Court of Appeals for the 5th Circuit has decided important case regarding imputation of conflicts

A few days ago I reported that the Court of Appeals for the 5th circuit was set to decide whether the presumption that a lawyer who joins a new firm comes to the new firm with knowledge of confidential information related to the cases handled by the lawyer's former firm should be irrebutable. See here and here.

Law.com has just reported that the Court decided the case and held the presumption is rebuttable, which as I discussed in my previous posts, is the correct decision. Go here for the full story. Go here for a copy of the opinion.

I am sure there will more commentary tomorrow from other sites, so check back for updates.

Disciplinary complaint for discriminatory conduct raises interesting questions

The Administrator of the Attorney Registration and Disciplinary Commission of Illinois has filed a disciplinary complaint that may generate an interesting discussion of an Illinois Rule of Professional Conduct. The complaint states that the attorney, among other thigns, used abusive and insulting language towards public officers while in a different state and to others while in Illinois in violation of a rule that states it is miconduct to engage in conduct that is "prejudicial to the administration of justice, including adverse discriminatory treatment of others based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status."

In most instances, the language was not used in the context of the practice of law so it is not clear what is the relationship with the notion of "prejudicial to the administration of justice."

It will be interesting to see if the case addresses the question of whether the rule calls for discipline for discriminatory conduct because it is prejudicial to the administration of justice or whether it calls for discipline for discriminatory conduct only if it is prejudicial to the administration of justice.

The complaint is available here.

Thanks to the Legal Profession Blog for the information.

Judge criticized for accepting chicken dinner

In most jurisdictions, the rules of professional conduct ban lawyers from providing living expenses for clients involved in litigation at least in part because of the fear that attorneys will start to compete against each other based on the perks they can offer to attract clients. To illustrate, we use the hypo of a lawyer who offers chicken wings and then another who offers chicken dinners and then another who starts offering turkey, and so on....

The following story gives new meaning to the "chicken dinner" issue: go here and here for the full story.

Update on California's civil Gideon program

A few weeks ago I reported that California had approved a new program based on the notion that indigent civil litigants have a right to getting an attorney appointed to represent them (also known as a "civil Gideon" right) (see here).

Here is the latest update on the implementation of the program, courtesy of the Wall Street Journal Law Blog.

Conference on legal/ethical issues related to social networking

There has been a lot of literature recently about ethical issues related to social networking. See my posts and links here, here and here. For posts on "blogging" go here and here.

Here is a new link to a conference on legal/ethical issues related to social networking sponsored by the University of California-Berkeley Law School. It took place just a few days ago and you can listen to the different conference sessions by clicking on the appropriate section on the website.

New article on internal corporate investigations

Here is a summary of a new article on internal corporate investigations.

Does a lawyer violate a state imposed suspension order if he continues to practice in federal court?

Does a lawyer suspended from practice by a state Supreme Court engage in unauthorized practice of law if he continues to represent clients in federal court (within the same state and on matters that involve state law) during the suspension period?

That is the issue presented by a case working its way to the Louisiana Supreme Court. There, the attorney was prohibited by an Order of the Louisiana Supreme Court from practicing in the state of Louisiana, but he was still licensed in the federal court system. The situation was brought to the attention of the federal judges in the Eastern District of Louisiana but they declined to suspend the attorney in the federal court. In other words, the attorney was permitted by the federal court system to continue to practice law in the Eastern District of Louisiana although his Louisiana law license had been suspended by order of the Louisiana Supreme Court.

Once the lawyer served his suspension, he requested reinstatement. The hearing committee decided that the attorney did not violate the terms of the suspension order by continuing to represent Louisiana residents in federal courts and recommended reinstatement.

The Disciplinary Board split 4-4, thus adopting the decision of the hearing committee. The matter is now before the Supreme Court.

One of the dissenting opinions at the Board level concluded that the lawyer’s continued practice in the federal court system was “nothing less than an affront to the authority of the Louisiana Supreme Court and the role the Court plays in ensuring that the public is adequately protected from lawyers who fail to adhere to the appropriate standards of professional conduct.” Another one suggested that by maintaining a law office and by holding himself to the citizens of the state as a lawyer competent to exercise legal judgment and to counsel them on matters of state law, the lawyer violated the suspension order.

