Day On Torts : Tennessee Injury Lawyer & Attorney : John Day : Personal Injury, Accidents : Serving Memphis, Nashville, Knoxville

The Board of Commissioers on Grievances and Discipline of The Supreme Court of Ohio has released an opinion of the issue of whether, during settlement of a matter, it is ethical for a lawyer to propose, demand, and or agree to personally satisfy any and all claims by third persons as to settlement funds. 

Here is the Syllabus of the Opinion 2011-1: 

It is improper for a plaintiff’s lawyer to personally agree, as a condition of settlement, to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such agreements are not authorized by Prof. Cond. Rule 1.15(d) and violate Prof. Cond. Rules 1.8(e) and 1.7(a)(2). Further, it is improper for a lawyer to propose or require, as a condition of settlement, that a plaintiff’s lawyer make a personal agreement to indemnify the opposing party from any and all claims by third persons to the settlement funds. Such conduct violates Prof. Cond. Rule 8.4(a). The Board recommends that this advisory opinion be prospective in application.

The Opinion cites a recent opinion out of Tennessee:

In Tennessee, an ethics committee noted that “[r]equiring a plaintiff’s lawyer to enter agreements posed in the inquiry, particularly requiring that the attorney indemnify and/or hold harmless any party being released or subrogation interest holder from medical expenses or liens, creates a conflict between the interests of the plaintiff’s attorney and those of their client.”  Tennessee SupCt, Board of Professional Responsibility, Op. 2010-F-154 (2010). The committee advised that “an attorney cannot ethically agree to such agreements and/or clauses.”  The committee cited Rules 1.7(b), 2.1, 1.2 and 1.8(e). Id.

Similar opinions from other states are also cited.

This is a real problem for the plaintiff's bar and it nice to see it addressed by the various disciplinary boards.

Thanks to my wife Joy, a member of the Ohio (and Tennessee and Michigan and Kentucky) bars for directing my attention to this opinion.

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The Federal Highway Administration has ruled that the 2009 Edition of the Manual on Uniform Traffic Control Devices must be adopted by the states as their legal standard for traffic control devices within two years.   Here is an excerpt of the Federal Register discussing the rule change. 

The MUTCD contains all national design, application, and placement, standards, guidance, options, and support provisions for traffic control devices. The purpose of the MUTCD is to provide uniformity of these devices, which include signs, signals, and pavement markings, to promote highway safety and efficiency on the Nation's streets and highways.  The MUTCD is adopted by reference in accordance with Title 23, United States Code, Section 109(d) and Title 23, Code of Federal Regulations, Part 655.603, and is the national standard for all traffic control devices installed on any street, highway, or bicycle trail open to public travel. 

The 2009 edition supersedes all previous editions and revisions of  the MUTCD.   Here is the PDF version.     There is already a change proposed to the 2009 edition.

Here are several PowerPoint presentations that explain the difference between the 2003 MUTCD and the 2009 edition.

Title 23 of the Code of Federal Regulations requires all States to do one of three things within two years after a new national MUTCD edition is issued or any national MUTCD amendments are made: 1) adopt the new or revised national MUTCD as the standard for traffic control devices in the State; 2) adopt the national MUTCD with a State Supplement that is in substantial conformance with the new or revised national MUTCD; or 3) adopt a State MUTCD that is in substantial conformance with the new or revised national MUTCD.

Thanks to Dale Darby of Brewer and Terry in Morristown, TN for bringing this to my attention.

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