Home/Table of Contents
This & That - Part I
This & That - Part II

This and That is now three pages, Part I, Part II, and Part III.  The contents of these pages are as follows:

Part I - (click here)

 - Attorney-Client Privilege/Work Product
 - Confidentiality - Duty under Ethics Rules

Part II (click here)

 - Communicating with Represented Party - Rule 4.2
 - Conflicts - Uncategorized

Part III (this page)

 - Liability - not Conflicts-Related
 - Temporary Lawyers
 - UPL
 - Other

Liability - not Conflicts-Related

Clear discussion of law firm liability in the face of client fraud.  Roger C. Cramton, Enron and the Corporate Lawyer: A Primer on Legal and Ethical Issues, 58 Bus. L. 143 (November 2002).  See, also, Rebecca Roiphe, The Ethics of Willful Ignorance, 24 Geo. J. Legal Ethics 187 (2011).

Lisa H. Nicholson, A Hobson's Choice for Securities Lawyers in the Post-Enron Environment: Striking a Balance Between the Obligation of Client Loyalty and Market Gatekeeper, 16 Geo. J. Legal Ethics 91 (Fall 2002).  Another good article on the ethics rules and securities law liability of law firms.

Eugene J. Schiltz, Civil Liability for Aiding and Abetting: Should Lawyers Be Privileged to Assist Their Clients' Wrongdoing?, 29 Pace L. Rev. 75 (Fall 2008).

Lawyer Liability to Bankruptcy Trustees. Henry S Bryans, Claims Against Lawyers by Bankruptcy Trustees -- A First Course on the In Pari Delicto Defense, 66 Business Lawyer 587 (May 2011).

In re Enron Corp. Securities, Derivative, & ERISA Lit., 235 F. Supp. 2d 549 (S.D. Tex. 2002).  Denial of V&E's motion to dismiss.

Third-party liability cases.  Thornwood v. Jenner & Block, 799 N.E.2d 756 (Ill. App. 2003) (aiding and abetting breach of fiduciary duty); Newburger, Loeb & Co. v. Gross, 563 F.2d 1057 (2d Cir. 1977) (conspired with partners to squeeze out others); AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 808 N.Y.S.2d 579 (N.Y. 2005) (no claims by third parties absent privity or showing of fraud-like conduct) ; Biddle v. Warren Gen. Hosp., 715 N.E.2d 518 (Ohio 1999) (lawyer induced hospital client to violate patient confidentiality); Granewich v. Harding, 985 P.2d 788 (Or. 1999) (lawyer for corporation assisted majority shareholder – not a client – in squeezing out minority shareholder); Reynolds v. Schrock, 142 P.3d 1062 (Ore. 2006) (court found no liability where the lawyer was assisting a client).

10(b) case against lawyers on the other side not subject to state law defenses.  Thompson v. Paul, 2008 U.S. App. LEXIS 22307 (9th Cir. Oct. 27, 2008).

Liability to third parties in New York.  Eurycleia Partners, LP v. Seward & Kissel, LLP, 2007 N.Y. App. Div. LEXIS 12773 (N.Y. App. Dec. 20, 2007).

Prospective client can sue lawyer for negligent misrepresentation.  Steele v. Allen, 2009 Colo. App. LEXIS 214 (Col. App. Feb. 19, 2009).

SEC sanctions.  Weiss v. SEC, 468 F.3d 849 (D.C. Cir. 2006).  This is a clear and well-organized discussion of how a securities lawyer (in this case a bond lawyer) can cross the line in doing a transaction where he did not have a reasonable basis for believing the factual bases for his opinions or the statements in the offering materials.  This is an excellent teaching tool for fledgling securities lawyers.

SEC sanctions.  SEC v. Detling, No. 1:11 cv 4565 (N.D. Ga.) (Litig. Rel. No. 22215 Jan. 3, 2012).  In this case a lawyer settled an SEC disciplinary case by agreeing to a five-year suspension from appearing before the SEC.  The charge was that, in a municipal bond financing, the lawyer -- representing a conduit borrower -- failed to add to offering materials that his client, the principal of the borrower, was a subject of a criminal prosecution.  The lawyer also stated in an opinion letter that there were no proceedings pending that would adversely affect his client.

Altman v. SEC, 666 F.3d 1322 (D.C. Cir. 2011).  Lawyer was barred from practicing before the SEC because he was caught on tape suggesting that his client would commit perjury.  The D.C. Circuit affirmed, holding that a Rule 102(e)(1)(ii) penalty could be based upon the lawyer's violation of state ethics rules.