This is an interesting question. Obviously, the state Supreme Court has no authority over the lawyer’s practice in federal court. If he was allowed to practice there – particularly after being informed of the state suspension – then he had a perfect right to continue to do so. The fact that may make a difference, though, is that the attorney was not representing clients in matters that were exclusively federal. The attorney was practicing state law, so to speak, in federal court. The issue is whether the authority to suspend an attorney from practice is geographical, jurisdictional or even topical.

It will be interesting to see what the state Supreme Court decides.

The case is In Re Joseph Bruno and the decision of the Disciplinary Board and the dissenting opinions are available here.

Thanks to the Legal Profession Blog for the link.

Even more on lawyers using social media

Here is a short comment on Legal Ethics Forum on lawyers and social media. It discusses five basic rules to keep in mind:

(1) make sure you don't disclose confidential information

(2) be careful when interacting with third parties

(3) don't lie

(4) don't try your case on the 'net/press

(5) don't criticize the court.

For previous posts on issues related to social media, go here, here and here.

How not to practice law: when interviewing an applicant for a secretary position tell her that having sex with you is part of the job

The Illinois Adminstrator has filed a disciplinary complaint alleging three counts of misconduct against an attorney, one of which relates to a "want-ad" for a secretary. Keep reading. You wouldn't believe me if I told you the story, so I am just going to quote this in full.....

"On May 28, 2009, Respondent logged onto the Internet at his law office . . . through AT&T Internet Services, the Internet provider of the attorney who had an office in the same suite and building and from whom Respondent was then renting an office. At approximately 1:25 p.m. Respondent accessed the website, "Craigslist.org," ("Craigslist") and posted an ad in the "Adult Gigs" section of the classified advertisements of Craigslist. The title of the post was "Loop lawyers hiring secretary/legal assistant." The post read as follows:

Loop law firm looking to hire am [sic] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements. We look forward to meeting you.

. . . On or about May 28, 2009, at 10:26 p.m., [an applicant] sent Respondent an e-mail response to Respondent’s posting. . . .Respondent responded by e-mail to [her] e-mail. Respondent’s response read as follows:

. . . Thank you for your interest in the job. I just wanted to give you some more info about the job and see if you are still interested in interviewing. Our law firm is a boutique firm, concentrating solely in immigration law. . . . You would be working with the two partners of the firm. Your duties will include the general secretarial work and legal work. The legal work will include filling out visa applications, etc.

. . . you would [also] be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us. If you think you’re comfortable so far, please let me know and we can proceed with the process. The next step is to set up an interview. . . . .

Lastly, we’ve actually hired a couple of girls in the past for this position. But they have not been able to handle the sexual aspect of the job later. We have to be sure you’re comfortable with that aspect, because I don’t want you to do anything that you’re not comfortable with. So since that time, we’ve decided that as part of the interview process you’ll be required to perform for us sexually (i didn’t do this before with the other girls i hired, now i think i have to because they couldn’t handle it). Because that aspect is an integral part of the job, I think it’s necessary to see if you can do that, because it’ll predict future behavior of you being able to handle it when you have the job.

If you’re still okay with everything, let me know what you’re availability is and we can figure out a time for you to come in and interview. Let me know. Thanks for your interest.

. . . [The applicant] was frightened by Respondent’s response and did not reply to Respondent’s e-mail. On or about June 1, 2009, [the applicant] sent a request for investigation to the Administrator of the Illinois Attorney Registration and Disciplinary Commission . . . As a result of [her] request, on June 3, 2009, the Administrator docketed an investigation... [and contacted the lawyer]. . . . In his response to counsel for the Administrator, Respondent stated as follows:

…It appears that somebody with malice [sic] intentions has used my business information to post the advertisement on Craigslist. I did not post the advertisement for a legal secretary…

Respondent’s statement that he did not post the advertisement on Craigslist...was false, and Respondent knew it was false when he made it, because Respondent did in fact post the advertisement on Craigslist and knew when he responded to the ARDC investigation that he had in fact posted the advertisement. . . .

On September 22, 2009, Respondent appeared for a sworn statement at the Chicago office of the Attorney Registration and Disciplinary Commission. At that time, Respondent was sworn upon his oath. In his statement, Respondent acknowledged that he posted the May 28, 2009 Craigslist advertisement and sent the May 29, 2009 responsive e-mail to [the applicant]..."

So, there you have it. I don't even know what to say!

Thanks to the Legal Profession Blog for the information.

