Friday, November 27, 2020

How are the states answering the call to allow law school graduates to enter the profession without a bar exam because of the pandemic?

Above the Law has a short summary of the situation here.  In a nutshell, some states will admit graduates without having to take the bar exam, some will allow them to start practicing pending their passing of the bar exam if they practice under the supervision of a lawyer, and some have made not changes to their current procedures.  Above the Law's article has all the details.

Sunday, November 22, 2020

Louisiana Supreme Court holds that plaintiffs do not need to show that they would have been able to collect the judgment in the "case within the case" to support malpractice claim

As you know, when a plaintiff sues a lawyer for malpractice in a litigation matter alleging that the defendant's representation caused the plaintiff to lose a claim, the plaintiff has to show that they would have won the case had it not been for the negligence of the defendant (the lawyer).  In torts terms, this is what the plaintiff has to argue and prove in order to establish the element of cause in fact.  Typically, however, courts hold that showing that the plaintiff would have won the original case (sometimes referred to as "the case within the case") is not enough because if the plaintiff would not have been able to recover anything in that case then the plaintiff can't establish an actual "loss" (the element of injury, in torts terms).

This means that typically, the plaintiff has to show not only that the plaintiff would have won the original case but for the negligence of the lawyer, but also that the plaintiff would have been able to collect the judgment (or at least part of it) as a result.

I am writing about this today because the Legal Profession blog reported a few days ago that the Louisiana Supreme Court recently decided a case that appears to be the first time a court has held that the plaintiff in a legal malpractice suit need not prove that the underlying lost judgment was collectible.

The case is called Ewing v. Westport Insurance and you can read it here

Saturday, November 21, 2020

How not to practice law: go ahead and open a law office even though you flunked the bar exam, ...twice

 The ABA Journal is reporting that a law school graduate (class of 2014) has been sentenced to prison for practicing law even though she flunked the bar exam twice.  Yeah, you should not do that!  Just in case you forgot:  you need to be admitted to practice to be able to practice legally.  Go here for the full story.

Competitive Keyword Advertising: Unethical or a good marketing strategy?

 Over at Ethical Grounds, Michael Kennedy (Vermont's Bar Counsel, and a friend) has a short but insightful post on whether competitive keyword advertising should be considered to be unethical.  In case you don't know, "competitive keyword advertising" refers to the practice of paying search engines so that your ad appears before others when users search for certain keywords.  The topic is interesting and Michael's post is worth reading.  You can do so here.

Tuesday, November 10, 2020

Top legal podcasts

 Here is a list (with links) to the top rated law podcasts.  

But wait! There's more!  Here is a link to a good YouTube channel you can subscribe to for legal commentary.

Tuesday, November 3, 2020

Does a lawyer have to encrypt e-mail messages?

Do lawyers have to encrypt e-mail messages?  

Model Rule 1.6(c) states that a lawyer "shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client" but, to my knowledge, no jurisdiction has decided that this means that there is a duty to encrypt messages.

LexBlog has a comment on this issue here.

Sunday, November 1, 2020

Can a lawyer withdraw from representation for fear of contracting Covid-19?

Over at The Law for Lawyers Today, Karen Rubin has published a comment on a recent ethics opinion on whether an attorney can withdraw from representing a client based on alleged fear of contracting COVID-19 as a result of some aspect of the representation.

In the opinion, the New York State Bar Association answers yes, provided that the lawyer gets permission from a tribunal.  

You should read the comment here.