Florida issues opinion on whether lawyers can use "the cloud" to store confidential documents

Legal Ethics in Motion is reporting (here) that last month the Florida Bar Professional Ethics Committee issued Proposed Advisory Opinion 12-3 on lawyers’ use of cloud computing to store and remotely access client files.  (The ABA Center for Professional Responsibility has information and links to all the opinions on this topic here.)  The Florida opinion emphasizes an attorney’s duty to perform due diligence in investigating a vendor’s “terms and conditions” prior to storing sensitive client information on that vendor’s cloud computing service.  It also reiterates New York’s recommendation to limit the use of cloud computing services to vendors who contractually agree to preserve confidentiality and security.  Also, the Committee adopted the view expressed by the Iowa Ethics Opinion 11-01, which states that attorneys need to have unlimited access to their own secure documents, while being able to provide only limited access to third parties.

How does a prosecutor feel when the court issues a guilty verdict?

Prosecutor Discretion has some thoughts on the subject here.

ABA issues opinion on judge's use of social media

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new opinion (here) on issues relating to a judge's use of social media.  Among other topics, the opinion address whether a judge should have to disclose electronic social media connections with lawyers or parties who appear before the judge.  Legal Ethics in Motion has a comment on the opinion here.

Top Ten International Legal Profession Stories of 2012

Go here for a great summary of last year's top stories in international legal ethics.

How not to practice law: charge the client six hours worth of time for the time it took you to prepare the bill

I've always thought that lawyers should not charge at all for the time it takes to prepare a bill.  That is not time spend on the client's representation.  That's time spend on office management.  But I know there are many lawyers who do include that time in their bills.  Here is the story of a lawyer who not only did what I think should not be done at all, he overdid it.  He was disciplined for, among other things, charging unreasonable fees and what made one of the bills unreasonable was that he charged the client charged the client six hours worth of time to prepare the bill itself. 

Kansas Supreme Court holds flat fee agreement in murder case is sufficient evidence of conflict to support a finding of ineffective assistance of counsel

In a very surprising move the Kansas Supreme Court recently ruled that an overworked and inexperienced defense lawyer's flat-fee arrangement in a capital murder case created a conflict of interest that deprived the client of his Sixth Amendment right to effective assistance of counsel.  The case is called State of Kansas v. Cheatham.

I have not read the opinion itself which is fairly long, but according to a report in the ABA/BNA Lawyers' Manual on Professional Responsibility, the court found that "the fee structure gave the lawyer, a solo practitioner with a high-volume practice, little incentive to put any significant effort into the case" and that "this conflict so fundamentally undermined the representation that the defendant did not need to prove how the lack of effort actually prejudiced his defense."  (See 29 Law. Man. Prof. Conduct 89)

I find this to be surprising for a few reasons.  First, courts are usually reluctant to grant motions based on allegations of ineffective assistance of counsel.  Second, all fee agreements, in one way or another, create some level of conflict of interest between attorneys and their clients.  Third, it seems to me that even if one concludes that the agreement itself was sufficient evidence of a conflict, the standard analysis for ineffective assistance of counsel requires that the defendant show the conflict resulted in deficient representation and prejudice.  Here the court assumed the first and excused the defendant from proving the second.

Given all this, I have to believe that what was important here was not the fee agreement but the conduct of the lawyer.  The emphasis on the fact that the lawyer charged a flat fee is misplaced.  The court should emphasize the inadequacy of the representation.  Otherwise, other lawyers who use flat fee agreements but who provide excellent representation may be discouraged from continuing to offer their services for a flat fee.  This, in turn, could make it more difficult for some defendants to afford quality legal services.

Attorney fired for refusing to help a client commit fraud does not have a claim for wrongful discharge

About ten days ago, the Washington Court of Appeals issued a decision on whether an attorney can sue for wrongful discharge.  The court held that the attorney, who allegedly had been fired after she refused to perpetuate a fraud in a client's case, cannot assert the tort of wrongful discharge against the law firm that fired her. Instead, the court held the lawyer's sole remedy is to file an ethics complaint with disciplinary authorities. The case is called Weiss v. Lonnquist and it is available here.  

