ABA/BNA Lawyers' Manual on Professional Conduct

April 9, 2014 · Volume 30 Number 8


Conflicts of Interest

‘Balancing Test' for Conflicts Is Rejected
In Litigation After Class Action Settlement

Lawyers who had represented flight attendants in individual lawsuits for compensatory damages following a settlement in a class action are disqualified from representing some class members in litigation claiming misuse of funds by a settlement-created...

Corporate Counsel

Privilege Shields Attorney-Client Records
In Possession of Former General Counsel

The attorney-client privilege protects corporate documents held by a former general counsel who continued advising the company after his departure to help its new general counsel get up to speed, the U.S. District Court for the Northern District...


Firm Must Turn Over Internal Work Product
To Trustee in Ex-Client's Bankruptcy Case

The trustee for an entity that is essentially a law firm's former client is entitled to the firm's entire client file, including its work product, the U.S. District Court for the Eastern District of Kentucky ruled March 19 (McKinstry...

Firms Often Don't Succeed in Withholding Work Product From Clients or Their Successors



Attorney for Estate Has No Obligation
To Protect Executor's Personal Interests

An attorney hired to assist in the administration of an estate does not have a duty to look out for the executor's personal interests or to warn the executor that she should consult independent counsel to protect her personal interests,...


Retainer Did Not Support Client's Argument
That Malpractice Claim Sounded in Contract

A client's assertion that a law firm "breached its contract duties" to her by not handling her case properly does not allow her take advantage of the longer statute of limitations applicable to breach of contract claims, the Connecticut...

Traps for the Unwary: Retainers and Engagement Letters as Grounds for Breach of Contract Claims



Attorney's Reliance on Bad Title Search
By Other Lawyer Is Matter for Jury to Resolve

A trial court should not have granted summary judgment against a real estate closing attorney for damages a buyer suffered when the attorney relied on another lawyer's faulty title search, the South Carolina Court of Appeals held March...


Liability Carrier May Refuse to Do Business
With Plaintiffs' Attorneys Who Sue Insurers

Malpractice insurers do not violate public policy by using an underwriting guideline that refuses coverage to some plaintiffs' attorneys but does not affect defense counsel, the U.S. District Court for the District of Montana held March...


Second Circuit Asks New York's High Court
What Will Satisfy In-State Office Requirement

The constitutionality of New York's in-state office requirement for lawyers hinges on what the state's high court decides will satisfy that statutory mandate, the U.S. Court of Appeals for the Second Circuit concluded April 8 (Schoenefeld...

Trial Conduct

Anti-SLAPP Protection Extends to Nonparty
That Supported Purportedly Frivolous Lawsuit

A labor union that supported an allegedly frivolous lawsuit brought by taxpayers against a town accused of bid-rigging is shielded by the state anti-SLAPP law from the town's action for abuse of process, the Massachusetts Supreme Judicial...


Order That Parties Each Bear Own Costs
Didn't Preclude Recovery of Attorneys' Fees

A litigant was eligible for attorneys' fees under the 1976 Civil Rights Attorney's Fees Awards Act, 42 U.S.C. §1988, despite a court order that parties bear their own costs of appeal under Federal Rule of Appellate Procedure...


Suit May Continue Despite In Pari Delicto Defense

The U.S. Court of Appeals for the Ninth Circuit March 24 reversed and remanded the dismissal of a negligence lawsuit against Bryan Cave LLP (Sharp v. Bryan Cave LLP (In re Estate Fin. Mortg. Fund, LLC), 2014 BL 80771, 9th Cir., No. 12-56009, 3/24/14,...

Private Firm

Partner's Discrimination Claim Must Be Arbitrated

A law firm partner cannot avoid arbitration of her sex discrimination claims against the firm by arguing that because the firm itself didn't sign the partnership agreement it can't invoke the contract's mandatory arbitration...



Proposed Opinion on E-Discovery and Ethics
Cautions Lawyers Not to Be Overly Confident

Even experienced litigators may breach their professional duties of competence and confidentiality, as well as a separate obligation not to suppress evidence, if they assume they can handle "e-discovery" in a complicated case...

Additional Advice on Risk Management and Ethics Issues That Law Firms Face in E-Discovery


Conflicts of Interest

Ethics Panel Says ‘No' to Arrangement
Where Lawyer Lends Funds to Other's Clients

An attorney's plan to refer clients who need advance litigation funding to another lawyer willing to provide it is unethical, the Philadelphia bar's ethics committee advised in a March opinion (Philadelphia Bar Ass'n Prof'l...

Advertising and Solicitation

Virginia Finalizes Opinion on Firm Domain Names

The Virginia bar's ethics committee March 20 finalized its guidance on law firm domain names that include the surname of a former member, making no changes from its earlier proposed opinion on the subject (Virginia State Bar Standing Comm....



Charges Against Prosecutor Are Dismissed
Even if She Wasn't Fully Candid With Judge

Exculpatory circumstances compel the dismissal of all disciplinary charges against a now-former prosecutor who "failed to tell the truth with precision" when a judge questioned her about a pretrial conversation with a key witness...

Criminal Conduct

Bestselling Author May Keep Law License
Despite Multiple Arrests for Drunk Driving

A sharply divided Oklahoma Supreme Court March 25 held that a lawyer and bestselling writer of "legal thrillers" may keep his law license despite four drunk driving arrests (State ex rel. Okla. Bar Ass'n v. Bernhardt, Okla., No....

Conflicts of Interest

Lawyer Suspended for Joint Representation
In Case Where Wife ‘Ratted Out' Husband

A criminal defense attorney will be suspended from practice for 90 days for jointly representing a married couple during the early stages of a drug investigation in which one spouse acted as a cooperating witness against the other, the Montana...

Unauthorized Practice

Lawyer Is Suspended One Year for Helping
Suspended Colleague Continue His Practice

A lawyer who aided a suspended immigration attorney's unauthorized practice of law—and at first wasn't honest about it when bar authorities were investigating that violation—will lose his law license for one year,...

Disciplinary Procedure

Colorado Disciplinary Counsel Doesn't Need
Committee's Approval of Particular Charges

Disciplinary counsel in Colorado is not required to obtain the Attorney Regulation Committee's approval of the specific charges that will be filed against a lawyer, the Colorado Supreme Court made clear March 24 (People v. Kanwal, Colo.,...


Lawyer-Client Relationship

New Comment Gives Colorado Lawyers
Green Light to Counsel Marijuana Industry

A March 24 order from the Colorado Supreme Court makes that state the first U.S. jurisdiction to recognize in its lawyer conduct rules that attorneys may advise clients on now-decriminalized marijuana-related activities and transactions....

Ethics and Marijuana: Debates in Nevada and Washington


Client Funds and Property

Florida Rule Changes Require Written Plan
On Responsibility for Firm's Trust Accounts

The Florida Supreme Court March 27 changed some of its rules governing lawyers in that state, including a new provision requiring all law firms except solo practices to adopt a written plan allocating responsibility for the firm's trust...


Application of Fee-Splitting Rule Implicates Meanings of ‘Lawyers' and ‘Firm'

Rule 1.5(e) applies only to fee-splitting agreements "between lawyers who are not in the same firm." This raises two threshold questions:...

Firms Have Considerable—but Not Unlimited—Authority to Craft Departure Compensation Plans