Aiding and abetting liability of lawyers in Illinois.  Hefferman v. Bass, 467 F.3d 596 (7th Cir. 2006).

Court applies Stoneridge in dismissing securities case (refused to certify class) against Clifford Chance.  In re DVI Inc. Securities Lit., 2008 U.S. Dist. LEXIS 34978 (E.D. Pa. April 29, 2008).

Duty of lawyer to find insurance covering client.  Shaya B. Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 827 N.Y.S.2d 231 (N.Y. App. 2006) .

Rare case on liability for misdirected facsimile.  Poway Land, Inc. v. Hillyer & Irwin, 2002 Cal. App. Unpub. LEXIS 10786 (Cal. App. November 21, 2002).

No breach of fiduciary duty cause of action for revealing a former client's confidences.  Image Outdoor Advertising, Inc. v. CSX Transportation, Inc., 2003 Tenn. App. LEXIS 431 (Tenn. App. June 10, 2003).

Liability to non-client for not recording mortgage.  Cheswell, Inc. v. Premier Homes and Land Corp., 319 F. Supp. 2d 144 (D. Mass. 2004).

Patent Malpractice.  Accuweb, Inc. v. Foley & Lardner, 728 N.W.2d 373 (Wis. App. 2007) .  This may be the first reported decision on a lawyer’s liability when maintenance fees aren‘t paid.  In this 2-1 decision the majority did not address fault, but rather held that the plaintiff could not prove damages.

Third-party negligent misrepresentation claim against lawyer.   Orshoski v. Krieger, 2001 Ohio App. LEXIS 5018 (Ohio App. November 9, 2001).  The court upheld a third-party claim for negligent misrepresentation against a lawyer.  The court relied heavily upon Section 552 of the Restatement of the Law of Torts and several out-of-state opinions, notably, McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999), and  Tajan v. Pavia & Harcourt, 693 N.Y.S.2d 544 (N.Y. App. 1999).

Guardian for Minor's Estate has standing to sue lawyer for predecessor guardian for allowing the predecessor guardian to deplete the estate.  In re Karan v. Topliff, 38 P.3d 396 (Wash. App. 2002).

Liability in California: successor fiduciary can sue lawyers retained by predecessor fiduciary.  Borissoff v. Taylor & Faust, 93 P.3d 337 (Cal. 2004).

No in personam jurisdiction even though number of contacts.  Richards & O’Neil, LLP v. Conk, 774 N.E.2d 540 (Ind. App. 2002). 

In re Cybergenics Corp., 330 F.3d 548 (3d Cir. 2003).  The court held that a creditors' committee could bring fraudulent conveyance proceedings for the estate where the debtor in possession declined to do so.  The court distinguished Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1 (2000), which disallowed such an action in a Chapter 7 case.  The court noted that both the Second and Seventh Circuits have reached the same result.

Aiding and Abetting Breach of Fiduciary Duty.  Anstine v. Alexander, 128 P.3d 249 (Col. App. 2005).

Firing client and telling him wrong Statute of Limitations; when does intervening lawyer excuse liability?   Lopez v. Clifford Law Offices, P.C., 841 N.E.2d 465 (Ill. App. 2005).

May or must a party use an expert witness on ethics issues?  U.S. v. Kellington, 217 F.3d 1084 (9th Cir. 1999) (may); In re Public Offerings Securities Lit., 174 F. Supp. 2d 61 (S.D.N.Y. 2001) (must not).

Useful case on use of experts and ethics rules in legal malpractice litigation.  TCW/Camil Holding L.L.C. v. Fox Horan & Camerini L.L.P., 330 B.R. 117 (D. Del. 2005).

Interesting opinion letter case.  Mega Group, Inc. v. Pechenik & Curro, P.C., 819 N.Y.S.2d 796 (N.Y. App. 2006).

Innocent partner protected by PLLC.  Babb v. Bynum & Murphrey, PLLC, 643 S.E.2d 55 (N.C. App. 2007) .

Violating duty of confidentiality can be cause of action.   Elkind v. Bennett, 958 So. 2d 1088 (Fla. App. 2007).

In bankruptcy, closely-held entity turns on law firm.  Divine Tower Int’l Corp. v. Kegler, Brown, Hill & Ritter Co., L.P.A., 2007 U.S. Dist. LEXIS 65078 (S.D. Ohio Sept. 4, 2007).

