ABA/BNA Lawyers' Manual on Professional Conduct

March 25, 2015 Volume 31 Number 6



Conflicts of Interest
Firm Is Ousted as Counsel Against Nonclient
Whose Secrets It Learned Via Related Case

A law firm may not represent an expert suing a company for consulting fees where the firm learned significant amounts of sensitive information about the company when it represented a law firm against the company in a fee dispute arising out of...

Conflicts of Interest
Second Circuit Rules Out Class Action
For Collusion Claim Involving Ex-Counsel

The Second Circuit March 4 decertified a class action by former Nextel Communications Inc. employees who claim their former counsel colluded with the company in arranging an alternative dispute resolution process to handle the employees'...

Trial Conduct
2d Circuit Affirms $271,000 Sanction Order
Against Boies Schiller for Conflict of Interest

A federal judge properly levied $271,063 in sanctions on Boies, Schiller & Flexner LLP for the firm's willful refusal to recognize an "obvious" conflict of interest "until faced with a motion to disqualify," the...

Fee-Sharing Agreement Isn't Enforceable
Against Departed Lawyer's New Law Firm

A fee-sharing agreement with a lawyer's former firm cannot be enforced against his new firm because written consent was not obtained from the lawyer's client as required by the California ethics rule on splitting fees, the U.S. District...

Ex-Clients Can't Sue to Challenge Validity
Of Charging Lien in Still-Pending Litigation

Contingent fee clients who changed counsel cannot bring suit challenging the enforceability of their former lawyer's charging lien on their possible recovery in still-pending litigation, the Florida District Court of Appeal, Third...

D.C. Circuit Rejects ‘Smoking Gun' Standard
In Discovery Dispute Over Fact Work Product

A litigant that invokes the "substantial need" exception as grounds for compelling the production of otherwise nondiscoverable attorney fact work product isn't required to show that the requested materials "are critical...

Opposing Counsel Had No Duty to Alert
Plaintiff to Overlooked Settlement Factor

An accident victim who settled a lawsuit over denied insurance benefits can't void the agreement on the theory that her insurer's lawyers were obligated to tell her the settlement wouldn't cover a long-delayed medical bill the...

Attorney for Trustee Does Not Owe
Fiduciary Duty to Beneficiaries of Trust

An attorney retained to represent a trustee does not owe a fiduciary duty to the beneficiaries of the trust under Florida law, the U.S. Court of Appeals for the Eleventh Circuit held March 2 in an unpublished per curiam opinion (Bain v. McIntosh,...

Sentencing Exception to Innocence Rule
Won't Help Where Sentence Is Within Range

The exception that allows a criminal defense client to sue for malpractice without having to prove his actual innocence when he received a sentence beyond the maximum authorized by law doesn't apply when the error resulted in a longer sentence...



Opinion Allows No-Refund Monthly Fee
If Circumstances Render It Appropriate

Ethics rules don't flatly prohibit a retainer agreement that obligates the client to pay "a flat, nonrefundable monthly fee," but the circumstances of each matter will dictate whether such an arrangement is permissible, the...

Advertising and Solicitation
Certain Features of LinkedIn Present Risks
Of Ethics Infractions When Lawyers Use It

Lawyers may maintain profiles on LinkedIn, but those that include more than basic biographical data require special scrutiny under several ethics rules—including standards that govern lawyer advertising, claims about specialized...

Conflicts of Interest
Dual Representation of Borrower and Lender
Bad Idea in Commercial Real Estate Closings

In most instances a lawyer may not ask a borrower and lender for consent to represent both of them in a commercial real estate loan closing, the North Carolina bar's ethics committee advised Jan. 23 (N.C. State Bar Ethics Comm., Formal Op....

Obligations to Third Persons
Agency Probing Tip About Lawyer's Fraud
May Be Authorized to Interview His Clients

Government lawyers tipped off about fraud allegedly committed by private counsel for a party in an administrative proceeding must consult case law to determine whether they may interview the suspected fraudster's clients without that...



Disciplinary Procedure
Anti-SLAPP Law Can't Be Invoked
To Get Rid of Disciplinary Charges

Rhode Island's anti-SLAPP statute, which provides a way to escape a lawsuit meant to chill free speech rights, has absolutely no application to disciplinary actions against lawyers, the state supreme court declared Feb. 27 (In re McKenna,...

Trial Conduct
Four-Year Grudge Against Jury Foreman
Results in Public Censure for N.Y. Lawyer

A lawyer was publicly censured March 11 by a New York appellate court for sending a harshly worded e-mail to the foreman of a jury that voted against his client in a personal injury case nearly four years earlier (Matter of Panetta, 2015 BL 65557,...

Lawyer's E-Mail to Jury Foreman

Trial Conduct
Failure to Mention Client's Death to Opponent
Yields One-Year Suspension for N.Y. Attorney

An attorney who settled a client's lawsuit shortly after the client died—and who failed to disclose the death to the client's adversary—was suspended from the practice of law for one year March 11 by the New York Supreme...

Sexual Relations
Lawyer's ‘Unprecedented' Sexual Misconduct
Draws Suspension Lasting at Least 2.5 Years

A lawyer who was found to have sexually harassed at least five clients—and coerced two of them to engage in unwanted sex acts—was suspended from practice for at least 30 months by the Iowa Supreme Court March 6 (Iowa Supreme Court...

Reciprocal Discipline
New York Suspends Lawyer Five Years,
Matching Remainder of Federal Suspension

A five-year suspension from practice in New York is the appropriate reciprocal discipline to make the lawyer's sanction "coextensive" with a seven-year federal suspension she received two years ago for misconduct in federal...



Regulation of Bar
California and Oregon Task Forces Endorse
Licensing of Nonlawyer ‘Legal Technicians'

Task forces convened by the California and Oregon bars separately issued two Feb. 13 reports that endorse licensing trained nonlawyers to provide limited services to low-income individuals who cannot afford to hire attorneys for advice...

Trial Conduct
High Court Lets Patent Attorney Off Hook;
Issues Reminder About ‘In Plain Terms' Rule

The Supreme Court on March 23 declined to discipline patent attorney Howard N. Shipley for submitting a petition for certiorari with minimal modification to the highly technical jargon written by a patent owner (In re Shipley, U.S., No. D-2827,...

Private Firm
Howrey, 47 Former Partners Settle
Clawback Claims, Firm Settles Jewel Claims

Howrey LLP and counsel for 47 attorneys and a law firm propose to settle for a cash payment of $75,000 and release of $6.1 million in priority and general unsecured claims the estate's attempts to return funds to the bankrupt law firm (In re...



Conflicts of Interest in Multiple Representation: Part I
ABA Model Rule of Professional Conduct 1.7 describes two types of conflicts of interest: direct adversity conflicts and material limitation conflicts....

Representing Opposing Parties, While Usually Prohibited, Isn't Always Unethical

Representing Multiple Plaintiffs or Defendants in Same Lawsuit