Carolyn Elefant started an interesting discussion on her My Shingle blog about whether a newly licensed lawyer should be willing to represent celebrity Lindsay Lohan in appealing her recent sentencing to 90 days in jail. It has been reported that Lohan’s lawyer in the case, Shawn Chapman Holley, no longer represents her. Rumors quickly surfaced that a lawyer licensed in November 2009, Tiffany Feder-Cohen, has taken on the representation of Lohan.
As the old saying goes, “Even bad publicity is good publicity.” This high profile case catapulted a brand new, unknown lawyer into the spotlight. Would you leap to take the case if you were in her shoes?
Elefant says there isn’t that much a new lawyer can actually screw up in the appeal of a case that Lohan is almost certain to lose. It may be that the outcome of an appeal would be about the same for Lohan even with a highly experienced attorney, but if Feder-Cohen makes a procedural error, Lohan’s prior behavior would suggest that she would be likely to blame anyone but herself for her predicament. I would suggest that Feder-Cohen should make sure she has a malpractice policy that doesn’t get reduced in coverage by the amount of defense costs expended, because the case could be protracted.
If we assume she has adequate malpractice insurance, one might urge Feder-Cohen to take the case. Even if she screws up, will her reputation really get damaged? Wouldn’t the public tend to blame Lohan for hiring an inexperienced lawyer and cut Feder-Cohen some slack as a newbie? Could it still be a net gain for Feder-Cohen?
Feder-Cohen could have more at stake than malpractice claims and her reputation, however. She might be in violation of her ethical duty and subject to a grievance for even taking the case. If she were practicing in Texas, I would advise her to associate a more experienced lawyer in the case. Rule 1.01 of the Texas Rules of Disciplinary Conduct provides: “A lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence, unless…another lawyer who is competent to handle the matter is, with the prior informed consent of the client, associated in the matter.” It would be pretty easy to assert that Feder-Cohen “should know” that the matter is beyond her competence to handle alone, if she has been licensed less than a year.
The California Rules of Professional Conduct resemble the Texas rules on this subject. Rule 3-110 provides that a lawyer “shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” Under the rule, “competence” requires the learning and skill reasonably necessary, but if a lawyer doesn’t already have it, the lawyer can associate with or consult with a competent lawyer to fulfill that requirement.
Even if Feder-Cohen gets over the hurdle of legal competence, she’ll still have to deal with the media frenzy. As other comments to Elefant’s post have already noted, Feder-Cohen should hire a good media consultant to help navigate those treacherous waters.
Finally, there is one other issue that Feder-Cohen may need our guidance in handling…her client engagement agreement. According to People magazine, Feder-Cohen identified herself to the L.A.Sheriff’s office as Lohan’s new attorney. Another online gossip rag, RadarOnline.com reports “the attorney for Lindsay’s mom Dina, tells us, ‘Tiffany Feder-Cohen is not Lindsay’s attorney and never was. She is just a good friend who is helping out. Lindsay’s new attorney will be announced today.’
This whole scenario is starting to sound like one made up for a law school exam in a Professional Responsibility class. What other issues can you identify?
As you pointed out at the end of this post, these facts would make a great Professional Responsibility final exam question. If it wasn’t laid out before us in the media, it might be hard to believe.
Though this is by all appearances an appeal of a ruling on a probation violation, the facts, circumstances and “complicated” client make this a particularly bad case for a newly-minted attorney. Lohan has refused to heed the advice of some very experienced, very capable counsel, all to her detriment. She has also shown that she is willing to mislead, misinform and perhaps even lie to her attorneys (e.g. the “stolen” passport that was never reported stolen), causing them to appear in court making unknowingly false representations on her behalf.
Lohan desperately needs a lawyer who can gain her trust and steer her out of these new legal troubles. Lohan had a very simple task at hand (go to some classes) and she couldn’t be bothered. An experienced attorney who is willing to be very involved with Lohan’s compliance is essential.
There are some very good questions here. Though I started my post off suggesting this isn’t something that’s taught in law school, your post converts the topic into a potentially teachable issue.
Lindsay’s pleading poverty in an automobile-related case for which she’s currently being sued. If the lawyer’s also a personal friend, that could help because friendship may be the only currency Lindsay wants to go on the record as paying.
Besides, Lindsay needs a captive audience, not a lawyer whom she needs more than the lawyer needs her.
As I doubt any high budget film production would want to be associated with Lindsay Lohan in the future when there are so many competing actresses out there (as well as agents eager to place ’em), is anyone here surprised that Lindsay isn’t getting herself impregnated by some wealthy actor or pro athlete so she can leech off of the guy later, spending child support on herself? Lindsay’s being a lesbian could admittedly complicate such an endeavor, but Lindsay’s also a trained actress… Then again, so was Winona Ryder…