What do you have to do to get disbarred in Alabama?

I spend some time in class looking at the disparities in sanctions imposed for different types of offenses. Inevitably, we conclude that there is little consistency and, thus, I advise my students to remember that no matter what the conduct is, if it is improper a lawyer "always risks disbarment."

Here is a new good example to illustrate the disparity among jurisdictions. In this case, two different jurisdictions imposed discipline for the same conduct. The conduct included entering into a fee agreement that allowed the client a $200 credit for each time she had sex with him and a $400 credit if she arranged for other females to have sex with him.

For this, Alabama imposed a suspension of fifteen months. In a second case of misconduct, Alabama imposed four month suspension. In contrast, the proceedign in Florida involved these two same claims and a third one (misuse of client's funds) and the Florida Supreme Court disbarred the attorney. Which state do you think got it right?

Disciplinary procedure confidentiality rule declared unconstitutional

Louisiana Supreme Court has ruled that confidentiality rule that blocks any participant in an attorney disciplinary proceeding from publicly discussing the matter until formal charges are filed violates the First Amendment. The case is called In re Warner (available here.) Writing for the court, Justice Jeffrey P. Victory concluded that the confidentiality rule—which the court itself adopted in 1990—is a content-based prior restraint on speech. It cannot survive strict scrutiny, the court added, because the rule is not narrowly tailored to serve the state's interests.

Sanctions for deceptive firm name

Earlier this month the Supreme Court of Ohio ruled that a sole practitioner violated numerous ethics rules by using misleading firm names that incorrectly indicated he was involved in a partnership with another attorney and employed “associates.” The case is called Disciplinary Counsel v. McCord and is available here.

The Court held that lawyer acted deceptively when he improperly held himself out as a member of entities named “McCord, Pryor & Associates,” “McCord, Pryor & Associates Co., L.P.A.,” and “McCord & Associates.” Pryor was another lawyer who had an office in the same building as McCord but they did not operate under any recognizable legal structure, and they had no agreement to share profit and losses. They had separate clients, separate IOLTA accounts and separate fee income. They shared attorneys' fees only on cases they worked on together, never on their separate cases. At the time McCord created the entity he called "McCord, Pryor & Associates Co., LPA" Pryor had been dead for more than two years. McCord admitted that he formed this entity solely to thwart his ex-wife's attempts to garnish his bank accounts to pay for his outstanding child-support obligations. The Court also found that it was improper to use the words "and Associates" in a firm name when the attorney did not, in fact employ any associates.

On these facts, the Court agreed with the board that McCord committed the following rules violations:

• practiced under a misleading firm name (Rule 7.5(a) and DR 2-102(B));
• stated or implied that he practiced in a partnership or other organization when that was not so (Rule 7.5(d) and DR 2-102(C));
• committed an illegal act that reflected adversely on his honesty or trustworthiness (Rule 8.4(b)); and
• engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 8.4(c) and DR 1-102(A)(4)), conduct prejudicial to the administration of justice (Rule 8.4(d)), and conduct adversely reflecting on his fitness to practice law (Rule 8.4(h)).

Yet another case of prosecutorial misconduct

Not too long ago I posted some comments on recent cases involving improper arguments by prosecutors (see here and here. Also, see here for other comments on cases involving other types of prosecutorial misconduct.)

Here is another case regarding improper arguments by a prosecutor. In this case, the Florida Third District Court of Appeal concluded that "while we find that the statements were improper, we affirm the defendant's convictions because, based on the overwhelming evidence of guilt, the error was harmless."

The Court concluded that "we again find it necessary to admonish the prosecutor and remind all lawyers who practice in this state, that closing arguments must be confined to the evidence in the record or which can reasonably be inferred from the evidence. . . . Additionally, closing arguments “must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law.” . . . “Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.”"

