Pandora’s Inbox

Justin Leslie at table croppedCommunicating with Represented Parties

Part 1 of 3

By Justin O’Dell & Leslie O’Neal

The widespread use of e-mail by lawyers and clients has opened a “Pandora’s box” of ethical issues and traps for the unwary.  Whereas litigators opine that the “E” in e-mail stands for Evidence, bar associations are finding that it also stands for “Ethical Violations.”  A lawyer in California recently learned the distinction in Terraphase Engineering, Inc., et al. v. Arcadis, U.S., Inc., (N.D. Cal. 2010).

At Arcadis, a group of employees were preparing to leave the company to form their own competing company.  Prior to litigation, the employees’ attorney attempted to send an e-mail to his clients, but due to “autocomplete” accidentally sent the e-mail to Arcadis.  The e-mail found its way to in-house counsel who then forwarded the same to outside counsel.  Neither notified the employees’ counsel, but instead used the e-mail as a basis for the Counterclaim ultimately filed in the lawsuit.  The employees’ counsel realized that the information could not have been known but for the e-mail and questioned counsel for Arcadis who admitted receiving and reading the privileged information.

The employees’ counsel filed a Motion which sought only to prohibit Arcadis from use of the privileged information.  Arcadis fashioned many arguments, including a particularly inventive claim that the rules of professional conduct did not apply because there was no active litigation between the parties at the time the e-mail was sent.  The Court ultimately went beyond the Plaintiff’s request and disqualified Arcadis’ outside counsel.  In addition the in-house counsel, who reviewed the e-mails, ordered Arcadis to dismiss its counterclaim without prejudice, to re-file the pleading with new counsel and awarded $40,000.00 in fees to the employees.

Not surprisingly, the use of e-mail was the subject of two of the 2011 ABA advisory opinions.  Issued on August 4, 2011, Opinion 11-459 addressed the duty to protect confidentiality of e-mail communications with a client and 11-460 addressed the duty when a lawyer receives copies of e-mail communications with counsel.  In Parts 2 and 3 of “Pandora’s Inbox”, we will take a closer look at the impact of these 2 ABA advisory opinions and the issues confronting the use of email communications between attorney and client.

 

Supreme Court Weighs in on Family Law Matter Involving Custody Dispute

by Justin O’Dell

Most family law cases are decided on State, rather than Federal, law and also rarely involve issues arising under the U.S. Constitution.  As a result, it is extraordinarily rare to have the Supreme Court of the United States weigh in on a domestic case.  On February 19, 2013, the U.S. Supreme Court did just that, issuing an opinion in Chafin v. Chafin.

The dispute centered on international custody laws which are governed by Federal laws and also by laws set forth by the Hague Convention.  The cases are generally litigated in the Hague and in the Federal Courts.  In this matter, Mr. Chafin, a soldier returning from service in Afghanistan, and Ms. Chafin, born in Scotland, but living in Alabama, were being divorced in Alabama.  Mr. Chafin sought custody of their daughter in Alabama based on allegations of domestic violence and other parenting issues.  Ms. Chafin sought an order to leave with the child back to Scotland.

Ultimately, Ms. Chafin was granted permission to take the child to Scotland since that was the child’s habitual residence prior to the divorce.  She immediately made arrangements to leave.  Mr. Chafin sought to appeal, but was denied on the basis that it was moot since the child had already left to Scotland.  In agreeing to hear the case and listening to the arguments, Chief Justice John Roberts expressed concern that a party could “leave immediately” after a favorable ruling even though the decision is not final under the U.S. legal system.

The Supreme Court reversed the lower courts and held that although it is important that custody matters be decided expeditiously and without shuttling children back and forth, it is equally important that the parents have the rights afforded to them under the legal system.  Accordingly, the Supreme Court held that the decision to return the child to Scotland should have been stayed to allow Mr. Chafin a chance to appeal.

Read more about the case here:

http://www.cnn.com/2012/12/04/justice/court-custody

http://www.huffingtonpost.com/2012/12/05/chafin-v-chafin-supreme-court_n_2245731.html

And the full opinion of the Supreme Court here:

http://www.supremecourt.gov/opinions/12pdf/11-1347_m648.pdf

Justin O’Dell Named to Super Lawyers’ Georgia Rising Stars 2013

Justin cropped Super LawyerJustin O’Dell has been named to the Georgia Rising Stars list as one of the top up-­‐and-­‐coming attorneys in Georgia for 2013. Each year, no more than 2.5 percent of the lawyers in the state receive this honor. The selection for this respected list is made by the research team at Super Lawyers.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-­‐phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

The Rising Stars lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. For more information about Super Lawyers, go to superlawyers.com.

