Ethics on Fire

1. Ethics on Fire Avoiding Blow-Ups at Fire Scene Investigations Mark D. Katz Coronado Katz LLC 14 W. Third Street, Suite 200 Kansas City, MO 64113 (816) 410-6524 Mark@CoronadoKatz.com www.CoronadoKatz.com

2. Ethics on Fire Ethics Governing Fire Investigators Kansas Rules of Professional Conduct Three Brain Busters

3. Caveat Emptor – They’re on the Side of Truth Ethics governing fire investigators

4. ETHICS GOVERNING FIRE INVESTIGATORS National Fire Protection Association • NFPA 921 • Guide for Fire & Explosion Investigation • Promotes using scientific method to govern fire and explosion investigations • No specific section on ethics, BUT its purpose is to provide for the accurate determination of fire cause

5. ETHICS GOVERNING FIRE INVESTIGATORS NFPA 921 • GOALS and PURPOSES: • Prevent future fire incidents • Reduce the loss of life and property • Duty to protect the safety and welfare of the public • Promotes systematic fire investigation

6. ETHICS GOVERNING FIRE INVESTIGATORS National Association of Fire Investigators • Offers Courses and Certifications • CFEI (Fire & Explosions) • CFVI (Vehicle Fires) • CFII (Instructor) • Ethics Requirements • Prohibits working for, or providing information to, persons whose goals are inconsistent with an honest and unbiased investigation • Requires investigator to act as a “fact finder seeking the truth”

7. ETHICS GOVERNING FIRE INVESTIGATORS International Association of Arson Investigators • Offers Courses and Certifications • CFI (Fire) • FIT (Investigation Technician) • MVF (Motor Vehicle Fire Endorsement) • Evidence Collection Technician • Ethics Requirements • We will avoid alliances with those whose goals are inconsistent with an honest and unbiased investigation • We are truth-seekers, protect the innocent, hold accountable those responsible, and convict the guilty

8. ETHICS GOVERNING FIRE INVESTIGATORS Professional Codes • Professional Engineers • Hold paramount the safety, health, and welfare of the public • Private Investigators • Search for the truth • Furtherance of client’s interests

9. ETHICS GOVERNING FIRE INVESTIGATORS By the way … • Anyone can call themselves a fire investigator • And sometimes they do • Fire investigators don’t have to follow NFPA 921 • And sometimes they don’t

10. Caveat Emptor – We’re on the side of our client (mostly) Ethics governing ATTORNEYS

11. ETHICS GOVERNING ATTORNEYS Kansas Rules of Professional Conduct • Rule 1.1 – Competence • Rule 1.2 – Scope • Rule 1.6 – Confidentiality • Rule 1.7 – Conflicts with Current Clients • Rule 1.9 – Duties to Former Clients • Rule 3.4 – Fairness to Opposing Clients

12. ETHICS GOVERNING ATTORNEYS Rule 1.2 -- Scope • A lawyer shall abide by a client’s decisions • A lawyer’s representation of a client is not an endorsement of the client’s views or activities.

13. ETHICS GOVERNING ATTORNEYS Rule 1.6 -- Confidentiality • A lawyer shall not reveal information regarding the representation of a client without the client’s informed consent.

14. ETHICS GOVERNING ATTORNEYS Rule 1.7 – Conflicts with Current Clients • A lawyer shall not represent a client if the representation involves a conflict of interest with a current client. • What is a conflict? • Directly adverse • Significant risk of material limitation • But may represent clients with conflicts if… • lawyer’s reasonable belief in ability to provide competent and diligent representation • not prohibited by law • none of the affected clients has a claim against another of the affected clients • informed consent in writing

15. ETHICS GOVERNING ATTORNEYS Rule 1.9 -- Duties to Former Clients • A lawyer who formerly represented a client shall not represent another in a substantially related matter in which the interests are materially adverse. • Substantially related? • Same transaction or legal dispute? • Confidential information from one case that is material in another? • Similar evidence, liability issues, scientific issues, witnesses, attorney’s knowledge of a client?

16. ETHICS GOVERNING ATTORNEYS Clients Consent to Conflict • Is consent enough? • Current client: Not if one client will assert a claim against the other • Former Client: Not allowed to use or reveal information relating to former client • Can consent to future conflicts • Any consent can be withdrawn at any time • The Court might not allow the consent • Yost v. K Truck Lines, Inc.

