All Trial Lawyers are bound by being as aggressive as they are ethical. The following is the text of a presentation authored and presented at the request of the National Business Institute by Mr. Monroe.

A. Rules of Professional Conduct

In the Preamble to the Code of Professional Responsibility, the American Bar Association has set forth for the trial practitioner the rules by which our conduct is governed. The Code states that:

Each lawyer must find within the lawyer's own conscience the touchstone against which to test the extent to which the lawyer's actions should rise above minimum standards. But in the last analysis, it is the desire for the respect and confidence of the members of the legal profession and the society which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.

It is not uncommon for the lofty goals stated in the Preamble to collide with the realities of the day to day practice of law. When this collision occurs, the trial practitioner must be guided by not only the Code of Professional Responsibility, but one's own code of moral behavior. The Disciplinary Rules supplement this personal code, as do Local Rules of Court. The purpose of this section of the presentation shall be to define those rules and amplify upon their practical effect.

The Code of Professional Conduct has been incorporated into Rule 8 of the Supreme Court Rules for the State of Tennessee. Within those Rules, Disciplinary Rule 7-106 Trial Conduct regulates, in part, the duties of the trial practitioner. First, and perhaps foremost, within Rule 7-106 is the statement that a lawyer shall not disregard or advise a client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding. Needless to say, it is idiomatic in the law that an attorney must advise his or her client to follow court orders. However, sometimes it is forgotten that the Local Rules of Court are in essence a standing order of that court. A discussion will follow this section concerning Local Rules of Court which regulate the trial practice in the various grand divisions of this state.

Rule 7-106 sets forth certain disclosure requirements in the conduct of litigation. They are:

1. A lawyer shall disclose legal authority in the controlling jurisdiction with is directly adverse to the position of the client and which is not disclosed by opposing counsel.
2. Unless privileged or irrelevant, a lawyer shall disclose the identities of the clients the lawyer represents and of the persons who are employed by the lawyer.
3. A lawyer shall not disclose any matter that the lawyer has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.
4. A lawyer shall not ask any question that lawyer has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.
5. A lawyer shall not assert the lawyer's personal knowledge of the facts in issue except when testifying as a witness.
6. A lawyer shall not assert the lawyer's personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, the guilt or innocence of an accused, however, a lawyer may argue on the lawyer's analysis of the evidence.
7. A lawyer shall not fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving the opposing counsel timely notice of an intent not to comply.
8. A lawyer shall not engage in undignified or discourteous conduct which is degrading to a tribunal.
9. A lawyer shall not intentionally or habitually violate any established rule of procedure or of evidence.

In addition to the foregoing, Disciplinary Rule 7-108 regulates communication with or investigation of jurors. Before a trial, a lawyer shall not communicate with nor have someone else communicate with a member of a venire from which the jury will be selected. The Rule indicates that during the trial of a case, a lawyer will not communicate with a juror except in the course of official proceedings. After the discharge of a jury from further consideration of a case, the lawyer shall not ask questions of or make comments to a member of that jury which are calculated merely to harass or embarrass the juror, or to influence the juror's actions in future jury service. This Rule is followed up by many Local Rules that prohibit contact with jurors after the conclusion of their service, except upon notice to the other side and permission of the Court. Additionally, the Rule requires a lawyer to promptly reveal to the Court any improper conduct by a juror or another towards a juror of which the lawyer has knowledge. This duty also includes a requirement that a lawyer advise the Court of any improper conduct towards a member of a juror's family.

Disciplinary Rule 7-109 requires that a lawyer shall not suppress evidence which the lawyer?s client has a legal obligation to reveal. Additionally, the Rule prohibits a lawyer from advising or causing a person to hide or leave the jurisdiction of a tribunal for the purposes of becoming unavailable as a witness. Additionally, the neither Rule states that a lawyer shall not pay nor offer to pay compensation to a witness contingent upon the contents of a witness's testimony or the outcome of a case. However, a lawyer may advance, guaranty, or acquiesce in the payment of:

1. Expenses reasonably incurred by a witness in attending or testifying.
2. Reasonable compensation to a witness for loss of time in attending or testifying
3. A reasonable fee for the professional services of an expert witness.

