ABA/BNA Lawyers' Manual on Professional Conduct

October 4, 2017 · Number 20
COURT DECISIONS

Admissions
Applicant Who Flunked Bar Can Sue Examiners, For Now
A former Big Law associate who flunked the bar exam twice cleared a preliminary hurdle Sept. 25 in her suit claiming the New York State Board of Law Examiners wrecked her career prospects by not accommodating her disability (T.W. v. N.Y. State Bd. of Law Exam'rs, 2017 BL 341259, E.D.N.Y., No. 16-cv-3029 (RJD) (RLM), 9/25/17).

Arbitration
Client Didn't Breach Arbitration Clause by Suing Firm in Court
An unhappy client didn't breach the arbitration provisions of a retainer agreement by filing a malpractice suit against its former counsel, the California Court of Appeal, Second District, held Sept. 26 (Sargon Enters., Inc. v. Browne George Ross LLP, Cal. Ct. App., 2d Dist., No. B271718, 9/26/17).

Conflicts of Interest
Lawyer Can Represent Self in House-Flip Fight With Ex-Client
A lawyer can represent himself in a lawsuit accusing him of fraud and breach of fiduciary duty in business transactions with a client, the New York Appellate Division, Second Department, decided Sept. 20 ( Herczl v. Feinsilver, 2017 NY Slip Op 06528, 2017 BL 332085, N.Y. App. Div. 2d Dep't, No. 2014-07578, 9/20/17).

Conflicts of Interest
Lawyer's Media Deal Didn't Compromise Drew Peterson Defense
Former policeman Drew Peterson wasn't denied a fair trial in the murder of his third wife, the Illinois Supreme Court ruled Sept. 21, rejecting the ex-cop's claim that his lawyer's media rights deal prejudiced the defense of a case that generated hundreds of hours of television coverage (People v. Peterson, 2017 BL 333609, Ill., Docket No. 120331, 9/21/17).

Conflicts of Interest
Real Estate Lawyer's Dealings with Broker Didn't Justify Ouster
A real estate investor's longtime counsel shouldn't have been disqualified from representing him against a broker who allegedly formed a partnership with the investor, the California Court of Appeal, Fourth District, held Sept. 21 (Lynn v. George, 2017 BL 335824, Cal. Ct. App., 4th Dist., No. G053563, 9/21/17).

Contingent Fees
Fired Firm Can Get $$ Because Termination Wasn't for Cause
A personal injury client's dissatisfaction with his lawyers wasn't a sufficient cause to bar them from getting paid for the work they performed before he fired them, the Kentucky Supreme Court held in a decision that became final Sept. 14 (Hughes & Coleman, PLLC v. Chambers, 2017 BL 343698, Ky., No. 2015-SC-000435-DG, 8/24/17).

Litigation
Harvard, Other Top Law Schools Didn't Slap Bar Prep Upstart
A New York federal judge tossed claims that some of the nation's prestigious law schools conspired with Barbri Inc. to keep out a potential competitor offering bar preparation courses for foreign law students.

Malpractice
Arbitration Clause Is Enforceable, Covers Malpractice Claim
A lawyer can force a client to arbitrate her malpractice claim against him even though the arbitration clause didn't contain the word “malpractice,” the U.S. Court of Appeals for the Third Circuit held Sept. 19 (Smith v. Lindemann, 2017 BL 333812, 3d Cir., No. 16-3357, unpublished 9/19/17).

Malpractice
Fraudster Who Faked Own Death Caused Client's Losses, Not Lawyers
Any negligence on the part of lawyers who represented a now-defunct company that invested in a struggling bank wasn't the proximate cause of the company's losses, the U.S. District Court for the Northern District of Georgia ruled Sept. 28 (Damian v. Nelson Mullins Riley & Scarborough, LLP, 2017 BL 343970, N.D. Ga., No. 1:14-cv-3498-TCB, 9/28/17).

Malpractice
In Seized Jet Dispute, Malpractice Expert's Testimony Flies
The Texas Supreme Court Sept. 29 revived a legal malpractice against an attorney whose alleged negligence caused a former client to lose a Gulfstream jet, holding that it was proper to admit expert testimony by a lawyer who easily recovered six similar jets for the client (Starwood Mgmt., LLC v. Swaim, 2017 BL 345636, Tex., No. 16-0431, 9/29/17).

Unauthorized Practice
Business Group Will Keep Fighting Ban on Corporate Law Firms
A North Carolina business association has told Bloomberg BNA that it will likely appeal a federal judge's Sept. 19 dismissal of a well-funded lawsuit that seeks to overturn state bans on for-profit law practice by corporate entities (Capital Associated Indus., Inc v. Stein, 2017 BL 329888, M.D.N.C., No. 1:15cv83, 9/19/17).

 

  Ethics Opinions

 

Multiple Representation
Primer on Ethics Issues in Pursuing Mass Consumer Action: Part 1
A law firm may ethically undertake joint representation of a large group of people against the same defendant in a single action if if the lawyer carefully evaluates the potential conflicts and secures each potential client's informed written consent, the San Francisco bar's ethics committee advised in a September opinion (San Francisco Bar Ass'n Legal Ethics Comm., Op. 2017-1, 9/17).

 

  Disciplinary Proceedings

 

Dishonesty
Lawyer Who Felt Pressure to Inflate Hours Is Suspended
A lawyer who submitted false time entries because he was concerned “that his billable hours were not commensurate with his leadership position” in a New Orleans firm was suspended from practice for one year by the Louisiana Supreme Court Sept. 22 (In re Wallace, 2017 BL 336988, La., No. 2017-B-0525, 9/22/17).