In a "reluctant concurring opinion" Judge Ramirez wrote that "Over the years, it has been my unfortunate experience to see a long procession of assistant state attorneys repeatedly violate clear precedent in their zeal to convict. It is either that these prosecutors are untrained, that they do not trust juries, or that they feel that their behavior has no consequences. They do not even have to face an appellate panel's questions during oral argument. If nothing else, I will henceforth publish their names so that thier questionable tactics appear in the permanent record of the Southern Reporter. I reluctantly join today’s decision, mindful that I may be promoting the notion that winning is more important than giving defendants a fair trial. But given the overwhelming evidence of Williams’ guilt, I have to agree that under State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), “there is no reasonable possibility that the error contributed to the conviction.”

But here is a question for all the judges: if they all agree that the prosecutor engaged in improper conduct, and that the conduct requires the court to remind lawyers that if they don't understand their roles "they should not be members of the Florida Bar", how come they do not suggest imposing discipline in this case?

The opinion is available here.

Update on Supreme Court case re prosecutor immunity

A few days ago I posted a note on a case called Pottawattamie County v. Harrington which raises the issue of whether prosecutors should be immune from lawsuits for procuring false evidence in a criminal investigation and then using it at trial. The PopTort blog posted a comment on the case today which is available here.

Update on the case of the lawyer who altered law school transcript

A few days ago I reported on the case of a lawyer who was disciplined for, among other things having altered grades in a law school transcript in other to get a job. The ABA Journal.com is reporting today that the chief counsel for the Illinois agency that oversees lawyer discipline says the lawyer deserves to be disbarred, and he will appeal a recommendation for a lesser punishment. Law.com has also published a story on this here.

Different view on what constitutes business transaction with client

Model Rule 1.8 (and its state equivalents) do not ban a lawyer from engaging in business transactions with clients. However, it is clear this is allowed subject to many limitations. Today, a disciplinary Board in Colorado has decided that a lawyer is subject to sanctions because he wife was involved with a business transaction with one of the lawyer's clients. The Presiding Disciplinary Judge held that the lawyer negligently failed to terminate an attorney-client relationship when he learned about his wife's business transaction with the client. The Judge concluded this meant the lawyer effectively entered into a business transaction with his client without the appropriate disclosures in violation of Colo. RPCs 1.16(a), 1.8(a) and 5.3(b). The case is called People v. Montoya.

Thanks to Mike Frisch of The Legal Profession Blog for the information.

Another wake up call for students: conduct while in law school will come back to haunt you

An Illinois Hearing Board has recommended a three year suspension in a case involving an attorney who had failed to disclose information in his admission application to the University of Chicago Law School, was accused of plagiarism while in law school, altered his law school transcript (gave himself better grades in 20 courses!) to obtain employment and failed to disclose that conduct in the bar admission process. The opinion is available here.

UPDATE (April 28):  The lawyer is now facing disbarment.  Go here.

UPDATE (January 2010):  The Illinois review board recommended one and a half year suspension, which I criticize here.

UPDATE (June 3, 2010):  The IL Supreme Court rejects the Board's recommendation; imposes a 3 year suspension instead.  Go here.

Should a lawyer be suspended from practice for driving too fast?

Here is a new case that involves the often debated issue of whether an attorney should be sanctioned for conduct not related to the practice of law. In this case, the lawyer was involved in three incidents involving speeding violations--one of them for driving 140 mph in a 70 zone. In another traffic stop the police found marijuana in his car but the charges were later dismissed. Based on these facts, the lawyer agreed to a four month suspension.

The marijuana possession is clearly an indication that there may be a more serious problem behind the conduct, but for the sake of argument, let's assume the only issue was the traffic violations. Assume you have a lawyer who is stopped for driving 140 mph in a 70 mph zone and assume he or she has had numerous traffic violations for speeding. Should that alone justify imposing sanctions? What if the person is a candidtate for admission; should that conduct be considered in determining whether the candidate should be admitted?

Thanks to the Legal Profession Blog for the information.

How not to practice law: forge the judge's signature

The Legal Profession Blog is reporting today on a case out of Ohio in which a lawyer forged the signature of a judge on a draft judgment entry granting his client occupational driving privileges after the court had rejected the client's request. The lawyer claimed that he had signed the judge’s name on the rejected entry to show his client “what an approved occupational driving entry would look like” and then let the client keep the forged document.

In a 5-2 per curiam decision, the Supreme Court of Ohio found the lawyer's testimony “simply not believable” and concluded that the lawyer had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation; conduct prejudicial to the administration of justice; and illegal conduct adversely reflecting on a lawyer’s honesty or trustworthiness.

Based on these facts, the Court suspended the lawyer for one year. Do you think that was too lenient?

The court's decision is linked here.

Problems with criminal justice system

There is a lot of literature out there criticizing our criminal justice system for, among other things, not doing enough to protect the right to counsel and because some judges don't seem to care about the quality of representation provided bylawyers appointed to represent indigent defendants.

In a very ironic twist, today, the ABA Journal.com is reporting that Texas, the same state that gave us the famous sleeping lawyer case and the judge who closed the courthouse to prevent a last minute capital case appeal, should be criticized for rewarding the work of appointed capital case appellate lawyers.

Wait; that does not make sense, does it? We criticize the system because it does not reward the lawyers for their work, and now we are criticizing it because it does?

The problem is that what the article criticizes is the lack of oversight over the quality of representation. Lawyers are getting paid regardless of whether they do the work and, apparently, some are just not doing the work at all.

The story comes from the Houston Chronicle, which is reporting that Texas lawyers who have repeatedly missed filing deadlines in death-row appeals are not only being paid for their work but are allowed to represent inmates in other capital cases. The article mentions a few lawyers by name and states that only one of the lawyers the newspaper found to have repeatedly missed death row deadlines has faced fines or been forced to forgo fees by judges.

For more details about which lawyers reportedly have filed late and the excuses they offered for their tardiness, read the full article in the Chronicle.

How not to practice law: ask for stolen property as payment for your services

Here is another entry into our list of ways not to practice law: offer to exchange legal services for stolen property. Story here.

Supreme Court to Consider Prosecutor Immunity for Using False Testimony

Debra Cassens Weiss of the ABAJournal.com reports that the U.S. Supreme Court has decided to hear a case involving prosecutor immunity from lawsuits for procuring false evidence in a criminal investigation and then using it at trial.

According to the Supreme Court Blog, the case (Pottawattamie County v. Harrington) is "a significant new test case on prosecutors’ immunity to damage lawsuits for the way they conduct criminal investigations and then prosecute the cases in court."

The case was brought by two black teens imprisoned for 25 years after they were convicted of killing a retired, white police officer, the Des Moines Register reports. In their suit, the plaintiffs claim prosecutors coached witnesses to lie and concealed evidence. The case involves a distinction between absolute immunity, conferred for prosecutor errors during trial, and limited immunity that applies during the investigative phase of a case.

The implications of the case depend on your point of view, according to the Des Moines Register. “It either would prevent those who are wrongly convicted of crimes by deceitful prosecutors from recovering damages through civil suits, or it would put prosecutors in a weakened position, based on the fear of having to suffer for mistakes made while fulfilling their duty to protect the public."

Two thirds of Americans support legal aid for the poor

Two-thirds of Americans polled by the ABA support federal funding to help Americans who need legal assistance. Story here.

NY denies admission to candidate because of failure to pay student loans.

A few days ago I posted about a lawyer who was disbarred for not paying student loans. Today, the ABA Journal.com is reporting that the Appellate Division of the New York Supreme Court has refused to admit an applicant on character and fitness grounds, even though he passed the state bar in February 2008 because he has delinquent student loans dating back to 1985. The decision is available here. Full story here.