Like other court opinions that have taken this approach to the issue, the problem is that the result does nothing to deter wrongful conduct by law firms and goes a long way to discourage attorneys from doing the right thing.

Prison commander testifies that government hid microphones in Guantanamo, but no one listened

Yesterday I reported that defense attorneys in the case against the alleged 9/11 mastermind have argued that the US government have been listening in on privileged attorney-client conversations (see here).  Today, reports are coming in that it is true the FBI had hidden microphones inside his compound where lawyers meet prisoners.  However, the army officer in charge of the prison testified that he was unaware of it.   The Miami Herald has the story here.  The Jurist also has a report here.

ABA approves resolution on unbundling legal services

The ABA Journal is reporting today that an ABA House of Delegates has approved a resolution encouraging lawyers to consider providing unbundled legal services when appropriate.  Resolution 108 supports unbundled services, also known as limited-scope representation, in which lawyers provide some but not all the work involved in a legal matter. According to a report accompanying the resolution, such representation can increase access to legal services. Go here for the story and for readers' comments on it.

ABA adopts new proposals to amend the Model Rules and more

Professor Andrew Perlman, the Chief Reporter for the ABA's "Commission on Ethics 20/20," is reporting that just a few days ago, the ABA House of Delegates approved four remaining proposals from Commission:

Resolution 107A amended Model Rule 5.5 so that it expressly permits qualified foreign lawyers to serve as in-house counsel while based at their employers’ U.S. offices. (The accompanying report is here.)

Resolution 107B amended the 2008 ABA Model Rule for Registration of In-House Counsel to bring foreign lawyers within the scope of that Rule.  (The accompanying report is here.)

Resolution 107C amended the ABA Model Rule on Pro Hac Vice Admission so that it provides guidance to judges who may be asked to grant pro hac vice admission to qualified foreign lawyers.  (The accompanying report is here.)

 Resolution 107D amended Comment [5] to Rule 8.5 of the Model Rules of Professional Conduct so that it expressly allows a lawyer and client to specify a particular jurisdiction as the jurisdiction where the “predominant effect” of the lawyer’s conduct will occur for purposes of a choice of law analysis under Model Rule 8.5. (The accompanying report is here.)

An overview report describing each of these Resolutions is here. 

The ABA Journal has short reports on some of these here, here and here.

For all the latest information and more links go to the ABA's Commission's website (here).

Defense attorney questions wether US government is disregarding client's right to confidentiality in 9/11 prosecution

On of the defense attorneys in the case against alleged 9/11 mastermind Khalid Sheik Mohammed and four accused co-conspirators in the murder of nearly 3,000 people in the Sept. 11, 2001 attacks argued an emergency motion in a pre trial hearing arguing that unidentified intelligence agencies have channels to listen in on privileged attorney-client conversations. The chief prosecutors denied the allegation.  Go here for more on the story.

Thanks to the Legal Ethics Forum for the link.

Update on advertising rules

The Association of Professional Responsibility Lawyers is currently holding a national meeting and today they had a discussion on recent developments regarding advertising rules.  Nicole Hyland was there and she posted this short report on the Legal Ethics Forum.  For other posts on recent developments in Florida and Tennessee go here and here.

Article: "America's broken criminal justice system"

Blogger has published a long but interesting article on what he calls "America's broken criminal justice system." In it, he discusses certain aspects of our legal system that he argues "serve to destroy the notion of a Criminal Justice System that operates fairly towards each citizen and make that system into an instrument of oppression." The items he discusses include (using his words): unfairness of representation, under-funding of the court system, plea bargaining as an insult to justice, the political nature of judges, prosecution as a career stepping stone, the corruption of law enforcement and public ignorance of our criminal justice system. Go here to read the full article.

More comments on allegations against former prosecutor in Texas for concealing evidence

Back in March of last year I posted a comment on a case in Texas in which a judge was under investigation for misconduct when he was a prosecutor.  My original post, which includes a segment from the tv show 60 minutes on the case, is available here.  A few months later, Professor Jonathan Turley published his own comment on the case here. Today, he published an update and more comments here.

Florida Supreme Court amends, and some say "loosens," lawyers’ advertising rules

A divided Florida Supreme Court yesterday eliminated a number of existing limits in the state's regulations on advertising by lawyers but also extended the rules to websites.