UPDATE (July 2011):   This case has been finally decided and the attorney was imposed a one year suspension.  Go here for the story.

UPDATE (Dec 1, 2011):  The Illinois Supreme Court approved the sanction in this case.  For comments and reactions go here and here

More on lawyers using social media

Yesterday I posted a link to an article suggesting lawyers should re-think the idea of using social media. For the counter-argument, here is a link to an article called "5 Reasons for Lawyers to Use Social Media" (available here).

For an article with some examples of the wrong uses of social media go here. The examples include the following:

--Prolific blogging when claiming an overuse injury due to excessive use of a keyboard at work.

--Texting between attorney and client under the table during a deposition which, upon revelation, leads to discovery of all those text messages.

--Judge twittering from the bench, which led to judge's resignation.

--Twittering juror led to motion for new trial. Judge in that case denied the motion, but another judge granted it.

--Lawyer asking for continuance due to death in family, while his Facebook page showed him at a party when he was supposed to be at the funeral.

--Facebook "friending" between attorney and judge hearing case led to impermissible ex parte communication, a problem for lawyer and judge alike.

--Lawyer on jury duty, without disclosing he was a lawyer, blogging about the trial. This led to new trial for defendant and bar suspension for the lawyer.

--Defendant doctor blogging about progress of his malpractice trial, including unflattering comments about jurors. Plaintiff found the blog and used it on cross examination. The case settled quickly after that.

Prof. Monroe Freedman on pre trial publicity

Here is a link to a short comment by Professor Monroe Freedman on the debate regarding pre trial publicity over the former Governor Blagojevich's trial. More on the story here.

Debate as to in-house counsel duties during internal investigation

Here is a link to an interesting debate as to the duties of an in-house counsel during an internal investigation based on this hypo:

Imagine that in-house counsel is conducting an internal investigation and speaks with an employee whose conduct may have been unlawful. The employee does not have her own counsel, so the in-house lawyer makes clear to the employee that the lawyer represents the company and not the employee herself. The employee is reluctant to speak with the lawyer and the lawyer then says to the employee, "You are subject to the company's employment policies, which require you to speak with me about this matter." Is the lawyer's conduct a violation of the rules?

Social media and marketing of legal services

Here is a comment on using social media (facebook, twitter, etc) as a way to market legal services and as to why maybe you should consider not doing it.

More on the 5th Circuit pending case on conflicts

Here is a link to the Legal Ethics Forum's post and comments on the upcoming 5th Circuit decision about imputed conflicts. Again, as the post states, there is only one way to go here. If the Court decides the presumption is irrebutable the result will be terrible.

Court of Appeals for the 5th Circuit to decide important case regarding imputation of conflicts

According to the approach of the ABA Model Rules, when a lawyer joins a new firm there is a presumption that the lawyer comes to the new firm with knowledge of confidential information related to the cases handled by the lawyer's former firm. This presumption, however, is rebuttable.

However, Law.com is reporting today that the Court of Appeals for the 5th circuit has a case before it in which the issue is precisely whether that presumption should be irrebutable.

A finding that the presumption is irrebutable would be terrible in many ways. For individual lawyers, it would make it terribly difficult to find a new job because firms will not be willing to open their doors to lawyers who would then force the firms to give up current clients because of the conflicts the new lawyer's presence in the firm would create. For firms, it would mean that they would be subject to being disqualified just because a new lawyer in the firm is thought to have confidential information about a former client even if, in fact, the lawyer could show he or she did not.

Go here for the full story.

How not to practice law: try to recover expenses from your client after you agreed not to do it

Here is another addition to our on going series on "how not to practice law": don't know the terms of your own fee agreement!

It relates to something we covered in class the other day. As you probably remember, the Rules in most jurisdictions state that attorneys can advance court costs and expenses of litigation. Having paid for these expenses, the attorney has a right to recover these expenses, but the recovery of those advances is typically contingent on the result of the litigation. This is so, to avoid the unpleasant situation of having a lawyer going after a client to recover money after the client just lost a case.

Interestingly, Law.com reported last week that a Manhattan judge has taken to task some well-known personal injury attorneys for what she called a "nonsensical and frivolous" bid to recoup the costs of an unsuccessful medical malpractice action. According to the story, the judge began her ruling stating that the conduct of the lawyers illustrates why members of the public hold cynical views of the legal profession. The Judge concluded that the firm's retainer agreement made recovery of the expenses contingent on the recovery on the case and since there was no recovery in the case, the claim for the expenses was frivolous. Accordingly, she issued an order to show cause why the lawyers should not be sanctioned.

