Sector Workshop Blog Archive

Ethics & Alternative Dispute Resolution Methods

Malcolm Lyons, of Pierce Atwood, is talking to us now about the ethical issues raised when you have both individual clients and a fishing cooperative as clients, and the mediation and alternative dispute resolution methods available to members of sector agreements.

He warns lawyers: at an initial meeting about a groundfish sector, you've got to ask and be clear about who's the client -- the individual or the sector? You can't represent the sector and the members at the same time -- it's going to lead to disaster. Conflict identification needs to happen well ahead of time. Consent to multiple representation is hard to get.

Q: (Chuck Remmel): If you're going to get someone who can do this, it's going to be a lawyer who already represents boats and fishermen. Eliminating someone who has current clients in the fishing industry is going to eliminate everyone with necessary experience.

A: I'm not saying that, necessarily. But Maine's bar rules are going to be hard on this. You've got to disclose like crazy, and if a conflict arises between an individual fisherman and the sector, you can't represent anyone. Example: husband and wife car accident claim -- one party confesses something, but don't tell my wife! The minute that comes out, you're in big trouble.

So the engagement letter: no secrets among the members, if you represent the sector. You should spell out who you're not representing as well as who you do represent. Get as many people to sign it as possible. Who are you answerable to? Who can tell you what to do?

In the Hook Sector agreement, the joint and several liability popped out at Mal. How can you represent several sector members when there is joint and several liability -- there's an adverse relationship, or a potential one, between all members.

Maine Bar Rules say that lawyers can't get involved with multiple representation -- if there's a material chance that the interests of one client are going to be adverse to another. If a conflict exists, a lawyer can't undertake or continue simultaneous representation unless there's informed consent, and that a disinterested lawyer would say there's no conflict. If you do that, you need to consult with each client, and tell them what might come up. Any client can fire you, and if you get fired by one client, you can't represent the remaining client without the consent of the ones who fired you.

Mal says: Don't do it. He comes back to the car accident example, where the husband and wife get divorced two years down the road.

In sum: you can't represent a sector and a fisherman. What if the fisherman member calls and says, "I exceeded my allotment, but don't tell the sector." This is an untenable situation for a lawyer. (In such a case, write a letter right away, and a memo to the file. Two months later nobody will remember what you said.) If you haven't anticipated and provided for these situations, something like this will require you to withdraw, which will put the sector in a bad situation.

[The blogger wonders: if there are 65 individual fishermen who might become part of a sector, and there's joint and several liability, and indemnification, do there need to be 66 lawyers involved?]

Joe chimes in at the end of the talk: he informs the sector and individuals that if there's any penalty action, he won't represent either the sector, or the individual, in any enforcement or penalty action. He can continue to represent them in other matters, but not in contract enforcement matters. That's the only way he's been able to find his way through this, and he bases these agreements on informed consent. We worry about relationships as much as about formal conflict issues. The sector has a different attorney, standing by, to do enforcement or contract work. Then at the outset there's someone standing by. It's pretty straightforward commercial litigation work that doesn't require fishing industry experience.

Chuck: often, you're representing a boat owner for lots of things. You have to be clear that if you become a sector lawyer, you can keep representing the boat owner in other matters, but you can't help the owner decide whether to join the sector or interpret the contract terms.

Erik: you can't represent multiple members of a sector, unless you define the scope of representation appropriately, but you will have to withdraw from representing both if there's a conflict between the sector and/or either one of you. This is very important to do ahead of time.

Mal turns to talking about mediation.

Mal opposed the mandatory mediation provision for civil suits when it came out, but admits he was wrong. The only downside -- not enough litigation!

Mediation lets you get at what's really going on, the root of the problem. You should require mediation before you go to arbitration. It's quicker, and if it doesn't work not much is lost. Mal is a big fan of mediation. Sometimes all the other side wants is a chance to tell their story.

Let the other side pick the mediator. That helps them buy in to the solution.

Joe: we have a 15 day cooling off period, and the group talks first, and tries to cut a deal, before this moves on to mediation.

Workshop Partners

The following organizations jointly produced this event: