ABA/BNA Lawyers' Manual on Professional Conduct

June 4, 2014 · Volume 30 Number 12


COURT DECISIONS

Confidentiality

Oregon Joins States That Recognize Privilege
For Intrafirm Talks About Possible Liability

Internal consultations between a law firm's attorneys and the firm's in-house counsel are privileged from discovery in a malpractice action even if they concern the firm's potential liability to a current client, the Oregon...

Confidentiality

Testamentary Exception to Privilege
Is Formally Recognized in Maryland

The testamentary exception to the attorney-client privilege has "existed in Maryland for close to a century, despite never been formally named," the Maryland Court of Appeals made clear May 16 (Zook v. Pesce, 2014 BL 137491, Md.,...

Confidentiality

Pleading ‘Reasonable Belief' in Contract Suit
Was Not Waiver of Attorney-Client Privilege

A real estate developer that says it bought a vacant lot after relying on a title agency's assurances that a critical easement was valid need not produce "any attorney-client communications indicating whether [it] knew before close...

Malpractice

Attorney Is Entitled to Full Contingent Fee
Despite Unethical Provisions in Fee Contracts

A sharply divided Mississippi Supreme Court May 22 held that an out-of-state tort lawyer did not forfeit a $4.6 million contingent fee simply because he may have violated ethics rules by, among other things, advancing $100,000 in cash to personal...

Malpractice

Malpractice Plaintiff Can't Recover
Fees Paid to Firm in Underlying Matter

Attorneys' fees a client paid a law firm in a matter the firm allegedly mishandled are not recoverable as damages in a malpractice action, the Oregon Court of Appeals held May 14, addressing an issue of first impression (Rowlett v. Fagan,...

Fees

Law Firm Kept Right to Arbitrate Fee Claim
Despite Suing Associate for Poaching Clients

A law firm fired by clients in a personal injury case did not waive the right to arbitrate its claim to a contingent fee by pursuing a separate lawsuit against a former associate accused of poaching that and other cases when he left the firm, the...

Malpractice

Malpractice Suit Based on Plea Advice Fails
Absent Proof That Better Deal Was Available

A client who pleaded guilty to criminal charges need not establish his innocence before asserting a malpractice claim based on his trial counsel's alleged failure to follow up on the government's suggestion of a possible plea deal,...

Regulation of Bar

Warning Must Precede Fee-Based Suspension

A bar rule is unconstitutional to the extent it allows automatic suspension of a lawyer's license for nonpayment of the annual license fee without giving the lawyer advance notice of the delinquency, a divided Arkansas Supreme Court held...

Lawyer-Client Relationship

Plea Advice Needn't Include Sex Offender Duties

A mandatory sex offender registration obligation is not something that a defense attorney or a court must ensure a defendant is aware of before entering a guilty plea, the Utah Supreme Court held May 20 (State v. Trotter, Utah, No. 20111056,...

ETHICS OPINIONS

Private Firm

VIP Titles and Incentive Bonuses Not Allowed
For Top Nonlawyer Executives at Texas Firms

In an opinion at odds with how some large law firms operate, the Texas bar's ethics committee has nixed the idea of conferring titles such as "chief executive officer" or "chief technology officer" on nonlawyer managers...

CEOs and CMOs With MBAs at Some Firms

Texas Op. 642 doesn't acknowledge that some firms—including at least two with offices in the state—are already bringing in nonlawyers who have a top-level business background and giving them titles that reflect their roles....

Unauthorized Practice

Out-of-State Lawyer's Mailings to Illinoisans
Aren't Always UPL, but Must Satisfy Ad Rules

Clarifying how ethics rules apply when lawyers engage in multistate marketing, the Illinois bar's ethics committee advised in a May opinion that promotional mailings by out-of-state lawyers to potential Illinois clients do not automatically...

Corporate Counsel

Counsel for Company and Previous Owner
May Represent New Owner With Consents

A lawyer who represented a company and its sole shareholder before it was sold may represent the new owner along with the company after the sale, provided that both individuals give informed consent, according to a recent opinion from the Vermont...

Conflicts of Interest

Rules Won't Let Financial Firm's Attorney
Handle Customers' Social Security Appeals

A lawyer employed by a financial services company may not represent its customers in appealing the denial of their claims for Social Security disability benefits, the Illinois bar's ethics committee advised in a May opinion (Illinois...

Limits on Staff Attorneys' Outside Services

Illinois Ethics Op. 14-03 cites several opinions to support its conclusion that a company's in-house counsel may not provide legal services to its customers:...

