Disturbing law out of criminal justice system

Here is a link to an older post in the Legal Ethics Forum pointing out a number of examples of how "Our country’s criminal justice system regularly produces disturbing law, particularly in death penalty cases."

Why the golf theme?

Someone asked me why I have placed a golf course photo on this site. The answer is that it is 15 degrees (1 degree with wind chill), gray and there is snow everywhere. Given that I am not skiing anymore, I need something to look forward to.

Sanctions for first degree murder?

A couple of days ago I posted a note about a decision imposing sanctions on an attorney who had been convicted of bank robbery. Today the Legal Profession Blog reports on a decision disbarring an attorney who had been convicted of first degree murder. Seems like a no brainer to me.

Court requires allegation of violation of duty of loyalty or confidentiality to support a breach of fiduciary duty claim

The ABA/BNA Lawyers' Manual on Professional Conduct reports on a case that highlights again the debated distinction between claims for malpractice based on negligent conduct and on a breach of a fiduciary duty. The case involved a client who claimed that his former lawyer broke a promise to secure certain witnesses for a post-conviction evidentiary hearing and that the lawyer's lapse doomed any chance of post-conviction success. The Court affirmed the dismissal of the claim because the plaintiff failed to allege that the lawyer breached a fiduciary duty. The Court found it imporntant that the former client did not claim that the lawyer violated client confidences, harbored divided loyalties, or put the interests of others ahead of the client's interests. It held that in a suit for breach of fiduciary suit, it is not enough to charge that a lawyer failed to exercise due care. A claim for breach of fiduciary duty must allege some shortcoming related to the lawyer's obligations of loyalty or confidentiality. The court remanded the case, however, and directed the trial court to allow the former client—a pro se plaintiff sitting in prison—a reasonable opportunity to amend his petition. (Costa v. Allen, Mo., No. SC89177, 11/25/08).

Law Firm Representing Itself Is Not Eligible for Fee Award

The most recent edition of the ABA/BNA Lawyers' Manual on Professional Conduct has a number of interesting new items, including an article on a case where the Nevada Supreme Court ruled that a trial court may not award attorneys' fees to a law firm that used its own lawyers to litigate a fee dispute with a former client. (Frank Settelmeyer & Sons Inc. v. Smith & Harmer Ltd., Nev., No. 45180, 12/24/08). The Court pointed out that litigants are only entitled to reimbursement for their attorneys' fees if they are genuinely obligated to pay those fees. Lawyers who represent themselves have no such obligation. You can find the article online if you have a subscription to the ABA/BNA service. In print, the cite is 25 Law. Man. Prof. Conduct 7.

Kill the billable hour

Here is an interesting short article by a partner at a very well known firm calling for the elimination of the billable hour. He suggests lawyers should bill by negotiating a fixed fee with the client for the particular job with some leeway to renegotiate after an agreed period of time if the job turns out to be more complex or will take more time than originally agreed. The article is available here. Make sure you check out the comments below the article most of which are very critical.

UPDATE: Here is a link to a comment on the article published in The National Law Journal .com.

Posted originally by Legal Ethics Forum.

Is a fee of $100,000 a day unreasonable?

The ABA Journal.com reports:

A $100,000-a-day fee application by Dewey & LeBeouf for receivership work is excessive, according to a federal judge in New York City. U.S. District Judge Denny Chin said Dewey provided "extensive and outstanding legal services,” but it had overstaffed and overworked the case, the American Lawyer reports. He cut more than $400,000 from the law firm’s request for $2.1 million in fees as receiver for WexTrust Capital.

The law firm was appointed as receiver to safeguard the trust’s assets after the Securities and Exchange Commission sued, claiming the trust was operating as a Ponzi scheme that targeted the Orthodox Jewish community.

The fee request is “excessive in the context of a securities receivership where hundreds of victims of fraud have suffered substantial losses,” Chin wrote in a Dec. 30 opinion (PDF posted by the American Lawyer). He said the law firm can reapply for disallowed fees at the conclusion of the case based on its success recovering funds.

Chin’s ruling came after he raised questions about the firm’s billing rates, which were as high as $950 an hour for some partners, $605 an hour for some associates, and $285 an hour for summer associates.

How not to practice law: engage in armed bank robbery

We start the year with a new entry into Bernabe's how not to practice law list: engage in bank robbery. This is the message of the Louisiana Attorney Disciplinary Board in a recent decision (available here) in which the Board orders the disbarrment of an attorney who had been convicted of bank robbery.

Thanks to Legal Profession Blog for the information.

To screen or not to screen

Next month the ABA House of Delegates will take up Report 109, which recommends amending MR 1.10 to allow so-called "screening." This means that a firm could avoid being imputed with a conflict when a new attorney joins the firm if the firm implements "institutional mechanisms" to assure that the attorney will be screened from all information regarding the particular matter in which he or she has a conflict. This has always been a highly contested issue. Stay tuned!

Another wake up call for students: make sure you check that resume!

The Legal Profession Blog reports today on a California Bar decision in which an attorney was suspended for one year (although stayed; actual suspension was 60-days), placed on two years of probation and was ordered to take the MPRE within one year, for submitting an outdated resume to a prospective employer. The lawyer left the law firm where he worked when it downsized. However, his new resume was not ready when he heard about a job opening, so he submitted an old version, without revising the dates of his previous employment. The resume gave the impression that he was still employed.