ABA/BNA Lawyers' Manual on Professional Conduct

January 14, 2015 · Volume 31 Number 1



Contingent Fee Percentage Caps Don't Apply
To Lawyer's Extra Charge for Appellate Work

Court rules that cap contingent fees in personal injury cases at one-third of a client's recovery do not preclude a lawyer from negotiating for a higher share if additional work is needed to defend a favorable judgment on appeal, the New...

Conflicts of Interest
Firm Is Ejected From Pursuing Patent Suit
That Could Harm Interests of Current Client

A law firm must stop representing a patent infringement plaintiff that is seeking an injunction harmful to the interests of the defendant's customer which the firm represents in unrelated matters, the U.S. Court of Appeals for the Federal...

Small Size of New Hampshire Firms Warrants
Flexibility in Recognizing Intrafirm Privilege

New Hampshire law firms may be able to claim the attorney-client privilege for internal legal advice about problems with a current client's representation even if the lawyer consulted within the firm has not been officially designated...

Corporate Counsel
Even if In-House Counsel Handled Claim,
Communications Aren't Necessarily Privileged

Materials prepared by an insurance company employee who was acting in the dual capacity of in-house counsel and claim handler are not shielded by the attorney-client privilege in the insured's action for bad faith against the insurer...

Insurer Seeking Indemnity Lost Privilege
By Citing Legal Advice to Justify Settlement

An insurer suing an adjuster for equitable indemnity waived the protection of the attorney-client privilege and work product doctrine by citing "advice of counsel" to justify settling with its insured, the U.S. Court of Appeals...

Law Firm Sued for Botching Client's Case
Can't Shift Any Liability to Her Attorney-Son

A law firm accused of malpractice for allegedly mishandling a lawsuit to collect a $90,000 loan has no claim for contribution or indemnification against the client's attorney son, who advised his mother during the underlying litigation,...

Failed Claim Against One Firm Won't Bar
Conflicting Claim Against Another Firm

A plaintiff's unsuccessful claim in earlier litigation that he had an attorney-client relationship with a law firm that provided a legal opinion in a stock redemption transaction does not judicially estop him from suing a different firm...

Firm Beats False Claims Act Suit Alleging
It Tried to Inflate Government Client's Fees

A New Orleans bar owner's "sweepingly conclusory" allegations of fraud didn't support a False Claims Act suit that accused a law firm of prolonging eminent domain proceedings to inflate the fees it collected from a government...

Internal DOJ Manual on Discovery Policies
Exempt From FOIA as Attorney Work Product

The Department of Justice properly invoked the attorney work product doctrine to defeat defense lawyers' FOIA request for an internal agency manual ostensibly created to curb discovery abuses by prosecutors, the U.S. District Court...

Trial Conduct
Bankrupt Lawyer Owes $170K for Arbitration;
Punitive Costs Award Not Dischargeable Debt

A lawyer accused of losing $34 million by fraudulently mismanaging a trust can't discharge in bankruptcy the $171,504.54 cost of arbitrating the fraud claims against him, the U.S. Court of Appeals for the Seventh Circuit held Dec. 23 (In...

Court Clarifies Malpractice ‘Concealment Tolling' Test
A malpractice plaintiff who invokes Nevada's "concealment tolling" rule—which extends the time to sue lawyers who hide their errors from clients—must show not only that a lawyer intentionally withheld information...

How to Enforce Retainer's Forum Selection Clause
The correct way for a law firm to seek enforcement of an interstate forum selection clause in a retainer contract is a motion to dismiss for failure to state a claim or a motion for summary judgment, rather than relying on the doctrine of forum non...



Private Firm
N.Y. Ban on Nonlawyer Ownership Prohibits
D.C. Firm From Establishing N.Y. ‘Subsidiary'

A New York attorney who is also licensed in the District of Columbia may not join a D.C. firm that has nonlawyer owners under arrangements that require him to either handle cases as a New York-based partner or manage a "wholly-owned subsidiary...

Private Firm
New York Lawyer Who Moves to Britain
May Practice in Firm With Nonlawyer Owner

A New York-licensed lawyer living in the United Kingdom may perform legal work there even though his proposed activities—and the arrangement he intends to establish with a U.K. entity—would not be permitted under New York ethics...



Criminal Conduct
Tax Scofflaw's ‘Protester' Arguments
Contribute to Getting Him Disbarred

A lawyer who didn't pay income taxes or file returns for eight years will be disbarred for fraudulently trying to cover his tracks and making frivolous "tax protester" arguments when the delinquency came to light, the Maryland...

Slew of Meritless Filings Violated Two Rules,
But Not Rule on Competent Representation

A lawyer who lodged a wholly frivolous motion for a client and followed it with numerous filings along the same lines violated the ethics rules against pursuing meritless claims and conduct prejudicial to justice, but not the rule requiring...

Client Funds and Property
Lawyer Disbarred for Self-Dealing Conduct
While Serving as Trustee of Client's Charity

An attorney who abused his authority as trustee of a deceased client's foundation to give himself a $270,000 "loan" was disbarred Dec. 23 by the Maryland Court of Appeals (Attorney Grievance Comm'n of Md. v. Hodes, 2014 BL...



Model Rules
Draft N.Y. Rule Updates Would Expand
Guidance on Key Confidentiality Issues

Under proposed rule updates developed by the New York State Bar Association's rules-drafting committee, New York lawyers would have additional guidance—beyond what recent updates to the ABA Model Rules provide—about...

Client Funds and Property
Pennsylvania Anti-Theft Reforms Feature
Novel Ethics Rule on Investment Products

Pennsylvania lawyers who offer investment products in their law practice or otherwise will soon face new restrictions under an ethics rule the state supreme court adopted Dec. 30 as part of a comprehensive reform package meant to help keep...

New Pennsylvania Ethics Rule Clamps Down on Lawyers' Dealing in Investment Products