ABA/BNA Lawyers' Manual on Professional Conduct

February 7, 2018 · Number 3
Leading News

Conflicts of Interest
Nixon Peabody May Avoid Ouster for Conflicted Lateral
A judge acted prematurely when he booted Nixon Peabody LLP from a case based on its “incredibly brief” association with a conflicted lateral hire who worked on the other side of the litigation, a California appeals court held Jan. 26.

Reciprocal Discipline
Kicking Pot Didn't Help Movie Exec's Discipline Defense
A Hollywood producer of Oscar-nominated films failed to convince a New York court that it should cut him a break because he's kicked the marijuana habit that contributed to his ethical infractions in California.

Citing SCOTUS, Iowa Justices Slash Rule 11 Sanction
A recent U.S. Supreme Court decision that warned federal judges to exercise caution when awarding frivolous litigation sanctions is having an impact on state courts as well.


  Court Decisions


Judge Can Hear Case Argued by Lawyer Who Backed Him for Top Court
The judge overseeing a contested adoption case wasn't required to bow out simply because the adopters’ attorney had provided a recommendation letter in connection with the judge's application for appointment to the state's top court, the Indiana Supreme Court held.

Attorneys' Fees
Mom's ‘Good Faith’ Defense in Abduction Doesn't Block Fee Award
A mother's alleged “good faith” belief that removing her son from the Czech Republic without his father's consent was lawful doesn't derail his request for a fee award in his successful action for the child's return, a federal court in Florida ruled.

Automatic Stay
Giving Legal Advice Doesn't Violate Automatic Bankruptcy Stay
A creditor's attorney didn't violate the automatic stay in bankruptcy by giving legal advice to the creditor after the debtor's Chapter 13 plan was approved, the U.S. Bankruptcy Court for the Northern District of California held.

Clawback Agreements
‘Reckless’ Production Waives Privilege Despite Clawback Pact
Windstream Communications LLC can't get back 43 privileged documents that it handed over to irth Solutions LLC, because the parties’ clawback agreement didn't eliminate Windstream's duty to conduct a reasonable pre-production review, a federal judge held Jan. 26.

Compensation of Officers
Chapter 7 Trustee Commission ‘Presumptively Reasonable’
A Chapter 7 trustee's commission is a fixed percentage that uses specific statutory amounts as “presumptively reasonable,” the U.S. Court of Appeals for the Fifth Circuit held.

Contingent Fees
No Written Contingent Fee Contract, No Pay: Arizona Court
A lawyer who worked on a contingent fee case without a written retainer is not entitled to any compensation, the Arizona Court of Appeals, Division One, held Jan. 25.

Man's Lawsuit Against Childhood Guardian ad Litem Nixed
An attorney appointed as guardian ad litem for children in a custody proceeding does not have an attorney-client relationship with them, the Tennessee Court of Appeals said.

C&J Energy Investor Loses Novel Request for Attorneys’ Fees
A C&J Energy Services Inc, shareholder can't recover a $5 million attorneys’ fee award from the estate of the company's former CEO and chairman, the Delaware Chancery Court held.

Freedom of Information
DOJ Electronic Surveillance Manual Subject to Disclosure
The Department of Justice must release portions of its USABook dealing with electronic surveillance and tracking devices, the U.S. Court of Appeals for the Ninth Circuit said Jan. 18.

Justice Department
DOJ Attorney Not Purposefully Deceitful, Court Rules
A Justice Department attorney didn't knowingly try to deceive a court during litigation concerning the protest of a telecommunications contract, the U.S. Court of Appeals for the Federal Circuit ruled.

Federal Pension Insurer Wins Attorneys’ Fees Dispute
The Pension Benefit Guaranty Corporation doesn't owe extra fees to attorneys who helped identify and locate people owed pension benefits under plans that collapsed more than 30 years ago, a federal appeals court ruled.

Parental Rights Termination
Mom's Courtroom Absence Wasn't Waiver of Right to Attorney
A parental termination order must be reversed because a woman's court-appointed attorney was allowed to resign when she missed the final hearing, a divided Ohio Supreme Court said.

Attorneys Fined Over Medical Record Mix-up During Discovery
A federal judge Jan. 22 sanctioned a former Morgan's Hotel Group Inc. employee and his attorneys for failing to take reasonable actions to obtain mental health records in an employment discrimination case.


  Ethics Opinions


Blind-Copying Clients on Email is Risky, Alaska Bar Warns
Lawyers may be tempted to use the “cc” and “bcc” email fields to keep clients in the loop. But doing so can damage a client's case or bargaining position when used to share emails to opposing counsel, a recent Alaska bar ethics opinion warns.

