Ct finds communication among attorneys regarding possible malpractice claim by client is privileged

According to a story on the Ethical Quandary blog, the U.S. District Court for the Southern District of Ohio has rendered an important decision in the area of law firm risk management and attorney-client privilege. The court held that when lawyers within a firm communicate internally regarding the firm’s potential malpractice in an existing client’s matter, those communications are protected from later discovery by the client under the attorney-client privilege unless the client can establish good cause for discovery. The case is called Tattletale Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP. For more on the story and a full summary of the case, go here.

DC Ct of Appeals reverses conviction because of prosecutorial misconduct but splits on whether prosecutors should be investigated

The blof of the Legal Times is reporting (here) that, in a 2 to 1 opinion, the District of Columbia Court of Appeals, has reversed a conviction after finding that federal prosecutors failed to timely turn over exculpatory information to the lawyers representing a man in a shooting case. However, the judges who voted for the majority split over whether the trial judge, Craig Iscoe, should inquire whether prosecutors in the U.S. Attorney’s Office for the District of Columbia committed an ethics violation by failing to provide the defendant's lawyers with information beneficial to his case. The case is called Tyree Beysean Miller v. US and the 75-page opinion is available here.

I haven't had time to read the long opinion myself, so I am relying on the news item, but it is hard to understand how you can find that there is prosecutorial misconduct and then not say that it should be investigated whether the misconduct is a violation of the professional rules. If this is an accurate description of what happened here, it is another example of a missed opportunity for a court to take prosecutorial misconduct seriously. For comments on this issue go here and here. For all the recent stories of prosecutorial misconduct - and, unfortunately, there are many, go here.

Podcast on social media

Here is a link to a radio show on the Legal Talk Network on how to (and how not to) use social media as a marketing tool.

North Carolina considers whether to allow non-lawyers to buy interests in law firms

According to a comment by popular New York blogger (and personal injury attorney) Eric Turkewitz, there is a bill pending in North Carolina that would allow non-lawyers to buy up to 49% interests in law firms which he argues "violates the age old prohibition on sharing legal fees with non-lawyers, and is one hell of a lousy idea." He makes a pretty convincing argument in his post which you can read in full by going here.

Should All Lawyer Scoldings Be Public?

Here is a link to a story in the Wall Street Journal law blog that asks whether all lawyer scoldings should be public. It says, in part:

"One most effective ways to deter bad behavior is to publicly expose those who are caught.
Yet, in most states, lawyers frequently are disciplined behind closed doors, through private admonitions or sanctions, rather than through formal, public censures or fines.

. . . . But Rodd Santomauro, the new executive director of HALT, a legal consumer advocacy group based in Washington, D.C., says . . . that “There should not be any private reprimands whatsoever when it comes to disciplining attorneys,” . . ."

The King of Torts is in trouble

Here is a report from about 2 weeks ago in The Wall Street Journal Law Blog on the saga of attorney Stanley Chesley, a very successful plaintiffs' lawyer who became rich and famous for collecting billions of dollars for his clients in various lawsuits throughout his career - many of them huge mass dissaster/multi-district litigation type cases.

I actually worked with Chesley a long time ago, when I was starting out, in a mass disaster fire case. I remember him as a nice guy. He was more involved in the negotiating part of the case, rather than the day to day preparation and discovery work - what I was working on mostly. I like to say that he was one of those guys who is into "practicing facts" rather than "practicing law", but that is another story.

In any case, here is what bothers me the most about this: here is a guy who has done a lot of good work over a long, successful career. He has helped many people. He also made lots and lots of money. At this point in his life, he does not need any more money, or fame or anything. Now his career and his reputation are in jeopardy. Say it ain't so, Stan!

As reported in the WSJ, Chesley’s attorneys said they planned to appeal to the Kentucky Supreme Court, which will make a final determination on the commissioner’s recommendation. The attorneys cited a federal probe of the case, which didn’t result in charges against Chesley. “His findings are directly contrary to the findings of federal authorities, who fully investigated this case and never considered Mr. Chesley a target of their investigation,” they said in a statement.

For more on the story go to the Abnormal Use blog.

