ABA/BNA Lawyers' Manual on Professional Conduct

October 22, 2014 · Volume 30 Number 22

COURT DECISIONS

Malpractice

Malpractice Defendant Has Burden to Prove
That Underlying Judgment Was ‘Uncollectible'

A litigation malpractice plaintiff need not prove that the hypothetical judgment she could have recovered in the underlying case would have been collectible, the Washington Supreme Court declared Oct. 9 (Schmidt v. Coogan, 2014 BL 284028,...

Courts in Other Jurisdictions Are Split on Who Bears Burden of Establishing or Disproving Collectibility

...

Fees

Fired Lawyer Gets Quantum Meruit Pay
Even When ‘Mutual Fault' Caused Breakdown

A lawyer who withdraws from a contingent fee case is entitled to quantum meruit compensation when "the attorney-client relationship crumbled on account of both parties' actions," a federal judge in Kentucky decided Oct. 16...

Fees

Using ‘Contract Attorney' Doesn't Let Firm
Get Court-Awarded Fee for Representing Itself

A law firm that prevailed in a dispute with a client can't avoid California's prohibition on fee awards to self-represented lawyers by using a contract attorney to press the firm's case, the California Court of Appeal, Third District,...

Admissions

Judge Is Faulted for Creating ‘Presumption'
Against Pro Hac Vice Admission of Attorneys

A trial judge abused his discretion in deciding whether to allow temporary admission of out-of-state lawyers by misreading a local rule as creating a "presumption" against admissions pro hac vice, the Indiana Court of Appeals decided...

Admissions

Illinois Appeals Court Upholds Dismissal
Of Suit Accusing DePaul of Job Data Fraud

DePaul University College of Law did not defraud students by giving them allegedly misleading statistics about the employment and salary prospects of its graduates, the Illinois Appellate Court, First District, ruled Sept. 26 (Phillips...

Lawyer-Client Relationship

Appellate Lawyer Was Ineffective for Failing
To Cite Case Decided After Appeal Was Filed

A criminal defense client was denied his constitutional right to effective assistance of counsel on appeal when his lawyer failed to alert the appellate court about a sister panel's decision issued eight days after the case was submitted...

Disciplinary Procedure

West Virginia AG's Office Loses Bid to Enjoin
Enforcement of Adverse Bar Advisory Opinion

West Virginia's attorney general can't stop bar officials from enforcing an informal ethics opinion which concluded that the rules of professional conduct forbid lawyers in the AG's office to assist county prosecutors with...

Judges

Curbs on Judges' Campaign Activities
Win Face Off With Candidate's Speech Claims

Ohio may continue to enforce judicial conduct rules that prohibit personal fund-raising and political endorsements by candidates seeking judicial office, the Sixth Circuit said Oct. 8 (Platt v. Bd. of Comm'rs on Grievances & Discipline...

Malpractice

Co-Counsel's Criticism Isn't Actionable Lanham Claim

A lawyer can't use the federal Lanham Act—which prohibits false advertising—to sue her former co-counsel for making allegedly defamatory statements about her so as to dissuade other members of a business association from...

ETHICS OPINIONS

Conflicts of Interest

Attorneys Cannot Negotiate Settlements
Limiting Ability to Sue Opponent in Future

A recent Indiana bar ethics opinion highlights potential improprieties associated with a ubiquitous settlement practice that plaintiffs' lawyers have long decried but defense counsel view as indispensible: the use of "nondisparagement"...

Private Firm

Lawyer Must Exit Practice After Selling Firm,
But May Assist Buyer on ‘Transition' Matters

The ethics rule that requires an attorney who sells a law practice to withdraw from private practice "does not preclude the seller from assisting the buyer or buyers in the orderly transition of active client matters for a reasonable period...

Confidentiality

Lawyer Can Use Clients as Literary Fodder
If Fictionalized Accounts Disguise Identities

A lawyer who serves as a private mediator in divorce cases and thereafter represents the parties as an attorney by drafting documents they need to secure a divorce may not publish a work of fiction based on information he acquired in those proceedings...

DISCIPLINARY PROCEEDINGS

Conduct Prejudicial to Justice

Lawyer's Absence From Hearings Excused
Where Engagement Was Limited in Scope

Bar authorities had no basis for finding that a lawyer engaged in misconduct by skipping hearings that a client asked him not to attend in light of the terms of their limited-scope representation agreement, the Minnesota Supreme Court decided...

Criminal Conduct

Permanent Disbarment Can Be Appropriate
Even for Conduct Not Covered by Guidelines

A disbarred lawyer who was eligible for readmission but subsequently was charged with additional misconduct will be permanently disbarred even though his misconduct "may not definitively fit any of the specific permanent disbarment...

Permanent Disbarment Is Far From Universal

In a recent court filing, Arizona's presiding disciplinary judge surveyed which U.S. jurisdictions authorize a sanction making a disbarred lawyer permanently ineligible to return to practice:...

NEWS

Regulation of Bar

Supreme Court Case on Dentistry May Impact
Regulation of Legal Profession by Lawyers

Whether lawyers are subject to antitrust liability for serving on regulatory panels that restrict access to the practice of law could hinge on a U.S. Supreme Court case argued Oct. 14 (N.C. State Bd. of Dental Exam'rs v. FTC, U.S., No. 13-534...

Prosecutors

DOJ Tells Prosecutors to Stop Requiring
Ineffectiveness Waivers as Part of Plea Deals

The Department of Justice announced Oct. 14 that federal prosecutors making plea offers should no longer demand that defendants waive their right to bring later Sixth Amendment challenges to the quality of their attorneys' representation....

Model Rules

New West Virginia Rules Follow ABA Model
On Cross-Border Practice, Most Other Topics

West Virginia's top court Sept. 29 revamped the state's lawyer conduct rules, adopting numerous amendments that hew largely to the updated ABA Model Rules of Professional Conduct. The amended rules take effect Jan. 1, 2015....

West Virginia Requires Disclosure for MJP

West Virginia's amended Rule 5.5 and a related comment state:...

CONFERENCE REPORT

Corporate Counsel

Details of Conflicts Rules Are Less Important
Than Firms' Loyalty, Corporate Insiders Say

Loyalty and knowing when to have a telephone conversation are key for outside counsel to stay in the good graces of corporate general counsel and out of the "penalty box," panelists David Hecker and Arthur Simon said Oct. 17 in discussing...

Malpractice

Ethics, Liability Issues Abound When Lawyers
Decide to Create Co-Counsel Relationships

Co-counsel relationships between lawyers in different firms are quite common, but they present risks. For example, is each firm responsible for the other's mistakes? Do clients of one firm become the virtual clients of the other?...

Private Firm

Firms' Internal Counsel Face Many Issues,
But Pay Even Closer Attention to These Four

Those who serve as internal counsel for their law firm mustn't neglect four "nuts and bolts, block and tackle issues"—lawyers heading for the exit, lawyers coming in, keeping clients in the loop and communicating effectively...

INSIGHTS

Clearly Enforceable Future Conflicts Waivers

As practiced in every United States jurisdiction other than Texas, the "duty of undivided loyalty" means that unless the clients consent, individual lawyers and their firms cannot oppose any current firm client on any legal matter—even...