Illinois Opinion Adopts ABA View on Contact With Current Employees of Corporate Party

Illinois Rule of Professional Conduct 4.2 generally prohibits a lawyer who is representing a client from dealing directly with others who have their own counsel in the matter. However, the text of the rule does not indicate which employees of a corporation are considered to be represented for purposes of applying the rule.

A 1984 Illinois appellate court decision held that the anti-contact rule, then codified as DR 7-104, should be construed to prevent direct communications with persons in a corporation's “control group,” consisting of its top decision-makers and top advisors.

In a new opinion, the Illinois State Bar Association's Committee on Professional Ethics, however, has repudiated the narrow “control group test” for communications with current constituents in favor of the ABA's broader three-part standard (Op. 09-01, 1/09).

Endorsing the commentary to Model Rule 4.2, the opinion advises that three categories of current employees are off-limits for direct talks: those whose job brings them into regular contact with corporate counsel; those who have authority to obligate the entity in the matter; and those whose conduct in the matter is imputable to the company.

Following a long held view on a similar issue, however, the Committee reiterated that former employees of a represented party are fair game for informal interviews.

For more information go to this article in the ABA/BNA Lawyers' Manual on Professional Conduct: 25 Law. Man. Prof. Conduct 194.

Court holds that a lawyer's ability to pay must be considered in fashioning a monetary sanction

I have long been a proponent that sanctions must mean something. Mere slaps on the wrist do more harm than good. See here, for example. When it comes to monetary sanctions for attorney misconduct during discovery - which I have also argued is probably the most common yet least punished kind of attorney misconduct - I think the sanctions should be directed at the attorney - not the client and that they should be severe enough to cause the attorney to think twice about engaging in similar conduct in the future. How high the sanction should be to have this effect, however, I guess depends on the facts of the case.

One of these facts, according to the U.S. Court of Appeals for the Federal Circuit should be the lawyer's ability to pay. In ClearValue Inc. v. Pearl River Polymers Inc., (available here), the court threw out a monetary sanction that had been levied against an attorney for failing to turn over test results considered by a testifying expert. The sanction amounted to more than four times the lawyer's net annual income.

For more on this story check out this article in the ABA/BNA Lawyers' Manual on Professional Conduct. If you need a subscription to access the link, here is the actual cite: 25 Law. Man. Prof. Conduct 192.

More training for prosecutors

Attorney General Eric Holder Jr. said on Tuesday he would require additional training for prosecutors to reinforce their understanding of rules that govern discovery in criminal cases. Full story here.

Want to get disbarred? Go rob a bank

Back in January I reported on the proposed disbarrment of an attorney for having engaged in bank robbery (duh!). Yesterday, the Supreme Court of Louisiana affirmed. The opinion is available here.

Thanks to Legal Profession Blog for the cite.

Perry Mason Arrested For Unauthorized Practice Of Law

A 43 year old man going by the name Perry Mason, was arrested in Houston for practicing law without a license. Full story (very short) here.

I am assuming everyone gets the irony here, but maybe I shouldn't. For those readers who don't... Perry Mason is the name of the lead character (a lawyer) in a series of mystery novels by Erle Stanley Garner, later portrayed in movies and TV by actor Raymond Burr. The typical plot of a Perry Mason novel involves Mason's efforts to represent a client accused of murders he or she did not commit by disocovering the real murderer.

Thanks to the Faculty Lounge blog for the story.

Lawyer disbarred for failing to pay student loans

Here is another wake up call for our students: pay your loans!

The National Law Journal is reporting today that the Texas Court of Appeals has revoked the license of a Houston lawyer who failed to comply with a plan to repay student loans and other personal debts. The court said the laywer's conduct showed he did not have the trustworthiness needed to represent clients.

