February 26, 2014 · Volume 30 Number 5
Skimpy Accounting on Aggregate Settlement
Raises Fraud Claims With Longer Shelf Life
Ex-clients may still have numerous possible claims against a law firm that 15 years ago allegedly withheld information and cheated them when it distributed an aggregate settlement, a divided California Court of Appeal, Second District,...
Lawyer Drafting Security Contract May Have
Duty to File Financing Statement, or May Not
An attorney retained to draft a security agreement does not invariably have a duty—or lack a duty—to file a financing statement to perfect the client's interest in the borrower's collateral, according to a Feb. 4 decision...
Arbitration Clause Applies to Client's Claims
That Lawyer Engaged in Racial Discrimination
A client who accused her foreclosure defense attorney of violating federal antidiscrimination laws by purposefully targeting African American clientele for "inferior, substandard services" must pursue her complaint before...
Must Clients Be Fully Apprised of Consequences of Arbitration Provision? It Depends.
Insurer's Wrongful Failure to Defend Lawyer
Doesn't Make Policy Exclusions Inapplicable
The New York Court of Appeals Feb. 18 said that it erred when it held last year that an insurer that wrongly refused to defend an attorney against a malpractice claim was prohibited from subsequently invoking potentially applicable policy exclusions...
Conflicts of Interest
Firm Booted as Counsel for Journalists
Sued for Defamation by Former Firm Client
A law firm that previously represented a labor leader in connection with a corruption probe may not serve as counsel for media defendants whom the labor official is now suing for defamation, claiming they smeared him when he ran for public office,...
Interlocutory Review of Disqualification Orders, and Waiver-by-Delay: Conflicting Views
Advice to Agency From Its Lawyers
Is Subject to Disclosure to Grand Jury
A state agency's records of its officials' communications with agency lawyers are not shielded from disclosure to a grand jury by either the attorney-client privilege or the work product doctrine, the Pennsylvania Supreme Court...
Crime-Fraud Ruling Forces Lawyer to Testify
In Grand Jury Investigation of Former Clients
A district court did not go wrong in ruling that the crime-fraud exception to the attorney-client privilege permits the government to call a lawyer to testify before a grand jury that is investigating former clients' possible violation...
Equities Compel Removal of Entire Firm
Where One Lawyer Will Be Called as Witness
An entire law firm must be disqualified as counsel from a trial in which one of its members will be called as a witness and asked to either undermine the client's credibility or expose himself to potential disciplinary charges, the U.S. District...
Firms to Which Ex-Howrey Members Exited
Face Claim for Profits on Hourly Fee Matters
District of Columbia law allows the bankruptcy trustee of the defunct Howrey LLP firm to go after profits that other law firms may have earned on unfinished hourly fee matters brought in by former Howrey partners who left the ailing firm, whether...
Irish-Schooled Lawyer's Qualifications Justify
Waiver for Admission on Motion in Nebraska
An Irish-educated lawyer who is licensed in New York is eligible for admission to the Nebraska bar on motion even though his law school program was not accredited by the ABA and did not include several basic legal courses, the Nebraska Supreme...
Foreign-Educated Lawyers See Mixed Results in Applying for Bar Admission in U.S. Jurisdictions
Regulation of Bar
D.C. Circuit Says IRS Exceeded Its Authority
By Trying to Regulate Tax Return Preparers
The Internal Revenue Service exceeded its statutory authority to "regulate the practice of representatives of persons before the Department of Treasury" when it amended its practice rules to include the regulation of tax return...
Trial Court's Restrictions on Standby Counsel
Violated Defendant's Sixth Amendment Rights
A pro se criminal defendant was deprived of his Sixth Amendment right to effective assistance of counsel when the trial judge ordered standby counsel to stonewall the defendant's request for tactical advice after the lawyer inadvertently...
State Must Prove Spying on Lawyer Caused No Harm
The presumption of prejudice that arises when the police are caught listening in on a conversation between a criminal defendant and his attorney requires that the conviction be vacated unless the state can prove beyond a reasonable doubt that...
Lawyers May Pay for Physical Evidence
But Some Limitations Apply, Panel Says
Although ethics rules do not prohibit lawyers from paying for physical evidence in connection with litigation, limitations may apply when such a transaction "involves witness payments or the prospect of false evidence," the New...
Lies to Police Upon Finding Lover Dead
Aren't Excused as Human Reaction to Stress
The Kansas Supreme Court Feb. 7 suspended a lawyer indefinitely for initially lying and withholding information in a police investigation of his romantic partner's abrupt death (In re Mintz, 2014 BL 34229, Kan., No. 110,111, 2/7/14)....
Extension of Probation, Not Suspension,
Is Proper for Misconduct During Probation
A sharply divided Missouri Supreme Court Feb. 4 held that an extended period of probation rather than imposition of the suspension that was stayed during probation is the appropriate sanction for a lawyer who committed competence and fee violations...
Strict Limits on Work Product Protection
For Experts Affirmed by Three Circuit Rulings
Three recent federal circuit rulings make clear that the 2010 expert witness amendments to the Federal Rules of Civil Procedure provide work product protection only for drafts of expert reports and communications between retained experts...
Speakers at Bar Counsel Meeting Probe
Gray Areas in Ethics of Advice on Marijuana
Now that an increasing number of states are decriminalizing marijuana, clients are getting involved in cannabis enterprises. They naturally seek advice from their attorneys on how to comply with the law. But lawyers must comply with the rules...
How Do State Marijuana Laws Work?
Panelists Jamie Sudler, chief deputy regulation counsel in charge of the Litigation Division of Colorado's Office of Attorney Regulation Counsel, and Douglas J. Ende, chief disciplinary counsel for the Washington State Bar Association,...
Uncle Sam Offers a Map for the Unmarked Intersection of Federal and State Drug Laws
ABA Rule on Practice Pending Admission
Isn't Finding Quick Acceptance by States
Lawyers increasingly move from one state to another for all sorts of reasons: Meeting clients' legal needs. Establishing or bolstering a law firm's office. Economic considerations. A spouse's relocation....
Admissions Authorities Describe Trends
That Could Have Disciplinary Importance
Bar regulation is about admission to practice long before it's about the disciplinary process. And so members of the National Organization of Bar Counsel met recently with two officials from the National Conference of Bar Examiners to...
Fewer Subjects, More Skills
Randall T. Shepard, who recently retired as chief justice of the Indiana Supreme Court, went before the ABA House of Delegates Feb. 10 to present the final report of the ABA's Task Force on the Future of Legal Education, which he chaired....
States Vary Widely on Disclosure Duties
That Disciplinary Prosecutors Must Fulfill
The U.S. Supreme Court made clear in Brady v. Maryland, 373 U.S. 83 (1963), that in criminal proceedings prosecutors have a duty to share potentially exculpatory evidence with the defendant....
When Lawyers Use Others' Websites for Marketing, Ethics Rules Follow Them
Lawyers' use of social media often combines the personal and the professional. Accordingly, members of the bar should pay attention to whether something they post to a generally personal website may be subject to the ethics rules. E.g....
Groupon and ‘Daily Deal' Websites: Some Ethics Committees Say Yes, Others Warn Against Them
Reaching Out by Phone—but Not by Voice
The leading opinion on whether lawyers may solicit professional employment by text messaging—also known as Short Message Service, or SMS—is Ohio Supreme Court Ethics Op. 2013-2, 29 Law. Man. Prof. Conduct 238 (2013). The ethics...
Online Bulletin Boards
Posting to an electronic message board may implicate Rule 7.3 if the lawyer is targeting specific users....