Lawyer who submitted to personal jurisdiction as lawyer, could not deny personal jurisdiction as trustee. Cummings v. Pitman, 2007 Ky. LEXIS 242 (Ky. Nov. 21, 2007).

Lawyer representing Delaware corporation subject to in personam jurisdiction in Delaware.  Sample v. Morgan, 2007 WL 4207790 (Del. Ch. Nov. 27, 2007).

Lawyer cannot be sued for conspiring with a client.  Evans v. Chichester School Dist., 2008 U.S. Dist. LEXIS 1821 (E.D. Pa. Jan. 10, 2008).

Law firm's failure to document end of relationship keeps it in case.  Jenifer v. Fleming, Ingram & Floyd, P.C., 2008 U.S. Dist. LEXIS 5492 (S.D. Ga. Jan. 25, 2008).

Minnesota Supreme Court evaluates law firm liability to non-clients in context of loan syndication.  McIntosh County Bank v. Dorsey & Whitney, LLP, 745 N.W.2d 538 (Minn. 2008) (March 6, 2008).

Ohio Supreme Court re-confirms that beneficiary of will does not have privity with the lawyer who drafted the will.  Shoemaker v. Gindlesberger, 2008 Ohio LEXIS 1192 (Ohio May 7, 2008).

Damages in faulty tax-planning malpractice case.  De May v. Moore & Bruce, LLP, 2008 U.S. Dist. LEXIS 97064 (D.D.C. Nov. 6, 2008).

No need to notify malpractice carrier for client misconduct.  Executive Risk Indem. Inc. v. Pepper Hamilton LLP, 865 N.Y.S.2d 25 (N.Y. App. Sept. 23,  2009).

Zaboth v. Beall, 1992 Va. Cir. LEXIS 565 (Va. Cir. Jan. 29, 1992).  This personal injury action was brought against a decedent's estate.  Because, under Virginia law, the action should have been brought against the personal representative, the court in this opinion dismissed the complaint.  The court held that the estate, per se, did not have the capacity to sue or be sued.

Aiding & Abetting Client.  Scanlan v. Eisenberg, 2011 U.S. Dist. LEXIS 24681 (N.D. Ill. March 9, 2011).  One notable holding by the district judge was that if squarely presented, the Illinois Supreme Court would hold that alleging a lawyer aided and abetted a client in the commission of a tort states a cause of action.

Fortress Credit Corp. v. Dechert LLP, 2011 N.Y. App. Div. LEXIS 8481 (N.Y. App. Div. Nov. 29, 2011).  This case involves a $50 million note issue orchestrated by the infamous Marc Dreier.  He obtained Law Firm to issue a third-party opinion letter to the purchaser on behalf of the issuer.  It turned out that the supposed issuer knew nothing about the transaction and that this was one of a series of massive frauds committed by Dreier.  The purchaser sued Law Firm, claiming it relied on Law Firm's opinion letter.  The trial court denied a motion to dismiss.  In this opinion the Appellate Division reversed, holding that the purchaser was not Law Firm's client and that the purchaser failed to make sufficient allegations that Law Firm's conduct rose to the level to justify liability to a non-client.  Evidently, the opinion letter was a typical third-party opinion that made certain assumptions, relied upon facially proper certificates, etc.  The law firm did not claim that it did an investigation into whether the note issuer was what Dreier purported it to be.  The Appellate Division likened the situation to that in Prudential Ins. Co. of Am. v. Dewey, Ballantine, Bushby, Palmer & Wood, 605 N.E.2d 318 (N.Y. 1992), which involved a drafting error in deal documents, but not in the opinion letter.

Lemkin v. Hahn, Loeser & Parks, 2012 U.S. Dist. LEXIS 42363 (S.D. Ohio March 28, 2012).  This was a malpractice case brought against Lawyers by a non-client.  In this opinion the court granted Lawyers summary judgment and discussed what a non-client needs to show to prevail on claims for negligent misrepresentation and other causes of action, against lawyers who were not his lawyers.

Temporary Lawyers

Our former colleague and good friend, Doug Richmond, has written an article on temporary lawyers, Douglas R. Richmond, Temporary Lawyers and Professional Risk, Of Counsel, Mar. 2006, at 8.  Many of the following authorities are from his article.

General.  Michael Downey, Use of Temporary Lawyers, For the Def., Dec. 2005; Brenda Sandburg, Conservatively Optimistic, Am. Law., Dec. 2005; Peter J. Gardner, The Economics and Ethics of Hiring a Temporary Lawyer, Vt. Bar J., Spring 2005; Terry Carter, Surge Instead of Splurge, A.B.A. J., Sept. 2005, at 32, 32.

