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February 2020

What if ABA Model Rule 5.4 didn’t exist?

Feesharing

ABA Model Rule 5.4 is not an enforceable rule of professional conduct, but a model rule that many states have adopted. ABA Model Rule 5.4, prohibits an attorney from sharing fees with a nonlawyer and prohibits a nonlawyer from having an ownership interest in a law firm. During the American Bar Association Midyear Conference, the Association for Professional Responsibility Lawyers also had meeting and events. APRL, has been researching whether to offer suggestions to update the Model Rules of Professional Conduct and is considering whether to change Rule 5.4. The focus is on whether to abolish the prohibition against fee sharing and to allow nonlawyers to invest in law firms and form what is known within bar associations and in Australia and the UK as an alternative business structure or ABS. 

The interest of lawyers and bar associations in sharing fees with nonlawyers has arisen partly in response to multiple bar associations publishing ethics opinions which have stated that certain legal websites, like Avvo, have run afoul of that state’s form of Rule 5.4. Avvo offered a service that would connect a client with a legal issue to a lawyer for a flat and transparent fee. The client paid Avvo the fee, Avvo took a portion of that fee, and paid the lawyer. The bar associations, in sum, found multiple issues with this, such as prohibited fee sharing with a nonlawyer and collecting a fee prior to providing services to a client. Michigan was one of those states and issued State Bar of Michigan, Ethics Opinion R-25. What Michigan failed to acknowledge is the fact that lawyers regularly share fees with nonlawyers in many situations such as: credit card processing fees, insurance defense (individual pays insurance premiums and insurance company takes those premiums and pays a lawyer), and prepaid legal insurance (offered by some unions and employers where an individual pays a premium to receive insurance for possible legal issues; premiums frequently include estate plans). It is baffling as to why the bar associations have come across so harshly against an easy way for solo and small firms to provide legal assistance to individuals. The bar associations could have chosen instead to consider crafting an exception that would allow services, like Avvo, to operate ethically in connecting clients with lawyers.

Alternative Business Structures are allowed in the United Kingdom and Australia. On the panel was Frank Maher, an attorney from the United Kingdom. He said that the ABS system was forced upon the bar by Parliament. In that system, individuals who want to invest in a law firm must undergo the same background checks as a lawyers and are held to the same ethical obligations. If the individual owner disobeys the ethics rules, the individual is prohibited from ever owning a law firm. Since ABS has been implemented, complaints against law firms have gone down, but law firms still fold as they have done in the past and the big 4 accounting firms have grown their legal offerings. To me, the biggest benefit of the ABS system, is the ability of a law firm to join with another profession, such as CPAs, to offer clients holistic services (tax and legal services at the same time), but also to diversify the risk by a single company by offering different services to the public (if a company’s tax services are not performing well – the company’s legal services could gain business to support the organization).

Amy Krieg

Habitat for Humanity of Huron Valley

Ann Arbor, MI

www.h4h.org


Creating an Effective Attorney-Client Relationship

Attorneyclient

It may come as no surprise that emotions may run high in family law cases. While some matters are more amicable than others, others are extremely contentious, emotional, and simply draining. As an individual in the throes of such a case, it is often easy to overlook the fact that you and your attorney are on the same side. In this article, some brief ideas concerning effective communication in attorney-client relationship are explored.

At the outset of the case, meaningful communication between an attorney and client is essential. As a client, you want to be sure your voice is heard, your concerns are addressed, and the attorney truly has a feel for your case. In turn, the lawyer needs to hear the facts of your case (both positive and negative!) and understand your individual goals.

It goes without saying - both the client and lawyer need to be honest with the other. They need to listen to each other. And, both need to remember to work together to try to bring resolution to the matter.

Sometimes, the above is easier said than done. Why? Because both individuals approach a case from different perspectives. As a client, your case began a long time before you ever set foot in the attorney’s office. The matter is deeply personal in nature, may take up a lot of your time and energy, and essentially may change your life. The attorney is responsible for navigating the legal nuances, practice and procedure, and guiding a client through a family case. 

As an individual, only you (and to an extent the other party), truly knows everything your case entails. You live with it every day. For the lawyer, all the details will not be known as he or she has not lived the case. The case will not affect the attorney as personally as the party who is going through it. Sometimes, that very fact, creates frustration between a client and attorney.

Both individuals need to keep in mind they come to the table, so to speak, with different perspectives. A good attorney will be compassionate, considerate, and zealous in the advocacy of her or his client. But, at the end of the day, the client is the person who’s lived the matter day in and day out.

