ABA/BNA Lawyers' Manual on Professional Conduct

January 27, 2016 · Volume 32 Number 2



Attorney Immunity Defense Protects Pre-Suit Conduct
The attorney immunity defense shields a law firm from possible liability to a litigation opponent that accused the firm of helping its client steal the plaintiff's trade secrets, the Texas Court of Appeals, Fifth District, held Jan. 14...

Colo. Sticks With Privity Rule to Defeat Nonclients' Claims
Colorado is sticking with the "strict privity rule" that prevents nonclients from suing for malpractice except when the lawyer acts fraudulently or tortiously, the state supreme court declared Jan. 19 (Baker v. Wood, Ris & Hames,...

Expert Affidavit Not Needed When Lawyer Is Sued for Intentional Act
A New Jersey statute that requires malpractice plaintiffs to file an affidavit of merit attesting to the viability of the complaint doesn't apply to a lawsuit accusing an attorney of malicious use of process, the New Jersey Superior Court,...

Trustee's Malpractice Claim Tolled While Firm Represented Predecessor
The limitation period on a successor trustee's malpractice claims against the previous trustee's lawyers was tolled as long as they represented the prior fiduciary, the California Court of Appeal, Fourth District, held Jan. 11...

Trial Conduct
Lawyer Must Donate to Women's Group After Sexist Remark
An attorney who made a sexist remark about opposing counsel during a deposition must donate $250 to an organization that promotes gender equality in the legal profession, a federal magistrate judge ruled Jan. 12 (Claypole v. Cnty. of Monterey,...

Invalid Contingent Fee Clause Didn't Void Cost Provision
An unenforceable termination clause in a law firm's contingent fee contract didn't void a separate provision that obligated the client to reimburse the firm for its out-of-pocket expenditures in a costly intellectual property...

Justices Tell State Courts to Follow Fee Precedent
When state courts award fees under a federal fee-shifting statute, they aren't free to use their own interpretation of what the law means, the U.S. Supreme Court made clear Jan. 25 (James v. City of Boise, Idaho, U.S., No. 15-493, 1/25/16)....



Obligations to Third Persons
Opinion Clarifies Limits of Negotiation ‘Puffery'
Ethics rules allow an attorney negotiating for a client to engage in some forms of "exaggeration, posturing or ‘puffing,'" such as overstating the client's "bottom line" settlement number, the California...

N.Y. Lawyer May Split Fees With Firm That Includes Nonlawyer Owner
Although like most states New York forbids sharing legal fees with nonlawyers, New York lawyers may divide fees with attorneys who belong to firms that have nonlawyer stakeholders as permitted in the District of Columbia, Washington state...



Disciplinary Defenses
Labor Law Doesn't Prevent Union Lawyer's Discipline
Federal labor law doesn't immunize an attorney from professional discipline for misconduct while representing a member of a government union that had the attorney on a regular retainer, the Ohio Supreme Court ruled Jan. 14 (Disciplinary...

Advertising and Solicitation
Lawyer Suspended for Lending His Name to Law Firm
A New Jersey-licensed lawyer who lent his name and law license to a partnership that was created as "a legal fiction" to allow a California-licensed attorney "to open and operate a law firm in New Jersey" was suspended from...

Retainer Didn't Adequately Explain Nonrefundability of Fee
A lawyer fired shortly after she was retained acted unethically when she refused to refund any portion of an $10,000 advance fee under a termination provision in her fee agreement that said the return of any entrusted funds "will be at the...



Private Firm
Howrey Bankruptcy Estate Wants Fee Ruling Overturned
A federal judge erred in ruling that the estate of bankrupt law firm Howrey LLP can't recover unfinished business profits from cases former partners took with them to their new firms, the estate argues in its opening brief to the U.S. Court...



Court Affirms $350k Verdict for Lawyer Smeared on Avvo
A recent Florida appellate decision may give hope to lawyers who want to deter dissatisfied clients from posting nasty comments about them online....