Monday, May 25, 2015
DQed on the effect of a disqualification order
When a court orders disqualification, the court obviously has authority to enjoin the attorney or law firm from appearing before the court on behalf of a party. It is also fairly uncontroversial that the court’s authority extends to so-called ancillary proceedings, such as depositions, in the same matter (even if the judge is not physically present). But does this disqualification authority extend to bar the lawyer from, for example, counseling (but not appearing for) the client? I would think so, but apparently there are differences of opinion on this. DQed has a short comment on the issue here.
Sunday, May 24, 2015
Another case on whether the appearance of impropriety can be used as a standard in conflicts cases
A few days ago I wrote about a case in which the Kentucky Supreme Court criticized the use of the notion of "appearance of impropriety" as a standard in conflicts cases. See here.
In contrast, in a case decided in New York about a month later, the court relied on appearance of impropriety in a routine former client conflict of interest case. See Avigdor v. Rosenstock (N.Y. Sup. Ct. May 12, 2015). The court held that if a party seeking to disqualify a lawyer meets the elements required to support the motion to disqualify, the order to disqualify should be issued in order to "free the former client from any apprehension that matters disclosed to an attorney will subsequently be used against it in related litigation" and to avoid "the appearance of impropriety' on the part of the attorney or the law firm."
Thanks to Bill Freivogel of Freigovel on Conflicts for the update.
In contrast, in a case decided in New York about a month later, the court relied on appearance of impropriety in a routine former client conflict of interest case. See Avigdor v. Rosenstock (N.Y. Sup. Ct. May 12, 2015). The court held that if a party seeking to disqualify a lawyer meets the elements required to support the motion to disqualify, the order to disqualify should be issued in order to "free the former client from any apprehension that matters disclosed to an attorney will subsequently be used against it in related litigation" and to avoid "the appearance of impropriety' on the part of the attorney or the law firm."
Thanks to Bill Freivogel of Freigovel on Conflicts for the update.
Improper comments during trial result in reversal of judgment in civil case
Over the years I have posted lots of links to recent cases in which courts reverse convictions because of improper comments by prosecutors. This is, unfortunately, not an uncommon occurrence. Yet, I don't remember a case reversing a judgment in a civil case. Until now.
Earlier this month, the appellate division of the New Jersey Superior Court issued an opinion vacating a multi-million dollar judgment because of the cumulative effect of comments made during trial by the plaintiff’s lawyer. In my opinion, some of the comments would have been acceptable rhetoric, but when put together with those others which crossed the line, the effect was too damaging. The comments included a statement during the opening statement telling the jury that it was their job to hold the defendant responsible, statements referring to facts not in evidence, expressions of opinion on the defendant's arguments and on defendant's lawyer's questioning of witnesses, attacks on the credibility of the defendant's lawyer and a request on the jury to "send a message" by finding for the plaintiff. Some of these would have violated Model Rule 3.4, and I know that "send a message" type argument has been held to be improper in another jurisdiction.
The case is called Burkert v. Holcomb Bus Service Inc.
Professional Liability Matters has more here.
Earlier this month, the appellate division of the New Jersey Superior Court issued an opinion vacating a multi-million dollar judgment because of the cumulative effect of comments made during trial by the plaintiff’s lawyer. In my opinion, some of the comments would have been acceptable rhetoric, but when put together with those others which crossed the line, the effect was too damaging. The comments included a statement during the opening statement telling the jury that it was their job to hold the defendant responsible, statements referring to facts not in evidence, expressions of opinion on the defendant's arguments and on defendant's lawyer's questioning of witnesses, attacks on the credibility of the defendant's lawyer and a request on the jury to "send a message" by finding for the plaintiff. Some of these would have violated Model Rule 3.4, and I know that "send a message" type argument has been held to be improper in another jurisdiction.
The case is called Burkert v. Holcomb Bus Service Inc.
Professional Liability Matters has more here.
Florida Bar Committee on Advertising rules texting is impermissible solicitation
Last year I posted a comment on an Advisory Opinion of the Ohio Board of Commissioners on Grievances and
Discipline which states that Ohio lawyers are not prohibited from
soliciting potential clients via text messages. See here.
In contrast to that opinion, Legal Ethics in Motion is reporting that the Florida Bar Committee on Advertising recently held that a law firm’s proposed texting campaign was impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients. The committee apparently rejected the law firm’s argument that texting is similar to direct mail or email advertising, which is permissible if done in accordance with the Florida Bar’s rules. Read more here.
UPDATE August 2015: The Florida Bar Board of Governors rejected the Committee's analysis and recommendation. Go here for the story.