17. ETHICS GOVERNING ATTORNEYS Yost v. K Truck Lines, Inc., 2006 WL 314348 (D. Kan.) FACTS • Pickup v. Tractor-Trailer Crash • Plaintiff sues trucking company and driver for compensatory and punitive damages • Driver and company have the same insurance company and lawyer • Driver admits liability for compensatory damages TRUCKING CO. POSITIONS • Whether driver was an independent contractor or employee would be a fact issue (Pretrial Order) • Driver was employee in the course and scope (Objections to Jury Instructions) • Both defendants assert driver was an independent contractor (Limine Conference)

18. ETHICS GOVERNING ATTORNEYS Yost v. K Truck Lines, Inc., 2006 WL 314348 (D. Kan.) DEFENSE COUNSEL’S ARGUMENT • We’ve solved the conflict! • Inconsistent positions were really just protecting alternate theories • Consulted with both clients and company admits respondeat superior • Stipulate to employee status and course and scope • TA DAAAAAAAA! THERE’S MORE • Both clients have been informed… • of the insurance coverage and amount • judgment amount over policy limit will not be covered • no coverage for punitive damages • they have the right to obtain “private” counsel • No worries…Plaintiff can’t win on punitive damages.

19. ETHICS GOVERNING ATTORNEYS Yost v. K Truck Lines, Inc., 2006 WL 314348 (D. Kan.) THE COURT’S RULING • You still have a conflict of interest • Nice that you resolved the respondeat superior issue • The punitive damages issue still creates a conflict of interest because they are still in play • The conflict is impermissible Rule 1.7(b) • Rule 1.16 requires that you withdraw • But Rule 1.9 allows you to continue to represent one of your two clients. THERE’S MORE • If you stay in the case for one client… • you must follow Rule 1.9 • in defending the one client, you shall not use any information relating to the representation of the former client to the former client’s disadvantage • unless permitted or required under Rule 1.6 or the information is generally known • No worries…I’ll continue your trial setting from 3 days from now.

20. ETHICS GOVERNING ATTORNEYS Rule 3.4 – Fairness to Opposing Parties • A lawyer shall not: • Unlawfully obstruct another’s access • Alter or destroy evidence • Falsify evidence • Assist another in doing so • What’s missing? • Truth-seeking • Unbiased • Protecting the innocent • Holding accountable the responsible • Convicting the guilty

21. ETHICS GOVERNING ATTORNEYS Other legal considerations • Spoliation • Destroying, altering, or hiding evidence • Intent to prevent opposing party from discovery • Prejudice to the opposing party • Daubert (Fed. R. Evid. 702, 703, 704 and 705 and K.S.A 60-456, 457 and 458) • Qualifications • Reliability (Scientific Method) • Relevance

22. SCENARIO 1 “I’ve got what I need. I’m done.”

23. SCENARIO 1 “I’ve got what I need. I’m done.” • On fire scene of a $200,000 house fire • Arrive for joint scene inspection • Your fire investigator pulls you aside • What do you do? • If you’re the attorney for the claimant? • If you’re the fire investigator for a product? • If you’re the attorney for a product manufacturer? • In your cross-exam of the claimant’s investigator?

24. SCENARIO 2 “The truth doesn’t always set your client free.”

25. SCENARIO 2 “The truth doesn’t always set your client free.” • Your cell phone manufacturer client sends you to a joint inspection • You retain a fire investigator for the client • Your fire investigator pulls you aside • What do you… • Say to your fire investigator? • Say to the person in charge of the scene? • Tell your client (and when)? • Do when it’s time to identify an expert witness?

26. SCENARIO 3 “Pick a client—any client.”

27. SCENARIO 3 “Pick a client—any client.” • You are a partner in Big Firm and Big HVAC has bestowed the honor of being national counsel for its furnaces • You retain a fire investigator for the client • Your fire investigator pulls you aside • What do you … • Say to your fire investigator? • Say to the person in charge of the scene? • Tell your furnace client? • Anyone else?

28. Questions? Mark D. Katz Coronado Katz LLC 14 W. Third Street, Suite 200 Kansas City, MO 64113 (816) 410-6524 Mark@CoronadoKatz.com www.CoronadoKatz.com