Lawyer-Client Relationship
OK to Limit Contact With Abusive Criminal Client: NY Bar
A court-appointed lawyer for a “physically intimidating” and “verbally abusive” defendant may place “reasonable limitations” on the timing and manner of communications with the client, the New York bar's ethics committee advised in a Jan. 29 opinion.


  Disciplinary Proceedings


Ex-Judge Who Got High on Court's Supply Disbarred
A former Pennsylvania drug court judge who used cocaine he stole from evidence in cases he presided over was disbarred by the state Supreme Court Jan. 18.

Judge Reprimanded for Not Bowing Out of Child Support Case
The combined effect of a trial judge's wife's contact with a child support litigant through social media and the judge's acknowledgment of a bias against that parent required his recusal in the support case, the Maine Supreme Judicial Court said.

Criminal Conduct
Lawyer Who Asked Molestation Witness to Recant Loses License
A Georgia attorney who asked a mother to recant an eyewitness account of her son's molestation gave up his law license Jan. 29.

Louisiana Lawyer With MD Who Ran ‘Pill Mill’ Disbarred
A Louisiana lawyer who also held a medical license was permanently disbarred after being convicted of conspiring to illegally distribute drugs like the painkiller oxycodone and the tranquilizer Xanax.

Wife's Attorney Reprimanded for 16-Year Divorce Delay
Public censure is the appropriate discipline for an attorney whose neglect resulted in a client's divorce not being finalized for 16 years, the New York Supreme Court. Appellate Division, said.

Unauthorized Practice
Demand Letters Extend Ex-Prosecutor's Suspension
A former Ohio prosecutor who was suspended for two years after a felony conviction will have to wait longer to regain his license because he sent demand letters to companies that refuse to hire felons.




Attorneys' Fees
4th Quarter Attorneys’ Fees: Sometimes Flawed Is Good Enough
It may make sense sometimes for a court to approve a settlement that pays out more to class counsel than to class members, especially if further tweaking would further diminish the settlement fund.

Attorneys' Fees
Facebook Investors Seek $129M Fee in Fight Over Non-Voting Stock
Lawyers representing Facebook Inc. stockholders who may have caused the company to nix its plan to create a new, non-voting stock class are asking for $129 million in fees.

Wisconsin Political Feud Spreads to Elections Commission
The Wisconsin Elections Commission is “under siege” by the Republican Party after senators fired the agency's chief administrator and commissioners voted to retain him the following day, the chairman of the agency told Bloomberg Law Jan. 25.

DOJ Says Guidance Documents Can't Drive Enforcement Actions
A new policy out of the Justice Department prevents department litigators from relying on guidance documents to establish legal violations in civil enforcement actions.

Financial Technology
The SEC Man Cometh for ICO Attorneys
Lawyers advising the booming cryptocurrency and token industry may soon face a reckoning from the federal government, former SEC officials told Bloomberg Law.

Anthem Data Breach Class Action Hung Up Over Attorneys’ Fees
Anthem Inc. can't dispose of consumer class claims stemming from a 2015 data breach for now, after a federal judge raised concerns about nearly $38 million in proposed attorneys’ fees.

Money Laundering
Former Attorney Gets Seven Years for $2M Laundering Scheme
A former Virginia attorney was sentenced Feb. 2 to seven years in prison for taking part in a scheme to launder more than $2 million, federal prosecutors announced.

GSK Seeks Award Reversal in Attorney Suicide Over Generic Paxil
GlaxoSmithKline LLC can't be liable for harm allegedly caused by another company's product, the drugmaker said, asking a federal appeals court to toss a $3 million award to the widow of an attorney who committed suicide while taking a generic version of its antidepressant Paxil.

Former Brooklyn Assistant District Attorney Sentenced for Illegal Wiretapping
A former supervisory assistant district attorney in the Kings County District Attorney's Office in Brooklyn, N.Y., was sentenced Feb. 2 to one year and a day in federal prison for illegally intercepting oral and electronic communications on two mobile phones, federal prosecutors announced.

Unclean Hands
Merck: Lawyer Misdeeds Don't Justify Nixing $200M Patent Win
Merck & Co Inc.’s $200 million patent infringement win against Gilead Sciences Inc. should be revived, because the company's alleged misconduct didn't have any real effect on the case, a Merck lawyer told the U.S. Court of Appeals for the Federal Circuit at a Feb. 5 oral argument.

Class Action Settlement Value Soars in 2017, Law Firm Says
The value of employment-related class action settlements rose in 2017, with the top 10 settlements in employment-related categories up nearly $1 billion from 2016, a law firm said Jan. 10.