Both need to work together to create a resolution to the matter and appreciate they are on the same team and not in opposition. Both bring value to the relationship. 

As attorneys we need to be mindful of how we treat our clients both professionally and personally; an attorney-client relationship is a sacred and important role.


Mesothelioma & the Law

Mesothelioma

Mesothelioma is a disease.  The only known cause is exposure to asbestos.  Asbestos particles are inhaled or ingested into the body.  These particles cause abnormal growth of cells. It is a rare form of cancer that originates in many of the protective linings that cover major organs in the abdomen and chest.  Pleural mesothelioma is the most common type of mesothelioma that grows in the area between the chest wall and lungs.  From this area it progresses to the lungs itself and other areas in the thoracic cavity. When it occurs in the abdomen it is called peritoneal mesothelioma.1

Anyone can get mesothelioma who has repeated exposure to asbestos for prolonged periods of time.2  Highrisk occupations include motor vehicle brake repair, shipyard workers, navy veterans, power plants, petroleum industry workers, naval submarine bases, insulation workers and people who work in asbestos removal.  When asbestos is inhaled fibers travel through the upper air passages and become imbedded in the lungs. The latency period for developing mesothelioma can range from 10 to more than 50 years from the date of first exposure.  Many companies knew that exposure to asbestos was dangerous but continued to use asbestos in their products.

MICHIGAN

As of July 2019, Michigan ranks 10thin the United States for mesothelioma & asbestos deaths.https://www.asbestos.com/states/michigan 

TEXAS

Texas ranks 4thin the United States for mesothelioma and asbestos deaths.  At least 2,454 people died from asbestos-related diseases in Texas between 1999 and 2013.  Oil refineries, shipyards, chemical plants and foundries are the primary occupations in Texas attributed to asbestos deaths from mesothelioma and asbestosis.3

NEW YORK

No person in any state or city is immune from contracting asbestos related mesothelioma disease because of the extended use of asbestos materials over the past 100 years.  Asbestos was used in buildings as a fire resistant including residential properties. New York is a leading state for asbestos-related litigation compounded by the horrific 911 event releasing asbestos dust.

SYMPTOMS

Diagnosing mesothelioma requires very careful testing because symptoms are similar to other cancers.  Tightness in the chest, inability to take a deep breath, severe coughing, difficulty swallowing, pain in the chest, weight loss and persistent tiredness are common complaints but each patient is unique and has different symptoms. Other symptoms are wheezing or a dry cough, chest and abdominal pain and shortness of breath.  Symptoms vary based on the location of the disease. Mesothelioma is so rare that your physician may not detect it unless you inform him or her of your exposure to asbestos. Moreover, malignant mesothelioma can develop 10-50 years after exposure, including second hand exposure. Informing your physician of your exposure no matter how sleight is critical.  The definitive diagnosis of mesothelioma is confirmed only by a tissue biopsy.

DIAGNOSIS

X-rays can provide valuable information early in the process of diagnosing a patient.  A CT scan permits the physician to determine the size, location and shape of any mass or tumor.  CT scans can also distinguish between fluid and solid tissue.

            Positron emission tomography (PET) scans identify patients who may benefit from surgery.  The scan identifies tissues that are actively using glucose and measures the amount of this activity.  Tumors and cancer cells use more glucose that normal tissue resulting in these areas becoming prominent on the PET scan.

BIOPSY

A patient with fluid in the abdomen or surrounding the abdomen a large bore needle is used at the biopsy site to obtain a specimen.  Samples of the fluid are sent to the cytology and pathology laboratory to study malignant conditions. Microscopic appearance of the cells provides information as to the specific sub-type of mesothelioma such as epithelioid, sarcomatoid or a mixture of the two called biphasic.

            A more invasive procedure is thoracoscopy in which the surgeon inserts a lighted scope with a camera through a small incision in the chest wall.  This procedure permits the surgeon to obtain multiple biopsies and a broad look into the chest. The surgeon can now identify areas where the disease is located and if the lung is involved, diaphragm or attached to the sac surrounding the heart.  Biopsies are sent to a pathologist for testing to confirm the diagnosis of mesothelioma. Mesothelioma is a rare disease and many oncologists and surgeons are not familiar with it. You should get a second opinion.

STAGING & TREATMENT

            Staging is a medical term to describe the amount of disease found in the body.  All decisions relating to the nature of treatment are made based on the stage of the disease.  Mesothelioma typically affects many areas that line the chest, lungs and abdominal cavity. Lymph nodes, if affected are an important aspect of the staging process and can influence the decision to operate.  If a lymph node is cancerous and operative it will be removed at the time of surgery.

