Monday, May 17, 2010

Electronic solicitation after the NY Staten Island ferry crash

The New York Personal Injury Blog has a good comment on the ways in which some firms are using Google to make sure the search engine directs users seeking information about the Staten Island Ferry crash to their websites. Go here for the story.

Lawyer mobility and state jurisdictional barriers

The Ethical Quandary blog has a short report on a trio of recent decisions that address lawyer mobility and, according to the authors, further erode state-based jurisdictional barriers. Go here for the full story - which is actually very short.

Sanctions for not locating electronically stored information

Here is a story about why, "although data storage media have changed, old practices for collecting client information are as applicable as ever."

Senate proposal would eliminate protection for lawyers against private lawsuits

The Washington Post is reporting today (here) that a proposed amendment to the larger financial regulatory overhaul bill would allow shareholders to file private lawsuits against anyone who aids or abets corporate fraud -- potentially exposing lawyers who advise public companies to a category of litigation to which they have previously been immune. According to the report, the amendment was introduced by Sen. Arlen Specter (D-Pa.) with the support of 11 other Democratic senators. It provides that "any person that knowingly provides substantial assistance" to individuals and companies committing securities fraud would be as liable as those they were assisting, which would essentially overturn the US Supreme Court's decision in Stoneridge Investment Partners v. Scientific-Atlanta (2008), which held that third parties are not liable in private lawsuits for participating in corporate wrongdoing if they did not directly mislead investors.

Saturday, May 15, 2010

How not to practice law: if you make a mistake lie to cover it up

Here is a new addition to our "how not to practice law" series. This one illustrates a basic principle that I try to teach my students (and my kids for that matter): if you make a big mistake, don't lie to try to cover it up. Accept the fact you screwed up and make a plan to fix the problem or deal with the consequences.

In this case, an attorney did not file a lawsuit until after the applicable statute of limitations had expired. He then lied about why this happened and misrepresented the accident date in the complaint by a year to conceal the statute of limitations problem. Eventually, the case was dismissed which precluded any recovery for the client's substantial injuries. To make matters worse, the attorney did not have malpractice insurance so the client also did not have a realistic chance to recover anything from the attorney in a legal malpractice claim. Finally, when facing an investigation for the handling of the case, the attorney did not respond to Bar Counsel's written requests for information.

Although, at the time, the attorney was undergoing a nasty and unexpected firm dissolution in which he was locked out of his office, marital discord and health issues, the court found that these factors did not explain or mitigate the blown statute and ensuing acts of serious dishonesty.

The case is called Attorney Grievance Commission of Maryland v. Bleeker and it is available here.

Thanks to the Legal Profession Blog for the information.

NBC retires Law & Order

I often make references to the tv show "Law & Order" in my classes. Now, pretty soon I will have to do something else I do sometimes before making references to popular culture in class. I will have to ask my students whether they remember "Law & Order"... Last week, NBC announced that the show will end its 20-season run on May 24.

I have been a fan of the show for many years, but I have to admit it had lost its way a long time ago. I became a fan of the show because it used to be a show about legal issues, not about plot lines. The stories were written and designed to illustrate issues or ideas and usually did a a good job of presenting the different arguments or viewpoints on those ideas. Eventually, though, the show became just another "detective show" - a "who done it" - and the legal aspect of the show was just a setting for the plot to develop into figuring out who had done the crime and why. I continued to watch every now and then but pretty much stopped a couple of seasons ago.

If you started to watch the show only recently, you may want to rent the first few seasons. I think you'll be surprised at the different approach to the stories.

And while I am at this, let me report what is now old news: TNT is not bringing back the series "Raising the Bar" either. I was liking that one, which revolved around the relationships between public defenders, DAs and judges in New York courts. It was not bad - not great, but not bad- but it lasted only a couple of seasons.

Finally, this also reminds me of a not very popular show that did not last long either but I remember liking at the time: "100 Centre Street" (on A&E). I think I might try to find that one and check it out again this summer to see what I think after all these years...

SC takes a strong stance against discovery abuse

Last week, the South Carolina Supreme Court indicated that it would no longer tolerate impermissible fishing expeditions during the discovery process. Go here for the full story.