A majority of the seven justices agreed to permit previously prohibited ads that characterize the quality of legal services being offered, information about past results and testimonials, but held that all advertising must be “objectively verifiable,” whether distributed over the Internet or through traditional media such as print, outdoor and broadcast.  Thus, lawyers will be allowed to refer to verifiable facts about their past cases, but not to simply assert that they are one of "the best trial lawyer in Florida.”  The court held this would be misleading and prohibited.  Two justices filed dissenting opinions.  You can read the opinions here and a short summary here.

New report on contingency fees

The Center for Justice & Democracy has published a new study called Courthouse Cornerstone: Contingency Fees and Their Importance for Everyday Americans in which it discusses the debate over the use of contingency fees and the efforts by tort reformers to limit or eliminate the use of contingency fees in the US.  You can download a copy of the report here.  For a summary Fact Sheet click here.  For the Press Release announcing the report click here.

How not to conduct a hearing: leave a woman requesting a protective order with the guy she wants protection from in a room with no security personnel

By now you may have heard of this story or seen the video; but in case you haven't here it is.  The video shows how a judge left a woman with her ex-boyfriend in a room despite her saying that she was fearful of him and seeking protection.  Once alone, the man attacks the woman.  (The other woman in the room was the attacker's grandmother).

How not to practice law: represent yourself in a disciplinary hearing when you have faced discipline four times in the past

I found this headline at the Legal Profession blog very interesting:  "Self-Representation In Bar Discipline Case Is Evidence Of Incompetence."  Go here for the full story.

The Wisconsin Supreme Court ended up disbarring the attorney stating that the fact the lawyer has had so many disciplinary problems "indicate[s] a failure to grasp or adhere to the standards that are required of attorneys practicing in this state and a lack of remorse for his prior ethical violations" and that his self-representation knowing his license was at stake was essentially incompetent.

What are the consequences of the amendment to the comment to Model Rule 1.1?

Last August, the ABA amended the comment to Model Rule 1.1 to extend the notion of competence to include knowledge about "technology."  Specifically, the new comment states, in part, that "[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology..." 

The comment does not define or explain the concept of "technology" leaving much to interpretation.  However, the history of the debates within, and the proposals of, the Commission 20/20 which suggested the amendments does provide some guidance. At the very least, the initial concern related to the possibility that attorneys were risking disclosing confidential information by mistake because of their lack of understanding of how computer programs work (particularly how they create and store data and metadata).  (For previous posts on that subject go here and here or search in the internet/social media section of the blog here.)

But "technology" is a much broader concept which means there can be serious implications to the application of the new comment.  For this reason it will be interesting to see how this new duty to be knowledgeable about computer programs and other technology is interpreted and applied.

One question that is now being debated is whether it would be incompetence not to use certain computer programs or social media.  This was the topic in a panel at a recent ABA Professional Responsibility conference and it is now the topic of an article published today in the Student Lawyer.

The article starts by stating:  "Most law students have been thoroughly warned about the dangers of social media, misuse of the Internet, importance of protecting online reputations, and so on. The message is don’t make anything available on the web that you would not want a potential employer to access.  But as a practicing lawyer, you may have an ethical responsibility to use the Internet and social media as tools to actually help you in your practice"  Go here to read the rest of the article.

New York issues opinion on duties to prospective clients

The Ethics Committee of the New York City Bar Association has just issued a very informative new ethics opinion on the duties owed to prospective clients under Rule 1.18. You can read the full opinion here. It is a very good summary of the issues that arise in cases involving prospective clients, especially those that relate to confidentiality and conflicts of interest. Here is a summary of the opinion:

Rule 1.18 codifies the established principle that New York lawyers owe duties to prospective clients even when no lawyer-client relationship ensues. These duties are determined by the nature of the information received from the prospective client and may restrict the lawyer‟s ability to use or reveal the information or to represent adverse parties in the same or a substantially related matter. While these duties may be significant, they are less restrictive than the comparable duties owed to former and current clients and permit the use of ethical screens to take on adverse representations.

Thanks to Nicole Hyland of the Legal Ethics Form for the link.

