ABA/BNA Lawyers' Manual on Professional Conduct

February 25, 2015 · Volume 31 Number 4

COURT DECISIONS


 

Conflicts of Interest
Squire Patton Boggs Is Ejected From Suit
Due to Conflicts That Grew Out of Merger

Squire Sanders' merger with Patton Boggs created conflicts of interest that require the firm's removal as plaintiffs' counsel in high-stakes commercial litigation against a current client and former client of Patton Boggs,...

Ineffective Advance Conflicts Waiver
The court said this provision in Patton Boggs' standard retainer was too open-ended to serve as an enforceable advance waiver of potential conflicts of interest:...

Malpractice
Akin Gump Hit With $426K Judgment in Suit
Accusing Firm of Betraying Current Client


Akin Gump Strauss Hauer & Feld LLP breached its fiduciary duty to an existing client, software developer SAS Institute Inc., when it agreed to represent another company in a patent infringement suit that, even though it didn't name...

Malpractice
Texas Law Firm Can't Be Sued in Nevada
By Nevada Client Concerning Texas Matter

An out-of-state law firm that works on a primarily out-of-state matter for a Nevada client generally won't be subject to personal jurisdiction in Nevada absent "some evidence that the [firm] reached out to the client's home forum...

Malpractice
Denial of Discharge Due to Debtor's Conduct
Prevents Her From Suing Bankruptcy Lawyer

A bankruptcy client can't sue her attorney for malpractice where the bankruptcy court denied her discharge on the basis of her own misconduct rather than the incorrect legal advice she received from the attorney, the U.S. District Court...

Confidentiality
Privilege Can't Be Claimed for E-Mails
Exchanged With Nonlawyer Litigation Funder

Billionaire hedge fund manager Steven A. Cohen is entitled to see confidential e-mails his ex-wife exchanged with a divorce litigation funder in her fraud suit against him, the U.S. District Court for the Southern District of New York decided...

Trial Conduct
Maybe Lawyer's Behavior Was ‘Offensive'
But Not Enough to Affect Pro Hac Vice Status

Defense counsel's "unorthodox" and "arguably offensive" deposition questions about a personal injury plaintiff's family life—including inquiries about his parents' divorce and his mother's...

Trial Conduct
Six-Figure Sanction for Discovery Delays
Upheld Except Where Wrong Basis Was Used

The "bulk" of a $183,000 sanction for resisting discovery is justified by the party's "disturbing pattern of delay and intransigence" in an "acrimonious" three-year discovery process, the U.S. Court of Appeals...

Contempt
Even if Out-of-State Attorney Made Mistakes
Judge Erred in Contempt Finding, Sanctions

A lawyer shouldn't have been held in contempt and sanctioned with revocation of his pro hac vice status and a fine when he didn't act in bad faith or disobey a court order, the U.S. Court of Appeals for the Seventh Circuit held Feb. 10 (Trade...

Contempt
Contempt Fines Survive Lawyer's Objection
That They Violate Imprisonment-for-Debt Law

A bankruptcy court had authority to issue a contempt order against a lawyer for failing to pay sanctions imposed for prior misconduct in what the lawyer characterized as a "long ago discharged" case, the U.S. Court of Appeals for the...

Corporate Counsel
Lawyer Who Served as Risk Manager
May Use Company Info in Bias Lawsuit

A company sued for sexual discrimination by its former director of risk management cannot invoke the corporate attorney-client privilege to prevent the plaintiff—a licensed lawyer whose duties included litigation management—from...


ETHICS OPINIONS


 

Lawyer-Client Relationship
Opinion Describes How to Withdraw Ethically
When Judge Asks Attorney for Her Reasons

An attorney who moves to withdraw from a litigation representation for ethical reasons might have grounds for resisting a court order that would require her to disclose client confidences to a judge who wants more information before ruling...

Duty of Confidentiality vs. Obligation to Comply With Court Orders: Authority From Other Jurisdictions
...