Go here for the full story.

DOJ announces plans to prevent prosecutorial misconduct

Law.com is reporting today that the US Justice Department recently outlined a plan to ensure prosecutors play by the rules when dealing with evidence. Think about that for a moment. We need a full out effort by the Dept of Justice to make sure prosecutors play by the rules. And here I thought professionalism and the duty to follow rules of professional conduct were there for that...

Assistant Attorney General Lanny Breuer has pitched what he calls a "comprehensive approach" to reform -- a plan that includes mandatory annual discovery training for all prosecutors and the creation of a new position at Main Justice that will focus on discovery issues. But Breuer said the department would fight any effort to require prosecutors to turn over all favorable information to the defense. Under current rules, prosecutors only have to give the defense information they plan to use at trial or information that they determine would be exculpatory. Defense lawyers and some judges have argued prosecutors have too much control in trying to glean the defense theory of a case before deciding whether information must be turned over. Go here for the full story.

UPDATES on this story: here and here.

Article on the future of lawyering

Richard Susskind has written a book called "The End of Lawyers?" in which he expresses his views on the state of the legal profession and the outlook for the future. Here is a link to a short article in which he discusses the book and his conclusions, which include his idea that law practice will soon consist of five different types of lawyers:

The first will be the "expert trusted adviser." This is the provider of bespoke legal service. The arguments of my book suggest that market pressures will generally discourage lawyers from handling matters in a bespoke manner wherever this is possible. Instead, standardized or computerized service will be preferred. However, on some occasions bespoke work will be unavoidable.

The second category of lawyer for the future is the "enhanced practitioner." This is the individual whose legal skills and knowledge are required not to deliver a bespoke service but, enhanced by modern techniques, to support the delivery of standardized, systematized and (when in-house) packaged legal service.

The third category of lawyer will be the "legal knowledge engineer." Since legal services will be increasingly standardized and (in various ways) computerized, this is the category of people who are going to be needed to organize the large quantities of complex legal content and processes that will need to be analyzed, distilled and then embodied in standard working practices and computer systems.

The fourth category will be the "legal risk manager." The job description of this category of lawyer is to avoid legal problems than resolve them.

Finally, the fifth category of future lawyers is the "legal hybrid", who will be superbly schooled and genuinely expert in other related disciplines and will be able to extend the range of the services they provide in a way that adds value to their clients.

New Law Tries End Use of 'Runners'

Connecticut has enacted a new law that imposes penalties on "runners" (people who rush to accident scenes or hang out in Emergency rooms in order to steer victims toward specific doctors or personal injury lawyers) and those who hire them. Connecticut is now among 10 states that have enacted such a law. Lawyers will face as much as a year in jail and a fine of up to $5,000 if they're caught hiring runners to drum up personal injury litigation business. The same penalties apply to anyone who is acting as a runner. Go here for the full story.

Bankruptcy judge has had enough

US Bankruptcy Judge Alan Jaroslovsky has had enough incompetent lawyers appearing in his courtroom; so he has given them the following notice:

NOTICE TO BAR REGARDING INDIVIDUAL CHAPTER 11 CASES

There has been a recent spate of individual Chapter 11 cases filed by attorneys who have neither the experience nor the education nor the competence to venture into Chapter 11. I believe that there are very few bankruptcy lawyers other than State Bar certified specialists who should be contemplating representation of Chapter 11 debtors in possession.

I see rampant errors being made in issues relating to cash collateral, conflicts of interest, and compensation.

The use of cash collateral without permission, even for necessary expenses, is usually fatal to Chapter 11 cases. There are procedures in place to obtain emergency permission to use cash collateral. If you don’t know them, you should not be taking Chapter 11 cases.

A Chapter 11 is not just a big Chapter 13. If you represent a Chapter 11 debtor in possession, your client is the estate, not the debtor personally. Failure to understand this results in serious liability exposure.

Forget about trying to fix your compensation. You will be paid what I allow, period. I suggest you not spend retainers until your fees are allowed to avoid having to return money you have already spent.

I see frequent malpractice in individual Chapter 11 cases and I am quick to note it on the record. Your employment will not be approved unless you have substantial current malpractice insurance. If you are going “bare,” don’t even think about taking a Chapter 11 case.

