Pro bono conversation questions of the week

The national pro bono celebration conversation ends this week with the following questions:

What should the relationship be between professional development and pro bono services?

Go here to join the conversation.

Firm denied fees for misconduct in bankruptcy case

Freivogel on Conflicts has a new case of interest to bankruptcy lawyers.  In this case, a firm was not allowed to recover fees because of what the judge called the law firm's almost wanton disregard for the disclosure requirements of the Bankruptcy Code and Rules.  The judge found the firm had ample opportunity to cure the problems when facts were discovered or deficiencies were pointed out by the U.S. Trustee.  Because it didn't, the judge concluded that "severe sanctions are warranted" and added that, in light of the firm's "steadfast assertion that it did nothing wrong, I would have serious concerns about the veracity of its disclosure statements in future cases if the firm thought it could get away with a minor slap on the wrist."

The case is called In re Gluth Bros. Const., Inc., Slip Copy, 2011 WL 5023417, Bkrtcy.N.D.Ill.,2011.

ABA Commission has released new paper on alternative litigation finance

At its meeting in Denver, October 14-15, 2011, the ABA Commission on Ethics 20/20 decided to file its Draft White Paper on Alternative Litigation Finance as an Informational Report to the ABA House of Delegates. The Commission seeks to share this Draft White Paper with interested individuals and entities for their consideration prior to the filing deadline of December 2, 2011.  Go here to read the paper.

The Paper's executive summary states as follows:

     The general conclusion of this White Paper is that attorneys must approach transactions involving alternative litigation finance with care, mindful of several core professional obligations. An attorney must always exercise independent professional judgment on behalf of a client, and not be influenced by financial or other considerations. See MODEL RULES OF PROF’L CONDUCT R. 2.1 (2009) . . . Moreover, an attorney must not permit a third party to interfere with the exercise of independent professional judgment. Numerous specific provisions in the Model Rules, including conflicts of interest rules and rules governing third-party payments of fees, reinforce the importance of independent professional judgment. See MODEL RULE 1.7(a)(2) (representation materially limited by lawyer’s responsibilities to a third party or the lawyer’s own interests); MODEL RULE 1.8(e) (with limited exceptions, lawyers may not provide financial assistance to client); MODEL RULE 1.8(f) (lawyer must not accept compensation for representation from third party without informed consent of client and unless it will not interfere with independent professional judgment); MODEL RULE 1.8(i) (lawyers may not acquire proprietary interest in subject matter of representation); MODEL RULE 5.4(c) (lawyer may not permit fee payor to direct or regulate lawyer’s professional judgment).

     In addition, attorneys must be vigilant to prevent disclosure of information protected by Model Rule 1.6(a), and to use reasonable care to safeguard against waiver of the attorney-client privilege. Any infringement on rights that clients would otherwise have, resulting from the presence of alternative litigation finance, requires the informed consent of the client after full, candid disclosure of all of the associated risks and benefits.

     Finally, lawyers must fully explain the terms of funding transactions and ensure that clients are aware of the risks these transactions present. If they are not experienced in dealing with these funding transactions, lawyers who advise clients in connection with alternative litigation finance must become fully informed about the risks and benefits of these transactions, in order to provide competent advice to clients. Because this is a new and highly specialized area of finance, it may be necessary for a lawyer to undertake additional study or associate with experienced counsel when advising clients who are entering into these transactions.

For more information about the work of the Commission go here.

How not to practice law: Continue to practice after you are suspended; get disbarred

Here is a simple principle we have seen before.  If you are suspended from practice, it means you CAN'T practice!!  The Legal Profession blog is reporting that an attorney who had continued to practice after being suspended for six months was disbarred by the New York Appellate Division for the First Judicial Department.  Go here for more details.

Client's attempt to be a smartass during deposition results in judgment against him

The Nevada Supreme Court has upheld a casino’s summary judgment for $2 million against Joe Francis, creator of the soft porn “Girls Gone Wild” franchise for what District Judge Michelle Leavitt called “the most ridiculous exercise of the Fifth Amendment I think I’ve ever seen” during a deposition.  Go here for the details.