A number of treatment options are available such as chemotherapy prior to surgical intervention to decrease the size of the tumor.  The goal of surgery is to remove all visible evidence of the disease. Each patient is unique and your medical team should coordinate your treatment based on your diagnosis and prognosis.

CONCLUSION

            Malignant mesothelioma is a form of cancer that is caused by exposure to asbestos that has a long latency period.  A few sample high risk jobs are auto mechanics especially brake pad installation, carpenters, ship builders, roofers, boilermakers, oil and refinery workers and plumbers that involve some exposure to asbestos.  Workers should bring any concerns regarding the safe handling of asbestos to their employers and union representatives.

            Anyone who has been diagnosed with mesothelioma or any other asbestos related disease should explore their legal rights. A 30 billion dollar fund has been set aside to compensate workers and their families.  Companies that manufactured, sold or used asbestos containing materials may be liable to employees and consumers for contracting this disease. In April 2018 a New Jersey jury returned a $37 million verdict in compensatory damages and $80 million in punitive damages against Johnson & Johnson.  It was determined that talc baby powder contained asbestos.

            On July 12, 2018 jurors in St. Louis, Missouri awarded plaintiffs represented by Texas lawyer Mark Lanier nearly $4.7 billion in damages in a product liability lawsuit. Plaintiffs claimed Johnson & Johnson baby powder contained asbestos that caused 22 women to get ovarian cancer.  Jurors awarded $550 million in compensatory damages and $4.14 billion in punitive damages. Punitive damages are awarded to punish a defendant for gross negligence or unusually bad conduct.

In December 2018 Judge Rex Burlison of the 22ndCircuit Court in Missouri upheld the $4.7 billion verdict against Johnson & Johnson in Ingham, et al v. Johnson & Johnson. Judge Burlison found that the company knew of the presence of asbestos in their products. The company knowingly targeted for sale to mothers and babies and misrepresented the safety of these products for decades.  This is the 6th largest products liability verdict in U. S. history.

            There is evidence that many companies withheld internal corporate documents of the dangers of asbestos but did nothing to share that knowledge with the public.  Some companies have been successfully sued for willfully withholding information with blatant disregard for human safety.

In an interesting aside On March 19, 2019 federal jurors in San Francisco found that Roundup weed killer was a substantial factor in causing the cancer of Edwin Hardemen a California man. Hardeman, age 70 sprayed the herbicide Roundup on his property for decades.4

About the Author

James A. Johnson of Southfield is an accomplished trial lawyer concentrating on serious Personal Injury, Insurance Coverage under the Commercial General Liability policy, Entertainment & Sports Law and Federal Crimes. Jim is an active member of the Michigan, Massachusetts, Texas and Federal Court Bars. He can be reached atwww.JamesAJohnsonEsq.com 

ENDNOTES

  1. https://www.maacenter.org/mesothelioma, See Lanzo v. Imergys Talc America - a New Brunswick, New Jersey jury awarded the plaintiff $117 million in damages after developing mesothelioma from Johnson & Johnson Baby Power products.
  2. https://www.health.ny.gov/statistics/chac/general/g78.htm
  3. https://www.asbestos.com/states/texas
  4. https://www.sfchronicle.com/bayarea/article/monsanto-s-round-found-by-jury-to-be-likely-13701218.php

Helpful Asbestos Resources

Michigan-https://www.asbestos.com/states/michigan  Michigan ranks 10thin U. S. for     mesothelioma & asbestos deaths. (last visited 5-15-19).

Texashttps://www.asbestos.com/states/texas(last visited 5-15-19)

Connecticut-https://www.asbestos.com/states/connecticut  (last visited 5-15-19)

Massachusetts-https://www.asbestos.com/states/massachusetts(last visited 5-15-19)

Outrageous Misconduct: The Asbestos Industry on Trial, Paul Brodeur, 1985

Fatal Deception: The Terrify True Story of How Asbestos is Killing America, Michael Bowker 2003.

An Air That Still Kills: How a Montana Town’s Asbestos Tragedy is Spreading Nationwide, Andrew Schneider and David McCumber 2016

American Cancer Society                                                    www.cancer.org 

Meso Foundation                                                                  www.curmeso.org

National Cancer Institute’s Malignant Mesothelioma Page www.cancer.gov/cancertopics/types/malignantmesothelioma 

Pleural Mesothelioma Claims Center https://www.pleuralmesothelioma.com  

The Environmental Working Group    www.ewg.org