The first Super Lawyers list was published in 1991 and by 2009 the rating service had expanded nationwide. In February 2010 Super Lawyers was acquired by Thomson Reuters the world’s leading source of intelligent information for business and professionals.

Legal Community News and Events

by Justin O’Dell

On February 7, 2013, Georgia Supreme Court Chief Justice Carol Hunstein delivered her State of the Judiciary Address.  The address served as the fourth and final remarks during her term as Chief Justice.  The Georgia General Assembly is presently considering a revision to the juvenile criminal code similar to the highly successful revisions to the adult criminal code in 2011 and 2012.

It is noteworthy that Juvenile offenders are among the most expensive to incarcerate; each juvenile costs the state in excess of $90,000 per year to incarcerate.  Unfortunately, of those incarcerated and released, 75% or more will reoffend.

The Justice’s remarks are not a call to become soft on crime.  As she herself stated “”Some of our juvenile offenders have committed heinous, violent crimes and must be treated as adults and locked away from society. But they are the minority. For our citizens’ sake, we must do better with the majority. Many of our juveniles deserve a second chance.”

Her remarks highlighted the need for mental and behavioral health options for treatment of clearly disturbed juveniles, but also alternatives such as counseling and treatment for petty thieves and drug offenders whose behavior stems from abuse or other issues.

This process marks the continuing reevaluation of the criminal justice system and an important debate worth having.  The rate of incarceration and recidivism has increased precipitously in the United States and in Georgia costing taxpayers billions of dollars in direct expenses on inmates and even more on tangential and societal costs such as foster children of incarcerated parents, lost tax revenue due to unemployment among convicted criminals and property and corporate losses due to criminal activity associated with addiction.

O’Dell Works with Reconnecting Families, Inc.

O’Dell Featured For Work with Reconnecting Families, Inc. and the Family Dependency Court

As Board Chairman of Reconnecting Families, Inc. Justin has had the privilege in arranging annual graduation ceremonies for the mothers and their families at First Baptist Church of Marietta.  In June of 2011, the ceremony was made all the more special due to the attendance and remarks of Governor Nathan Deal and by the presence of his wife, Sandra.

READ MORE: 

2011.6.24 The Marietta Daily Journal – Governor speaks at Cobb drug treatment program

The previous year, O’Dell was also featured in connection with a graduation and new beginnings for several mothers and families.

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2010.09.29 MDJ – New beginnings

Justin was the guest speaker at the Marietta Kiwanis Club weekly meeting.  He was present to discuss the work of Reconnecting Families, Inc., the non-profit organization that he chairs.

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2010.10.24 The Marietta Daily Journal – Bill Kinney Charity works hard at reconnecting

Justin was highlighted as part of the team responsible for “Tiffany’s Transition” in an article highlighting Tiffany Hall and her remarkable life transformation.

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2010.01.15 The Marietta Daily Journal – Tiffany s transition

O’Dell Helps Woman Stay in Foreclosed Home

O’Dell Wins Victory for Woman Fighting to Stay in Her Home

In 2010, Justin helped Luz Cardoza, a divorced single mother, recover her home against a wrongful foreclosure by Wells Fargo.  To quote the Judge in the case:  “There is great responsibility with great power, and you don’t just tell people, ‘Well, I don’t care. I guess we just made a mistake. It’s no big deal,'” Flournoy told the lawyers representing Wells Fargo.

READ MORE: 

2010.08.22 The Marietta Daily Journal – Marietta woman fights to keep home

2010.08.28 The Marietta Daily Journal – Marietta woman gets to stay in foreclosed home

O’Dell & O’Neal Represents Against Fraudulent Tax Preparers

O’Dell & O’Neal Successfully Represents Man Against Fraudulent Tax Preparers

Leslie and Justin were retained by Howard Lincoln as trial counsel after Mr. Lincoln was forced to file a lawsuit due to negligent tax preparation and fraudulent representations of tax services.  The trial team was able to secure a verdict for all of the damage caused and for punitive damages and attorney’s fees.

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2011.10.25 The Marietta Daily Journal – Man wins 150K victory over tax preparer