Due diligence.

I am writing about what has been called the most debilitating problem facing the practice of law today. It has resulted in successful attacks on attorney-client privilege and has become an underpinning for successful suing of attorneys, their partners, firms, and estates--not to mention the adverse effect upon their insurance companies.

Trial lawyer Brendan J. Sullivan, Jr., upon being told to allow his client, Lt. Col. Oliver North, to object for himself if he wanted to during the 1987 congressional Iran-Contra hearings, said, "I'm not a potted plant. I'm here as the lawyer. That's my job."

That is the point I made to a recent gathering of the ABA's Torts & Insurance Practices Division--we are, in fact, potted plants. That is unless we as attorneys find out what "due diligence" is in each situation, know how to implement it, and understand the benefits of successfully using it. When that comes together, then both we and our clients will enjoy the substantial protections afforded attorneys and clients in this country. To not do it is to surrender to the forces attacking attorneys and everything sacred to them.

The most commitment on this subject I have received to date comes from the dean of Florida State University's College of Law, who plans to have faculty members bring the subject up during classes. Begging your pardon, but "due diligence" and its implementation should at least be the subject of a Florida Bar committee study and Journal publication instanter.

I've practiced over 30 years and I've never seen it so bad for attorneys getting successfully attacked for failure of due diligence. Once that goes down, then most of your other defenses as attorneys go down the drain, too. No wonder they want to knock it out early and often. Maybe you like being besmirched as in malpractice, and maybe your insurers, if they have not limited themselves, enjoy paying out the billions of dollars of "damages" in failed mergers and acquisitions, or, maybe lawyers will get serious about this problem.

The Florida Bar is not the only "potted plant" in this deal. The ABA seems to be somnolent on the general subject, too. I will say this; this problem jumped out and slapped me at an ABA seminar on mergers and acquisitions I attended in Boca Raton. When those deals go sour, guess whose assets and deep-pocket insurance they start looking for? Sometime later I was invited to be a speaker on "due diligence" at the ABA TIPS meeting in Chicago. To my knowledge nothing much has been done on it by the ABA or anyone else.

I think FSU should establish a center to treat the subject of "due diligence," and not only teach on it, but be available to render opinions about how and why to accomplish it. Only the future of the Bar is at stake. So, are you attorneys or potted plants?

I've done extensive work in medical malpractice defense, so I guess I'm more than a little sensitized to this type of professional problem. Attorneys are presently given certain privileges and immunities, and for good reason. I, for one, am not passive about losing them because of a failure of "due diligence." I certainly do not profess to be a major "trial" type player, but I do know many of you who are. You should be concerned ... very.

Robert W. Perkins

Tallahassee