Reciprocal Discipline
Three Licenses, No Self-Report, Complicate Choice of Sanction
A lawyer who got reprimanded in Virginia for mishandling client funds received a 30-day suspension in West Virginia as reciprocal discipline Sept. 21 because he didn't report the Virginia sanction (Lawyer Disciplinary Bd. v. Downes, 2017 BL 334162, W. Va., No. 15-0702, 9/21/17).

Unauthorized Practice
Lawyer's Misconduct After Moving to State Brings Everlasting Ban
The South Carolina Supreme Court Sept. 20 permanently banned an out-of-state lawyer from being admitted to practice in the Palmetto State because she engaged in law practice there without getting licensed and broke lots of ethics rules along the way (In re McKeever, 2017 BL 331519, S.C., No. 27739, 9/20/17).

 

  News

 

Attorneys
Travel Bans Spur Growth for Refugee Aid Group; BigLaw Steps Up
The International Refugee Assistance Project hoped there would be an outcry and support for its mission when the humanitarian and legal aid group found out about President Donald Trump's first travel ban in January.

Bribery
Ex-Court Clerk Gets More Than 11 Years for Fixing Cases
A former Orange County Superior Court clerk was sentenced Sept. 22 to more than 11 years in federal prison for taking about $420,000 in exchange for dismissed charges and other legal favors (United States v. Lopez, C.D. Cal., No. 8:16-cr-00113, sentencing 9/22/17).

SCOTUS Dodges DOJ-vs-ABA Fight on Lawyer Subpoenas
The U.S. Supreme Court has declined to hear a case that could have resolved decades-long disputes over whether federal prosecutors must comply by state ethics rules that limit their powers in ways that federal law does not.

 

  Insights

 

Data Security
Ransomware Make You WannaCry? Protecting the Confidential Information of Your Practice and Your Clients from Cybercriminals
By Karen Stromeyer: “Ransomware can happen to you,” was the clear message sent by a panel at the 2017 Fall Legal Malpractice & Risk Management Conference in Colorado Springs, Colorado. The panel, Doug DePeppe, Founder of eosEdge Legal, Colorado Springs; Gawain Charlton-Perrin, Director of Risk Management at Hanover Insurance Group in Chicago Illinois; Steve Smith, Special Agent at the Federal Bureau of Investigation, Colorado Springs; and mediated by Richard J.R. Raleigh, ...

Liability to Nonclients
Secondary Actor Liability Under State Securities Statutes: A Real Risk For Lawyers
By Laura Bishop: Many lawyers appear to feel a sense of safety from secondary actor liability following Supreme Court decisions holding that lawyers are generally shielded from liability under federal securities laws. But lawyers still face real vulnerability under a variety of states’ securities statutes, and need to take steps to protect themselves from the risks associated with those laws.

Malpractice
Managing a Law Firm like a Business Has Risks, Panel Says
By Meaghan Petetti Londergan: Law firms are undergoing a transformation as clients increasingly stress efficiency, better quality, and lower costs. In response, firms are becoming ever-more attuned to how they operate from a business perspective. Many law firms are investing heavily in C-suite executive leadership who implement systems to meet the ever-changing demands of their clients.

Misconduct
Tygart's Anti-Doping Efforts Offer Lessons on Attorney Misconduct
By Matthew T. Biggers: High-stakes, competitive environments often result in a “win at all costs” attitude that can encourage participants to intentionally ignore rules in the pursuit of victory. At the Sept. 13 opening plenary session of the ABA Fall 2017 National Legal Malpractice Conference, Travis Tygart, CEO of the United States Anti-Doping Agency (USADA), discussed competition in the high-stakes environment of international sports. Tygart specifically discussed the ...

Private Firm
‘Pick Me, Pick Me!’ Insurance Insiders Tell How They Hire Lawyers
By Melissa M. Lessell: To thrive at a large legal malpractice defense firm, lawyers need to do more than simply be good advocates—they need to develop their own books of business. And that means developing good relationships with insurance claims adjusters. This was the discussion topic for a panel comprised that two insurance executives, Scott Barabash, vice president of professional liability claims at Aspen Insurance, and Matt Borrillo, senior claims attorney for the Oregon State ...

Private Firm
When You're a Law Firm, Breaking Up is Hard to Do
By James D. Spithogiannis: Law firm splits and attorneys’ lateral moves present practical, ethical, and insurance issues for all involved. At the ABA Fall 2017 National Legal Malpractice Conference in Colorado Springs, Colorado, a diverse panel comprised of an insurance underwriter, an ethics and professional liability lawyer, and a legal recruiter, gave the audience a blueprint for combating these issues. They discussed what lawyers and law firms should be thinking about during ...

EZ ESI: Hands-on Advice for Handling and Using ESI in a Legal Malpractice Claim
By Amanda Moghaddam: In the cult horror classic “The Blob,” a gelatinous pink monster engulfs and devours hapless victims—a perfect metaphor for dealing with the vast amounts of electronically stored information (ESI) involved in litigating modern cases, according to a panel at the ABA Fall Legal Malpractice Conference held on Sept. 14. ESI can cover so many different categories, permutations, and forms today that it leaves attorneys feeling overwhelmed and, well, sticky ...

Mediating Legal Malpractice? Come Armed with Information, Panel Says
By Peter Weber: A well-balanced panel at the Fall National Legal Malpractice Conference presented the Master Class in Attorney Mal Mediations: Select Topics. Johannes Kingma moderated a panel consisting of mediator Ralph Levy, defense counsel Tami Goodlette and former defense counsel now plaintiff's counsel Michael Mihm. The result was a spirited discussion involving diverse points of view.