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From Counsel Table to the Witness Stand: Practical Tips and Ethical Solutions When the Attorney Becomes a Witness


Level: Advanced
Runtime: 64 minutes
Recorded Date: June 08, 2021
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Agenda

  • When can you depose an attorney?
  • Model Rule 3.7: Advocate Witness Rule
  • Preserving confidentiality and privilege
  • Testifying adverse to client
  • Legal Malpractice - Disputes with clients
  • Attorney billing issues
  • Corporate General Counsel
  • Transactional Lawyer
  • Examining the Trial Attorney: Risky Business
  • Crime Fraud Exception
Runtime: 1 hour, 4 minutes
Recorded: June 8, 2021

Description

There are many ethical issues that come into play when an attorney is a percipient witness. This program will cover the ethical issues, such as when can an attorney be deposed, what conflict issues arise when counsel is also a witness, and the best practices for preserving confidentiality and the attorney-client privilege.

Ethical Rules 1.6 and 3.7 will be discussed in detail, as well as attorney-client and attorney work product privileges. This program will also cover practical tips for attorneys that are forced to testify, as well as advice for ethically deposing and cross-examining testifying attorneys.

This program was recorded on June 8th, 2021.

Provided By

American Bar Association
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Panelists

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Alanna Clair

Partner
Dentons

Alanna Clair is a partner in Dentons' Law Firms group and Insurance group. Her practice focuses on professional liability and law firm defense, insurance coverage and bad faith defense, and commercial litigation.

Alanna is currently the co-chair of the Attorneys' Liability Subcommittee of the American Bar Association's (ABA) Professional Liability Litigation Section, which focuses on issues unique to litigators who prosecute or defend claims against lawyers and other professionals. She is also a member of the CLE Committee for the ABA's Center for Professional Responsibility.

Alanna represents and counsels professionals—lawyers, law firms, accountants, engineers, financial planners and business managers, insurance brokers, travel agents and others—in high-stakes litigation and grievances. She also regularly counsels professionals on best practices for a host of ethical or business concerns, claim management and avoidance and other issues unique to this space, including privilege, professional responsibility and partnership law.

Alanna writes and lectures regularly on issues of lawyer liability, legal malpractice defense and ethics. She is the co-author of articles containing practice tips for attorneys that appear twice a month in the Daily Report (Georgia), the Daily Journal (California), the Recorder (California), Texas Lawyer and the Connecticut Law Tribune. Some of those articles can be found on Dentons' "Practice Tips for Lawyers" page. She is also the co-author of two treatises published by American Lawyer Media: Georgia Legal Malpractice Law (2019, 2020, 2021) and The Lawyer's Handbook: Ethics Compliance and Claim Avoidance (2013).

Alanna regularly represents insurance companies in high-stakes cases involving coverage disputes and allegations of bad faith, from demand letters and reservations of rights through trial. She has developed a niche in advising and litigating on behalf of insurers who are involved in professional negligence disputes brought by high-profile individuals and celebrities. A routine part of her practice is counseling insurers on "avoiding the set-up" and navigating risks of bad-faith exposure.

She has navigated litigations through successful summary judgment and trials on behalf of insurers involving matters of first-impression with regard to bad faith, duty to defend and settle, and improper conduct by insureds. Alanna is also called on by her clients to monitor high-exposure cases to advise on the risks or likelihood of success of the claims brought against insureds.

Alanna has been recognized by the District of Columbia Bar as a member of either the Capital Pro Bono High Honor Roll or the Capital Pro Bono Honor Roll every year since their inception in 2011. In December 2019, Alanna first-chaired a trial on behalf of a pro bono client and won a motion for judgment in her client’s favor after five days of testimony and evidence.

She recently completed her second term on the DC Bar Foundation's Young Lawyers Network (2013-2018) and the National Women's Law Center Leadership Advisory Committee (2016-2019).

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Michael LeBoff

Partner
Klein & Wilson

Michael S. LeBoff brings more than 20 years of business trial practice to Klein & Wilson, handling and winning trials, arbitrations, and high-stakes disputes.

Mr. LeBoff attended Loyola Law School on a full academic scholarship, graduating second in his class of nearly 400 students. At Loyola, Mr. LeBoff received countless academic awards and served as an editor for the Loyola Law Review.

After graduating from law school, Michael LeBoff clerked for the former Chief Judge of the Central District of California, Manuel L. Real, where he saw firsthand the importance of always being prepared before entering the courtroom. Following his clerkship, Mr. LeBoff developed his trial skills working at some of the finest law firms in Orange County where he had the opportunity to go up against Klein & Wilson in a complex joint venture litigation. Having developed mutual respect for each other’s skills and civility, Mr. LeBoff joined Klein & Wilson in 2016. Less than two years later, he was named the first new partner in the first 25-year history.