Disclosure to Client.  ABA Op. 88-356 (1988); Ohio Op. 90-23 (1990); Oliver v. Bd. of Governors, Ky. Bar Ass’n, 779 S.W.2d 212 (Ky. 1989).  N.Y. City Op. 1989-2 (1989); Cal. Op. 2004-165 (2004); D.C. Op. 284 (1998); N.Y. Op. 715 (1998); Alaska Op. 96-1 (1996); Va. Op. 1712 (1999); In re Worldwide Direct, Inc., 316 B.R. 637 (Bankr. D. Del. 2004); Mich. Op RI-310 (1998); In re Wright, 290 B.R. 145 (Bankr. C.D. Cal. 2003).

Billing Issues.   ABA Op. 00-420 (2000); Mahaney, Geghan & Roosa v. Baker, No. CR 970138281, 1999 WL 367804 (Conn. Super. Ct. May 27, 1999); D.C. Op. 284 (1998); Shaffer v. Superior Court, 39 Cal. Rptr. 2d 506, 513 (Cal. Ct. App. 1995).  In re Enron Corp. Securities, Derivative & ERISA Lit., 2008 WL 4178130 (S.D. Tex. Sept. 8, 2008) (a law firm could bill out temporary lawyers' time at a rate that exceeds the compensation paid to the temporary lawyers).

Fee Splitting.  In re Worldwide Direct, Inc., 316 B.R. 637 (Bankr. D. Del. 2004).

Conflicts of Interest.  ABA Formal Op. 88-356 (1988); Colo. Op. 105 (1999); Pa. Informal Op. 94-164 (1995); Tex Op. 560 (2005); Va. Op. 1712 (1999).

Imputation.  D.C. Op. 352 (Feb. 2010).  This opinion provides guidance to law firms that hire lawyers on a project-by-project basis.  Basically, the Committee holds that if the lawyer is not "associated" with the firm, there is no imputation of knowledge between that lawyer and the firm.  The opinion goes on to hold that the law firm must arrange for the temporary lawyer not to be exposed matters not related to his/her assignment.  The opinion also discusses the circumstances under which the lawyer might be considered "associated" with the firm.  In that case the imputation issues become significant.

Supervision.  Restatement  § 11(2); Colo. Op. 105 (1999); Tex. Op. 560 (2005).

UPL.   D.C. UPL Comm. Op. 16-05 (2005).

UPL

Having instate co-counsel appears to save out-of-state firm's fee claim.  Winston & Strawn, LLP, v. Salt Lake Trib. Pub. Co., LLC, 2006 U.S. Dist. LEXIS 24246 (D. Utah April 24, 2006).

Arbitration in Massachusetts.  Superadio Limited Partnership v. Winstar Radio Prod., LLC, 844 N.E.2d 246 (Mass. 2006), and Mscisz v. Kashner Davidson Securities Corp., 844 N.E.2d 614 (Mass. 2006).  In these opinions, dated the same day, the court held that an arbitration award rendered in Massachusetts is enforceable even though the lawyers for the prevailing party were not admitted in Massachusetts.

UPL as cause of action.  Fogarty v. Parker, Poe, Adams and Bernstein, 2006 Ala. LEXIS 212 (Ala. Aug. 18, 2006).  The court held that where a lawyer is violating UPL rules, and the client is injured, that violation can be a cause of action for civil damages.  The court cites cases from other jurisdictions with similar holdings.

Contract lawyers in D.C.  D.C. UPL Op. 16-05 (June 17, 2005).  As of October 2003 the following pages of the ABA/BNA Lawyers Man. on Prof. Conduct comprised a current review of the subject, 21:2101-2125.

"Staff Counsel" OK.  American Home Assurance Co. v. Unauthorized Practice of Law Committee, 121 S.W.3d 831 (Tex. App. 2003).

New Jersey Committee delineates restrictions on out-of-state lawyers in estate administration.  Henry Gottlieb, Estate Work by Out-of-State Lawyers Called Unauthorized Practice of Law, N.J.L.J., July 8, 2002.  It discusses Opinion 38 of the New Jersey Committee on the Unauthorized Practice of Law.

