Thursday, August 27, 2015

Appeal of Arbitration -- answers to many "what if" scenarios will be provided

As part of the first day in at the Forum's #ADRSummit in Austin, John Bulman and Ben Wheatley are offering a practical (and hopefully interactive) workshop on the intersection between arbitration and appeals.  Both Ben and John are experienced construction attorneys and American Arbitration Association (AAA) arbitrators.  John was also a Board Member of the AAA for twelve years, is currently a member of the Board of Governors of the American College of Construction Lawyers (ACCL), and a fellow of the College of Commercial Arbitrators (CCA) -- all co-sponsors of the #ADRSummit.

During their hour discussion, Ben and John will consider many of the burning “what if” questions that can arise in the context of appellate arbitration and appealing an arbitrator’s decision to a court.  Some of the highlights include “what if the institutional provider appoints an arbitrator that lacks necessary industry experience in the subject of the claims?” and “what if a court stays your litigation pending arbitration but applies the blue pencil approach to rewrite your arbitration agreement?”  John and Ben also will touch upon the “hidden appeal,” the availability of discovery in a vacatur action, and whether manifest disregard is still viable or past its prime.  

If you haven't registered for the Fall Meeting yet, #FCLAustin, do so before August 31st to take advantage of the early bird pricing. Register here:  

Tuesday, August 25, 2015

The Construction ADR Summit, Plenary 6: In Defense of Lying

Is it ethical to lie in a mediation?  Or, more to the point, how far should deceit or puffery really go?

Maybe the question should be how much truth must a party tell during a mediation.  In fairness, most attorneys expect gamesmanship when they go to a mediation. 

But, does the mediator have any ethical rules to follow?

Imagine the following scenario: you are a mediator trying to get a case settled. The case involves a lien that was filed in your state. After a brief review of the parties' mediation statements and document submissions, it becomes pretty clear to you that the party filing the lien has a fairly clear defect in its lien filing that makes it invalid.  

When you get to the mediation, the parties make their initial presentations.  You start in caucus with the owner to gauge the owner's interest in putting money on the table despite what seems to be the obviously invalid lien.

To your surprise, however, the project owner and its counsel apparently do not realize the problem with the lien's validity.  In your first caucus session, the owner's representative says to you in confidence, "I think we have some problems here, and we need to settle this today."

As the mediator, do you say anything to the Owner about what appears to be the invalidity of the lien?  Do you have any responsibility to say anything?

Former Division 1 chair Buzz Tarlow of Tarlow & Stonecipher, PLLC, in Bozeman, Montana, and Charles M. Sink of Farella, Braun + Martel LLP in San Francisco, California, will be discussing this issue, among others, in the final session of the Construction ADR Summit in Austin, Texas.  

Buzz was kind enough to take a few minutes to talk to me about this presentation. He pointed out to me that, to date, neither he nor Mr. Sink have found a single reported case anywhere in the United States in which a mediator was found to have committed an ethical violation based on their conduct during the mediation. 

Indeed, is there even a body of law or rules spelling out the ethics a mediator must follow? Do we as lawyers and advocates even want rules for mediators?

These topics -- and a discussion of the theory called consensual deception -- will feature prominently in the final Plenary session in Austin, as will the ability to obtain ethics CLE credit.

Monday, August 24, 2015

Forum ADR Summit, Plenary V: The View from the Tower: New Perspectives on ADR

In my post a few weeks ago, I urged young construction lawyers to attend the upcoming Forum Construction Law ADR Summit on October 8-9, 2015, in Austin, Texas because young lawyers have unique ideas, experiences, and perspectives regarding practicality, reasonableness, and cost-effectiveness that will undoubtedly shape ADR’s future.

Plenary V at the Summit will provide additional insight from the best and brightest in academia.  Tom Stipanowich, Acadamic Director of Pepperdine University School of Law’s Straus Institute for Dispute Resolution, will present compelling new data on ADR trends: What does the industry expect from ADR?  Has ADR delivered on its promise?  How will the recent past shape the future? 