I am not sure how common it is for a lawyer already in practice to be disciplined for failing to pay his debts, but I do know that it is very common for Character and Fitness committees to delay admission to candidates who have accumulated a high level of debt when seeking admission to the bar. The Committees often want to interview those candidates to make sure the candidates understand their obligations and to get some assurance that the candidate will have the ability to pay the loans. With the rising costs of legal education and the bad economy -- which means not very encouraging job prospects for so many graduates -- this could become a real problem for many.

New report on prosecutorial misconduct

The Justice Project has released a report on prosecutorial misconduct. The report is available here. It starts: "Prosecutors are arguably the most powerful figures in the American criminal justice system. Prosecutors are heavily involved in the investigation of crimes; they are solely responsible for what charges, plea bargains, and sentences a criminal defendant will face; and they have complete control over what evidence will be disclosed to the defense during discovery. The decisions of prosecutors have far-reaching consequences on defendants, victims, their respective families, and the general public. These broad powers reflect the prosecution’s unique
role in the criminal justice system as defined by the Supreme Court: “not that it shall win a case, but that justice shall be done.” The role of the prosecutor is not just one of an advocate, but rather an “administrator of justice” whose ultimate goal is to protect the innocent, convict the guilty, and guard the rights of the accused. Prosecutors—unlike defense attorneys—do not advocate for a single individual; they advocate for a just outcome. Given the special duties of prosecutors and the broad power they exercise in the criminal justice system, it is critically important that prosecutors conduct themselves responsibly and ethically."

Thanks to the Legal Profession Blog for the cite.

Another example of how not to practice law: be rude to the judge's clerk

The ABA Journal.com is reporting today that the New Orleans-based 5th U.S. Circuit Court of Appeals has upheld the punishment barring lawyer R. Michael Moity Jr. from practice in the federal court for one year for displaying "severe disrespect to the court by the anger and harsh tone,” of a conversation with a judge's clerk. The lawyer followed that with "lack of candor in sworn testimony when the very serious matter of a contempt hearing was held.” The misrepresentations regarded a prior state court contempt hearing in which Moity was ordered to undergo ethics training, but failed to comply with the initial punishment. The opinion is available here.

Possible changes to admission (and readmission) rules in Florida

The ABA Journal.com is reporting today that a report by a group reviewing Florida bar admission standards has called for a number of changes, including a permanent bar on readmission for any lawyer who is convicted of a felony. The commission also recommended better supervision of those conditionally readmitted because of prior drug, alcohol or mental health issues, and extending the maximum amount of time that a Florida lawyer can be suspended from practice from three years to five years.

For the full story go here: Florida Bar News.

Update on problems with the new Model Rule 1.10

About a month ago, I posted a note on the fact that the ABA made a pretty major mistake in drafting the recently approved amendment to Model Rule 1.10. The Legal Ethics Forum is now reporting that the ABA Rules Committee has rejected a request by the ABA's Standing Committee on Ethics and Professional Responsibility for a housekeeping amendment to fix the problem (by making it clear that the screening provision applies only to laterally hired attorneys). That is crazy! The rule can still be fixed but it will have to go back to the ABA's House of Delegates in August, where the correction would have to be formally adopted by the House. If that does not happen, we will end up with a very problematic rule that will allow firms to purposely represent clients with concurrent conflicts of interest.

To see my posts on the process of approval of the new Model Rule 1.10 click here.

Another example of how not to practice law: don't proofread anything before you file it in court

Irked by a Wisconsin lawyer's failure to proofread his pleadings, among other errors, a state appeals court has suggested that the lawyer should go get help with his legal writing and fined him $500 for violating basic rules of appellate practice. In a report on the story in the ABAJournal.com, the attorney blames his staff for his incoherent pleading and claims that everyone makes mistakes. At least he admitted he should have caught the mistakes. My guess is this would have been easy if he had read the document before filing it. This is another example of how not to practice law.

