ABA/BNA Lawyers' Manual on Professional Conduct

December 3, 2014 · Volume 30 Number 25

COURT DECISIONS


 

Confidentiality
California Case Embraces Intrafirm Privilege
For Consultations With Firm's Inside Counsel

The attorney-client privilege shields a lawyer's confidential communications with her law firm's in-house attorney about a dispute with a current client provided that a genuine attorney-client relationship exists between them,...

Advertising and Solicitation
Florida Court Allows Free Speech Challenge
To Bar's Stance on Advertising Past Results

A personal injury attorney may proceed with his constitutional challenge to the Florida Bar's policy change that now generally prohibits lawyers from touting their previous accomplishments on television, radio and billboards or other...

Malpractice
Successor Personal Representative May Not
Go After Firm That Represented Predecessor

The Maine Supreme Judicial Court Nov. 25 adopted a "multifactor third-party beneficiary test" for determining the "limited and rare instances" in which a lawyer may be held liable to a nonclient (Estate of Cabatit v. Canders,...

Malpractice
Recipient of Opinion Letter May Sue
Issuer's Attorneys for Malpractice—as Client

A company that requested a legal opinion about a proposed transaction with a city may sue for malpractice the attorneys who represented the city and provided the opinion letters, a federal judge in Mississippi decided Nov. 13 (Crews & Assocs.,...

Malpractice
Minnesota Remains Unimpressed
By Continuous Representation Doctrine

The continuous representation doctrine does not postpone or extend the period for filing a legal malpractice claim in Minnesota, the Minnesota Court of Appeals ruled Nov. 17 (Carlson v. Larry K. Houk, P.A., 2014 BL 322262, Minn. Ct. App., No....

Trial Conduct
Federal Judge May Sanction Attorneys
Even After Case Remanded to State Court

The prohibition in 28 U.S.C. §1447(d) on federal court review of orders that remand cases to state court doesn’t apply to sanctions for attorney misrepresentations or to vacatur of a fraudulently obtained remand order, the en...

Candor Toward Tribunals
Lawyer Is Sanctioned for Not Acknowledging
Adverse Authority in Disqualification Dispute

Counsel for an ex-wife in post-dissolution litigation violated his duty of candor by not conceding on appeal that the trial court erred in completely disqualifying the ex-husband's attorney, the Florida District Court of Appeal, Fourth...

Conflicts of Interest
Federal Law Allowing Screening Trumps
Texas Law on Issue of Shared Confidences

In the Fifth Circuit federal courts will depart from Texas law and allow law firms to rebut the presumption that a lawyer who formerly represented his new firm's opponent shared confidential information about the opponent with his new...

Admissions
Lying Lawyer's Pro Hac Vice Revocation
Satisfied Notice, Opportunity Requirements

An attorney who "lied point blank" to a district court received sufficient notice and opportunity to be heard before that court revoked his pro hac vice admission, the U.S. Court of Appeals for the First Circuit held Nov. 14 (Ryan v....


ETHICS OPINIONS

 

Misconduct
Don't Call Another Lawyer Unethical
Without Reporting Lawyer's Misconduct

Iowa lawyers must not call another attorney unethical unless they're going to report that person to the disciplinary board, the Iowa bar's ethics committee advised Oct. 24 (Iowa State Bar Ass'n Comm. on Ethics & Practice...

ABA Opinion on Disciplinary Threats
ABA Formal Ethics Op. 94-383 (1994), which addressed the subject of threatening opposing counsel with a disciplinary complaint to induce a civil settlement, advised that this threat may not be made when the alleged misconduct raises a substantial...

Confidentiality
Bad Review on Rating Site Doesn't Trigger
Self-Defense Exception to Confidentiality Duty

The self-defense exception in the ethics rule on lawyer-client confidentiality doesn't allow a lawyer to reveal confidential information to rebut a client's negative review on a lawyer-rating website, the New York state bar's...

Guidance From Elsewhere on How Rule 1.6 Limits Lawyers' Ability to Counter Negative Comments
...


DISCIPLINARY PROCEEDINGS

 

Competence
Defense Counsel's Performance Was So Bad
That He Can't Practice in Kansas Anymore

Disbarment clearly is warranted for a lawyer whose profound shortcomings as retained defense counsel in a death penalty case were severely prejudicial to his client's interests, the Kansas Supreme Court decided Nov. 14 (In re Hawver,...

Conduct Prejudicial to Justice
Shame, Expungement Don't Mitigate Misconduct
A six-month suspension is the appropriate sanction for a lawyer who engaged in conduct harmful to the justice system when she gave a handgun to a former client who she knew could not legally own it, the Maryland Court of Appeals decided Nov. 19...


NEWS

 

Lawyer-Client Relationship
Third-Party Litigation Financing Growing Fast,
Survey of Practitioners and Financiers Says

Use of third-party litigation financing has more than doubled since 2013 among in-house counsel and jumped more than one-third among outside litigators, according to a recent survey conducted by business intelligence firm Briefcase Analytics....

Fees
‘Selfish' Class Action Settlement
Didn't Justify ‘Outlandish' Fee Award

A "meager" settlement distribution to members of a class disputing dietary supplement labeling didn't justify an attorneys' fee award of nearly $2 million, the U.S. Court of Appeals for the Seventh Circuit held Nov. 19 (Pearson...


SPECIAL REPORT

 

May a Lawyer Rebut the Presumption of Acquiring Confidential Information?
Once it is established that a lawyer has a conflict of interest involving a former client, the lawyer—by virtue of Rule 1.9's substantial relationship test —is presumed to have gained confidential information from the former...

Related but Distinct Presumptions: Acquiring Confidences, Then Sharing Them