Lawyer appearing before federal agency need not be admitted in state of proceeding.  Augustine v. Department of Veterans Affairs, 429 F.3d 1334 (Fed. Cir. 2005).  Other cases on federal practice:  Sperry v. Florida, 373 U.S. 379 (1963) (patent agent need not be admitted); Surrick v. Killion, 449 F.3d 520 (3rd Cir. 2006) (suspended lawyer allowed, temporarily, to practice state law in federal court); Attorney Grievance Commission v. Bridges, 759 A.2d 233 (Md. 2000); In re Lallier, 555 N.W. 2d 903 (Minn. 1996); Office of Disciplinary Counsel v. Marcone, 855 A.2d 654 (Pa. 2004); In re Desilets (Rittenhouse v. Delta Home Improvement, Inc., 291 F.3d 925 (6th Cir. 2002); Phila. Op. 2004-6 (August 2004) and Phila. Op. 2005-14 (August 2005) (immigration lawyer need not be admitted).  The following authorities are more negative: Ohio Op. 91-6 (April 1991) (lawyer not admitted in Ohio with office in Ohio practicing in federal court violates Ohio’s UPL rule); Blackman v. District of Columbia, No. 97-1629 (D.D.C. Jan. 3, 2005) (court rejected motion filed by lawyer with office in D.C. but not admitted in D.C.). .  See authorities collected at William T. Barker, Extrajurisdictional Practice by Lawyers, 56 Bus. Law. 1501, 1539 –1540 (2001).

Non-admitted lawyer may not practice immigration law in California if the lawyer is going to handle state unemployment proceedings and interpret state law.  In re Wells, 01-O-00379 (Rev. Dept. of the Cal. State Bar Ct, , Dec. 5, 2005).

Lawyer on inactive status cannot share in contingent referral fee.  Morris & Doherty, P.C. v. Lockwood, 672 N.W.2d 884 (Mich. App. 2003).

Complaint signed by a lawyer on inactive status not a nullity.  Applebaum v. Rush Univ. Med. Ctr., 2008 Ill. LEXIS 1438 (Ill. Nov. 20, 2008).   

Suspended lawyer's notice of appeal a nullity.  Jones v. Jones, 635 S.E.2d 694 (Va. App. 2006).

Complaint not a nullity.  Reid v. Cole, No. COA07-272 (N.C. App. Nov. 20, 2007) (filed pro se, local lawyer added after statute ran), following Theil v. Detering, 315 S.E.2d 789 (N.C. App. 1984) (out of state lawyer).

California appellate court approves "captive law firms."  Gafcon, Inc. v. Ponsor & Associates, 120 Cal. Rptr. 2d 392 (Cal. App. June 5, 2002).   The June 18, 2002, edition of the online National Law Journal mentions this case and reviews activities in Texas and Florida that suggest that the California approach may not hold up in all states. 

The ABA Commission on Multijurisdictional Practice has issued its final report.  It is dated August 2002.  The 73-page document can be found at the ABA Web site.

Chance to improve the California UPL situation.  California Supreme Court Advisory Task Force on Multijurisdictional Practice, Final Report and Recommendations, January 7, 2002. 

Arbitration in Massachusetts; award enforceable even though UPL rules violated.  Mscisz v. Kashner Davidson Securities Corp., 844 N.E.2d 614 (Mass. 2006).

Court approves use of insurance company staff (in-house) lawyers to defend insureds.  Unauthorized Practice of Law Committee v. American Home Assur. Co., Inc., 2008 Tex. LEXIS 233 (Tex. March 28, 2008).

Arkansas court says insurance company employee may not defend insureds.  Brown v. Kelton, 2011 Ark. LEXIS 85 (Ark. March 3, 2011).

Friendly to out-of-state lawyer claiming fees in federal court.  Winterrowd v. American Gen. Annuity Ins. Co., 2009 U.S. App. LEXIS 2899 (9th Cir. Feb. 17, 2009).

Pro hac vice admission denied in part because the lawyer had been practicing in the state without a license.  Pease v. Burns, 2010 U.S. Dist. LEXIS 4034 (D. Mass. Jan. 13, 2010).

Implies pro hac vice status required to take deposition in a state where not admitted.  Arteaga v. Hutchins Drywall, Inc., 2011 U.S. Dist. LEXIS 8668 (D. Nev. Jan. 21, 2011).

Debt Settlement Services Prohibited.  Ohio Op. 2011-2 (Oct. 7, 2011).