Tips for settlement talks

Injured has a short post with some common sense advice on settlement talks here.

Tennessee Supreme Court considers new rules on advertising; FTC doesn't like them; I don't either

The Tennessee Supreme Court is considering proposals to amend the rules related to advertising but I find it difficult to believe most would withstand Constitutional scrutiny.  The proposals, among other things, would ban the use of actors playing the role of clients, prohibit ads narrated by well-known spokespeople, forbid certain background sounds and limit the images in ads to gavels, scales of justice, the Statue of Liberty, flags, eagles, courthouses, columns, law books or photos of attorneys.

I don't have a problem with requiring some form of disclaimer that says "actor" (or something like that) on the screen of a tv ad, but I don't think that any of the other proposals can be justified given the Supreme Court's cases on the issue.  As the Court has repeatedly held, the First Amendment prohibits the state from banning communications simply because they may be offensive to some or because they are delivered in a way that may be thought of as in poor taste.  If this ad is protected speech, then a tv ad narrated by well known actor certainly is.

Here is an example of what I mean: according to an article in the Blog of the Legal Times, the attorney who suggested the most restrictive rules has stated the new rules are needed because "some current and past lawyer advertisements rely on outrageous, misleading, and deceptive advertising techniques."

There are several problems with this "logic."  First, if the problem is that an ad is misleading, false or deceptive, there is no need for any new rules since, according to established Constitutional principles, misleading ads are not protected speech and the state can regulate them.  Second, if the problem is that an ad is "outrageous" - whatever that means - to have the state regulate the speaker for what this lawyer finds outrageous or offensive is contrary to established principles.

In other words, the argument simply has no basis in law or logic.

Interestingly, in response to the debate about the proposals, the Federal Trade Commission has issued a press release urging the Supreme Court of Tennessee to reject the new restrictions on attorney advertising, calling the proposed new rules unnecessarily broad and not in the best interest of consumers.

You can read the full report sent by the FTC to the Tennessee Supreme Court here, which concludes that the "FTC staff believes consumers receive the greatest benefit when reasonable restrictions on advertising are specifically and narrowly tailored to prevent unfair or deceptive claims while preserving competition and ensuring consumer access to truthful and non-misleading information. Ru1es that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services in Tennessee."

What is the most ridiculous case someone has asked you to file?

The ABA Journal has asked its readers about the most ridiculous cases they have encountered, and the readers have responded with pages worth of stories. You can read them here. It is an entertaining read and there are some good examples to discuss the issues related to the duty not to file frivolous claims.

 

How not to practice law: Have sex with your client, then charge her for your time

The title says it all. The story is available here.

Thanks to Ross Good for sending me the link.

How not to practice law: help your boyfriend escape from prison and then post a photo of the two of you together on facebook just hours later

Continuing our long running list of really dumb things to do, this one could be one of my favorites:   The Legal Profession Blog is reporting today that an Oklahoma attorney has been allowed to resign her license after it was determined that she helped her boyfriend escape from prison.  As if that was not dumb enough, incredibly, she then proceeded to post a photo of the two of them together a few hours later on Facebook.  Go here, here and here.

What to keep in mind when using "social media"

Over at the Legal Ethics Forum, Nicole Hyland has posted a summary of remarks she is preparing to deliver at a conference on ethical issues related to the use of social media.  Her main theme is that

"there are four general ways that lawyers can get into trouble using social media.  First, they make a false distinction between their personal on-line interactions and their professional social media use.  Second, even when they have their lawyer "hats" on, they can run afoul of ethics rules, employment policies, or other rules.  Third, they misuse social media as an investigative or discovery tool.  Fourth, they fail to advise their clients adequately regarding their own use of social media"

Go here to read the article.

I would add a fifth possible problem, although it may be implied in all the ones mentioned above:  the most recent amendments to the model rules (and more than likely soon to be adopted by most states) added that knowledge about "technology" is part of the notion of competence under rule 1.1.  This means that lawyers are now expected to know about these things.  If they "get in trouble" because they did not really understand the possible risks involved in using social media, they could be held to be "incompetent" under the rule, which at least in theory could also be used as evidence of a breach of duty in tort.