Disciplinary Rule 7-110 indicates that in an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of a cause with a judge or an official before whom the proceeding is pending, except:

1. In the course of official proceedings in the cause.
2. In writing if the lawyer promptly delivers a copy of the writing to opposing counsel or to the adverse party if that party is not represented by a lawyer.
3. Orally upon adequate notice to opposing counsel.

Within the above framework, there are local rules of professionalism and practice which set forth certain standards of conduct for the trial practitioner. Local Rule 4 of the Hamilton County Bar regulates courtroom decorum. Section 4.08 indicates that counsel shall not exhibit familiarity with witnesses, jurors, or opposing counsel, and the use of first names for adults shall be avoided. During opening statement or argument, no juror shall be addressed individually by name. Section 4.09 requires counsel never to lean upon the bench nor appear to engage the Court in conversation in a confidential manner. Section 4.10 mandates that no person shall converse with any juror, during his term of service, about any matter of fact or law which may pertain to a case on the Court's docket during the juror's period of service, except in open Court or by expressed permission of the Court. Section 4.12 states that attorneys shall not make remarks aside to each other and shall make all objections directly to the Court.

Local Rule of Court, Rule 5 of Davidson County regulates the appearance and conduct of counsel within that jurisdiction. Section 5.04 is divided into six parts. The first five parts set forth appropriate conduct for trial counsel, while the sixth is an adoption of the Standards of Intra-Professional Conduct. Section 5.04 adopts the following standards of conduct:

• At trial, counsel shall avoid the use of first names or other expressions of familiarity with all concerned.
• Lawyers should request bench conferences only when absolutely necessary and should never lean on the bench nor appear to engage the Court in conversation in a confidential manner.
• Lawyers should refrain from interrupting the Court or opposing counsel until the statement being made is fully completed.
• Attorneys shall stand while examining witnesses or addressing the jury or the Court.
• No attorneys or interested person shall engage in any kind of conversation with any juror serving in a court of record.

Standards of Intra-Professional Counsel

1. A lawyer should avoid taking action adverse to the interest of an unrepresented party without proper notice.
2. A lawyer shall promptly respond to attempts by other lawyers to contact him or her, either by telephone or correspondence.
3. A lawyer shall respect his or her opponent's schedule by seeking agreement on depositions dates or court appearances rather than merely serving notice.
4. A lawyer should avoid making ill considered accusations of unethical conduct towards an opponent.
5. A lawyer should not engage in intentionally discourteous behavior for the purpose of attaining an advantage.
6. A lawyer should never intentionally embarrass another attorney and should avoid personal criticism of other counsel.

B. The Tripartite Relationship Among Insured, Insurer and Counsel

Counsel for an insurance company is placed in a delicate and sometimes unenviable position. While the plaintiffs bar has the option of picking and choosing among the multitude of cases presented to counsel, those lawyers representing insureds do not have that luxury. As a result of being required to take virtually all the cases that an insurer sends for defense, insurance counsel also represents not only the good and the bad, but the ugly as well. At the same time, the insured usually only knows only a very few things. First, an insured knows that he has paid his premiums and demands a proper defense. Second, the insured believes (more often than not) that the liability creating event was not his fault and that the plaintiff is inflating his damages and injuries. Third, that the insurance company counsel is "my lawyer" and that no settlement can occur without the insured's permission or approval.

The insurer, on the other hand, often takes the position that the insured has a duty not only of full cooperation with his or her counsel, but that the insured must also set aside the balance of his or her life in defense of the claim. It has been the presenter's experience that the single largest complaint of insureds about the insurer and its counsel is a lack of adequate information and communication.