Other

In several of the following cases the court held that a contract with a lawyer may be enforceable, even though the transaction violated ethics rules.  They may not be in the majority, but are of interest, nonetheless.  Ballow Brasted O'Brien & Rusin P.C. v. Logan, 435 F.3d 235 (2d Cir. 2006); Freeman v. Mayer, 95 F.3d 569 (7th Cir. 1996); Abbott v. Mulligan, 2010 U.S. Dist. LEXIS 55377 (D. Utah June 7, 2010); Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 178 F. Supp. 2d 9 (D. Mass. 2001) and 188 F. Supp. 2d 115 (D. Mass. 2002); Day v. Meyer, 2000 U.S. Dist. LEXIS 13470 (S.D.N.Y. 2000); Ankerman v. Mancuso, 830 A.2d 388 (Conn. App. 2003); Alan B. Garfinkel, P.A. v. Mager, 2010 Fla. App. LEXIS 19773 (Fla. App. Dec. 23, 2010) (involved possible violation of Rule 5.6); Peebles v. Sheridan Healthcare, Inc., 853 So. 2d 559 (Fla. App. 2003) (ethics rule not mentioned); Lee v. Florida Dep't of Ins. & Treasurer, 586 So. 2d 1185 (Fla. App. 1991); Saggese v. Kelley, 837 N.E.2d 699 (Mass. 2005); Guest v. Allstate Ins. Co., No. 27,253 (N.M. App. Feb. 17, 2009); Donald J. Weiss & Associates, P.C. v. Tulloch, 2008 Pa. Super. LEXIS 3511 (Pa. App. Oct. 30, 2008); Shebay v. Davis, 717 S.W.2d 678 (Tex. App. 1986); In re Mitcham, 133 S.W.3d 274 (Tex. 2004); National Union Fire Ins. Co. of Pittsburgh, Pa. v. Keck, Mahin & Cate, 154 S.W.3d 714 (Tex. App. 2004); Watson v. Pietranton, 364 S.E.2d 812 (W. Va. 1987).  To the contrary are Evans & Luptak, PLC v. Dettmer, 650 N.W.2d 364 (Mich. App. 2002); and Valley/50th Ave., L.L.C. v. Stewart, 153 P.3d 186 (Wash. 2007) .  In Morris & Doherty, P.C. v. Lockwood, 672 N.W.2d 884 (Mich. App. 2003), the court held that a lawyer on inactive status cannot enforce an agreement to share a contingent referral fee.

Douglas R. Richmond, Lawyers’ Professional Responsibilities and Liabilities in Negotiations, 22 Geo. J. of Legal Ethics 249 (Winter 2009).

Duty to Client where Lawyer Aware of Mistake.  All materials can be found at the “Underlying Work” page near the bottom.

Duty to correct drafting/scrivener’s error in contract documents.  ABA Informal Op. 86-1518; N.M. Adv. Op. 1987-11; Henning v. Ahearn, 601 N.W.2d 14 (Wis. App. 1999).

Two incredibly good articles touching on ethics and technology: David Hricik, I Can Tell When You’re Telling Lies: Ethics and Embedded Confidential Information, 30 J. Legal Prof. 79 (2005-2006) (clearest explanation yet of metadata and related concepts); and David Hricik, The Speed of Normal: Conflicts, Competency, and Confidentiality in the Digital Age, 10 Computer L. Rev. & Tech. J. 73 (Fall 2005) (being conflicted out of a case for reading unsolicited E-mails, and other subjects on confidentiality and technology).

ABA Litigation Section report on the ethics of settlement negotiations.  The ABA Litigation Section has published a highly comprehensive report, "Ethical Guidelines for Settlement Negotiations."  To read it, go to the Litigation Section's Web site.

Truthfulness in negotiations.  ABA Op. 06-439 (April 12, 2006).  May not lie about facts, but may "puff" about client's settlement posture or strength of case.

Using deceit in obtaining exonerating evidence not a violation of Rules 4.1(a) or 8.4(c), In re Hurley, No. 2007AP478-D (Wis. Feb. 11, 2009).

Restrictions on practice; retirement.  ABA Op. 06-444 (Sept. 13, 2006).

Fees.  Ween v. Dow, 822 N.Y.S.2d 257 (N.Y. App. 2006).  Appellate Division in this opinion ruled that a provision in a fee agreement allowing the lawyer to collect attorneys’ fees and costs in an action to collect his fee was unenforceable.

Undisclosed ghostwriting by lawyer for pro se not permitted in D.N.J.  Delso v. Trustees for Plan of Merck & Co., Inc., 2007 U.S. Dist. LEXIS 16643 (D.N.J. March 5, 2007).  ABA Committee disagrees.  ABA Op. 07-446 (May 5, 2007).  N.J. Op. 713 (undated; 2007?) takes a permissive view of ghostwriting and is a good review of authorities on the matter.  In re W.A.R. LLP, 2012 Bankr. LEXIS 1989 (D.D.C. May 4, 2012) (ghostwriting not per se improper, but was under circumstances of this case).

