ABA/BNA Lawyers' Manual on Professional Conduct

November 18, 2015 · Volume 31 Number 23



Private Firm
Violation of Ethics Rule Is Enough to Kill Restrictive Covenant
A clause in a law firm operating agreement that requires departing partners to forfeit half their equity stake if they take firm clients with them can't be enforced if a jury decides the provision violates the ethics rule prohibiting most...

Documents Borrower Shared With Banks Remain Privileged
Billionaire Georg F.W. Schaeffler didn't waive attorney-client privilege when he shared accounting documents with a bank consortium during refinancing negotiations over a deal that they correctly anticipated would result in a tax...

Firm's Short Time Limit for Malpractice Claims Is Void
A retainer agreement clause cutting in half the statutory time in which a client may sue for malpractice violates public policy and is void where the client didn't consult independent counsel before saying yes, the Indiana Court of Appeals...

Title Attorney Sued for Malpractice Can't Bring in Title Company
An attorney sued by a title insurer for rendering a defective title opinion can't bring a third-party complaint for contribution or indemnity against a nonlawyer title examiner that allegedly gave him bad information, the Georgia Court...

Loss of Life Estate Counts as Actual Malpractice Damage
A trial judge erred in overturning a $100,000 verdict for a malpractice plaintiff who convinced the jury that her lawyer's faulty Medicaid-planning advice prevented her from obtaining a life estate in a home she had deeded to her adult...

Contingent Fee That Gave Firm Most of Settlement Is Upheld
A district court judge abused his discretion in citing "fairness and right reason" as grounds for cutting a law firm's contingent fee in a minor child's product liability suit, even though the firm ended up getting more of...

Attorney Can't Get Retroactive Approval of Fees
An attorney who delayed getting court approval to represent a Chapter 11 debtor in bankruptcy won't get retroactive authorization to be paid for his work prior to obtaining the bankruptcy court's okay, the U.S. Court of Appeals for...

Conflicts of Interest
No Third-Party Disqualification Motions in 2d Circuit
A defendant in a job bias suit can't get plaintiff's counsel disqualified merely because the lawyer formerly represented a defense witness in a similar suit and now may have to attack his former client's credibility, the U.S....

Conflicts of Interest
Orioles Beat Nationals in Arbitration Award Contest
A Major League Baseball arbitration award settling a TV-rights dispute between the Baltimore Orioles and the Washington Nationals is invalid because MLB did nothing to address the Orioles' complaint that the Nationals' counsel,...

Lawyer-Client Relationship
Court Says Firm Didn't Try Hard Enough to Find Client
Baker & Hostetler must continue defending a supposedly uncommunicative corporate client in a lawsuit in light of the law firm's deficient efforts to locate and notify the client of the firm's proposed withdrawal, the U.S. District...

Trial Conduct
Intransigent Attorney and Client Share Sanctions
An attorney was properly held jointly and severally liable with his client for their "intransigence" that prolonged a child custody modification proceeding and ran up the opponent's attorneys' fees, the Washington Court...



No Extra Fee for Lien Work in Contingent Fee Cases
A contingent fee lawyer can't routinely charge an extra fee to include third-party lien negotiation as part of a client's settlement, the Alabama bar's ethics commission has advised (Ala. State Bar Disciplinary Comm'n,...

Client Funds and Property
Anti-Hacking Duties Don't Include Replacing Stolen Client Funds
Lawyers who have taken reasonable security measures to safeguard their computer network aren't ethically obligated to replace client funds when hackers break in anyway and steal client money, the North Carolina bar's ethics committee...



Lawyer Suspended for Unethical Fee Collection Measures
A lawyer who violated several ethics rules in attempting to collect disputed fees was suspended from practice for at least six months by the Louisiana Supreme Court Nov. 6 (In re Williams-Bensaadat, La., No. 2015-B-1535, 11/6/15)....

Conflicts of Interest
Opposing Former Client in Same Matter Warrants Lawyer's Reprimand
A lawyer who helped clients fight a foreclosure judgment that months earlier he had obtained as attorney for the lender was publicly reprimanded Oct. 29 by the Ohio Supreme Court (Disciplinary Counsel v. Broyles, 2015 BL 355577, Ohio, No. 2015-0598,...



Unauthorized Practice
Settlement Allows LegalZoom to Offer Legal Services in N.C.
LegalZoom and the North Carolina State Bar are no longer at loggerheads over whether the company's offer of personalized legal services to consumers amounts to the unauthorized practice of law. A consent decree entered Oct. 22 ends years...

Regulation of Bar
Pacific Trade Pact Aims to Liberalize Multinational Legal Practice
While politicians, news outlets and the business community ponder the proposed Trans Pacific Partnership trade agreement, the bottom line for lawyers and those who regulate them is this: Even if Congress endorses the TPP, the pact won't...



A Guide to When Lawyers May Speak to Pro Se Individuals
Rule 4.3 governs all communications between a lawyer dealing on a client's behalf and any unrepresented person, no matter whether the person is a party, a witness or neither, and no matter whether there is any proceeding or transaction...