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You’ve lucked out, you think.  While embroiled in a contentious business contract dispute, you’ve learned that a former high-level employee of the opposing party supports your understanding of how the original contract was negotiated and how the parties initially performed their obligations.  Based on this, you believe she might be the key to concluding the dispute in your client’s favor.
 
However, experience tells you that no matter how supportive a witness is during casual conversation, things can quickly change and enthusiasm dampen under the pressure of a deposition. Normally, you can prepare your best witness to handle difficult questions and address the weak points of your case that will undoubtedly come out during a deposition.  Your instinct is to reach out to the former employee, verify her position, possibly obtain an affidavit, and prepare her to handle difficult deposition questions, just like you would with any other witness. 
 
And yet, you wonder, is this too good to be true?  Can I really reach out to a former employee of my adversary and prepare her to testify against them?  Somewhere, deep down, ethics bells are ringing. Attorney-client privilege questions are beginning to germinate, and your professional responsibility professor’s grinning face flashes across your mind, which you know means, “It depends.”                     
 
Do the Rules of Professional Conduct permit me to contact a former employee of the opposing party?
 
In contentious litigation, you loath giving up any advantage that may tip the balance in your client’s favor.  A former insider certainly could be such an advantage, so it is worth exploring the question of whether you can contact them.
 
This question has three parts:
 
(1) Can I contact a former employee of a represented party?
(2) If so, are there any limitations?
(3) Is it worth it? 
 
Part I – Is it Permissible?
Assuming the former employee is not a party to the lawsuit and is unrepresented, intuitively, the answer should be “yes.”  There is not a South Carolina Rule of Professional Conduct directly on point, but if you dig into Rule 4.2[1] - Communication With Person Represented by Counsel, you’ll find Comment 7, which addresses our question. 
 
In relevant part, Comment 7 states that for represented organizations:
 
(1)  Communication is prohibited with a [current] constituent [officer, director, employee, shareholder][2] who:
a.     supervises, directs or regularly consults with the organization’s lawyer concerning the matter;
b.     has authority to obligate the organization with respect to the matter; or
c.     whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
 
(2)  Consent of the organization’s lawyer is not required for communication with a former [officer, director, employee, shareholder];
 
(3)  In communicating with a . . . former [officer, director, employee, shareholder] of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization.  See Rule 4.4, Comment [2].[3]
 
Comment 7 to Rule 4.2 answers our question. You can contact a former employee of a represented organization without permission from the organization’s attorney.  Good news.   
 
Part II – Are there Limitations?
 
There are other considerations before you proceed.  South Carolina Bar Ethics Advisory Opinion 01-01 provides additional analysis of Rule 4.2 and concludes that an attorney may contact a former employee without violating Rule 4.2 if the contact is conducted in a manner consistent with other Rules, in particular Rule 4.3 - Dealing With Unrepresented Person, and Rule 4.4 - Respect for Rights of Third Persons.
 
In short, compliance with Rules 4.3 and 4.4 may look like the following:   
 
Rule 4.3:

• Inform former employee of your role;
• Identify your client;
• Communicate that former employer is an adverse party;
• Communicate why you want to interview former employee.

 
Rule 4.4:

• Avoid eliciting confidential information or proprietary material;
• Be careful not to seek to induce former employee to violate privilege attaching to attorney-client communications.

 
These to-dos reflect that there is a real risk that former employees may not understand your role, may not grasp what they can and can’t tell you, and could accidentally provide confidential or privileged information, which could cause ethical problems for you and may impact your continued role in the litigation. 
 
Can you avoid running into attorney-client privilege matters if the employee was not an officer or director of the organization and was outside the organization’s “control group”?  While the concept of control group persists, and it was mentioned in the comments to Ethics Advisory Opinion 01-01, at least in federal court the Supreme Court has squarely rejected the control group test in favor of a more granular analysis of whether the communications with the employee were made for the purpose of providing legal counsel to the organization.  Upjohn Co. v. U.S., 449 U.S. 383 (1981).  Following Upjohn, there is not a quick and easy test to determine whether a former employee has potentially privilege information, it all depends on the context of specific communications in which the employee took part.
 