Lawyer reprimanded because his investigator misrepresented status.  In re Ositis, 40 P.3d 500 (Ore. 2002).

Choice of law/enforceability of unethical contract.  Daynard v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 178 F. Supp. 2d 9 (D. Mass. 2001).

Fee-splitting agreement with non-lawyer unenforceable.   McIntosh v. Mills, 17 Cal. Rptr. 3d 66 (Cal. App. 2004).

Guidelines for the Preparation of Closing Opinions, 57 The Bus. L. 345 (November 2001).

Discipline for failing to supervise when lawyer "reasonably should have known."  In re Herbert Cohen, 847 A.2d 1162 (D.C. App. 2004).

David Hricik, Trouble Waiting to Happen: Malpractice and Ethical Issues in Patent Prosecution, 31 AIPLA Q. J. 385 (Fall 2003).

Non-competition clause in law firm retirement plan is enforceable and not a violation of Rule 5.6(a).  Hoff v. Mayer, Brown & Platt, 772 N.E.2d 263 (Ill. App. 2002).

Pro-lawyer decision on right to withdraw.  Fidelity Nat. Title Ins. Co. v. Intercounty Nat. Title Ins. Co., 310 F.3d 537 (7th Cir. 2002).

Wells submission discoverable.  In re Initial Public Offering Securities Lit., 2003 U.S. Dist. LEXIS 23102 (S.D.N.Y. Dec. 24, 2003).

Client files.  What must the lawyer turn over to the client?  Iowa Sup. Ct. Atty. Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812 (Iowa 2007) .   The court adopted the majority rule, expressed in Sage Realty Corp. v. Proskauer Rose Goetz & Mendelsohn, 666 N.Y.S.2d 985 (N.Y. 1997), and in Restatement Sec. 46(2), that the client is entitled to almost everything in the file.  Exceptions would include such internal ruminations as to who should work on the matter and whether there might be a claim against the law firm.  Pa. Formal Op. 2007-100 (undated) is nearly the same.

Pretexting Review. N.Y. County Op. 737 (May 23, 2007).

Law as literature.  Bender v. Dudas, 490 F.3d 1361 (Fed. Cir. 2007).  In the court's words:

The background of this case reads like a novel but represents the true story of hopes dashed, fees wasted, and dreams lost by hundreds of individual inventors caught up in the world of self-interested promoters who promise the world and deliver very little.

Technology.  Using www.archive.org to see opponent's earlier Web pages not actionable.  Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627 (E.D. Pa. 2007).

Lawyer changing firms and keeping clients.  Pa. & Phila. Joint Op. 2007-300 (June 2007), and ABA Op. 99-414 (1999).

1.16.  No right to withdraw.  "See it through."  Schock v. S.C. Johnson & Son, Inc., 2007 U.S. Dist. LEXIS 56725 (W.D. Va. Aug. 3, 2007).

Plagiarism as violation of Rule 8.4.  In re Burghoff, 374 B.R. 681 (S.D. Iowa 2007).  Grounds for public reprimand, Iowa S. Ct. Att'y Disciplinary Bd. v. Cannon, 2010 Iowa Sup. LEXIS 100 (Ia. Oct. 15, 2010).

When model code becomes law, no copyright infringement.  Veeck v. Southern Building Code Congress Int'l, Inc., 293 F.3d 781 (5th Cir. 2002). 

Appointed counsel’s relationship to a person who declines to be represented.   ABA Op. 07-448 (Oct. 20, 2007).

Wrongful hiring of opponent's employees gets lawyers disqualified; a Scruggs pratfall.  McIntosh v. State Farm Fire & Cas. Co., 2008 U.S. Dist. LEXIS 27736 (S.D. Miss. April 4, 2008).

Establishing lawyer-client relationship absent specific agreement.  Tinn v. EMM Labs, Inc., 2008 U.S. Dist. LEXIS 35888 (D. Ore. April 29, 2008).

Ethics rules and client fraud.  State of Oklahoma v. Golden, 201 P.3d 862 (Okla. 2008).  Lawyer pleaded guilty to the federal crime of misprision of a felony.  His conduct was assisting a client in committing healthcare fraud.  Based upon the plea papers the court in this opinion disbarred Lawyer.  The opinion is a rare, but very brief, judicial discussion of a state’s version of Model Rules 1.2(d), 4.1(b), 1.6 (b)(2)&(3), and 8.4, in the context of assisting client fraud.  Here is another healthcare fraud-related disbarment, In re Abdallah, No. 08-DB-074, Hearing Committee #15 (La. Att'ys Disc. Bd. March 21, 2011).