In contrast to that opinion, Legal Ethics in Motion is reporting that the Florida Bar Committee on Advertising recently held that a law firm’s proposed texting campaign was impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients. The committee apparently rejected the law firm’s argument that texting is similar to direct mail or email advertising, which is permissible if done in accordance with the Florida Bar’s rules. Read more here.
UPDATE August 2015: The Florida Bar Board of Governors rejected the Committee's analysis and recommendation. Go here for the story.
Friday, May 15, 2015
North Carolina criticized for going after criminal defense attorneys
The Legal Profession blog has two stories on what it calls "the North Carolina State Bar's war on criminal defense counsel." I have not been following the underlying claims and issues, so I will not comment at this point. The stories have links to more information. Go here and here for all the details.
Oregon disbars attorney for conduct as a business partner
A few days ago, I commented on a couple of cases involving conduct outside the practice of law. See here. I mentioned the inconsistent decisions in Illinois involving dishonest conduct when not related to the practice of law.
In yet another story related to this question, the Legal Profession blog is reporting on a case from Oregon in which an attorney was disbarred because of conduct as a business partner - not as a lawyer. The case, again, takes the position that the conduct outside the practice of law shows the attorney is not fit to practice law. I think this is the proper approach to the question, and the reason the Illinois decision in In re Karavidas was wrong.
In yet another story related to this question, the Legal Profession blog is reporting on a case from Oregon in which an attorney was disbarred because of conduct as a business partner - not as a lawyer. The case, again, takes the position that the conduct outside the practice of law shows the attorney is not fit to practice law. I think this is the proper approach to the question, and the reason the Illinois decision in In re Karavidas was wrong.
Another court abandons the use of "appearance of impropriety" as a disciplinary standard
The Supreme Court of Kentucky, like many other jurisdictions, has used the notion of "appearance of impropriety" as a basis to disqualify attorneys in conflict of interest cases. Recently, however, the court decided to abandon its adherence to this standard concluding that "in deciding disqualification questions, trial courts should apply the standard that is currently in the Rules of Professional Conduct, which at this time requires a showing of an actual conflict of interest.” The case is called Marcum v. Scorsone (also available here). The Legal Profession blog has more here.
This is a good result. I have never liked the use of a standard based on an appearance of impropriety which is such a vague and subjective standard. Now, if we could only convince courts to stop talking about the "image of the profession"! But that is another story.
In terms of the appearance of impropriety, now there are essentially three approaches: some states hold it should not be used as a standard for discipline; others hold that it can be used as a factor when used in addition to other more clearly defined standards; and others still hold it can be used as a factor on its own.
The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to a standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite. See Rotunda and Dzienkowski, Professional Responsibility, A Student's Guide (2012-13), p. 20, stating that charges based on allegations of appearance of impropriety have increased at a rapid rate.
This is a good result. I have never liked the use of a standard based on an appearance of impropriety which is such a vague and subjective standard. Now, if we could only convince courts to stop talking about the "image of the profession"! But that is another story.
In terms of the appearance of impropriety, now there are essentially three approaches: some states hold it should not be used as a standard for discipline; others hold that it can be used as a factor when used in addition to other more clearly defined standards; and others still hold it can be used as a factor on its own.
The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to a standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite. See Rotunda and Dzienkowski, Professional Responsibility, A Student's Guide (2012-13), p. 20, stating that charges based on allegations of appearance of impropriety have increased at a rapid rate.
Tuesday, May 12, 2015
Review of the anti-contact rules and doctrine, part 2
When can you contact people who are or were represented by counsel? Last month I posted a link to the first comment on this issue in the New York Legal Ethics Reporter. The most recent edition of the Reporter is now available and part 2 of the article is here.
Comments on the proposed Supreme Court Ethics Act
There is only one judicial system in the United States
that has adopted some version of the Code of Judicial Conduct: United States Supreme Court, "which has steadfastly resisted promulgating
any rules of ethics." For this reason, a bill has been introduced to require the Supreme Court to adopt written ethics rules, but which does not specify the content of the rules, leaving that to the Court itself. The proposed bill, which is very short, can be found here.
Prof. Steve Lubet (Northwestern) has posted a comment on the act in both The Faculty Lounge and the Legal Ethics Forum. The post is the same but each blog has its own discussion in the comments section.
Prof. Steve Lubet (Northwestern) has posted a comment on the act in both The Faculty Lounge and the Legal Ethics Forum. The post is the same but each blog has its own discussion in the comments section.
Recent case discusses what makes screening "ineffective"
Recently DQed discussed a new case in which the court found that screening mechanisms would not be effective in a case involving the hiring of a paralegal from another firm even though the court found that the firm’s screening measures “mirror and, sometimes exceed, screens approved in other cases.” The case is called Ullman v Denco and it is available here.
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