Tenn. Bar's ethics chair says letters from asbestos attorneys crossed line

Jessica M. Karmasek May 12, 2011, 6:00am


MEMPHIS, Tenn. (Legal Newsline) - The chairman of the Tennessee Bar Association's ethics committee says letters sent from asbestos attorneys to potential witnesses asking them not to speak with defense lawyers appear to be a violation of ethics rules.

Brian S. Faughnan, an attorney with Thomason Hendrix Harvey Johnson & Mitchell PLLC in Memphis, has been the chairman of the bar association's Standing Committee on Ethics and Professional Responsibility since June 2009. He frequently speaks at seminars, both in-state and out-of-state, on legal ethics issues.

Faughnan said there can be some "really thorny" and difficult questions when it comes to interpreting Tennessee's ethics rules. This, he said, doesn't seem like one of them.

"The lawyers involved might try to say that there's some meaningful difference between a 'request' and a 'suggestion,' but that seems like an awful slender reed and a dangerous one to boot since a 'suggestion' from a lawyer usually sounds a lot like legal advice," he said.

On April 28, attorneys for a group of companies filed a motion in the case of Carl "Smokey" Abbott, who is represented by Jimmy Rodgers Jr. of Summers & Wyatt PC and John E. "Rett" Guerry III of Motley Rice LLC.

The companies that filed the motion are: Bayer CropScience Inc., Certainteed Corp., General Electric Co., Georgia-Pacific Corp., Industrial Holdings Corp., Union Carbide Corp., CBS Corp., ITT Corp. and Yarway Corp.

The companies' attorneys want the Hamilton County Circuit Court to bar Rodgers and Guerry from undertaking "further improper communication" with potential witnesses and prohibit the future use of a letter asking witnesses not to speak with defense counselors.

The attorneys say the letters are "prejudicial" to the defendants because they disparage the companies, their counsel and the discovery process.

According to court documents, on or about Feb. 1, the plaintiff's counsel served discovery responses in which they identified 24 living individuals believed to be co-workers of Abbott.

Abbott, who was diagnosed with mesothelioma, filed a lawsuit against the various manufacturers and suppliers of asbestos-containing products in which he was allegedly exposed to while working for the Tennessee Valley Authority, or TVA.

Also on or about Feb. 1, the plaintiff's counsel sent letters to 17 of the individuals disclosed in discovery.

In these letters, the plaintiff's counsel claimed that speaking with defense lawyers would not be in the best interest of the witnesses or plaintiff; asked the witnesses not to speak with the defense lawyers or any representative of the defense counsel; stated that the defense lawyers would try to trick the witnesses into lying; and asked these witnesses not to provide any affidavits or statements to any defense lawyers.

In such a letter to George Maynor, Rodgers -- who CC'ed Guerry on all of the letters -- tells the man he does not have to speak with defense lawyers.

"Please also note that you are not doing yourself or Mr. Abbott any favors if you voluntarily choose to do so," Rodgers wrote.

"Therefore, if anyone (other than me, someone from my firm, or someone speciffically from the Motley Rice law firm) contacts you and tries to ask you questions about Mr. Abbott or your work at TVA, it is my suggestion that you politely but firmly refuse to speak or respond to them. In the long run, this will minimize your time involvement and will help make sure that the testimony you give is the truth."

At the end of the two-page letter to Maynor, Rodgers writes, "Knowing that you are a friend and/or former co-worker of Mr. Abbott, and knowing (like us) that you want to tell the truth, please do not sign any affidavits or other documentation that you might receive from these lawyers."

Faughnan said Tennessee's Rule 3.4(f) "quite clearly" makes it unethical for a lawyer to "request" that somebody -- unless that somebody is the lawyer's client or a relative or agent of that client -- "refrain from voluntarily giving relevant information to another party."

"The quoted language in the letters appears to be a pretty straightforward violation of Rule 3.4(f)," he said.

Rule 4.3, he added, prohibits lawyers from giving almost any legal advice to an unrepresented person when there is a "reasonable possibility" that the interest of the unrepresented person will be in conflict with the interests of the lawyer's client.

Faughnan said lawyers frequently will reach out to potential witnesses and let them know they don't have to talk to lawyers for the other side -- "But what appears to have happened in (these) letters to witnesses goes well beyond that," he said.

"The ethics rules draw a pretty clear line. They can still see that line from where they are, but it seems to me that they clearly crossed it," Faughnan said.

Faughnan is the co-author of "Professional Responsibility in Litigation," which was published by the American Bar Association earlier this year.

A significant part of his practice involves representing lawyers, law firms and others on issues that involve legal ethics, professional responsibility and what he calls the "law of lawyering."

The U.S. Senate recently voted 50-44 to put Jack McConnell, a Motley Rice attorney, on the bench in Rhode Island federal court. McConnell works in the firm's Rhode Island office, while Guerry works in South Carolina.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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