Lawyer's duties when client threatens to destroy documents.  Mich. Op. RI-345 (October 2008).

New Jersey's Rule 3.3 and duty to tell court of unpublished contrary opinions.  Brundage v. Est. of Carambio, 2008 N.J. LEXIS 874 (N.J. July 15, 2008).

California Mandatory Fee Arbitration Act does not prevent enforcement of written agreement for binding arbitration.  Schatz v. Allen Matkins Leck Gamble & Mallory LLP, 2009 Cal. LEXIS 125 (Cal. Jan. 26, 2009).

Soliciting Representation of Non-Party Witness Frowned Upon.  Mid-State Aftermarket Body Parts, Inc. v. MQVP, Inc., 2009 U.S. Dist. LEXIS 41914 (E.D. Ark. May 4, 2009).

Using third party to get Facebook information deceptive under Rules 8.4(c) and 4.1(a).  Phila. Op. 2009-2 (March 2009).

Turner v. AIG Domestic Claims, Inc., 2011 U.S. Dist. LEXIS 71947 (D. Neb. July 5, 2011).  In a prior arbitration proceeding Lawyers represented Claimants claiming securities fraud by Turner.  Turner settled the arbitration pursuant to an arrangement in which she had no exposure to damages or expenses.  She agreed to a judgment of $4,500,000 and assigned her lawyer malpractice claim to Claimants.  Turner also agreed to pay Claimants $10.  Claimants agreed not to enforced the award against Turner.  Turner retained Lawyers to represent her in this case against her former lawyer.  Her former lawyer moved to disqualify Lawyers from representing Turner.  In this opinion the magistrate judge granted the motion, holding that the representation violated public policy.

Rule 3.6; Publicity.  CG Trading, LLC v. Seyfarth Shaw, LLP, 2011 Mass. LEXIS 679 (Mass. July 29, 2011).  The trial court denied a pro hac vice motion because the out-of-state lawyer had violated Massachusetts' version of Model Rule 3.6 (publicity rule).  The lawyer had been quoted in an article about the case.  In this opinion the Supreme Judicial Court reversed, holding that the article fit well within the exceptions contained in Rule 3.6(b).  The quotes attributed to the lawyer contained facts or allegations, which were already public record.

3.3; When to Intervene in Deposition.  Corbello v. DeVito, 2011 U.S. Dist. LEXIS 98305 (D. Nev. Aug. 31, 2011).

Arbitrator Misconduct.  Northwestern Nat'l Ins. Co. v. Insco, Ltd., 2011 U.S. Dist. LEXIS 113262 (S.D.N.Y. Oct. 3, 2011).  In an arbitration between two insurance companies, one of the "party-appointed" arbitrators shared with the law firm that had appointed him confidential communications among the three arbitrators, including communications relating to their deliberations.  Law Firm did not reveal this receipt until being compelled to do so.  In this opinion the court ruled Law Firm had behaved unethically and should be disqualified in the arbitration.

Board of Overseers v. Warren, 2011 Me. LEXIS 122 (Me. Dec. 8, 2011).  Partner in large (for Maine) law firm took client money for himself.  The executive committee failed to notify bar authorities for three months.  A single judge found no ethics violations.  In this opinion the court reversed as to the failure to notify and remanded to the judge to enter judgment and impose a sanction.

Compensating Witness.  Chicago Ins. Co. v. Capwill, 2011 U.S. Dist. LEXIS 143333 (N.D. Ohio Dec. 13, 2011).  Lawyers for the plaintiff sought the deposition of a former employee of the plaintiff.  They agreed to pay the former employee $175/hour for preparation and deposition time, an amount equivalent to what the former employee was making at his new job.  In this opinion the court found that the total compensation ($2,187) was reasonable and not a violation of any law or ethics rule.

Cuadra v. Univision Commc'n, Inc., 2012 U.S. Dist. LEXIS 48431 (D.N.J. April 4, 2012).  The lawyer for the plaintiff in this civil rights action sought leave to withdraw.  In this opinion the magistrate judge denied the motion.  It would serve little to discuss the facts, but the opinion does explore helpfully the provisions of Rule 1.16, both mandatory and permissive.

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This & That - Part I
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