Verdict reversed because of plaintiff's lawyer's comments

For the second time this month, the 3rd District Court of Appeal in Florida has issued a reversal because of inflammatory arguments by an attorney. In this case, the defendants admitted liability, but that did not stop the plaintiff's attorney from making arguments to disparage the defendants as greedy, arrogant and callous corporate types who had no intention of compensating the plaintiff for his injuries. In trial, he said the defendants kicked the plaintiff "out on the street like a dog"; complained of "corporate arrogance and corporate greed"; and called defense attorneys "slick talkers." Go here for the full story.

Attorney suspended for billing for more than 24 hours in one day

Go here for the story of an Ohio attorney who has been suspended for two years after it was determined that she billed the court of Lucas County, Ohio for more than 24 hours a day on multiple occasions. She also turned in other bills of dubious nature, including five bills for days of over 20 hours.

Thanks to the Legal Ethics Forum for the information and link.

How not to practice law: make sure you tell the jury the information the judge had excluded

Here is our latest addition to the running list of things you should NOT do when practicing law. As usual, it is an easy one. If the judge excludes certain material from the trial you are NOT supposed to bring it up to the jury.

The Legal Ethics Forum is reporting today on a case called State v. Cifuentes-Vicente, in whcih the Washington Court of Appeals upheld sanctions against a criminal defense counsel for suggesting to the jury what they might have heard if the judge hadn't excluded certain lines of questioning.

New California Rule on screening

As reported in The Ethical Quandary Blog, the California State Bar Board of Governors has approved a new rule on imputation of conflicts of interest based on ABA Model Rule 1.10, but, oddly, it has opted to let the issue of ethical screening be decided on a case-by-case basis. The Board’s proposed change is now pending consideration by the California Supreme Court.

I guess I have to think more about this one, but my gut reaction is that it is a bad idea. It seems to me that any time you leave things to be decided "on a case by case basis" you run the risk of ending up with more disputes and litigation, inconsistent results, and, more importantly, less guidance as to how to avoid a problem. Specific rules help know what to expect and, thus, how to prepare for a possible problem.

On the other hand, a case by case approach provides flexibility for instances where applying a hard line rule might be unfair. Also, I assume that as case law develops on the issue more specific answers will emerge. Until that happens, though, some clients may have to become guinea pigs, no?

What do you think?

Public defenders and imputed conflicts of interest

The Legal Profession Blog is reporting that the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing two questions that arise from the State Public Defender having a central office and branch offices.

The opinion (Op 2010-5) addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.

The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.

The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”

$2 million dollar sanction for frivolous lawsuit

I have often complained on this blog about inadequeate/lenient sanctions for misconduct. I can't complain today! The Wall Street Journal is reporting that a New Jersey state judge has ordered Paul Weiss and Lowenstein Sandler to pay almost $2 million in legal fees for filing what she considered frivolous suit. Wow! Now that's a big sanction; and by the way, that is supposed to come out of the firm's pocket - not the client's.. In the lawsuit a billionaire plaintiff argued that his father in law had made an oral promise to leave a greater share of his estate to his daughter - the plaintiff's late wife. For more on this story go to the WSJ Law Blog.

Conduct unrelated to the practice of law

Last night we discussed in class how an attorney can be disciplined for conduct outside the practice of law. Interestingly, apparently there is some debate in Australia as to whether this should be the case. Here is a link to an article discussing the issue (via The Legal Ethics Forum).

Debate as to whether foreign lawyers should be allowed to practice law in the US

The ABA Commission in charge of performing a review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments has asked for comment on these two proposals:

(a) to allow foreign lawyers (defined as in existing rules, like the foreign legal consultant rule) to gain admission via a US jurisdiction's in house counsel rule for domestic lawyers (as an ABA Model Rule now envisions), which would enable them to practice in house for their employer/client in the US; and

(b) to allow foreign lawyers to be admitted pro hac vice in a matter at a judge's discretion and with the active participation of US counsel. Recall that one of Conrad Black's trial lawyers at his Chicago federal trial was Canadian as is Black.

Here is a link to a debate on these proposals. In particular take a look at the exchange between Stephen Gillers and Larry Fox.

More information on the Commission including documents, transcripts, articles and posted comments can be found here.

Very unusual sanction

The Legal Profession Blog is reporting today on a bar discipline case from North Carolina that imposes a very unusual limitation on the attorney's practice as a sanction: the attorney was banned from representing female clients.

In this case, it was proven that the attorney had attempted to have sex with clients and had made inappropriate sexual comments to clients. He was suspended for three years, but the suspension was stayed upon compliance with numerous conditions, including that the attorrney would represent female clients.

I have never heard of such a limitation before and I am not sure it is the best idea. Perhaps mandatory counseling or therapy would have been better.

Big law firms in Florida unite to fight new rules on firm websites

Eight large law firms have submitted a 66-page comment to the Florida Supreme Court objecting to Proposed Florida Bar rules for web advertising. Among other objections, the comment argues that the new rules would require law firms to spend millions of dollars redoing their existing sites, could push clients to choose law firms in other states, and violate the First Amendment. Go here for the full story.