Michael LeBoff represents clients of all sizes in a wide variety of business cases, including shareholder, partnership and joint venture disputes, trade secret claims, fraud, breach of contract, business torts, real estate, and legal malpractice actions.

Mr. LeBoff also spent a portion of his career in the client’s chair, as he served as in-house litigation counsel for ACC Capital Holdings, the parent company of large, nationwide financial services companies. During that time, Mr. LeBoff represented his client in consumer litigation, class actions, employment litigation, trade secret cases, and insurance coverage disputes. As in-house counsel, Mr. LeBoff managed nationwide litigation and worked daily with outside counsel to develop and implement cost-effective litigation strategies. Mr. LeBoff also reviewed and approved outside counsel bills and reported to senior management on significant litigation activities. In this role, Mr. LeBoff learned the importance of billing efficiencies and litigation results.

Mr. LeBoff currently serves as a co-chair of the Professional Liability Litigation Committee of the American Bar Association’s Section of Litigation. Mr. LeBoff previously served three years as co-chair of the section’s largest committee, the Commercial and Business Litigation Committee. He currently chairs its Ethics Subcommittee. In 2019, Mr. LeBoff was elected to the Orange County Bar Association’s (“OCBA”) Board of Directors. Mr. LeBoff served as the Chair of the OCBA’s Business Litigation Section. Mr. LeBoff is also the former chair of the OCBA’s Banking and Lending Section.

Outside of the office, Mr. LeBoff is a husband and father of two teenage daughters. Mr. LeBoff coached his daughters’ T ball and soccer teams and led his girls’ Adventure Princess Expedition. Mr. LeBoff is a die-hard Las Vegas Raiders fan, a fantasy sports athlete, and a recreational pickleball and poker player.

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Ronald C. Minkoff

Partner
Frankfurt Kurnit Kelin & Selz PC

Mr. Minkoff is one of New York State’s leading practitioners in the field of attorney ethics and professional responsibility, representing attorneys in a wide variety of matters including law firm partnership disputes, attorney discipline cases, legal fee disputes and legal malpractice and professional liability cases on behalf of both plaintiffs and defendants. He also provides ethics opinions and advice to a wide variety of law firm clients. He often serves as an expert witness in legal malpractice lawsuits and attorneys’ fees disputes.

Mr. Minkoff is a member of several Bar Ethics Committees, including the Committee on Standards of Attorney Conduct (COSAC) and the Committee on Attorney Professionalism of the New York State Bar Association. He is also the Treasurer of the New York County Lawyers’ Association, Co-Chair of NYCLA’s Task Force on Professionalism, a member of the American Bar Association Standing Committee on the Delivery of Legal Services, and a past President of the Association of Professional Responsibility Lawyers. He has written extensively for the New York Professional Responsibility Report, The Professional Lawyer, The New York Law Journal, and other publications. Mr. Minkoff is the former co-Managing Editor of the New York Legal Ethics Reporter and author of Lexology’s New York Professional Negligence Navigator. He has taught Professional Responsibility at Columbia University School of Law, New York University School of Law, Fordham Law School, Brooklyn Law School and Benjamin N. Cardozo School of Law. He is a frequent lecturer on the law of lawyering.

In addition, Mr. Minkoff represents businesses and individual professionals and executives in a wide variety of commercial litigation, including business break-ups, securities lawsuits, and domestic and international trade disputes. He represents several law firm partners and law firms in partnership disputes, lateral transitions and law-firm dissolutions. And he represents an internationally known petrochemist in an oil and gas venture dispute. Mr. Minkoff was a member of Chief Judge Lippman’s Task Force on Commercial Litigation in the 21st Century. He is on the Executive Committee of the New York State Bar Association.

Mr. Minkoff was named Best Lawyers in America 2019 “Lawyer of the Year” in Legal Malpractice Law - Defendants and 2011 “New York Ethics and Professional Responsibility Lawyer of the Year.” He is also recognized by Best Lawyers for his work in Commercial Litigation, Ethics and Professional Responsibility, and Legal Malpractice Law - Defendants. He has been named a New York-area “Super Lawyer” for Professional Liability: Defense Work and Business Litigation by Super Lawyers magazine for sixteen consecutive years.

Mr. Minkoff is a graduate of Columbia Law School (JD, 1980). He was an attorney at the Nassau County Legal Aid Society (1980-83), and was associated with Obermaier Morvillo & Abramowitz, P.C. (1983-85) and Owen & Fennell (1985-87). Mr. Minkoff was a member of Fennell & Minkoff (1987-94) and Beldock Levine & Hoffman (1994-2001) before joining Frankfurt Kurnit. He is admitted to practice in New York and local federal courts.


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