The Fourth Circuit Court of Appeals has applied this same analysis to communications between an organization’s legal counsel and  former employees, meaning that if an organization’s  attorney has contacted the former employee with whom you wish to speak, those communications could be privileged and should be avoided.  In re Allen, 106 F.3d 582 (4th Cir. 1997).  Practically, Rules 4.2, 4.3, and 4.4 likely place these same boundaries around former employees who have provided information for the purpose of the organization receiving legal advice.  As such, the best course of action is to treat every former employee as potentially having had privileged communications and steer clear of these areas.
 
Part III – Is it a Worth it?
The final consideration is pragmatic and variable: Does it make sense in your unique situation?  Do the benefits of communicating with a former employee outweigh the potential risks of opening yourself up to the scrutiny of opposing counsel, or possibly the court or disciplinary counsel? 
 
Particularly where the former employee was involved in the decision-making process that led to the dispute at issue in the litigation, is there truly a safe way to isolate only the facts known by that employee without reaching what the employee told, or was told by, counsel for the organization?  There may be, but however successful you are in preparing the witness and avoiding the potential pitfalls, it seems almost certain that the other side will be aware of any contact you’ve had with the former employee and could turn it into a significant distraction. 
 
Can you do it? Yes. Are there limitations? Yes. Is it worth it? It depends.      


[1] Rule 4.2, RPC, Rule 407, SCACR.
[2] Rule 1.13 Organization as Client, cmt 1.
[3] Rule 4.2, cmt 7.

We’ve all been there, finding ourselves having paid significant value for professional services (accountant, lawyer, etc.) that failed to meet our expectations.  We may even believe that the professional acted contrary to, or well below, the norms of the profession.  What can be done?    There are also instances where if you have been financially harmed by a licensed professional’s substandard performance, you may have may a legal claim for professional malpractice. 

While no two professional malpractice claims are alike, some general guidelines will help you begin to think through your circumstances.  To successfully bring a legal action for professional malpractice, you must satisfy all of the required legal elements, which are:

1. A relationship with the professional;
2. During which the professional acted below the standard of care;
3. Causing you harm; and
4. Resulting in damages.
   
   

Each of these elements warrants more specific discussion.     

(1) Did I have the requisite relationship with the professional service provider?
This sounds like an obvious and unnecessary question, and often, but not always,  it is easy to answer by referring to your service contract.  It can quickly become more complex. 

For example, if you, along with four partners, hired an attorney to draft corporate formation documents that were negligently drafted in manner that benefits one partner to your detriment, who did the lawyer represent? Was it all of the partners, the legal entity, or you individually?  What happens if that lawyer produces a document you signed acknowledging that you were advised to seek independent legal counsel?  Were you being represented in this instance and do you still have a potentially viable claim for professional malpractice?  Or, what if your business partner is also an attorney who  prepared the documents for your business venture?  Was your partner acting as your legal counsel in that instance?

If your company’s tax accountant negligently prepared business tax returns in a manner that negatively impacted your personal tax liability, do you individually have a claim for professional negligence against the accountant?   

If you were clearly not the client, is there any chance you can still sue?  In certain limited circumstances the law may allow a third-party to raise a professional negligence claim even though they did not have a first-party relationship.  For example, an estate beneficiary may be able sue for legal malpractice even though they did not have the attorney-client relationship that led to the creation of the will or trust of which they are a beneficiary.  Similarly, where professional accountants provide services to trustees, they may owe a duty to the trust beneficiaries in performing their work.  There may be other analogous situations that could permit a third-party to bring a professional negligence claim.