Fees
Lawyer May Ask That Full Contingent Fee
Come From ‘First Proceeds' of Iffy Recovery

A contingent fee lawyer may negotiate a retainer agreement allowing her to take her entire fee out of the "first proceeds" of a very uncertain recovery that the client's opponent would pay in installments, thereby shifting the...

Private Firm
Several Ethics Rules Implicated When Firm
‘Loans' Attorneys to Organizational Clients

Law firms that allow their attorneys to take temporary roles as inside counsel for organizational clients must keep in mind that such programs "raise several issues regarding conflicts of interest and business transactions with clients,"...


DISCIPLINARY PROCEEDINGS


 

Obligations to Third Persons
Okay From Counsel of Record Isn't Needed
To Speak With Opponent's Other Lawyers

A lawyer challenging the issuance of municipal bonds for two projects did not violate the rule against ex parte contacts by broaching settlement to the developers through their outside litigation counsel instead of contacting their bond...

Lawyer-Client Relationship
Lawyer Didn't Need to Ask Client's Daughter
Before Helping Him Revoke Power of Attorney

A lawyer did not violate the rule on representing clients with limited capacity when he helped an elderly client revoke a power of attorney held by the client's daughter, so that the client could leave an assisted living facility, the North...

Judicial Criticism
Mudslinging in Judicial Candidate's Flyers
Triggers Reproval From California Bar Court

A former county prosecutor deserves a public reproval for falsely accusing his opponent in a judicial election of fraud and bribery, the California State Bar Court, Review Department, decided Feb. 5 (In re Parish, Cal. State Bar Ct. Review...

Conflicts of Interest
Lawyer's ‘Small' Gifts of Cash to Inmates
Were Unethical Despite His ‘Altruistic Intent'

A lawyer who gave "small amounts" of money to prison inmate clients must be reprimanded even if he made the donations "out of the kindness of [his] heart," the West Virginia Supreme Court of Appeals held Feb. 6 (Lawyer Disciplinary...

Reciprocal Discipline
Reciprocal Disability Status May Be Imposed
Without Holding Separate Incapacity Hearing

A lawyer suspended in another jurisdiction due to mental health problems or substance abuse "is subject to reciprocal transfer to disability inactive status in Massachusetts without a separate hearing [to] determine her incapacity,"...


NEWS


 

Trial Conduct
Patent Attorney Cites Loyalty to Client
In Opposing High Court Sanction Threat

A patent attorney told the U.S. Supreme Court Feb. 19 that he was caught between "the competing demands of the duty of loyalty that he owed to his client and the duty that he owed" to the court when he submitted a petition for writ of certiorari...


CONFERENCE REPORT


 

Private Firm
Speakers Offer Advice on Softening Impact
Of Adverse Publicity From Lawyer Misconduct

Law firms have no choice but to confront the situation when they discover one of their lawyers has engaged in misconduct of scandalous proportions....

ABA Updates Criminal Justice Standards
The ABA House of Delegates Feb. 9 approved a comprehensive update to the bar group's recommended standards for prosecutors and criminal defense attorneys, capping a nine-year revision process....

Private Firm
Adapt to Changes in Meeting Legal Needs
Or Risk Being Left Behind, NOBC Panel Says

Nonlawyer participation in the ownership of law firms, limited license legal professionals, and cross-border practice arouse strong and often conflicting feelings in lawyers concerned with protecting the public while enhancing access...


SPECIAL REPORT


 

The Ethics and Financial Impact of Dropping a Client for Nonpayment of Legal Fees
Filing suit "against a current client to collect a fee creates an untenable conflict under [Rule of Professional Conduct] 1.7 between the lawyer’s duty to that client and the lawyer’s ‘personal interest’ in...

Fees: Structured Settlements
Some authorities have concluded that absent an express agreement to the contrary, a lawyer may not take her entire contingent fee "off the top" of a client's "structured settlement." See, e.g., Knight v. Aqui, 966 F....