Federal prosecutorial misconduct

In a strongly worded, 50-page opinion (available here), U.S. District Judge Alan S. Gold has reprimanded federal prosecutors and ordered the U.S. government to pay a defendant more than $600,000, saying members of the defendant's legal team had been secretly recorded in a questionable witness-tampering investigation. The judge also criticized the prosecutors for failing turned over to the defense the information and for not informing the fact that two witnesses were cooperating with the government. The judge stated that these events "are profoundly disturbing'' and that they "raise troubling issues about the integrity of those who wield enormous power over the people they prosecute.''

Full story here.

When should the judge take action regarding prosecutorial comments?

The North Carolina Court of Appeals recently affirmed a criminal conviction in a murder case, rejecting the contention that the trial judge failed to intervene in the prosecutor's closing argument. The defendant argued that the trial court erred by failing to intervene during the prosecutor's closing remarks, but the Court of Appeals found that the remarks were not grossly improper. For this reason it concluded that even though the lower court did not do anything, the remarks did not rise to the level of prejudice that would warrant a new trial.

New York City Public Defenders’ Caseloads to Be Capped

A provision in New York’s $131 billion state budget bill passed last week calls for a cap on the number of criminal cases each New York City court-appointed lawyer can handle. For more on the story go here. This is a good thing; but only if the budget also provides for more attorneys. Otherwise, what you end up with is the same number of attorneys handling fewer cases and more defendants lacking representation forcing a very bad choice: what's better? defendants getting inadequate representation because their lawyers have too much work, or defendants not getting representation at all because there are no lawyers available

Two N.J. Judges Face Ethics Charges Over Derogatory Comments From Bench

Two New Jersey trial judges are in hot water for belittling litigants with discourteous, undignified and discriminatory remarks from the bench. In complaints [available here and here], made public Monday, the Advisory Committee on Judicial Conduct accuses the judges of derogatory comments touching on litigants' alienage, ethnicity, race, honesty, language ability or physical ailments. The judges are charged, among other things, with creating an appearance of racial or ethnic bias. Fore more on this story go here.

Supreme Court to consider whether fees can be enhanced based on quality of representation

On Monday, the U.S. Supreme Court agreed to consider whether a fee awarded under a federal fee-shifting statute can ever be enhanced based solely on the quality of the lawyers' performance and the result they obtained. For more on this story go here.

More prosecutorial misconduct alleged

The Justice Department is once again being threatened with contempt of court after United States District Court Judge Emmet Sullivan found that they withheld evidence from the defense that a witness in a “significant” number of cases was mentally disturbed. Judge Sullivan found that the testimony of the detainee was unreliable, could be challenged in other cases, and could be the basis for a possible contempt order against the government. Full story here.

Prosecutorial misconduct; limits of proper argument

There appears to be an emerging trend of bar prosecutions against prosecutors -- which is definitely a good thing, by the way. Here is another example of prosecutorial misconduct, as reported by Mike Frisch from Legal Profession Blog.

An Arizona hearing officer recently recommended a 30 day suspension of a deputy county attorney for misconduct in a criminal case. The hearing officer found that "it is particularly troubling that [the] conduct began in opening statement and continued through rebuttal argument." The prosecutor had "carefully considered and deliberately chose to engage in the conduct at issue here. The repeated improper argument in opening statement, even after being admonished by the court, and the improper [closing] argument of the burden of proof were carefully calculated 'bookends' to [his conduct of the...trial." The prosecutor, among other things, put improper evidence before the jury, asked improper questions about inadmissible prior crimes, misrepresented DNA and other evidence, implied that incriminating evidence had been withheld and asserted personal knowledge of the facts by saying "we know" and "we can prove" in his opening statement.

On the relation between the rules of professional conduct and the concept of duty

Most states' rules of professional conduct state that they are not meant to illustrate duties in tort law, but that many (perhaps most) courts ignore this in the sense that they look at the rules as illustrations of proper conduct. In a new opinion from the Kansas supreme court, the court attempts to clarify the relation between the rules of ethical conduct and the concept of duty by stating that the rules of professional conduct do not create or recognize a claim in tort: "An attorney's violation of the ethics rules cannot create a cause of action to adverse litigants or even to clients. This is because the ethics rules do not impose a legal duty on the attorney owing to either a client or a third party. Occasionally, attorney conduct which violates an ethics rule may also violate an independent legal duty and a cause of action may ensue. It is the violation of the independent legal duty, not the ethics rule, that gives rise to a cause of action." The opinion is available here.