(2) Did the professional act below the standard of care?
We hire service professionals because they are trained in areas that we are not.  This can make it difficult to identify and describe negligent acts.  It is not merely bad service; an immaterial mistake; inexperience; customer dissatisfaction; questionable judgment or strategy decision; or a bad result.  It may not even be enough that the professional’s actions violated an ethical rule or practice guideline.   So, what is professional negligence?      

In South Carolina, professional negligence is where a “professional failed to conform to the generally recognized and accepted practices of [the] profession.”[1]  If this sounds vague, it is, and intentionally so.  South Carolina courts defer to members of the profession to establish generally recognized and accepted practices.  This is why in most instances of professional negligence, South Carolina law requires a claimant to provide an affidavit from an industry expert identifying the negligent acts of the defendant professional.

What can you do?  One step might be to speak with another professional in the same field to get a sense if the actions taken by your provider were acceptable in the industry.  Because of the challenge of identifying below-industry-standard conduct, you may want to seek advice from a professional negligence attorney early in your process even if you cannot clearly articulate the negligent acts.  As part of their case review process, a professional malpractice attorney will likely reach out to industry experts for assistance in identifying potentially negligent acts.  Often, the harm is evident first, followed by a realization that your professional may have committed malpractice resulting in the harm. 

(3) Did the negligent acts cause the harm (damages) I’m complaining of?
This sounds simple.  Frequently, it isn’t. 

Generally, the more directly connected the negligent act is to the resulting harm, the easier it is to prove a causal connection.  The more distant a negligent act is from the resulting harm, or the more variables in play, the harder it is to prove a causal connection.  A claimant must prove that the harm would not have happened “but for” the professional’s negligence, and that the type of harm suffered by the claimant was foreseeable.   

For example, your attorney fails to file your case within the required statutory time period and you can no longer file your breach of contract case in court.  The attorney’s failure in this instance is closely connected to your harm—the lost ability to bring a lawsuit.  However, what if the attorney did not file the case on time because you provided the wrong version of the contract at issue; your timeline of events contained a mistake; you never provided the documents the attorney asked to review before filing the case; or your business partner told the attorney not to pursue the case?  Now there is more distance, or more facts and variables, between the failure to file and the resulting harm.  Causation may be more difficult to prove.

The professional’s negligent acts must have caused the damage.  In legal malpractice, this is where the “case within the case” concept arises.  A legal malpractice claimant must prove that they “most probably” would have been successful in the original case, or received a larger settlement than they did, had the attorney not committed malpractice. 

If your attorney failed to file your case within the statute of limitations, but you would have been unable to prove a necessary element of your case, then there may be no damages to recover and no viable malpractice claim. 

Where there are multiple bad actors, or bad actors taking harmful actions facilitated through a professional, such as an accountant, there can be additional challenges to proving a causal connection to the licensed professional. Being able to establish that the professional was knowledgeable of the harmful conduct, or should have been, and aware of their role in facilitating such conduct may be an additional layer of proof that a claimant must establish to be successful.

Causation can often feel obvious to the person harmed, but in the law it is more nuanced, complex, and can be challenging to prove. 

This is an area where cases often fall short.  
 
 (4) Do I have any damages?
Again, this may feel obvious to the person harmed but it is often hard to quantify.  Sometimes this is because an expert will be needed to calculate damages. For example if you suffered lost investment growth, you may need an investment professional to calculate your damages.  In some cases it can be difficult to quantify the value of the right you gave up or lost, such as what a jury would have awarded had your lawyer not committed professional negligence.
​
Lost business opportunities can be especially challenging to quantify where damages are based on a series of events that “could” or “should” have happened.  Delayed construction, delayed operation, or the lost ability to take advantage of a new business opportunity can sometimes  be damages, but there are many variables that can make it  harder  to connect the damages to the negligent act.  The same is true with regard to lost profits; these may be recoverable, but they need to be foreseeable and reasonably certain rather than based on conjecture or speculation.    
Professional malpractice can be complex, but hopefully this information will help you understand the basic approach to evaluating your potential claim.  We encourage you to reach out to our office to see if we can assist you in evaluating your potential professional negligence claim.


