 million. Susan Slater represents Mrs. Unfortunate. Susan knows that at trial Mrs. Unfortunate's economist will be prepared to testify that one major component of her damage has a value of $500,000. Thus, Susan fears the defendant will make a motion in limine to exclude that evidence. While there is no Virginia case on point, she anticipates that crafty counsel for Reckless Randy will cite a Maryland case that excluded such evidence. To her surprise, the attorney for Reckless Randy does not mention the case. DISCUSSION: Should Susan cite the case? Super Secretary Plaintiff's Attorney is in the middle of heated litigation with Defense Attorney representing the opposing party. Suddenly, Plaintiff Attorney's secretary quits. Plaintiff's Attorney is familiar with the pool of qualified legal secretaries in his community and knows it to be quite small. He hires Super Secretary, who is currently employed by Defense Attorney. Defense Attorney now files a motion to disqualify Plaintiff's Attorney on the ground that he now has a conflict of interest. DISCUSSION: 1. Can Plaintiff's Attorney hire Super Secretary? 2. Does Plaintiff's Attorney have a conflict of interest that knocks him out of this case? 3. What are Plaintiff's Attorney's supervisory duties with regard to Super Secretary?

43 False Testimony of Expert Witness on Collateral Issue Two weeks ago you settled a large intellectual property case on the courthouse steps. You attribute the favorable settlement in large part to the impressive work and testimony by your expert. You were out of town when the plaintiff's lawyer deposed your expert, so one of your partners defended the deposition. She prepared a summary of the important parts, but you did not have a chance to read the entire deposition until after the case settled. When you read the deposition, you realize that the expert provided false deposition testimony about the number of times you and he met to discuss his opinion (you actually met five times, but he testified that he met with you only once). When you confront the expert, he acknowledges the false deposition testimony. He explains that he "got caught up" in the case and did not want to make it appear that you had influenced his opinion so he "downplayed" the number of times you met. DISCUSSION: Must you report the expert's false deposition testimony?

44 Withdrawing Partners or Lawyers You and two of your friends founded your law firm 10 years ago. Thanks to your hard work, you now employ 15 other lawyers. Yesterday you learned that one of your young partners has been planning to leave your firm and begin practicing at a new law firm just a few blocks away. Among other things, she has: (a) rented another office; (b) opened a bank account; (c) spoken with a few other lawyers about hiring them at her new firm; (d) called the clients with whom she works to advise them of her plans; (e) asked that they leave your firm and hire her; (f) planned to deny any intent to leave if asked by anyone else at the firm; and (g) made arrangements to take pertinent files with her when she leaves the firm. DISCUSSION: You and your colleagues naturally resent these actions, and you have taken it upon yourself to analyze the propriety of your partner's conduct. Has your partner acted properly in: a) Renting another office? b) Opening a bank account? c) Calling the clients with whom she works to advise them of her plans? d) Asking that the clients leave your firm and hire her? e) Planning to deny any intent to leave if asked by anyone else at the firm? f) Making arrangements to take files with her when she leaves the firm?

45 Professionalism Hypotheticals Discussion Materials

David Arena joined DiMonte & Lizak located in Park Ridge, Illinois in 1996, and became an equity partner at Di Monte & Lizak in 2005.

David Arena joined DiMonte & Lizak located in Park Ridge, Illinois in 1996, and became an equity partner at Di Monte & Lizak in 2005. David is the Chairman of the firm s Litigation Committee, and is an