For the Judge's official home page go here. The link to this letter appears at the very bottom.



Thanks to The Legal Profession Blog for the information.

Article on the new attorney-client privilege rule

Here is an article reviewing the effects of Federal Rule of Evidence 502, which was approved just about one year ago.

Class action vs lawyer who faxed ads to unwilling recipients

A judge of the US District Court for the Northern District of Illinois has certified a class of plaintiffs in a lawsuit accusing a Skokie lawyer of violating the Telephone Consumer Protection Act by allegedly faxing advertisements to unwilling recipients.The case is Ira Holtzman v. Gregory P. Turza.

Another case of sanctions for representing buyers and sellers at the same time

The Delaware Supreme Court has issued a long opinion suspending an attorney for his practice of representing buyers and sellers at the same time in real estate transactions. The case is In the Matter of a Member of the Bar of the Supreme Court of the State of Delware: I. Jay Katz, and the opinion is available here.

More on the issue of perjury

A couple of days ago I posted a note on the ongoing debate related to an attorney's duties when a client commits (or intends to commit) perjury (here). The debate continues here.

For my students: this is very important material that we will discuss in detail in a few weeks (chapter 12).

Supreme Court oral argument on ineffective assistance of counsel

A couple of days ago I reported that the US Supreme Court was about to hear oral arguments on a case on whether incorrect legal advice about the consequences of a guilty plea should be considered ineffective assistance of counsel (here). Here is a short summary of the argument. Here's another.

Multi-million dollar fine for unathorized practice of law

The Supreme Court of Ohio today imposed a civil penalty of $6,387,990 against two companies and their co-owners for engaging in the unauthorized practice of law, and issued an injunction permanently barring those companies, their principals and employees from any future marketing or sale of living trusts or other estate planning documents or services to Ohio residents. Also, the Court found that the companies used third-party marketing firms to send direct mail ads to lists of Ohioans 65 and older and also targeted senior citizens with magazine advertising containing exaggerated claims regarding the costs and complications of disposing of their assets through a will. Persons responding to the ads were subjected to high-pressure in-home presentations in which non-attorney sales representatives provided them with legal advice including inflated “estimates” of the costs of probating their estates and the purported savings the customer would realize by purchasing American Family’s standardized living trust document – regardless of the size or composition of that individual’s estate or his/her existing estate planning documents.

For a detailed discussion of the case go to the Legal Profession Blog.

Judge imposes fine on "birther" lawyer

A little less than a month ago, I reported that a federal District Court Judge had issued a warning to attorney Orly Taitz to stop filing “frivolous” lawsuits alleging that President Obama is ineligible to serve as President. (See here). Today, several sources are reporting that Taitz continued to file motions in the case, including a motion asking the judge to recuse himself and that, in response, the judge has fined the attorney $20,000 stating that “Counsel’s wild accusations may be protected by the First Amendment when she makes them on her blog or in her press conferences, but the federal courts are reserved for hearing genuine legal disputes, not as a platform for political rhetoric and personal insults.” The judge's order is available here.

In his comment on this case, Prof. Jonathan Turley quotes a letter sent by the client that Taitz claimed to be representing sent directly to the judge in which she states she did not authorize Taitz to file any motions or to speak for her. Prof. Turley's coverage of the story is available here.

For more on the story, links and some commentary, you can also go here, here and here.

How not to practice law: provide the wrong citation to key cases so the judge goes nuts trying to find them

Here is another installment of our public service series "How NOT to practice law." Today's lesson is an old classic: piss off the judge! or go ahead and do what you can to make the judge's life/job more difficult.

The Wisconsin Court of Appeals has reportedly imposed a fine on a lawyer for getting a citation wrong in a brief. The problem is not that the citation was wrong per se, though. The problem is that the court had to go on a wild chase for the case the lawyer cited. Given that the attorney provided the wrong name of the case, the wrong citation and the wrong deciding court it was hard to figure out if the case actually existed and held what the attorney claimed it did. After some sleuthing, the court eventually did find a case -different name, cite, court, etc. but did not forgive the fact that the attorney's carelessness caused it to waste so much time and effort.

DC Bar Opinion on joint defense agreements

Joint defense agreements do not create former-client conflicts of interest, but a lawyer who participates in a joint defense arrangement may acquire contractual and fiduciary obligations to members of the joint defense group who are not the lawyer's clients, the District of Columbia Bar's ethics committee advised in a September opinion (District of Columbia Bar Legal Ethics Comm., Op. 349, 9/09).