[1] Doe v. Am. Red Cross Blood Serv., 297 S.C. 430, 377 S.E.2d 323 (1989). 

Keith Babcock, a founding member of the law firm Lewis Babcock, is listed in the just-released 2022 edition of “Best Lawyers in America.”
 
Babcock has been included in every edition of the national guide since 2007. He’s honored this year in two practice areas: Eminent Domain and Condemnation Law and Legal Malpractice – Plaintiffs.
 
Widely regarded as a national thought leader on the topic of eminent domain, Babcock often addresses groups across the state and country on the topic. He’s South Carolina’s sole representative on the Owner’s Counsel of America, a national group of eminent domain lawyers who represent landowners.
 
His practice consists almost entirely of litigation, with a focus on eminent domain and professional negligence.
 
Based entirely on peer review, “Best Lawyers” aims to capture the consensus opinion of leading lawyers about the abilities of their colleagues within the same practice area and same geographic region.
 
The selection process begins with a nomination from a colleague and then peer review from attorneys previously recognized in “Best Lawyers.” Independent research also is conducted.

From talking about the law to discussing the reality of how the law works to pondering ideas for changes, attorneys Joe Berry and Daniel Coble will cover a variety of legal topics during their new podcast “The Litigation Strategies.” 

Both attorneys offer listeners a wealth of litigation experience. Daniel is a former associate chief judge for Richland County and former assistant solicitor for the Fifth Judicial Circuit. Joe also is a former prosecutor in the Fifth Judicial Circuit Solicitor’s Office with extensive courtroom experience in a variety of cases.

You can subscribe to the podcast through Spotify, Google Podcasts, RadioPublic, Breaker, or Copy RSS. You also can listen to individual episodes at these links:

U.S. District Judge Richard Gergel: https://anchor.fm/litigationstrategies/episodes/Judge-Richard-Gergel-e18kt4m/a-a6mcqcg

Justice John Cannon Few: https://anchor.fm/litigationstrategies/episodes/Justice-John-Cannon-Few-e184j20
​
ADR & Mediation: https://anchor.fm/litigationstrategies/episodes/ADR--Mediation-e16d193

Eminent Domain: https://anchor.fm/litigationstrategies/episodes/Eminent-Domain-e15f6ms
​
Homeless court: https://anchor.fm/litigationstrategies/episodes/Homeless-Court--Diversionary-Programs-e15f5tk

Preliminary hearings: https://anchor.fm/litigationstrategies/episodes/Preliminary-Hearings-e15f5n9​

Lewis Babcock founding partner Keith Babcock is again listed in “Legal Elite of the Midlands,” marking the fourth year he’s been included in the annual guide to the area’s top attorneys.
 
Keith is being honored in the practice area of business litigation. A highly skilled attorney with more than 40 years’ experience, he focuses his practice almost solely on litigation. He concentrates on business disputes, professional negligence and eminent domain.
 
His reputation in the latter field in particular is outstanding. He has conducted Continuing Legal Education seminars on eminent domain across the state and the country. Keith is the only South Carolina attorney listed in “Owners’ Counsel of America,” a national eminent domain organization.
 
He has represented clients in some of the most significant property rights decisions in South Carolina. He has fought for clients in all levels of state and federal courts in South Carolina, working to try to win fair compensation when a government agency takes their land through condemnation.
 
About Legal Elite
 
A publication of Columbia Business Monthly, “Legal Elite of the Midlands” each year honors top lawyers in more than two dozen practice areas. The selection process starts with a nomination from a peer. A poll of the active lawyers in the Midlands decides the final lists.

