ABA/BNA Lawyers' Manual on Professional Conduct

September 21, 2016 · Volume 32 Number 19



‘Primary Purpose’ Controls Privilege for Mixed Advice
The attorney-client privilege applies to a lawyer’s legal advice that’s intertwined with nonlegal advice, if the primary purpose of the communication is giving or seeking legal advice, the Connecticut Supreme Court declared...

Anti-SLAPP Law Covers Concealment in Settlement Negotiations
A company’s alleged concealment of a key document during negotiations to settle a suit qualifies as protected activity for purposes of applying California’s Anti-SLAPP law in an action to rescind the settlement, the California...

Lawyer's Copying of Draft Brief Was Infringing
A lawyer who copied text from a brief filed by a co-defendant in a patent case committed copyright infringement, the U.S. District Court for the Central District of California ruled Sept. 13 (Newegg Inc. v. Ezra Sutton, P.A. , 2016 BL 299780,...

Trial Conduct
Fed Judge Urges ‘Robust Use of Rule 11' to Deal With Frivolous MDL Cases
The federal multidistrict litigation statute—designed to speed up the resolution of mass tort cases—has had "the unintended consequence of producing more new case filings of marginal merit," and courts should deal...

Conflicts of Interest
Broad Waiver Prevents DQ in Failed Joint Representation
A lawyer who formerly represented both his son and the son’s stepfather in a personal injury case may keep representing his son in related litigation after the stepfather fired the lawyer, the U.S. District Court for the Western District...

IAC Claim Doesn’t Open Door to All Attorney-Client Secrets
Prosecutors can’t insist on speaking with a convicted defendant’s former trial lawyer about their attorney-client communications just because the defendant is now claiming ineffective assistance of counsel, a federal magistrate...

Bar Complaint Doesn’t Pause Clock for Malpractice Suit
A client’s disciplinary complaint against a lawyer didn’t toll the statute of limitations for the client to sue the lawyer for malpractice, the Mississippi Court of Appeals decided Sept. 13 (Archer v. Creel , 2016 BL 297996, Miss....

Conflicts of Interest
Acacia ‘Poisoned' Patent Case Against Schlumberger Dismissed
Acacia Research Corp.'s alleged practice of hiring a company's attorney, buying a related patent and then suing the company cost the non-practicing entity its infringement case against Schlumberger Ltd. Sept. 12 (Dynamic 3D Geosolutions...

Regulation of Bar
Bar Fund Can Collect Lawyer’s SSN, Despite Privacy Act
Maryland can lawfully compel lawyers to provide the state client protection fund with their Social Security numbers on pain of suspension, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held Sept. 13 (Tankersley v. Almand...

Withdrawal From Representation
Lawyer’s Stress-Related Health Issues Justify Withdrawal
A lawyer who suffers from an irregular heartbeat caused by "extraordinarily high mental stress levels" will be permitted to withdraw from a high-profile lawsuit that he’s handled for more than two years, the U.S. District...

Trial Conduct
Lawyer Must Pay $84k After Failing to Convey Settlement Offer
A lawyer’s failure to convey a settlement offer to a client merits sanctions under the federal statute that authorizes courts to penalize attorneys for abusive tactics that prolong litigation, the U.S. District Court for the Eastern...

Ch. 13 Debtor on Hook to Pay Attorney's Fees to Ex-Wife
An award of attorney's fees to a debtor's ex-wife for "overtrial" is a domestic support obligation (DSO) entitled to priority in bankruptcy, the Seventh Circuit held Sept. 14 (Trentadue v. Gay (In re Trentadue) , 2016 BL 299410,...

HHS May Have to Pay Attorneys' Fees in Ariz. Medicaid Case
The HHS may have to pay attorneys' fees to a group of Medicaid patients who challenged its approval of an Arizona Medicaid demonstration project (Wood v. Burwell , 2016 BL 299393, 9th Cir., No. 14-15356, 9/14/16)....

Creditors Get Praise From Bankruptcy Court, But No Fees
Two creditors, who proved that a Chapter 7 debtor transferred assets with the intent to hinder, delay, or defraud creditors, could not be compensated for their efforts due to language in the Bankruptcy Code, a bankruptcy court held Sept. 1 (In...

Advertising and Solicitation
Avvo’s Online Profiles Don’t Violate Lawyers’ Publicity Rights
The lawyer matching website Avvo Inc. doesn’t violate the publicity rights of attorneys by publishing biographical information about them in online profiles that include paid advertisements for other lawyers, the U.S. District...



N.Y. Prosecutors’ Duty to Disclose Broader Than Brady
A prosecutor’s ethical obligation to disclose exculpatory evidence to a defendant is more comprehensive than the constitutional minimums imposed by Brady v. Maryland, the New York City bar’s ethics committee advised in a recent...

Advertising and Solicitation
Equity Stake Isn’t Sine Qua Non for ‘Partner’ Label
A lawyer doesn’t have to have an ownership interest in a law firm in order for the firm to hold him out as a "partner," the North Carolina bar’s ethics committee has advised (North Carolina State Bar Ethics Comm., Formal...

Conflicts of Interest
NYC Panel Charts Path to Represent Party + Deposition Witness
Joint representation of a named party in a case and a nonparty witness at a deposition in that case is ethically permissible if the lawyer can comply with the ethics rules on limited-scope representation and conflicts of interest, according...



Unauthorized Practice
Negotiating by E-Mail = Unauthorized Practice of Law
A Colorado attorney engaged in the unauthorized practice of law when he sent a few e-mails to a Minnesota attorney in an attempt to help his parents-in-law negotiate a dispute over the collection of a Minnesota judgment, a sharply divided Minnesota...

Disciplinary Procedure
Grievance Panel Dismissal Didn’t Tie Bar Counsel’s Hands
Ohio’s chief bar prosecutor didn’t violate a lawyer’s due process rights by filing an ethics complaint against him one year after a local bar grievance committee—which shares investigative authority with bar...

Client Under Disability
Misconduct Toward Mentally Impaired Client Brings Disbarment
A Maryland lawyer was stripped of her license Aug. 24 for multiple ethics violations in representing a client with diminished mental capacity (Attorney Grievance Comm’n of Md. v. Framm , 2016 BL 274737, Md., Misc. Docket AG No. 73, 8/24/16)....

Lying About GPA in Law School Keeps Applicant Out of Bar
A law graduate won’t be admitted to the Maryland bar because she misrepresented her law school GPA on her resume and kept quiet about an old felony theft charge when she applied for bar admission, the Maryland Court of Appeals decided Aug....

Unauthorized Practice
Suspended Lawyer Engaged in UPL by Appearing Pro Hac Vice
An attorney who went on inactive status in Kansas—and then had his inactive law license administratively suspended for failing to pay annual registration fees—engaged in the unauthorized practice of law when he obtained admission...



Trial Conduct
Should Late Shopping of Class Settlements Draw Sanctions?
A recent Arkansas news article tipped off a federal judge that plaintiffs' attorneys dismissed their insurance class action from his court only to refile it in a state court where they believed a pending settlement would have an easier...

Britannica Asks Review of Alice Retroactively Applied
Encyclopaedia Britannica Inc. petitioned the U.S. Supreme Court on a patent ineligibility twist that led to its malpractice case being dismissed (Encyclopaedia Britannica, Inc. v. Dickstein Shapiro LLP, U.S., No. 16-305, 9/8/16)....