DISCIPLINARY PROCEEDINGS

Competence

Lawyer's Failure to Vet Firm Colleague
Supports Finding She Lacked Competence

The Maryland Court of Appeals May 23 imposed a six-month suspension on a novice lawyer who botched an immigration case that she acquired after misrepresenting her proficiency and associating with co-counsel "whose experience she had...

Confidentiality

Lawyer's Response to Client's IAC Claim
Did Not Violate Obligation of Confidentiality

An attorney accused of botching a criminal client's defense did not act unethically by revealing "damaging" information in response to claims in a post-conviction motion by the former client and his new counsel that the attorney...

Confidentiality

Lawyer Publicly Reprimanded for Revealing
Confidences in Responding to Online Reviews

In light of "significant mitigating circumstances," a public reprimand—rather than anything more severe—is the appropriate sanction for a lawyer who responded to a former client's negative online reviews by...

Conflicts of Interest

Client's Consent to Third-Party Payment
Of Lawyer's Fees Need Not Be in Writing

The "informed consent" that an attorney must get from a client before accepting compensation from a third party does not need to be in writing, the Utah Supreme Court decided May 23 (Reneer v. Utah State Bar, Utah, No. 20120760, 5/23/14)....

Limited Function of Rule 8.4(a)

Recently added Comment [1a] to Utah Rule of Professional Conduct 8.4 states:...

Reciprocal Discipline

‘Revocation' of New York Law License
Warrants Reciprocal Suspension in D.C.

Revocation of a lawyer's license in New York should be treated as a suspension for purposes of handing out reciprocal discipline in the nation's capital, the District of Columbia Court of Appeals ruled May 15 (In re Olivarius, 2014...

CONFERENCE REPORT

Admissions

Many States Embrace Conditional Admission
But Panelists Point Out Difficulties in Process

Close to half the states (23) have adopted a rule allowing conditional admission to the bar, which permits applicants who would have been denied admission due to past mental, emotional or substance abuse problems to be licensed to practice...

By the Numbers

Panelist Mistie Bauscher reported that since July 1, 1998, Idaho has had 54 conditional admittees out of an overall total of 3,162 admissions, or 1.7 percent....

Lawyer-Client Relationship

Executives of Litigation Financing Firms
Explain What They Look for When Investing

Alternative litigation funding is a fact of life in modern legal practice....

Speaker Raises Numerous Ethics Concerns Raised by Litigation Funding Arrangements

...

Conflicts of Interest

Panel Explores Troubling Issues to Consider
When Client's Matter Involves Firm's Services

A law firm handled a matter for a client—and maybe mishandled it, because a dispute has arisen about the firm's work. Should the firm represent the client while trying to make things right?...

Trial Conduct

Panelists Identify What Lawyers Do
On Social Media That Leads to Trouble

More and more attorneys are getting into hot water by misusing social media in their law practice, and several patterns of blunders are emerging, according to panelists who addressed this subject May 30 at the 40th ABA National Conference on...

Examples of What Lawyers Should Not Do on Social Media

...

Corporate Counsel

Lawyers Wishing to Represent Big Companies
May Find Many Contractual Strings Attached

One might conclude that a conference program on "Contracting Around the Ethics Rules" must be about how lawyers can elude ethics restrictions they prefer not to encounter....

Examples of Client-Imposed Contract Terms

Contract provisions that speakers John Steele and Merri Baldwin said they've seen in retainer agreements imposing extra duties on counsel:...

Conflicts of Interest

Instructors at ‘Disqualification Boot Camp'
Teach Practice and Tactics of DQ Motions

Now more than ever, lawyers who believe opposing counsel has a conflict of interest must think twice before filing a disqualification motion. Judicial attitudes have shifted over the years, and lawyers may find they get a chilly reception...

Litigating the Motion to Disqualify

In one of his PowerPoint slides for the panel discussion on motions to disqualify, Robert G. Krupka made several points about litigating such a motion:...

Lawyer-Client Relationship

Counseling on State-Law Marijuana Activities
Must Include Money Laundering Implications

Now that several states allow sale, use and possession of marijuana for medicinal or recreational purposes, ethics authorities have been peppered with questions about what lawyers can and should do in counseling clients who want to jump into...

INSIGHTS

Restraints on Lawyers' Ex Parte Communications With Government Agencies

The Moonlight Fire ignited on Labor Day 2007 and blazed across northeast California for two weeks. The fire eventually consumed 65,000 acres of land, including more than 46,000 acres in the Plumas and Lassen National Forests....