Saturday, May 8, 2010

Can a lawyer disclose confidential information to reply to media reports about the lawyer?

Suppose a former client, for whatever reason, disseminates unfair or inaccurate descriptions about the lawyer and the lawyer's representation of the client. Assume the inaccurate information is publicized by the media. Can the lawyer disclose confidential information in order to respond to the former client’s unfair comments? Is that disclosure allowed as an exception to the duty of confidentiality or is the so-called "self defense" exception to the rule limited to cases where the disclosure is needed to defend against an actual "proceeding" against the lawyer?

That question is the subject of an interesting debate over at the Legal Ethics Forum blog (here).

NY highest court revives action challenging public defender system

Back in March I reported that a class-action filed in New York to challenge the state's public defender program by arguing that the system is so "dysfunctional" and in such a “crisis” it resulted in a violation the indigent clients' rights. (See here)

A few days ago, NY's highest court decided the appeal and reinstated the case. The case is called Hurrell-Harring v. State of New York, and it is available here. In its 4-3 decision, the Court concluded that the case could go forward only to the extent that it claimed that lawyers had not appeared for the plaintiffs at crucial stages of the criminal proceedings against them or were otherwise "unavailable" to consult with their clients. It held that specific challenges to the performance of attorneys could only be considered in individual criminal cases after defendants are convicted.

Go to, the Wall Street Journal blog and the Legal Ethics Forum for more on the story - and don't forget to check out the readers' comments.

Ethical issues related to internal investigations

Here is a link to a short comment on some of the common ethical issues related to internal investigations.

Wednesday, May 5, 2010

Interview re ethics issues

Every now and then, the "unreasonable dangerous products liability blog" posts brief interviews with law professors, practitioners and other commentators in the field of products liability law. Here is a link to an interview with professor Michael J. Virzi of the University of South Carolina School of Law. Virzi, a former prosecutor with the South Carolina Office of Disciplinary counsel, now teaches legal writing and chairs the South Carolina Bar's Ethics Advisory Committee. Here is a list of the questions addressed:

1. What recent developments in ethics law would you recommend that litigators be aware of in 2010?

2. What is the most significant ethics opinion to come out in the last year? Why is it significant?

3. What do you think is the most overlooked ethical rule? Why is it overlooked?

4. As the general public increasingly uses the Internet and social media to communicate, how do you predict that state bars will react to the popularity of this new technology among attorneys?

5. If you could offer young lawyers beginning their careers one piece of advice, what would it be?

6. What do you think is the best depiction in popular culture of an attorney facing an ethical issue?

Comment on the ghostwriting opinion

Here is a link to a short comment critical of the opinion on ghostwriting I mentioned in my previous post. It concludes as follows:

Should lawyers "ghost write" for pro se litigants, why not include the legend "prepared with the assistance of Joe Smith, an attorney duly admitted to practice law in the State of New York?" It's true. It's accurate. It holds Smitty, the lawyer who got paid, responsible for his work. And when Smitty's client screws it all up and comes back to blame Smitty for his failure to advise his pro se client that he didn't have a clue what he was doing or what services he needed, maybe Smitty will think twice before cashing that check for $37,52.No, the law is not all about finding new ways for lawyers to make small change at the expense of layfolks who don't know better.

Tuesday, May 4, 2010

NY ethics opinion allowing "ghostwriting" for pro se litigants

In a new Ethics Opinion, the New York County Lawyers' Association concludes that in most cases it is ethically permissible for a lawyer to prepare pleadings and other documents for a pro se litigant without disclosing the lawyer's participation to the tribunal or to adverse counsel. The opinion is available here. For more on the story go to

New York Chief Judge Urges Greater Legal Rights for the Poor

The New York Times is reporting today that New York’s chief judge is calling for a new guarantee of a lawyer for poor people in civil cases, urging the state to expand the right to representation for the indigent. The full article is available here.

In making such a suggestion, the Judge is following California's pilot program to provide lawyers for indigent clients in civil cases. See my posts on October 13 and October 27 2009. Also, here is a link to a podcast of a discussion on this issue. (Note that the first few seconds of the podcast are the end of a previous segment; keep listening for the beginning of the segment on "civil Gideon.")