Famous lawyer F. Lee Bailey denied admission in Maine

As readers of the blog probably know by now, it was recently reported that F. Lee Bailey has been denied admission in Maine, where he now resides.  He passed the bar exam, but a divided (5 to 4) State of Maine Board of Bar Examiners held that he did not meet his burden of demonstrating by clear and convincing evidence that he possesses the requisite good character and fitness necessary for admission to the Maine Bar.  For more go to Otherwise and the Legal Profession Blog.

Missouri Supreme Court to review case of judge who had her clerks handle cases while she was on vacation

Back in June I posted a note about a report that a Judge in Missouri was under investigation for allegedly allowing her clerks to handle litigation matters as she vacationed in China last year. Go here for the story.  Since then, the State's Commission on Retirement, Removal and Discipline recommended the judge be removed from office and now the Missouri Supreme Court will review the case.  The ABA Journal has the latest here.

Top Stories of 2012 - Canada edition

Here is a list to the top stories in Legal Ethics in Canada for 2012, as compiled by friend of the blog Prof. Alice Wolley.

Thanks to John Steele and the Legal Ethics Forum for the link.

Top stories of 2012

The Legal Ethics Forum has posted its annual top stories of the year list here.

New ABA Commission 20/20 proposals

The ABA Commission on Ethics 20/20 recently filed four resolutions and reports for the ABA House of Delegates to consider at its February 2013 midyear meeting.   Over at Legal Ethics Forum, Professor Andrew Perlman has posted summaries of the proposals and links to the relevant documents.  The proposals address issues relating to the increasing globalization of the legal marketplace and, with one exception, focus on issues arising for foreign lawyers seeking to practice in the U.S. (i.e., inbound foreign lawyers). 

Your Client Has Obtained Privileged Documents Belonging to the Adversary. What Do You Do Now?

Over at the Legal Ethics Forum, Nicole Hyland asks "Your client has obtained privileged documents belonging to the adversary. What do you do now?"  Go here for her answer and comments.

Should Justice Scalia recuse himself from cases related to gay marriage? part 2

A few days ago, I posted a note with links to several articles on whether Justice Scalia should recuse himself from cases related to gay marriage.  Today, Professor Richard Painter replied to some of the criticism in those articles in The Legal Ethics Forum and other forum participants posted comments to his reply.  Take a look at the discussion by going here.

National Law Journal survey on hourly fees

The National Law Journal has published a survey of hourly fees based on information provided by 55 of the nation's largest firms.  The full survey results are available here.  Among other things, it shows that the highest billing rate is $1,285 an hour and that the median hourly billing rate for partners is $501 and for associates is $317.

60 Minutes (the tv show) segment on wrongful convictions

Last week, the TV show 60 minutes devoted one of its segments to the problem of wrongful convictions.  The show was mostly about police interrogation techniques in Chicago which has allegedly produced twice as many cases of false confessions (leading to wrongful convictions) than any other city in the US.  However, there is a section of the show that discusses the role of prosecutors.  The interview with Chicago's Cook County State's Attorney Anita Alvarez is particularly troubling.  She is simply not willing to admit to the possibility that mistakes were committed.  I don't think she comes out looking particularly well, but you can judge for yourself.  The segment appears below in its entirety, or you can watch it in the 60 Minutes website where you will also find more information.

UPDATE:  The ABA Journal and the Chicago Tribune are reporting that Alvarez sent a letter to CBS complaining that she was unfairly portrayed in the clips chosen for the show.
 

Should Justice Scalia recuse himself from cases related to gay marriage?

The question of how to determine when a Supreme Court justice should recuse him or herself has been in the news a lot this year. It was part of the conversation leading up to the appeal on the Obama administration's health care reform, for example, and many have argued the Court should adopt rules on the subject. I reported on this here, here and here.

The question is now back in the news. Over the last few days, at least three articles were published calling for Justice Scalia's recusal. The articles were published in The Daily Beast, The Chicago Tribune and The Huffington Post.

Obama administration drops attempt to regulate the representation of Guantanamo detainees

Back in September, I wrote about the Obama administration's attempt to interfere and regulate the representation of Guantanamo detainees. See here. Some time later, a federal court refused to go along. See here. Now comes news the administration has dropped its appeal. Go here for the full story.