California adopts a program to provide lawyers in civil cases

The Legal Ethics Forum is reporting today that California just enacted a pilot program that will provide lawyers for indigent clients in civil cases. This is great news and hopefully will grow and expand to other states in the near future.

Supreme Court hears two cases on "lawyering" this week

The Supreme Court will hear arguments in Padilla v. Kentucky today and Perdue v. Kenny A. tomorrow. Padilla involves an ineffective assistance of counsel claim brought by a legal permanent resident whose attorney incorrectly advised him that pleading guilty to three drug-related charges would not result in deportation. The ABA in its amicus brief argues on behalf of Mr. Padilla that a lawyer's duty of competence includes the duty to be informed about the consequences of a guilty plea and to advise the client accordingly. Perdue questions whether a fee awarded pursuant to a federal fee-shifting statute may be enhanced based on the quality of performance and results obtained.

Thanks to Renee Newman Knake of the Legal Ethics Forum for the information and links.

Here is an additional link to an article in today's Law.com on the Perdue case.

Super Lawyers?

Many of you may have seen a publication called "Super Lawyers." It is actually an advertising supplement to a magazine. You don't have to pay to be listed, you only pay if you want your name displayed prominently in a large box or in a page with a story about you that looks like news.

Can a lawyer who is included in the publication then publicize that he or she is a super lawyer? This has been the source of much debate recently, particularly in New Jersey where the state Supreme Court is debating whether to amend its rules on advertising to regulate what kind of information lawyers can use to advertise services. For an update on that story go here.

For the thoughts of a practicing attorney who is included in Super Lawyers go here, where he states in part: "What, exactly, do I do with this "honor"? Is this really an award to put on your wall or display on your website? Or is it a faux-award? A pseudo-faux award? . . . I have mixed feelings about this. The company that puts out the information says the lawyers are vetted before they appear. . . . Of course, they never asked me to evaluate any of my peers. And I don't know anyone else that was asked to do an evaluation. . . . I must confess that this all seems pretty meaningless to me. . . . But that little logo sure looks nice, doesn't it? And it would look great on a website if someone were looking for counsel. (Though not so good if a juror should see it and conclude I was thoroughly full of myself.) . . ."

The perjury "trilemma"

All students of legal ethics are familiar with Professor Monroe Freedman's famous article on the "trilemma" lawyers face when dealing with possible perjury. Attorneys are supposed to keep their client's confidences secret, to advocate zealously and to disclose perjury. You can't do all three. Something has to give. His original article, published in 1975, started a debate that continues to this day. Literally. Prof. Freedman just posted an invitation to the members and guests of the Legal Ethics Forum to debate the subject. Go here to check it out and refer back to it as more participants will likely contribute to the discussion in the near future.

New Jersey to impose mandatory CLE

After two years of fact-finding and deliberation, New Jersey's Supreme Court announced Thursday that it will require mandatory continuing legal education for all plenary-licensed attorneys, starting next year. Go here for the full story.

Attorney should learn from his 5 year old son

The Legal Profession blog is reporting today that an attorney was suspended for 60 days, with two years of probation and was ordered to take the MPRE within one year for an incident involving driving under the influence and lying to the police.

To make a long story short, the police were investigating an accident but could not find the occupants of the car. They found a purse with the attorney's address in it and went there to continue the investigation. When asked about the accident, the attorney denied he had been driving.

But then the lawyer's five-year-old son told police that his father was the driver of the car involved in the accident.

The police later confirmed the lawyer was under the influence of alcohol and that his wife had gone to the hospital to get treatment for a minor injury. The lawyer was charged with four felonies, including child abuse and causing injury while driving under the influence and he pleaded guilty to the lesser charges.

Important changes to Federal Rules of Civil Procedure

I recently commented on how missing a deadline in litigation is one of the dumbest things a lawyer can do (here and here).... Well, now comes word that important changes to the Federal Rules of Civil Procedure will go into effect on December 1, 2009 (unless Congress stops them) that will affect the way time is calculated in federal court litigation.

In a nutshell, the changes seek to standardize how days are calculated by counting all days. If a deadline falls on a weekend day, a federal holiday, or a day when filing is impossible because the Clerk’s office is closed or inaccessible, then the deadline falls to the next available day. Deadlines shorter than 30 days have been changed to multiples of seven (7) days, so that more often than not, the deadline will fall on a weekday. The Rule that allowed for adding time for service by mail has been deleted.