By David Paavola
​
When the government takes your property by eminent domain (or condemnation), it must pay just compensation. Just compensation is a constitutional requirement. The just compensation clause is tucked away at the end of the Fifth Amendment to the Constitution, following more well-known rights such as the prohibition of double jeopardy, the right against self-incrimination, and due process. It says, simply, “nor shall private property be taken for public use, without just compensation.” 

As in beauty, just compensation often rests in the eye of the beholder. I see a patch of dirt, overgrowth, and sparse trees. Developer Jones sees convenient highway access, good drainage, and a future anchor tenant with outparcels. Who is right? Well, it depends.   

Just compensation has been described as the property’s fair market value. Fair market value, in turn, has been described as that value a willing buyer will pay and a willing seller accept, where neither party is under compulsion to enter the transaction. Slightly clearer.

Now add to the mix that a landowner is not stuck valuing the property at its current use, but is instead entitled to receive fair market value based on the property’s highest and best use. Highest and best use is the most productive use of the land that is physically possible, legally permissible, and financially feasible.  This brings to mind the cartoon scene of the holdout house situated amongst skyscrapers. The value of the holdout house, or rather the land underneath the house once you knock it down, is not residential but skyscraper land, presumably much more valuable.

The equation gets even more complicated when only a portion of your property is taken and the question is not only the highest and best use of the property taken, but also the negative impact of the lost property on your remaining land. Today, the best use of my land is development into a gas station. If after the government widens the road and takes a portion of my property, a gas station will no longer fit and next best use is less valuable, then I’ve lost market value and need to be compensated for this loss.

Even when the government and landowner agree on the highest and best use of a property, their values can vary widely. For example, if the government takes a strip of land along the roadway and changes the property’s road access from full access to right-in right-out but does not attribute any lost value to this change of access, its valuation may greatly understate the true market value impact. Transforming  your convenience store into an inconvenience store will certainly have a market value impact beyond simply the loss of a few feet of land along the roadway. A landowner needs to capture the full amount of lost market value in its valuation.

To sum it up, just compensation equates to the fair market value of the land taken plus impact to the remaining land. Fair market value is based on the property’s highest and best use. Preparing and presenting your position on fair market value is the key to making the most out of the difficult position the government put you in when it decided to take your property for the public good.       

When the government takes your property by eminent domain, you are entitled to receive its fair market value. The complexity comes in understanding the property’s true market value, grasping the full impact of the public project on your property’s highest and best use, and then in preparing a thoughtful presentation to the jury who will ultimately decide how much to award you as just compensation.

These complexities show why it is important to team up with experienced and knowledgeable legal counsel that can help you navigate the condemnation process. Attorneys at Lewis Babcock have years of condemnation experience and are here to help.  

An experienced litigator who combines business skills with legal savvy, David Paavola has become the newest partner at Lewis Babcock.
 
His practice focuses on eminent domain and condemnation, complex business disputes, legal malpractice and more. He also represents clients in appeals.
 
“Over the years since David joined us as an associate, we’ve been impressed with his legal acumen and with his commitment to our clients,” firm founding partner Keith Babcock said. “We are very pleased to now call him ‘partner.’”
 
Paavola earned a Juris Doctor at the University of South Carolina School of Law after a career in the financial services industry. He also worked as an analyst at an investment management company before pursuing the law. Before entering private practice with Lewis Babcock, he served as a South Carolina Assistant Attorney General in Consumer Protection & Antitrust.
 
He holds a bachelor’s of business administration degree in financial services and planning from Baylor University. He graduated magna cum laude from law school after serving as Editor in Chief for the South Carolina Law Review.
 
Paavola has earned distinction as a South Carolina Super Lawyers Rising Star yearly since 2019. That honor is limited to 2.5% of attorneys who have practiced 10 years or less in the state. He also holds an AV Preeminent rating from Martindale-Hubbell, a designation that recognizes strong legal abilities and high ethical standards.

​Joseph Berry, an attorney at Lewis Babcock in Columbia, SC, has completed the SC Bar Leadership Academy. He was among only 17 attorneys statewide admitted to the highly selective program.
 
