ABA/BNA Lawyers' Manual on Professional Conduct

August 27, 2014 · Volume 30 Number 18


COURT DECISIONS

Advertising and Solicitation

Curbs on Use of Judges' Compliments
In Lawyers' Web Ads Held Unconstitutional

Lawyers can pump up their reputation by posting on their websites compliments bestowed on them by judges in legal opinions, the U.S. Court of Appeals for the Third Circuit held Aug. 11 (Dwyer v. Cappell, 2014 BL 221382, 3d Cir., No. 13-3235, 8/11/14)....

Confidentiality

Counsel in Insurance Lawyer's Bias Suit
May See Confidential Details About Insureds

California law permits a lawyer suing her former firm for employment discrimination and an insurer whose policyholders the firm defends to provide their respective counsel with documents that include privileged information about clients...

Confidentiality

Law Firm Must Reveal Identity of Client
Who Is Funding Another Client's Lawsuit

A client whose legal bills are being footed by one of his counsel's other clients is entitled to have his attorneys tell him the identity of that other client—and he must then disclose that information to his litigation opponents,...

Conflicts of Interest

Trying to Shift Sanction to Client Alone
Creates Unwaivable, Disqualifying Conflict

An attorney who argues that a sanction imposed jointly on his client and himself should be paid solely by the client creates an unwaivable conflict requiring the lawyer's disqualification even if no party has complained, the Washington...

Conflicts of Interest

Broad Conflict Waiver Allows Fired Firm
To Sue Ex-Client on Behalf of Another Client

A broad conflict waiver in his retainer agreement permits a lawyer to continue his representation of a real estate developer in an action to recover environmental cleanup costs from the previous owners of a property—even though the...

Comprehensive Waiver of Conflicts

The waiver provision at issue in the case included the following language:...

Prosecutors

Federal Prosecutors Bound by Ethics Rule
Forbidding IAC Waivers in Plea Agreements

Federal prosecutors must obey a Kentucky ethics rule that prohibits lawyers from participating in plea deals that require a defendant to give up any potential claims of ineffective assistance of counsel, the state supreme court ruled Aug....

Other States' Rules

The Kentucky ethics opinion brings to 12 the number of states that have concluded that IAC waivers in plea agreements are unethical....

Malpractice

Expert Witness May Not Be Needed to Prove
Malpractice Claim Based on Blown Deadline

No categorical rule requires expert testimony to prove that a lawyer committed malpractice by missing a statute of limitations, the New Hampshire Supreme Court declared Aug. 13 (Yager v. Clauson, 2014 BL 224951, N.H., No. 2013-381, 8/13/14)....

Malpractice

Divorce Client's Aim to Benefit Fiancée
Didn't Confer Standing to Sue for Malpractice

An attorney who failed to secure a terminally ill client's divorce before he died cannot be held liable to the deceased client's fiancée, who claims the lawyer's foot-dragging prevented her from marrying the decedent and...

Malpractice

Court-Made Tolling Rule on Malpractice Suits
Survives Legislature's Cutting of Time Period

Legislative revisions to the statute of limitations governing malpractice actions did not disturb a judicially created tolling rule that delays the commencement of the limitation period until the end of the litigation in which the alleged...

Fees

Fired Lawyer Seeking Portion of Settlement
Must Go After Client, Not Successor Counsel

A discharged lawyer seeking a share of a former client's settlement must establish a charging lien in a proceeding against the client and can't avoid that mandate by going after successor counsel instead, a California appellate court...

Malpractice

Firm That Merely ‘Papered' Deal Didn't Assist Fraud

A law firm that "performed the ordinary, run-of-the mill legal grunt-work" for a merger that purportedly helped a parent company "loot" one of its subsidiaries cannot be held liable to the subsidiary because the firm's...

Malpractice

Malpractice Expert's Testimony Not Precise Enough

A jury that heard both sides' malpractice experts testify "as to whether the defendant breached the standard of care" was free to base its verdict against the plaintiff on a determination that she "failed to establish"...

Malpractice

No Malpractice if Client Spurned Settlement Advice

A lawyer who urged a client to accept a $605,000 settlement rather than take "a 50/50 chance" to win as much as $2 million at trial cannot be held liable for malpractice based on the client's "conclusory" assertion that...

Fees

Court Revisits Statute of Limitations Opinion

Claims against a lawyer for failing to refund unearned fees that fall outside the one-year limitation period in California extend beyond theft or conversion, the California Court of Appeal, Fourth District, made clear Aug. 8 (Lee v. Hanley,...

ETHICS OPINIONS

Social Media

Lawyer Must Disclose Identity and Purpose
When Contacting Adversary on Social Media

An attorney exploring a potential legal claim against an unrepresented person can make a "friend" request to access that individual's private social media profile, but "only when the lawyer has been able to send a message...

Confidentiality

Firm May Allow Telecommuters to Access
Client Files With ‘Reasonable' Precautions

A law firm may give its attorneys remote access to electronic files so that they can work from home or elsewhere if "the firm determines that the particular technology used provides reasonable protection to client confidential information,"...

DISCIPLINARY PROCEEDINGS

Conflicts of Interest

‘Intimate' Relationship With Divorce Client
Yields Five-Month Suspension for Attorney

A lawyer who "dated" a friend while advising her and then took over her divorce case despite the personal connection received a five-month suspension from practice from the Connecticut Appellate Court Aug. 19 (Chief Disciplinary...

Reinstatement

Lawyer Convicted Long Ago in Extortion Plot
Won't Be Readmitted Despite Referee's Okay

An ex-lawyer who was convicted of participating in a mob-connected extortion scheme three decades ago but never fully owned up to his crime isn't going to get his law license back, the Wisconsin Supreme Court declared Aug. 12 (Office of...

Advertising and Solicitation

S.C. ‘Permanently Debars' Florida Lawyer
Who Engaged in UPL, Improper Solicitation

A Florida-licensed lawyer who advertised and handled cases in South Carolina without being admitted to the bar there was permanently "debarred" by the South Carolina Supreme Court Aug. 13 from seeking "any form of admission...

Reciprocal Discipline

Vermont Rejects Bar Counsel's Leniency Plea,
Imposes Same Suspension Lawyer Got in N.Y.

A lawyer suspended from practice in New York for two years after she pleaded guilty to misdemeanor identity theft deserves identical discipline in Vermont because she can't back away from her conviction by now characterizing it as "a...

NEWS

Corporate Counsel

In-House Pro Bono, Judge Recusal,
Education at Issue in ABA Resolutions

The ABA's governing body urged courts to create rules making it easier for in-house counsel to provide pro bono services, in a resolution adopted Aug. 12. ...

Trial Conduct

Federal Survey Indicates Most Judges Aren't
Policing Attorneys' Social Media Use at Trial

Although lawyers increasingly are using the Internet to investigate prospective jurors during voir dire, a significant majority of federal judges do not know how frequently such real-time vetting occurs in their courtrooms and do not specifically...

INSIGHTS

Lawyers' Duty of Confidentiality, Part V: Obligations to Former Clients

Every ABA ethics rules' variation and every state's ethics rules confirm that lawyers' confidentiality duty lasts beyond the attorney-client relationship. After that, the issue becomes more subtle....