ABA/BNA Lawyers' Manual on Professional Conduct

October 8, 2014 · Volume 30 Number 21

COURT DECISIONS

Malpractice

Debt-Relief Firm's Arbitration Clause Voided
Because Implications Weren't Fully Explained

An arbitration clause in the retainer contract of a law firm that provides debt relief services is unenforceable because it does not explain in a "sufficiently broad way" that a party who signs it "is giving up her right to bring...

Lawyers' Ethical Duties May Require Explanation of Arbitration Clause in Standard Retainer Agreements

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Malpractice

Attorney's Hedged Statements About Value
Of Client's Claim Aren't Actionable as Fraud

An attorney's "preliminary opinion" about the possible value of a client's claim "under a best case scenario" is not actionable by the client as fraudulent inducement or misrepresentation, the Georgia Court of...

Malpractice

Penalties in Securities Law Can Be Used
To Measure Damages in Malpractice Action

Former clients who said a law firm's negligence caused them to forfeit a securities fraud claim against an investment brokerage were correctly awarded malpractice damages based on the statutory civil penalties they could have recovered...

Conflicts of Interest

Client's Waiver of Malpractice Liability
Didn't Create Conflict of Interest for Counsel

Trial counsel's insistence that a criminal defense client execute a waiver of malpractice liability with respect to an investigation of certain witnesses didn't deprive the client of his Sixth Amendment right to conflict-free...

Confidentiality

Statements in Meeting to Recruit
Class Action Clients Aren't Privileged

The attorney-client privilege does not cover surreptitiously recorded statements that an attorney for two hotel workers in a wage and hour lawsuit made during a meeting with other employees he hoped to sign up as additional clients, a federal...

Fees

Post-Judgment Interest on Attorneys' Fees
Goes to Lawyer Absent Different Retainer Deal

Post-judgment interest that accrues on a court's award of attorneys' fees in a case belongs to the attorney for the prevailing party and not to the client herself unless their retainer agreement specifies otherwise, the California...

Candor Toward Tribunals

7th Cir. Blasts Lawyer's ‘Appalling Judgment';
Attorney ‘On Notice' for Future Discipline

An Indiana attorney didn't honor his ethical duty to alert the Seventh Circuit that a state court judgment affecting jurisdiction had been vacated, the appeals court said Sept. 26 (Richardson v. The Koch Law Firm, P.C., 2014 BL 268579,...

Contempt

Jail Sentence Vacated for Lawyer
Who Didn't Take Down Improper Ads

A federal district court should have provided "procedural protections required by law" before holding a lawyer in criminal contempt for not complying with an order that gave him a week to take down all advertisements for "no money...

Judicial Criticism

Ohio Invalidates Code Provision That Barred
True but Misleading Remarks About Judges

The provision in Ohio's judicial conduct code that prohibits judicial candidates from making true but misleading statements about themselves or their opponents violates the First Amendment, the state supreme court decided Sept. 24...

Ohio Judicial Code Rule 4.3(A)

"During the course of any campaign for nomination or election to judicial office, a judicial candidate … shall not knowingly or with reckless disregard do any of the following:...

Ban on Request for Campaign Money Gets Review

Two cases featured in recent issues of Current Reports will be scrutinized by the U.S. Supreme Court....

Advertising and Solicitation

Attack on Law Firm Rival's Public Bus Ad Deal Flops

A personal injury and workers' compensation law firm in the Philadelphia area failed to state claims that another firm monopolized or tried to monopolize the market for its services by hogging all the advertising space on the outside of...

ETHICS OPINIONS

Criminal Conduct

North Dakota Rules Stop Lawyer From Using
Medical Marijuana in State Where It Is Legal

A lawyer who uses medical marijuana "commit[s] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects"—even if the attorney has a valid prescription to...

Washington Ethics Panel Weighs Opinion on Personal Use After Court Rejected Broader Rule Changes

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Advertising and Solicitation

N.Y. Advertising Rules Pose No Obstacle
To Operation of ‘Purely Virtual' Law Office

Ethics rules that require attorneys to list their "principal law office address" in advertisements do not prohibit a nonresident attorney who is licensed in New York from providing legal services to New Yorkers through a "purely...

Relaxation of Office Mandate Elsewhere

The New York state bar ethics committee noted that "the physical office requirement is undergoing changes in other states," citing several developments as support for reversing its prior conclusion that "Rule 7.1(h)—a...

DISCIPLINARY PROCEEDINGS

Disciplinary Procedure

Brady Protections for Criminal Defendants
Don't Apply in Bar Disciplinary Proceedings

Standards that govern prosecutors' obligations to turn over exculpatory evidence to criminal defendants do not apply in bar disciplinary cases, the Connecticut Appellate Court held Sept. 30 (Smigelski v. Dubois, Conn. App. Ct., No....

Criminal Conduct

Wunderkind Former Mayor's ‘Passive' Role
In Bribery Scheme Doesn't Avert Disbarment

Former mayor Peter J. Cammarano III of Hoboken, N.J., who was incarcerated for accepting a bribe, will be disbarred despite the disciplinary board's observations that he was "the target of a government operation" and merely...

Criminal Conduct

Former State Senator Disbarred for Using
Campaign Funds to Feed Gambling Addiction

A former Nebraska state senator was disbarred Sept. 12 for repeatedly using campaign funds to support her gambling activities (State ex rel. Counsel for Discipline v. Council, Neb., No. S-13-379, 9/12/14)....

NEWS

Model Rules

California Justices Tell State Bar to Redo
Proposals for Updating Lawyer Conduct Rules

The California Supreme Court has told the state bar to go a different direction in coming up with proposals to update California's lawyer conduct rules....

Public Interest

Massachusetts Bar Exam to Add
Legal Aid Section in 2016, Top Judge Says

Massachusetts hopes to influence law school curricula and better prepare its attorneys for pro bono work by adding an "access to justice" section to its bar exam focusing on typical civil legal aid practice areas, the chief justice...