UPDATE 11 pm: The SCOTUS Blog has more on the story here.

West Virginia Board Recommends Judge’s Suspension Until 2016 In Part Based On His Demeanor In Disciplinary Hearing

You may remember my previous posts on a video (apparently a big hit on You Tube) in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties.  See here (includes the video), here and here.  After one of the parties complained, the West Virginia Supreme Court announced that no charges would be filed against the judge, but later it was announced that the state's Judicial Investigation Commission would consider charges against the judge. 

The claim has now been decided and the Commission has ruled the judge shoudl be suspended for the rest of his term - until 2016 - at least in part because of his attitude toward the complainants during the proceedings.

Professor Jonathan Turley, who has been following the case closely in his blog since the beginning, has a comment on the decision here.  He argues that he is "a bit uncomfortable with crossed arms and a glare being any basis for a recommendation, but demeanor is a classic factor in evaluating a witness or an accused party." 

The judge's attitude during the hearing was not the only basis for discipline, though.  The Commission also found that he "routinely engaged in injudicious conduct and “demonstrated a preference for using threats, intimidation, profanity and shouting rather than the tools available to judges, including civil and criminal contempt, to deal with admittedly difficult litigants.”

California judge reprimanded for comments about rape

USA Today is reporting that a Southern California judge has been admonished for saying a rape victim "didn't put up a fight" during her assault and that if someone doesn't want sexual intercourse, the body "will not permit that to happen."

The California Commission on Judicial Performance voted 10-0 to impose a public admonishment saying Superior Court Judge Derek Johnson's comments were inappropriate and a breach of judicial ethics.

"In the commission's view, the judge's remarks reflected outdated, biased and insensitive views about sexual assault victims who do not 'put up a fight.' Such comments cannot help but diminish public confidence and trust in the impartiality of the judiciary," wrote Lawrence J. Simi, the commission's chairman.

You can find the full story here.  Atlantic Wire has more on the story here. 

UPDATE 12/14/12:   Prof. Jonathan Turley comments on the story here.

Professional Responsibility Essay Contest ($5,000 prize and more)

Law students looking for a challenge and an opportunity to earn $5,000 and a trip to New Orleans should consider entering the Levit Essay Contest on Lawyers' Professional Liability.  This is an annual competition that encourages original and innovative research and writing in the area of legal malpractice law, professional liability insurance and loss prevention.

To enter you must prepare an essay addressing the issues raised by the contest hypothetical.  This year's hypothetical involves questions about a law firm’s potential malpractice exposure when it relied upon a third-party vendor to provide document review services for a client, which ultimately resulted in the release of privileged documents.  You can find the hypo here.  You can also read the hypos and winning answers for the last few years here.

The author of the winning entry will win a cash award of $5,000 and an all expense paid trip to the Spring 2013 National Legal Malpractice Conference in New Orleans, LA, on April 24–26, 2013.

Online entries must be submitted by 11:59 PM CST on February 22, 2013.  Mailed entries must be postmarked by February 22, 2013.

The contest is open to Young Lawyers Division or Law Student Division members of the ABA, in good standing as of February 22, 2013. Go here for more information.

New Mexico rejects screening as a way to avoid conflict when a lawyer joins a new firm

In an opinion released last week, the Supreme Court of New Mexico has interpreted the state rule on imputation of conflicts of interest to hold that a firm may not represent a client if a new lawyer on the firm had played a substantial role in representing an interest adverse to the client in the lawyer's former firm.  If the lawyer played a substantial role, the firm would be disqualified automatically.  Screening, which is now accepted in the ABA Model Rules as an alternative to avoid this type of conflict, is not an option in New Mexico.  The case is called Mercer, LLC. v. Reynolds and it is available here. 

Thanks to the Legal Profession blog for the link.

Comment on whether sentencing a defendant to go to church is proper under First Amendment analysis

I have commented before on the practice of some judges of imposing unorthodox, unusual or "creative" punishment, in lieu of applying the law, including the recent case where a judge sentenced a young man to going to church.  See here.   On the same topic but from a different perspective, here is a link to an article in the First Amendment Center arguing that sentencing someone to go to church violates the First Amendment.

