2018
New Guidance on Attaching Documents to Motion to Dismiss
By Kelso L. Anderson – December 7, 2018
Court limits use of documents outside of pleadings for dismissal of securities claim.
Attorneys Must Self-Report Errors to Current Clients
By C. Thea Pitzen – November 29, 2018
Lawyers have a duty to disclose a material error to current, but not former, clients.
Do “Costs” Equal “Fees” Under Rule 41(d)? It Depends on the Court
By Anthony R. McClure – November 13, 2018
Second Circuit chooses sides in circuit split over attorney fees after voluntary dismissal.
Decision Vacating DOL’s Fiduciary Rule Creates Circuit Split
By Martha L. Kohlstrand – November 7, 2018
Appellate courts divide over whether the Department of Labor exceeded power to regulate investment advisors.
Privilege Waived for Email Copied to Unrepresented Third Party
By Peter J. Murphy – November 1, 2018
Client communication with unrepresented contractor is not protected by common interest.
ABA Says Social Media May Waive Confidentiality
By Benjamin E. Long – October 26, 2018
Former clients may have “generally known” information used against them.
Attorneys Permitted to Ghostwrite Pleadings for Pro Se Litigants
By Martha L. Kohlstrand – October 17, 2018
Ethics opinion permits ghostwriting without disclosing assistance to court or opponent.
Calls for Transparency Loom Over Increase in Litigation Funding
By Onika K. Williams – October 11, 2018
Rise in use of third-party litigation funding provokes disclosure requirement trend.
Poll of Potential Jurors Results in Six-Figure Sanction
By Geoff A. Gannaway – October 3, 2018
Lawyer lacks candor in response to claim, court holds polling attorney tried to woo jurors.
Court Clarifies Duty to Provide Entire Client File on Termination
By Catherine M. Chiccine – September 28, 2018
Ethics rule requires attorneys to provide more than end product to former clients.
The Genius of Gratitude
By Joseph P. Beckman – September 18, 2018
The third installment of "Seeking Paths to Lawyer Well-Being."
Former Partner’s Representation Disqualifies Law Firm
By Andrew J. Kennedy – September 13, 2018
Possible knowledge of former client’s finances and strategy dooms representation.
Supreme Court Holds ALJ Appointment Procedure at SEC Unconstitutional
By Erik A. Christiansen – September 6, 2018
Circuit split resolved, impacting all federal agencies.
Careful Pleading Key after Unprecedented Preemption Ruling
By C. Thea Pitzen – August 28, 2018
Express preemption in hybrid device case based on nature of plaintiffs’ alleged injuries.
New Guidance for Privilege Analysis
By Josephine M. Bahn – August 24, 2018
Court orders production of internal corporate emails, articulates rules.
Electronic Data Stored Abroad Now Subject to Federal Seizure
By Kristen L. Burge – August 16, 2018
CLOUD Act intended to balance effective law enforcement and personal data privacy.
Alleged Failure to Monitor Discovery Leads to Malpractice Suit
By Onika K. Williams – August 7, 2018
Law firm unable to shake malpractice claim for not preventing spoliation.
Failure to File Surreply Leads to Waiver on Appeal
By Matthew S. Mulqueen – August 1, 2018
Appellate court cites trial court’s local rules in decision.
Attorney Misrepresentations Result in Revival of Dismissed Claims
By Amy Mattson – July 27, 2018
Hundreds of age bias claims reinstated after court finds lawyers’ letters misled clients.
Joint Representation Requires Pre-Engagement Disclosures
By Candice A. Garcia-Rodrigo – July 20, 2018
Clients must be informed of implications of representation even where no conflict exists.
A “CC” or “BCC” Between Client and Adversary Can Trigger Privilege and Ethics Risks
By Kelso L. Anderson – July 17, 2018
Ethics opinions offer best practices for electronic communications with clients.
Consolidated Cases Treated Individually for Purposes of Appeal
By Stephen Carr – July 11, 2018
A family feud leads to a decision that a final judgment is not required for the appeal of individual cases.
Sexual Orientation Discrimination Claim Actionable Under Title VII
By Catherine M. Chiccine – July 2, 2018
En banc Second Circuit ruling widens circuit split.
New Trigger for Determining Removal Deadline
By Geoff A. Gannaway – June 27, 2018
Fifth Circuit extends deadline in cases where basis for removal arises during deposition.
Social Media May Waive Confidentiality Says ABA
By Benjamin E. Long – June 14, 2018
Former clients may have “generally known” information used against them.
Guidelines Emerge with Rise in E-Discovery of Employee Devices
By Andrew J. Kennedy – June 5, 2018
The Sedona Conference provides principles for companies grappling with BYOD.
Appellate Review Allowed Despite Failure to Preserve Issue Below
By C. Thea Pitzen – May 30, 2018
Appellate court charitably distinguishes inadvertent forfeiture from intentional waiver.
Plaintiff’s Testimony Too Incredible to Defeat Summary Judgment
By Amy Mattson – May 25, 2018
Rare circumstances, irreconcilable contradictions lead to credibility determination.