This is not the first time Francis acted like this during a deposition.  Here is an excerpt of one of them:
Q. Have you ever been convicted of a felony?
A. I don’t understand what that means.
…
Q. You don’t understand what being a convicted felon is?
A. No. Can you explain it to me?
Q. Did you serve any time in jail?
A. What do you mean “serve”?
…
Q. Do you know what a prisoner is?
A. No.
Q. Do you know what a cellmate is in jail?
A. No.
Q. Do you know what a jail is?
A. Sort of

These deposition antics nearly caused a default judgment against him.

In the most recent case, after the deposition the casino/plaintiff filed a motion for a summary judgment to which Francis replied that he wanted to withdraw his Fifth Amendment answers and continue the deposition. However, the judge refused to reopen discovery and granted summary judgment in favor of the casino. Francis appealed but the Nevada Supreme Court agreed with the District Court’s decision, noting that although answering some of questions at his deposition could have been incriminating, "his refusal to answer nearly every question was unjustifiable.” Francis now has to comply with the judgment which ordered to pay $2 million.  With interest and court costs, could reach $3 million.


Thanks to the Legal Ethics Forum for the link.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

How do we ensure high quality pro bono work?  Could well-trained legal assistants and paralegals assume greater responsibility and provide specific forms of legal relief? What matters would be appropriate to specialized form of representation?

Go here to join the conversation.

Prospective waivers

A few days ago, I discussed the use of prospective waivers with my students.  Now, here is a link to an article criticizing their use.  Here is an excerpt that summarizes its position:

What started as a trickle has now become a flood, as major law firms have embraced the practice of inserting into every retainer letter, often buried on page 5 in paragraph 16, a wholesale prospective waiver that would permit the law firm to take on any representation against the new client so long as the matters are not substantially related. No limitation as to matters that are not waivable under Rule 1.7(b)(1). No limitation as to time. No limitation as to matters not litigated. No limitation as to the subject matter of the adverse representation. No limitation as to the identity of the adverse party or parties who would be represented adverse to the client that is granting the prospective waiver. Can such a waiver come close to being given with informed consent? Of course not.

You can read the full article here.  The article is by Larry Fox, a former member of the ABA Standing Committee on Professional Responsibility.  For some comments on the article go to the Legal Ethics Forum, here.

Thanks to the LEF for the link to the article.

Illinois Lawyer Now invites you to celebrate Pro Bono week

Here is a link to a short article on Illinois Lawyer Now inviting you to join the celebration of National Pro Bono Week by Hon. Barbara Crowder.  It starts:  "Do you pro bono? If so, show you are “Pro Bono Proud” during National Pro Bono Week by attending a celebratory event. If not, why not? More opportunities abound to find a pro bono project that meets your time and abilities than ever before. And even more ways to pro bono may be coming to a circuit near you."  Go here to read the full article, and do join the National Pro Bono week activitites.

Pro bono conversation questions of the week

The national pro bono celebration conversation continues this week with the following questions:

How can we better use technology? What kinds of information could/should we disseminate, and how?  How do we serve the hard to reach geographical communities?

Go here to join the conversation.

Internship opportunity for students

The Ethics and Professionalism Committee of the ABA Section on Litigation is seeking an unpaid student intern to assist its web editors. The intern will write weekly short articles (300-500 words) discussing recent ethics opinions, rule changes, or anything else relevant to ethics and professionalism as it relates to the practice of law. The intern's articles will be edited and then published online under the intern's name, which will allow him or her to accumulate an online writing portfolio accessible by search engines.

Law students interested in legal ethics are strongly encouraged to apply. To apply, please e-mail Josh Camson (josh@joshcamson.com) web editor for the Ethics and Professionalism Committee with resume, a cover letter, and a brief writing sample (no more than two pages).