Comment on the case challenging rules against non lawyer ownership of firms

Over at the Legal Ethics Forum, Nicole Hyland has published a good short comment on the recent decision to revive the case challenging the rules that ban non lawyers from having ownership interests in law firms.  You can read her comment here.

Is it unethical for an attorney to publicly disagree with a former client's interpretation of a decision issued in a case where the attorney represented the client?

Is it unethical for an attorney to publicly disagree with a former client's interpretation of a decision issued in a case where the attorney represented the client?  

In discussing a letter to the editor in the New York Times by famous attorney Floyd Abrams (available here), The Legal Ethics Forum offers some opinions on the issue.  Go here for that discussion.  

In her contribution to the discussion, Nicole Hyland explains that she does not think it is unethical as follows:

We owe a duty of confidentiality to former clients, but nothing Abrams wrote revealed confidential information. Whether we continue to owe a duty of loyalty is obviously much debated, but even if we do, I still don't see how this would violate the duty of loyalty. Attorneys have to be able to discuss legal precedent and give their interpretations of what cases mean - even their own cases. If your interpretation of the decision differs with your former client's, that can't be an ethical violation. A thornier question is whether the lawyer can later say that he disagrees with the outcome of a decision that was favorable to his former client (i.e. what if Abrams were arguing that Sullivan was wrongly decided and should be reversed?). That seems to go into the territory of a lawyer attacking his former work product.

Court of Appeals revives case challenging the ban on non lawyer ownership of law firms

Back in May of 2011, I wrote the "the next big thing" in Legal Ethics/Professional Responsibility was going to be the debate on whether non lawyers should be allowed to invest (or "own") law firms.  See my original post (with links to more information) here.  Since then, there have been lots of conferences, articles and a lot of discussion on the subject.

At that time, the issue came to the forefront because the law firm Jacoby & Meyers filed a lawsuit in New York challenging the state rules barring outsiders from owning stakes in firms arguing the rules unconstitutionally restrict interstate commerce. However, almost a year later, in March of this year, the lawsuit was dismissed.  Go here for my post on that (again, with links to more information).

Now comes news that the debate can continue...  In an order issued last week, the U.S. Circuit Court of Appeals for the Second Circuit has ruled that Jacoby & Myers can amend its complaint to challenge all provisions of New York law that bar non lawyer investment in law firms. For more on the story, you can go to The ABA Journal, The New York Law Journal, Reuters, and the Wall Street Journal Law Blog.

UPDATE (11-30-12):  there is good comment on the issue in the Legal Ethics Forum by Nicole Hyland.

How not to practice law: on appeal, prepare a lousy brief in which you don't discuss the law or support your position

Continuing our running list of examples on how not to practice law, here is a link to a brand new opinion from the Court of Appeals for the First Circuit in a case called Rodriguez-Machado v. Shinseki, (available here) in which the court (per curiam) says that "the plaintiff's briefs are textbook examples of how not to litigate a case on appeal." In support of this conclusion, the court explains that

...plaintiff's opening brief offers no specific record cites to support her version of the facts, which, again, she alleges are in dispute... Essentially, she is asking us to do one of two things: accept what she says as gospel or mine the record ourselves to confirm the truth of her story – and there is no reason for us to do either.  ...Shockingly still, plaintiff's principal brief provides neither the necessary caselaw nor reasoned analysis to support her theories...

Later, the court adds that what the plaintiff has done "is not the type of serious effort that allows us to decide difficult questions ...and doing her work for her is not an option ..."

Given the bad quality of the appeal, the court decided to dismiss the appeal with prejudice.

The court makes clear that this is a drastic measure, but that it was within its discretion to take it.  However, obviously, when the court refers to "the plaintiff" in all this, it is really referring to her lawyer.  The drastic measure the court chose to take was really against the client.  Was this really a case where the client should suffer the consequences of the ineptitude of her lawyer?  Wouldn't it be more fair for the court to take action against the lawyer while giving the client a second chance? 