The Drafting Committee has asked the district courts to revise their Local Rules accordingly, and to do so effective December 1. If it is not the rules will be a mess to deal with.

For PowerPoint presentations explaining the amended rules and their operation in court proceedings go to www.uscourts.gov/rules/presentations.html.

For more details on this story go to the Drug & Device Law Blog, which includes a list of the affected rules and other links.

Article on the propriety of criticizing judges

Here is a link to an interesting article on the propriety of criticizing judges.

Who gets the fee when a lawyer leaves a firm taking the client with him?

Here is an interesting case from the Illinois Appellate Court, but before I comment on it, let me say that I have not read the case itself. I am going here based on a newspaper account.

In this case, a plaintiff hired a particular attorney to represent him in a personal injury matter. At the time, the attorney worked for a law firm. The plaintiff entered into a contingency agreement with the firm (and the firm entered into an agreement to split the free with the attorney who referred the case to the firm too.)

The case was handled by the one attorney in the firm to whom the case had been referred, but since the fee would be based on a contingency, the attorney did not keep any detailed records of the time spent on the case.

At some point in time later, the firm fired the attorney handling the case for the firm, but the client decided to keep him as his attorney so the attorney took the case with him. The case eventually settled for $275,000 and then the firm filed a motion essentially seeking to recover what it claimed to be its fee in the case. After the parties agreed to certain disbursements from the settlement amount, they could not agree on how to divide the remaining $82,500.

The trial court then found that the firm was entitled to its original contract fee of one-third of the settlement, less the amount of fees the lawyer was entitled to based on an estimate of the specific time he spent on the case (based on a $300 per hour rate). The attorney, as you would expect, argued that since he did most of the work the analysis should be exactly the opposite: that he should get the one third fee minus the value of whatever the firm could show it did for the case.

On appeal, the appeals court affirmed the trial court's calculations. The court said that a settlement was reached before any depositions were taken and before any substantive motion had been filed and that the "overwhelming" amount of work that had been done by attorneys and legal assistants employed by the firm.

This is a tough one. On the one hand, I sympathize with the notion that the attorney should get the larger chunk of the fee if he did most of the work, but, on the other, the client had a valid contract with the firm -- not with the specific attorney. It would be important to determine what happened when the attorney left the firm and took the client: did he execute a new fee agreement with the client? Did the client clearly release the firm from its duties as his legal representation? And then, of course, there is the important factual matter of who actually performed most of the work -- about which there seems to be a disagreement.

Without more, it is difficult to tell whether the court made the right decision. The case is called Rafael and Magdalena DeLapaz v. Select Construction, Inc., et al., No. 1-08-2072.

UPDATE: Here is the link to the opinion: DeLapaz v. Select

Should a firm be entitled to $42 million contingency fee?

Assume a firm represented a client for 22 years in litigation over the estate of her husband. During that period, the client paid hourly fees. Then, at some point, the client agreed to change her agreement to a contingency fee based on the value of the estate. Then, just four months after the contingency fee agreement is reached, the value of the estate is finally settled to be $104.8 million. Should the firm be entitled to a $42 million contingency fee? That is the question in a trial that began this week in New York. For more on the story go here.

New report highlights crisis of access to legal representation

A new report by the Legal Services Corp. (the nonprofit agency that receives and disburses congressional funding to legal aid organizations) finds that half the people who seek legal aid from LSC-funded programs are turned away, primarily because of a lack of resources. The report is available here. For more on the story go here and here.

Supreme Court to hear case re immunity for prosecutorial misconduct

On Wednesday, November 4, the U.S. Supreme Court will hear oral arguments in a case called Pottawattamie County, Iowa v. Harrington. It will be an important case with implications for the two courses I teach (torts and professional responsibility).

The professional responsibility angle comes from the fact that the issue in the case originates in prosecutorial misconduct. Two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights.

Prosecutors are lawyers subject to the ethical mandates of the rules of professional conduct. They have a lot of discretion in the performance of their functions but they are also considered ministers of justice whose main duty is to see justice done, not to advocate for a client or for a predetermined result.

