ABA/BNA Lawyers' Manual on Professional Conduct

July 29, 2015 · Volume 31 Number 15

COURT DECISIONS


 

Private Firm
Ban on Equity Investment in Law Firms Is Upheld
Jacoby & Meyers's constitutional challenges to New York laws and regulations that stop nonlawyers from obtaining equity stakes in law firms are "entirely without merit," the U.S. District Court for the Southern District...

Corporate Counsel
A-C Privilege Applies to Corporate Board Briefing
The attorney-client privilege may protect materials from a corporate meeting in which a hospital executive briefed her board of directors—and at least one lawyer—about a likely medical malpractice suit against the hospital,...

Trial Conduct
Goodyear and Attorneys Must Pay $2.7 Million Sanction
A $2.7 million sanction against Goodyear Tire & Rubber Co. and two of its attorneys for bad faith discovery violations was affirmed July 20 by the U.S. Court of Appeals for the Ninth Circuit (Haeger v. Goodyear Tire & Rubber Co., 2015...

Trial Conduct
Scuttling Settlement Wasn't Sanctionable Conduct
A trial judge presiding over a complex, multiparty dispute lacked inherent authority to levy a six-figure sanction against an attorney for conduct that scuttled a tentative global settlement but didn't actually violate a court order,...

Malpractice
11th Cir. Gives Broad Reading to Judgmental Immunity
The judgmental immunity doctrine insulates lawyers from malpractice liability for "good faith tactical decisions" that backfired, the U.S. Court of Appeals for the Eleventh Circuit held June 19, rejecting several Florida cases...

Malpractice
S.C. Says No to Assignments of Malpractice Claims
Clients can't assign legal malpractice claims to their litigation opponents, the South Carolina Supreme Court declared July 15 (Skipper v. ACE Prop. & Cas. Ins. Co., 2015 BL 225688, S.C., No. 27547, 7/15/15)....

Malpractice
No Litigation Privilege for Malicious Prosecution
The litigation privilege doesn't protect lawyers or litigants from liability for malicious prosecution, the Florida District Court of Appeal, Fourth District, held July 15 (Fischer v. Debrincat, 2015 BL 225801, Fla. Dist. Ct. App....

Defamation
Court Sets Standard for Unmasking Lawyer's Online Critic
An attorney who wants the name of the anonymous poster who allegedly smeared her reputation on Avvo must establish that she has a prima facie cause of action for defamation before she can get the information from Avvo via a subpoena, the Washington...

Confidentiality
Ethics Rules Permit Firm to Be Nonclient's Document Screener
Ethics rules permit a litigant's counsel to review a nonclient's documents to determine whether they should be produced in response to the opposing party's subpoena, the U.S. District Court for the District of Connecticut declared...

Regulation of Bar
2nd Cir. Revives Contract Lawyer's Overtime Claims
A contract attorney who performed document review for Skadden Arps Slate Meagher & Flom LLP may pursue a Fair Labor Standards Act collective action for overtime pay because he plausibly alleged he wasn't involved in the practice of...

Fees
Charging Lien Can't Be Enforced Against Alimony Order
A divorce attorney's charging lien may not be enforced against a client's court-ordered spousal support award, the Colorado Court of Appeals held July 16 (Dixon v. Samuel J. Stoorman & Assocs. P.C., 2015 BL 227363, Colo. Ct. App.,...

Conflicts of Interest
Future Conflict Waiver Allows Firm to Sue Ex-Client
A law firm that represented two sets of corporate co-defendants who later became adversaries may continue as counsel for one set of defendants because all of the clients specifically waived any conflicts that might arise from the joint defense...


ETHICS OPINIONS


 

Fees
Lawyer May Share Fees With ‘Consumer-Oriented' Referral Service
A lawyer who obtains clients through a "lawyer referral service" may pay a percentage of her fees to the organization only if the fees were derived from a litigation matter, or—in nonlitigation cases—the entity is a "consumer-oriented...

Lawyer-Client Relationship
Washington Lawyer Can Operate Marijuana Business
Lawyers in the state of Washington—one of five U.S. jurisdictions that have legalized recreational cannabis use—are generally free to operate marijuana-related businesses and to engage in personal use of the drug, the Washington...

Smoking Lawyers: 3 of 4 States Say ‘Yes'
The Washington committee is the third bar panel to conclude that lawyers do not violate ethics rules by using marijuana for recreational or medicinal purposes in states that have decriminalized such use....

Lawyer-Client Relationship
San Francisco Bar: Lawyers Can Advise Pot Shops
A lawyer in California—one of the 24 U.S. jurisdictions that have legalized medical marijuana—may ethically advise a client on how to start and operate a medical marijuana dispensary "even though the attorney may thereby...

Client Funds and Property
Va. Opinion Lets Lawyers Take Ch. 7 Fees at Filing
An attorney may ethically disburse from her trust account the entire amount of advanced fixed fees received from a Chapter 7 "no-asset" debtor/client and remaining in her trust account immediately before the filing of the debtor's...


DISCIPLINARY PROCEEDINGS


 

Disciplinary Procedure
Court Rejects ‘Systemic Challenges' to Bar Discipline
Wisconsin's disciplinary system doesn't treat lawyers unfairly by allowing the presiding referee to learn about their past disciplinary violations before deciding the merits of the current charges, a divided Wisconsin Supreme...

A Few Jurisdictions Either Require or Permit Bifurcation of Liability and Sanction Phases
...


NEWS


 

Model Rules
ABA Ethics Committee Floats Draft Anti-Bias Rule
The ABA's ethics committee will soon finalize a proposed amendment to the Model Rules of Professional Conduct that would directly prohibit lawyers from harassing or discriminating against certain classes of persons while engaged in...

Case Law From Several States Illustrates Enforcement of Anti-Discrimination Rules
...

Malpractice
Survey: Estate Planning Ripest Area for Malpractice
Demographic changes have caused a spike in malpractice claims against attorneys who handle estate planning matters, according to a survey of insurance companies that write professional liability policies for 80 percent of the 100 largest...

London-Based Carrier Pitches New Lines of Insurance Coverage for Firms With Nonlawyer Partners
...

Confidentiality
Law Firm Data Security Protects Brand, Clients
Law firm information management policies should begin with limiting access and using simple technological solutions, such as blocking "reply all" on e-mail services, information security and records professionals said July...

Survey of In-House Counsel Indicates Concerns About Outside Law Firms' Data Safety
...


SPECIAL REPORT


 

The Ghost of Repealed Rule 2.2 Still Lingers in the ABA Model Rules
When asked to help two or more people accomplish a shared goal or resolve a dispute, a lawyer must make a judgment call about whether the particular situation is right for intermediation. The fact that the prospective clients want a shared lawyer...

A Legislative History of Model Rule 2.2 on Conflicts That May Arise in Intermediation
...

Lawyer as ‘Scrivener'
Not infrequently, clients who have reached an agreement on their own ask a lawyer to formalize it in writing. Some authority acknowledges the concept of a lawyer’s functioning as a mere "scrivener" to reduce an agreement to...

Some Situations Have Been Deemed Inherently Inappropriate for Intermediation
..