Court Permits PowerPoint Use During Closing
By Josephine M. Bahn – May 22, 2018
Counsel may close with summary slides, if accurate.
Joint Client May Compel Disclosure of Privileged Documents
By Matthew S. Mulqueen – May 14, 2018
Objection of former joint client does not prevent production.
Joint Defense Rule Shrouds Information Shared in Common Interest
By Martha L. Kohlstrand – May 11, 2018
Common interest doctrine acts as cloak preventing waiver of privilege.
Acts Within Policy Period May Not Be Covered
By Benjamin E. Long – May 3, 2018
Broad reading of prior exclusion clause results in coverage denial.
Court Compels Redacted Information as Non-Responsive
By Catherine M. Chiccine – April 20, 2018
Extensive unilateral redaction of documents is not justified.
Seeking Paths to Lawyer Well-Being
By Joseph P. Beckman – April 17, 2018
The focus on health and resilience for lawyers begins with a look in the mirror.
Cash or Bitcoin? Ethics Board Approves Technology as Fund Source
By Josephine M. Bahn – April 10, 2018
Bitcoin acceptable, but beware of associated requirements.
Mass Filing of Frivolous Lawsuits Leads to Significant Sanction
By Kelso L. Anderson – April 6, 2018
A federal district court imposed a fine of $9.1 million against the Florida firms.
Appearance-of-Impropriety Test Replaced with Objective Analysis Standard
By Amy Mattson – April 3, 2018
The “appearance of impropriety” and its perceived conflict is not sufficient under Model Rule 1.9.
Retract Your Claws! Privilege Waived Despite Clawback Agreement
By Candice A. Garcia-Rodrigo – March 30, 2018
Clawback agreement will not prevent waiver of privilege from careless document production.
Court Order Sent to Spam Folder Costs Client Appeal
By Stephen Carr – March 26, 2018
Setting the filtered emails to delete automatically resulted in a failure to review.
Seventh Circuit Reverses Itself, Resolves Circuit Split
By Katerina E. Milenkovski – March 20, 2018
Proximate cause, not "but-for" test, is required for False Claims Act recovery.
Trend in Medical Marijuana Suits Favors Employees
By C. Thea Pitzen – March 15, 2018
Employers walk a fine line between new laws and existing obligations.
Monetary Offer for Witness Testimony Triggers Suspension
By Onika K. Williams – March 13, 2018
Public reprimand not sufficient for deliberate act.
Court Expands Use of U.S. Discovery for Foreign Proceedings
By Andrew J. Kennedy – March 8, 2018
Discovery is not limited by the type of relief sought or to a particular foreign action.
Civil False Claims Require New Materiality Standard
By Erik A. Christiansen – March 7, 2018
New criteria may limit future cases and recoverable damages.
Knowledge of False Label Does Not Flush Standing for Injunction
By Geoff A. Gannaway – February 6, 2018
Injunctive relief promotes reliance on future advertising.
Foreign Online Sales Extends Personal Jurisdiction Across the Atlantic
By Andrew J. Kennedy – February 6, 2018
Decision opens door to potential deluge of website based personal jurisdiction claims.
Attorney-Client Arbitration Agreement Controlled by Federal Law
By Benjamin E. Long – February 5, 2018
FAA controls in showdown with Rules of Professional Conduct.
Harold and Kumar Don’t Get Fired: Every Employee May Get Stoned
By Adam E. Lyons – February 5, 2018
States may prohibit termination of medical marijuana users despite federal law.
Court Expands Ethical Duties for Handling Inadvertent Disclosures
By Josephine Bahn – January 24, 2018
Duties now extend to information received from the attorney’s own client.
Magistrate May Not Dismiss Without Consent of Unserved Defendant
By Candice A. Garcia-Rodrigo – January 22, 2018
Posner, in one of the last dissents, writes, “A bigger waste of time … is thus hard to imagine.”
Off-Duty Medical Marijuana Use Not Grounds to Rescind Hire
By Josephine Bahn – January 17, 2018
Beware when attempting to change an employment offer due to off-duty medical marijuana use.
Enhanced Ethical Obligations for Virtual Law Practices
By Amy Mattson – January 16, 2018
The trend is to permit virtual legal practices with extra ethical precautions.
Privilege Protects Counsel’s Redacted Coverage Analysis
By Adam E. Lyons – January 12, 2018
Insurer not entitled to compel disclosure of coverage analysis from insured’s counsel.
Court Disqualifies Lawyers Found to be Necessary Witnesses
By Christina M. Jordan – January 11, 2018
Trial counsel were necessary witnesses to determine contract existence.
Client Intake Call Does Not Disqualify Conflicted Counsel
By Matthew S. Mulqueen – January 9, 2018
Attorneys should be familiar with local rules when interacting with potential clients.
SEC Issues Warning on Token and Digital Currency Use
By C. Thea Pitzen – January 4, 2018
Sales of tokens will be subject to heightened scrutiny.
Ninth Circuit Splits from Others in Tolling Deadline for Class Action Appeals
By Anthony R. McClure – January 3, 2018
An appeal filed after the Rule 23 deadline may be timely where the plaintiff “acts diligently.”