But this case is not about the misconduct. It is about a civil cause of action for damages based on the misconduct. As to that cause of action, the prosecutors contend that they have absolute immunity from liability. (The Obama administration has filed an amicus brief in support of this position, by the way.)

Here is the interesting part: prosecutors generally have absolute immunity from civil liability for their conduct in the process of prosecuting the case, but, in addition to being just prosecutors, prosecutors are members of the law enforcement team that investigates and "builds" the cases that they later prosecute. This "dual role" is simply part of their role in the system. Should their right to immunity (or, more accurately, the level of that immunity) change depending on the role they are playing at the time of the alleged violation of civil rights?

In this case, the prosecutors' misconduct initiallytook place while they were involved in investigating the crime since they allegedly conspired with the police to manufacture false evidence. Their misconduct then continued during the trial since they presented perjured testimony.

Therefore, the question is whether prosecutors should be entitled to absolute immunity when they engage in misconduct during the investigative phase of a case even if that misconduct is the basis for subsequent misconduct for which they have absolute immunity.

For a lot more information, on this case copies of the briefs and other documents go to the Supreme Court Wiki site here.


Thanks to the Drug & Device Law blog for the info and links.

The King has been disbarred

The LegalProfession blog is reporting today that "The king of class actions" has been disbarred. The full story is here.

Should a lawyer who stole money on more than one occasion be reinstated?

My students and readers of this blog know how I would answer this question... but here is the story:

The Legal Profession blog is reporting that the Oklahoma Supreme Court has reinstated an attorney who had resigned after misappropriating $50,000 from his firm. In dissent, Justice Taylor stated: "I dissent to the reinstatement of the Respondent. He is a thief. He stole over $50,000.00 from his law firm and actively attempted to conceal the theft. He was a court-appointed trustee and stole over $100,000.00 from a bankruptcy estate. He is a convicted felon. He made restitution and apology only after being discovered and confronted."

Former Toyota in house counsel turned whistleblower referred to disciplinary authorities for disclosing information

About a month ago, a former high-ranking in house attorney for Toyota alleged that the auto maker conspired to illegally conceal and withhold evidence in Toyota rollover lawsuits filed by consumers who claimed that vehicle design defects caused severe injuries. For the full story go here, here, here.

Now comes word that a judge has referred the lawyer to the State Bar of California for possibly violating the rules of professional conduct by disclosing confidential attorney-client information. For this aspect of the story go here.

When is a conflict a conflict?

In determining that a law firm should not be removed as counsel in a case where several of its lawyers may be called as witnesses, the U.S. Circuit Court of Appeals for the 3nd Circuit has issued a "new formulation" of the rule requiring the disqualification of attorneys for a conflict of interest by holding that "[W]e now hold that a law firm can be disqualified by imputation only if the movant proves by clear and convincing evidence that (a) the witness will provide testimony prejudicial to the client, and (b) the integrity of the judicial system will suffer as a result." The opinion is available here. For more on the story go here.

9th Circuit Court of Appeals holds statements made during internal investigation are not privileged

Last week in class we covered the difficult issues that arise when attorneys conduct internal investigations for entity clients. Among these, we talked about the possibility that individuals interviewed by the attorney might feel the attorney represents them and that therefore the information they provide will be confidential.

Yesterday, the Court of Appeals for the 9th Circuit decided a closely watched case on that very issue. In that case, as part of an internal investigation related to alleged backdating of stock options the lawyers for a company interviewed the chief financial officer of the company. He disclosed relevant information which was eventually disclosed to the authorities. The CFO claimed that the attorneys represented both him personally and the company at the time of the investigation and that the statements were confidential and should not have ended up in the hands of the U.S. government. Assuming this was a case of "dual-representation" an interesting question arises as to whether the entity client "controls" the privilege. The opinion, which is available here, holds that the individual could not claim the attorney-client privilege to prevent the disclosure of the statements but only because the statements were not made "in confidence" -- they were made in the presence of people outside the protection of the privilege to begin with.

For more on the story go here, here, here and here.

Florida disciplines attorney for criticizing judge on his blog

Florida State bar authorities have fined trial lawyer Sean Conway $1,200 for criticizing a Ft. Lauderdale Judge on a blog, including calling Conway an “evil, unfair witch.” Prof. Jonathan Turley has reported on this case previously here and in a new post today he calls the ruling "a major blow to free speech and another case of courts or the bar overreaching in punishing lawyers and parties for their criticism of judges." Go here for his comments on the case.