ABA/BNA Lawyers' Manual on Professional Conduct

November 19, 2014 · Volume 30 Number 24

COURT DECISIONS

Confidentiality
Trade Group's Counsel May Be Deposed
On What Was Said With Member's Lawyer

The buyer in a failed sale of a car dealership may depose a trade association's lawyer—but not the dealership's lawyer—about a telephone conversation between the two attorneys discussing legal issues that were blocking...

Corporate Counsel
Firm Won't Be Removed From Representing
One Client Against Another Client's Subsidiary

A law firm may continue to represent a client suing the subsidiary of another client even though the subsidiary and its parent "are the same corporate entity for conflicts purposes," a New York federal judge decided Oct. 16 (HLP Props.,...

Conflicts of Interest
Passage of Time, Screening Measures
Don't Save Firm From Lateral Hire's Conflict

A law firm must be removed as counsel for plaintiffs suing a doctor and a hospital because years ago one of its associates represented the doctor in a half-dozen medical malpractice cases before moving to the firm, the Indiana Court of Appeals...

Fees
Law Firm Gets No Fee After Pulling Out
Due to Client's Rejection of Settlement Offer

A law firm gave up any claim for compensation when it pulled out of a contingent fee case after the client rejected a settlement offer, the Minnesota Court of Appeals declared Nov. 3 (In re Petition for Distribution of Attorney's Fees, 2014...

Malpractice
Protection of LLP Shield Isn't Ruined
By Lack of Required Liability Insurance

An LLP's failure to maintain malpractice insurance as required by a New Jersey rule does not defeat a partner's individual immunity from liability for another partner's malpractice, the New Jersey Superior Court, Appellate...

Malpractice
Lawyer Pursuing Wrongful Death Action Owed
No Duty to Siblings Who Did Not Join Lawsuit

An attorney who prosecuted a wrongful death action on behalf of two of the decedent's seven children is not liable to two other siblings who alleged that the lawyer committed malpractice and breach of fiduciary duty by failing to "ensure...

Rationalizing Conflicting Authority: Statutory Variation and Nonclient Standing In Wrongful Death Cases
...

Malpractice
Anti-SLAPP Law Won't Kill Claim That Lawyer
Wrongly Disbursed Insurer's Settlement Share

California's anti-SLAPP law doesn't help a personal injury lawyer accused of depriving an insurer of its share of a client's settlement proceeds, the California Court of Appeal, Sixth District, held Oct. 21 (Old Republic Constr....

Conduct Protected by Anti-SLAPP Law
Section 425.16(e) of the California Code of Civil Procedure states:...

Trial Conduct
Order Finding Attorney Violated Ethics Rules
Not Appealable Due to Disqualification Aspec
t
An attorney accused in a trial court's order of acting unethically can't appeal where the order also removed him from the case, the Ninth Circuit ruled Nov. 6 (Lynn v. Gateway Unified Sch. Dist., 2014 BL 314591, 9th Cir., No. 12-15104,...

Prosecutors
Court Kills D.A.'s Interrogation Program
But Avoids Addressing Ethics Implications

New York's highest court Oct. 28 said a county district attorney's office must stop using a "preamble" that encourages suspects to talk before they receive their Miranda warnings (People v. Dunbar, 2014 BL 302664, N.Y.,...

Admissions
ADA Settlement on Bar Admission Rules
Doesn't Help Applicant Deemed Unfit Anyway

The Louisiana Supreme Court made clear Oct. 31 that its recent settlement agreement with the Department of Justice to reform the court's method of evaluating bar applicants with mental health difficulties does not require a fresh look...

Louisiana Settlement Agreement Reforms State's Approach to Bar Applicants With Mental Health Issues
...

Malpractice
‘Bridging Testimony' Needed for Out-of-State Expert
A New Jersey lawyer was properly excluded as an expert witness on the standard of care applicable to Delaware attorneys, the Delaware Supreme Court held Oct. 1 (Phillips v. Wilks, Lukoff & Bracegirdle, LLC, 2014 BL 275863, Del., No. 671,...

Conflicts of Interest
Disqualification Must Be Addressed Before Merits
A court or administrative tribunal presiding over a matter in which a party has moved to disqualify opposing counsel must not address the merits of the case until the disqualification issue has been resolved, the New Mexico Supreme Court made...


ETHICS OPINIONS

Prosecutors
Prosecutors Must Not Lend Letterhead
That Debt Collectors Use to Dun Debtors

Prosecutors are misleading people and aiding unauthorized practice—and may even be committing extortion in some states—when they hand over their official letterhead for debt collection companies to use for letters that threaten...

Lawyer-Client Relationship
Lawyers May Represent Marijuana Entities,
But Rule Change Is Needed to Remove Doubt

Illinois lawyers may help establish entities under the state's medical marijuana law and may provide those businesses with legal services such as negotiating and drafting contracts even though the sale of marijuana remains illegal...


DISCIPLINARY PROCEEDINGS

Misconduct
Sending Judge's Laudatory E-Mail to Clients
Breached Rule Against Implications of Influence

A patent lawyer clearly violated the ethics rule prohibiting suggestions of improper influence by forwarding to clients and potential clients an effusive e-mail he received from the then-chief judge of the Federal Circuit, Randall R. Rader,...

Trial Conduct
Expert Testimony Isn't Needed to Prove
Lawyer Violated Rule on Frivolous Claims

Bar authorities didn't need expert testimony to prove that a lawyer breached the ethics rule that forbids frivolous claims and arguments by answering a lawsuit against a client with exculpatory assertions the lawyer had reason to doubt...

Unauthorized Practice
Post-Suspension UPL Calls for Disbarment,
Even Under Revised Three-Strikes Standard

Even under the state bar's revised three-strikes standard, disbarment is warranted for a lawyer with a tarnished disciplinary record who ran television commercials and operated a website advertising his slip-and-fall practice after...

California Bar's Revised Three-Strikes Rule
Effective July 1, 2014, Standard 1.8(b) of the California State Bar's Standards for Attorney Sanctions for Professional Misconduct states:...

Advertising and Solicitation
S.C. ‘Permanently Debars' Out-of-State Attorney
A Utah-based lawyer who advertised and handled cases in South Carolina without being admitted there was permanently "debarred" by the South Carolina Supreme Court Oct. 29 from seeking "any form of admission to practice law"...


NEWS

Admissions
Bar Trustees Adopt Skills Requirements
That New Lawyers Will Be Expected to Meet

California bar applicants should be required to fulfill pre-admission competency training and then after they join the bar fulfill a 50-hour pro-bono or modest-means service requirement and take post-admission practical skills training,...