Next, Stan Sklar, Executive Director of DePaul University College of Law’s Center for Dispute Resolution, will discuss the unique nature of arbitration, how lawyers have hijacked the process and eroded its effectiveness, and how to debunk arbitration myths to get it back.

Finally, Dean Thompson will present up-to-date nationwide survey data from arbitrators on their general preferences and the application of the most commonly used arbitration rules.

We look forward to seeing you at the Summit.  To learn more, please click the link for the Forum’s Construction Law ADR Summit Brochure.

Wednesday, August 19, 2015

Discounted Early Bird Pricing for the Forum's Fall Meeting #ADRSummit (10/8-9) Ends August 31, 2015

Register today:


Join the best construction lawyers in the land at the Forum's Fall Meeting for the Construction ADR Summit in Austin, Texas on October 8 - 9, 2015. 

This program will convene renowned practitioners, top service providers, leading academics, and major stakeholders in Construction ADR for an in-depth look at the past, present and future of ADR in the construction industry. 

The program also features: 

• Accommodations at the Hilton Austin in downtown Austin, Texas; 

• Convenient access to Austin's famed Sixth Street music scene, the University of Texas, the LBJ Presidential Library, and other highlights of the capital of Texas; and 

• Opportunity to attend the Austin City Limits Music Festival, one of the largest music festivals in the country, occurring on the weekends before and after the meeting. 

While the program will offer much for the construction advocate, it will also appeal to both transactional lawyers and current or aspiring neutrals. 

This program is co-sponsored by over a dozen ADR industry participants. Stay in touch with announcements and updates with the Forum's application and on social media (@ABAConstruction, #FCLAustin).

Thursday, August 13, 2015

The Masked Attorney Unveiled: Full Disclosure Required for Ghostwriting Pleadings in Rhode Island

The Scenario: A sole proprietorship carpenter who has a successful luxury home renovation business calls you and asks for help perfecting a mechanic's lien in her state.  You say absolutely and send off your standard form of engagement letter with a list of documents/information you need to prepare the lien paperwork. 

The carpenter calls back saying that he just needs the lien paperwork filled out and he will handle all the filings including filing the action in Court. 

He says "I don't want you to appear for me, I don't need an attorney to talk for me, I don't need a mask.  I do want the mechanic's lien paperwork done per the statute, which frankly I don't understand." 

Can you do what the client is asking under the applicable civil rules of procedure and rules of professional responsibility? 

The issue of attorney ghostwriting for pro se litigants was recently decided by the Rhode Island Supreme Court in FIA Card Services, N.A. v. Pichette, Nos. 2012-272-Appeal, 2013-156-Appeal, 2013-157-Appeal (R.I. June 8, 2015).  The Court consolidated three cases where three different attorneys had been sanctioned by the trial court for ghostwriting pro se litigants' pleadings.  There were two issues considered by the Supreme Court:
  1. "[W]hether an attorney who engages in ghostwriting -- providing drafting assistance to a pro se litigant without disclosing his or her identity to the court either by signing the pleading or entering his or her appearance -- violates Rule 11." FIA Card Services, at *12.
  2. "[W]hether 'ghostwriting' is permitted under Article V, Rule 1.2(c) of the Supreme Court Rules of Professional Conduct [which expressly permits limited scope representation]."
Rule 11 Is Not Violated By Ghostwriting

Following a line of federal court cases that condemn ghostwriting as a violation of Rule 11, the Trial Court issued sanctions against two of the attorney appellants because such conduct violated the purpose of the rule.  Construing the language of Rhode Island Superior Court Rule of Procedure, Rule 11 (based off of the 1983 version of Fed. R. Civ. P. R. 11), one of the hearing justices wrote:
While this language might be read to suggest that a non-signing attorney cannot be sanctioned under Rule 11, the [c]ourt finds that this reading runs contrary to the clear intent of Rule 11, which is to enforce an attorney's ethical obligations of candor and honesty in interactions with the tribunal.
FIA Card Services, at *14.  While the Supreme Court agreed with the policy findings of the trial justice, it disagreed with the "expansive interpretation of Rule 11 in the ghostwriting context." FIA Card Services, at *14.  The Court explained:
[T]he linchpin of Rule 11 is its signature requirement. This signature provides the vehicle through which courts may reach attorneys or litigants to impose sanctions, if necessary, for misconduct in the submission of signed papers during the litigation process.
FIA Card Services, at *14.  Thus, because each of the appellant attorneys did not sign the pleadings presented by the pro se litigants, the Supreme Court vacated the Rule 11 sanctions issued against the three attorneys. 