Thanks to the Legal Profession blog for the information.

Ineffective assistance of counsel in criminal cases

Here is a link to a comment by Prof. Monroe Freedman on the appalling situation of ineffective assistance of counsel that so many indigent criminal defendants have to deal with in the US. It starts: "The young lawyer who resigned from the Walton County Public Defender’s office because she was not able to give her client’s the effective assistance of counsel, is unquestionably a hero. Unfortunately, she is also guilty of serious and sustained unethical conduct, as are her colleagues in the office, the supervisors, and the judges who presided over her cases. . . . As a result, she and her colleagues repeatedly assisted clients to plead guilty without doing any of the investigation or legal analysis that ethical rules and the Constitution require."

Consumer agency sues over Florida's rules on advertising

Public Citizen, a national consumer advocacy agency, has filed a lawsuit against The Florida Bar challenging the constitutionality of its ban on client testimonials in attorney advertising. Full story here.

Attorney ordered to return fees for violation of court order

A couple of months ago I posted a note about a case where, after a judge ordered a lawyer off a case and banned from getting any fees (because he had been caught bribing a witness), the lawyer entered into a secret agreement to get paid anyway. Today, Law.com is reporting here that the lawyer has been ordered to return the $450,000 he collected in fees through the secret deal.

Article about in house counsel conviction

Here is a link to an article that discusses the indictment, trial, conviction, and sentencing of Berkeley Nutraceuticals’ former in-house counsel Paul Kellogg. Mr. Kellogg’s conviction arose out of two distinct series of events – one that the government alleged was designed to cover up an FDA violation, and another that the government alleged was designed to evade the Federal Trade Commission (“FTC”). The article reminds us that as in-house counsel, the line between advising on legal matters and participating in business decisions can get blurred, but attorneys need to know their proper role. In this case, the attorney crossed the line and it earned him a conviction. The full article can be found here.

Thanks to the FDA Blog for the inormation.

BNA Lawyers' Manual article on Candor to the Tribunal

The most recent ABA/BNA Lawyers' Manual on Professional Responsibility has a good article summarizing the state of the law related to an attorneys' duty of candor to the tribunal. It discusses the following topics. among others:

False Factual Statements
Immaterial Statements
Omissions as Misrepresentations
Limits to the Duty to Disclose
False Statements of Law
The Duty to Correct False Statement
The Duty not to offer False Evidence
Evidence Believed to Be False
The Duty to Disclose Adverse Legal Authority
Duties During Ex Parte Proceedings
Duties related to False Evidence Already Offered
The Duration of the Candor Obligation

The article can be found here, although I am not sure if the link will work if you don't have a subscription to BNA. If it doesn't, look for the article with this citation: 25 Law. Man. Prof. Conduct 174.

‘Reverse’ Contingent Fees Are Allowed in DC

The District of Columbia bar's ethics committee issued an opinion this month that concludes that attorneys may charge a reverse contingent fee, based on how much the lawyer saves the client from having to pay a claimant, so long as the total amount is reasonable and counsel makes sure the client fully understands the risks and advantages before consenting to the arrangement. A majority of the committee said that although it is best for the lawyer to put in writing exactly how the sums and percentages will be computed when establishing the fee amount, a detailed written analysis is not mandated under the professional conduct rules. Three dissenting members disagreed, arguing that unsophisticated clients—and impartial reviewers seeking to settle subsequent fee disputes—need a written statement disclosing how the figures were calculated in order to discern whether the amount is reasonable. The opinion is available here.