The foregoing not withstanding, there are many insurers and insurance counsel which spend an inordinate amount of time and money making sure that the insured is properly advised at each step of the proceedings. Many defense firms now have what amounts to an engagement letter with their insureds. Some firms even utilize a brochure to familiarize the insured with the litigation process.

Whatever means are utilized by these firms, the goal is the same. The insured has a duty to be fully advised at each and every step of the proceeding as to his or her legal rights. Also, insurance counsel has the obligation to make clear to the insured that in the event excess claims have been made, that the insured has the right (and in fact sometimes the obligation) to engage his or her own independent counsel.

C. Dealing with the "Excess Claim"

By definition, an excess claim is any claim against an entity for which there is either inadequate insurance coverage or no coverage at all. As insurance premiums rise, whether due to market conditions or claims experience, many businesses and individuals have opted to do without excess or umbrella policies. In counter-point, many plaintiffs' lawyers, out of an abundance of caution, bring suit for amounts far in excess of the reasonable value of the claim. This results in insured individuals being placed in the position of hiring their own counsel to defend an excess claim, which in fact is not an excess claim at all. As an attorney who regularly represents the interests of persons who have had claims placed against them which are in excess of their insurance coverages, the duty of an attorney in that position is clear - try to get the claim settled within the policy limits! This is not as easy as it may sound. In this situation, an attorney representing a person against whom an excess claim has been placed (hereinafter "the excess client"), the attorney is pitted against not only plaintiffs counsel, but perhaps insurance defense counsel as well. A lawyer representing the excess client must try to convince the plaintiff's lawyer that the value of his claim is less than the insurance limits and at the same time try to indicate the difficulty of collectability for any judgment rendered over and above the insurance policy limits. At the same time, the attorney representing the excess client must also try to leverage the insurance company into either offering their policy limits or settling the claim for less than the policy limits involved.

One of the more interesting areas in litigation of this type, occurs when the insurer has paid its policy limits into court, or tendered them to the plaintiff, and takes the position that it no longer has a duty to defend. The duty to defend is separate from the duty to pay and the costs of defense, therefore, are not included as part of the expense which makes up a policy's limits. As a result, under most policies there is no set dollar figure which is the upward limit of the cost of defense. Therefore, the insured gets a particularly valuable benefit in that regard. The flip side is that an insurer gets to take complete control of the litigation which includes the selection of defense attorneys and decisions as to settlement.

A deposit into court though is not a settlement. Often times the trial court will require an insurer to conduct a defense even if the policy limits have been offered or paid into court. In Stanley v. Cobb 624 F.Supp. 536 (E.D.Tenn. 1986) a Federal District Court reached just that conclusion. Also, the opinion of the Attorney General issued on January 16, 1986 (86-07) states that an insurer's duty to defend is not satisfied by an offer to pay policy limits. An ethical opinion suggests that the attorney provided by the insurance carrier may seek to withdraw from representation after the carrier has terminated its obligation to the insured. Tennessee Formal Ethics Opinion 85-F-l00.

Many times the language of the policy will control the Court's final ruling on the subject. For example, one carrier now states that "as we consider it appropriate, we will settle, tender our limit of liability for, or defend with attorneys hired and paid by us, any claim or suit seeking such damages against a covered person". The presenter is unaware of a case that construes this language, but it is apparent that if upheld, it could significantly alter the scope of the duty to defend. Another policy form which is now in use in Tennessee tries to limit the cost of defense by saying "the duty to defend or settle ends when the liability coverage limit of insurance has been exhausted by payment of judgments or settlements." Another policy form states "we will not be obligated to investigate or to defend you after we have paid or offered to pay our entire limit of liability for damages". See Permanent General Assurance Corporation, Automobile Policy. See Memphis Fire Insurance Company v. Rose 14 TAM 5-13 (Tenn. App. E.S. 1988).