Undisclosed Ghostwriting Is Prohibited In RI (but check your state)

Limited attorney client engagements are permitted in Rhode Island by Rule of Professional Conduct Rule 1.2(c).  Mirrored after the ABA's Model Rules of Professional Conduct, Rule 1.2(c) "allows that '[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.'" FIA Card Services, at *19. 

The Court engaged in a thoughtful analysis of whether an attorney providing ghostwriting services is dishonest (MRCP R. 8.2) and/or violates the duty of candor to the tribunal/opposing party.  It cited repeatedly the ABA's Formal Opinion 07-446, Undisclosed Legal Assistance to Pro Se Litigants (May 5, 2007), which surveyed different jurisdictions and concluded "that there is no prohibition in the Model Rules of Professional Conduct against undisclosed assistance to pro se litigants, as long as the lawyer does not do so in a manner that violates rules that otherwise would apply to the lawyer's conduct." ABA Formal Opinion 07-446, p. 4.

The Court noted different paths taken by jurisdictions:
  • California: Permits complete nondisclosure of attorney assistance. FIA Card Services, at *20, citing Cal. Rules of Court Title 3, chapter 3, Rules 3.35, 3.37.
  • Massachusetts, New Hampshire, Connecticut: Requires a written disclosure in a pleading that legal assistance was provided in the preparation of the document, but permits anonymity. FIA Card Services, at *20, citing Mass. Sup. Jud. Ct., Order In Re: Limited Assistance Representation (2009). [Note that these are the bordering states of Rhode Island.]
  • Colorado: Requires the attorney's name assisting with the drafting to be disclosed on the document. FIA Card Services, at *20, citing Colo. R. Prof. Cond. 1.2; Colo. R. Civ. P. 11(b).
Recognizing the need for "clear guidelines to assist practitioners navigating these murky waters[,]" the Court "declar[ed] the policy in [Rhode Island] courts to be as follows:
  • An attorney may provide legal assistance to litigants appearing pro se before courts, provided the scope of the attorney's representation is reasonable and the litigant gives informed consent. See Rule 1.2(c). 
  • Such consent shall be in writing and shall set forth the nature and extent of the attorney-client relationship.
  • An attorney, however, shall not assist a pro se litigant with the preparation of pleadings, motions, or other written submissions unless the attorney signs the document and discloses thereon his or her identity and the nature and extent of the assistance that he or she is providing to the tribunal and to all parties to the litigation.
  • The attorney shall also indicate on the written document, if applicable, that his or her signature does not constitute an entry of appearance."
FIA Card Services, at *21-23 (bold font and bullet points not in the original).  Departing from its neighboring states, the Rhode Island high court believed "full disclosure of the attorney's involvement, albeit limited, is the better practice" because a drafting attorney ". . . should be held to imparts the same standard of good faith as an attorney of record." FIA Card Services, at *23.


The answer to the initial questions raised in the scenario above, of course, is "it depends."  What if you are in a state that has not decided the issue?  While the Rhode Island Supreme Court heavily cited the ABA Formal Opinion, it chose not to follow it. 

As demand increases to grow for limited-scope or "un-bundled" representation, these issues should become more uniform across state-lines.  Until then, it is particularly important to consult the rules of each state in which you practice before agreeing to be the man or woman behind the mask. 

The author, Tom Dunn, is one of The Dispute Resolver's Co-Editors. Tom practices construction law and complex business litigation in Rhode Island and Massachusetts.  He is a partner at Pierce Atwood, LLP. He also serves on the Steering Committee for Division 1 of the Forum on Construction Law, the Associate Editor of Under Construction, the Forum on Construction Law's newsletter, and is involved in the Forum's Publications and Membership Committees.   Tom can be contacted at 401-490-3418 or