Current Issue Highlights

Volume 29 Issue 2
January 16, 2013

The ABA/BNA Lawyers' Manual on Professional Conduct consists of:
• a regularly updated manual and
• a biweekly Current Reports notification service.

For more information about this publication, click here.

Here are highlights from the latest issue of Current Reports:

HIGHLIGHTS

Special Clauses in Document Widened Scope of Lawyer's Duty to Client

A lawyer who drafted a power of attorney for an elderly client assumed an enhanced duty to the client by adding requirements that the designated agents submit an initial inventory to the lawyer and annual accountings to the lawyer or some other attorney, according to the Ohio Court of Appeals, Tenth District. Page 29

Ad Rules Apply to Social Media Posts Signaling Availability for Legal Work

Lawyers who use social media to boast about career milestones must comply with rules governing lawyer advertising if the postings indicate the lawyer's availability for professional employment, the California bar's ethics committee concludes. Page 40

Legal Expert Can't Opine on Merits of Medical Malpractice Case

Expertise in handling medical malpractice cases does not qualify a lawyer to offer an opinion in a legal malpractice lawsuit about whether the underlying medical malpractice action would have been successful, the Montana Supreme Court holds. The opinion also clarifies the law of proximate cause, saying that the concept isn't relevant when the chain of factual causation is clear. Page 32

Contacts With Tainted In-House Lawyer Require Vicarious Disqualification

A law firm that did nothing wrong still must be disqualified as defense counsel in major patent infringement litigation because it presumably obtained confidential information about the plaintiff through its contacts with one defendant's "outside in-house counsel" who previously represented the plaintiff in matters involving three of the four patents at issue in the lawsuits, the U.S. District Court for the Central District of California rules. Page 28

'Questionable' Solicitation of Clients Doesn't Affect Class Certification

Unresolved claims of attorney misconduct in soliciting potential clients for a "junk fax" class action did not require the denial of class certification in the lawsuit, the U.S. Court of Appeals for the Seventh Circuit holds. Page 34

Malpractice Recovery Must Not Include Lost Punitive Damages

A malpractice plaintiff may not recover "lost" punitive damages that would have been recovered in the underlying action but for the lawyer's negligence, the Kentucky Supreme Court decides. Page 31

Attorney Didn't Ignore Role as Counselor by Not Reiterating Bad News

An attorney did not fall short in his duty as a counselor under the ethics rule on lawyer-client communication by not repeating key cautionary information during a multiyear representation that the client's claim for financial relief was flawed, the Maryland Court of Appeals holds. Page 43

ALSO IN THE NEWS

FEES: A law firm that failed to assert a valid lien over property that it helped a client win in litigation cannot collect its payment by foreclosing on that property after it has been conveyed to "innocent third parties," the Illinois Appellate Court, First District, rules. Page 36

MALPRACTICE: A company now owned by a former litigation opponent may not pursue a potential malpractice claim against its former counsel arising out of the litigation in which the adversary prevailed, according to the Washington Court of Appeals, First Division. Page 34

ADMISSIONS: Disappointed graduates of New York Law School do not have any viable tort claims against their alma mater for providing allegedly bogus information about attendees' prospects for getting jobs as lawyers, the New York Supreme Court, Appellate Division, First Department, concludes. Page 37

DISHONESTY: The Wisconsin Supreme Court suspends a lawyer who padded his billable hours to qualify for his firm's yearend bonus and then secretly wrote down the hours after receiving the payment. The lawyer was not absolved by the firm's lack of a written policy on write-downs, the court says. Page 44