Should experts in legal malpractice cases be limited to practicing lawyers? -- UPDATED

The Legal Malpractice law review blog is reporting on a recent case from Georgia that holds that expert witnesses in a legal malpractice case must be practicing lawyers. The court apparently ruled the expert in question was not qualified because he did not (1) represent entities or individuals in court; (2) draft or file pleadings in judicial proceedings; or (3) prepare the type of documents or perform the legal tasks at issue in the litigation. Here is the link to the story. The case is called Wilson v. McNeely.

The ruling in the case, however, is not as broad as the cited report makes it to be. The decision is based on a Georgia statute that states that the testimony of an expert “shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert [w]as licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time [.]” In the case, the court found that the expert in question was not practicing law at the time of the alleged malpractice.

When I read the report by the legal malpractice law review blog, I thought the case had held that there was a strict rule banning non-practicing lawyers from serving as experts. For this reason, I argued that this was a bad decision. I argued that I did not think that a strict rule would be a good idea because it would preclude the use of testimony from knowledgeable people who could englighten the court and jury even if they did not practice. For that reason I argued the better approach would be to rule on the matter on a case by case basis.

Evidently, the text of the statute does not preclude academics from testifying, so my initial objection about the case was unnecessary.

I do think the text of the statute is peculiar in other ways, though. Why limit the expert to someone who was practicing at the time of the conduct? Couldn't someone who was admitted later have an expert opinion on the matter? Also, the statute requires that the practicing lawyer be admitted in the state where the conduct happens, but seems to say an academic can be based anywhere. Why the distinction? Again, I think the effect of these kinds of details should go to credibility rather than to admissibility, or, at least, should be dealt with on a case by case basis.

How not to practice law: charge money for nothing

My students will get a kick out of this story, published yesterday in the Legal Profession Blog, which deals with the topic we discussed in class this week.

Here is a quick reminder of a pretty easy to understand principle: you can't charge a fee and then not provide the services the fee was supposed to pay for. Duh!

This basic principle is illustrated in a decision of the Maryland Court of Appeals. The attorney was disbarred for doing just that. He collected fees in two cases, pocketed them and then did not perform the services. Note that in this scenario, there is yet another violation of the rules: since the fees were paid to perform future services the attorney was supposed to place them in the client trust account. Instead he pocketed the money (and used it for his own personal purposes).

Now here is the kicker. How much money do you think was worth getting disbarred for? The total amount: $1,100.

Maybe I should assign this case to my students because it actually illustrates two other principles I tell them about emphatically in class: (1) it does not matter what the conduct is, because of the lack of guidelines when it comes to sanction, you always risk disbarment. Is it really worth risking it for $1,000? And, (2) having said that, if there is one thing you can be 99% sure of in terms of sanctions it is that if you steal money from a client, it does not matter how much, you will likely get disbarred. And you should; period; end of story.

Did She-Hulk violate the rules against solicitation of clients?

Law and the Multiverse is a blog that addresses legal issues in the alternate world of superheroes and villains. Aside from the superheroes' common connection with law enforcement and other aspects of the law, it turns out that some of them are actually lawyers in their alter-ego lives. I am not a comic books kind of guy, but if I remember correctly Dare-Devil is a lawyer and, as I just learned, so is "She Hulk." (Actually, I have to admit I had never heard of "She Hulk" to begin with, but that is neither here nor there....).

In any case, here is a link to a recent discussion on whether "She Hulk" violated the rules against solicitation of clients when, after saving a victim from an attack by some villains, she offered to represent the victim in a case against other superheroes who did not help her.

PS: I will admit to having watched a few episodes of Birdman, Attorney at Law, which is a pretty crazy show.

Prosecution for jury nullification

When discussing the limits of proper argument by lawyers in front of a jury I ask my students whether a lawyer should be disciplined for asking the jury to disregard the law. The approach to the discussion may change this year given a story published by the New York Times this week. In it, the NYT reports that prosecutors in New York have taken the unusual step of having a jury nullification advocate indicted on a charge that distributing of pamphlets informing jurors of their right to disregard the law at the courthouse entrance violates a law against jury tampering.

Go here for the story in the New York Times and here for the story in the Wall Street Journal law blog.