The academy’s goal is to provide attorneys with the training and awareness necessary to give back to their profession and their community. The program focuses on relationship building, nurturing principled leadership and increasing awareness of professional, ethical and community service issues.
 
The Leadership Academy class meets monthly for five months, with each program focusing on a different topic. Originally the Class of 2019-20, the group completed the course this spring due to COVID.
 
“I am very grateful for this opportunity to make these deep connections within the legal profession and within our community. They’re connections that will last a lifetime,” Berry said. “I’m also extremely thankful that the Bar makes this commitment to its young lawyers.”
 
A Columbia native and graduate of the University of South Carolina School of Law, Berry’s practice at Lewis Babcock focuses on eminent domain. He also represents clients in business disputes and appellate matters. Before joining Lewis Babcock, he served for four years at the Solicitor’s Office for the Fifth Judicial Circuit.
 
He’s deeply involved in the community as well, serving on the Pawmetto Lifeline Board of Trustees and the South Carolina Appleseed Legal Justice Center Board of Directors.

At times, government projects can have the unfortunate result of forcing businesses to relocate. Fortunately, state or federal assistance is often made available to help defray moving and related expenses. This is called relocation assistance. However, as is often the case in the law, the good news comes wrapped in regulations and limitations that can be confusing to navigate. This comment discusses the basics of business relocation assistance in South Carolina.

“Location, Location, Location” For businesses that depend on catching the motorist’s eye, drop-in traffic, convenience, or easy access, it’s “location, location, location.” Locating along a main artery in a busy commercial or retail district near a growing population may be the exact formula for creating a successful business. At the same time, it is also true that growth leads to traffic, traffic leads to strain on existing roadways, and strain on existing roadways leads to government projects to expand those roadways.

Where road frontage was once your greatest asset, now it could put your business at risk of having to relocate because the future roadway will be running right through your existing building or parking lot. When that happens, it is fair to ask if the government, after forcing you to move, has any responsibility to pay for that move. While it was not always the case historically, the answer today is that when a government project displaces your business, the government bears the financial responsibility to help you move—with limitations, of course.

What Assistance Is Available? South Carolina has a relocation assistance statute that adopts the Federal Uniform Relocation Assistance Act for all government projects regardless of whether state or federal dollars are paying for the project. The principal source of information on relocation assistance in South Carolina is the South Carolina Department of Transportation’s publicly available Relocation Assistance Manual. There are four categories of expenses that are typically covered for business moves:

1. Search Costs for new location (up to $2,500)
2. Actual Moving Costs (by third party, or self-move)
3. Losses of Tangible Property you are not moving (meeting specified requirements)
4. Reestablishment Expenses (up to $50,000)

Each category has limits and regulations that will vary with your unique situation. For example, moving may be as simple as packing boxes and moving furniture, or it can be as complex as having to hire a third-party specialist to disassemble and reassemble specialized equipment at a new location.

Your replacement location may be in need of repair or it may not exactly meet your business needs. When this is the case, reestablishment expenses can help cover items such as repairs or improvements to the replacement location, modifications to make the replacement location suitable for your business, or replacing worn surfaces like carper or paint. If your business decides not to relocate, or is unable to, you may be eligible for an in-lieu-of payment depending on how many other business locations you have and based on the average annual net earnings over the past two years. In-lieu-of payments are capped at $40,000.

There are many other contours of relocation assistance that are beyond the scope of this comment and that will vary based on your unique business.

The bad news is that government projects can force businesses to relocate. The good news, or slightly less bad news, is that the government typically pays for a number of these expenses.

Our firm has experience navigating the contours of relocation assistance and would be pleased to talk with you about your unique situation. Find out how Lewis Babcock L.L.P. can help.

​For more frequently asked question related to condemnation see:
https://www.lewisbabcock.com/frequently-asked-questions.html.