UPDATE 11/26/12 (9:30pm):  When I wrote my comment above, I was commenting on the court's opinion, not on the briefs the court criticizes.  I have not read the briefs.  However, over at Litigation and Trial, Max Kennerly has - and has posted a link to them so you can read them too.  Having read them, he also questions the court's decision but for different reasons than me.  He argues that, although the briefs do make a number of mistakes, it is a bit of an exaggeration to say, as the court does, that they are so bad they “cripple any attempt to review the issues intelligently.”  You can read his full comment here.

NJ Advisory Committee on Professional Ethics recommends to abolish the notion of an attorney's retaining lien

Otherwise is reporting that The New Jersey Supreme Court has invited public comment on a proposal to abolish “common law retaining lien.”  The recommendation comes from the Court's Advisory Committee on Professional Ethics.  The Advisory Committee found the lien to be obsolete and destructive of client relations. The Notice, Report and statement of the State Bar Association are available here.  The Legal Ethics Forum adds a comment here.

Excellent comments on discovery practice and litigation management

Over at the Litigation and Trial blog, Max Kennerly has published two excellent comments on issues related to discovery and litigation management.  In the first one (here), he concludes that "when courts forbid plaintiffs’ lawyers from sharing relevant discovery evidence amongst themselves, they inadvertently enable the defendants to engage in discovery fraud by cherry-picking which evidence they produce in each case."  In the second article (here), he reviews a new article by the federal judge (and the special masters he appointed) who oversaw the 9/11 Responders litigation which reveals another critical component of a successful and fair resolution of high-stakes litigation: judges need to make sure the cases move forward.   Professional Responsibility:  A Contemporary Approach also has a comment on the article here.

Proper punishment or abuse of discretion?

I have commented before on the practice of some judges of imposing unorthodox, unusual or "creative" punishment, in lieu of applying the law.  (See here, where you will find links to more.) Some argue there is value in seeking forms of punishment that do not involve jail terms. After all, this country does have too many people in prison as it is.  However, I think it is dangerous when judges feel they can do whatever they want.

The issue is again in the news following two recent cases.  In one, a judge sentenced a woman to cook a Thanksgiving dinner for police officers (here).  In another, the judge sentenced a minor to go to church for ten years (here).  I find both episodes objectionable and disturbing.  Professor Jonathan Turley has written about this subject many times in the past and his comment on these recent cases is available here.  It reads, in part,

Forcing citizens to cook for police officers is another example of a judge who panders to the public with sentences that seem “poetic justice.” Judges know that this type of punishment is hugely popular with the public. It is a trend that is erasing the line between entertainment and the law. There has been a continuing and growing trend of this type of abuse by judges. I have written columns (here and here and here) and blogs articles (here and here and here and here and here) criticizing this worrisome trend, though the most serious such cases involve judges like Norman who try to bring “more people to Jesus” while carrying out his duties as a judicial officer. These judges make a mockery out of our court system and sit like little Caesars in meting out their own idiosyncratic forms of justice — often to the thrill of citizens.

The case of the judge sentencing a defendant to go to church is discussed in this NY Times article.

Juror sentenced to two years in jail for lying during voir dire

Last week in class we discussed the ethical issues related to perjury, including the duty not to use evidence the lawyer knows is false and the duty to take remedial measures if a client has introduced material false evidence.  As part of the discussion, I usually tell my students that prosecutions for perjury are not very common, even though we have seen some high profile ones in the last few years (Barry Bonds and Roger Clemens, for example).  Now, intent in proving me wrong, apparently, Prof. Janathan Turley is reporting on a case in which a prospective juror pleaded guilty and was sentenced to two years in jail after he was forced to admit that he lied to the court in denying that he had any relationship with any of the parties in the case. The juror actually knew two of the defendants and also had prior contact with the alleged victim.  There is really no ethics or professional responsibility angle on the case, but it is an example of a court taking the issue seriously (by both enforcing the law and by impossing a significant penalty). 

Should President Obama terminate military commissions?

As President Obama prepares for his second term in the White House, should he put an end to military commissions, used to prosecute captured enemies for war crimes, and finally close Guantánamo?  In the New York Times page Room for Debate five scholars discuss the arguments for and against.  Click on the title of each individual debater's piece to read their full argument.

Good advice: tell your client not to brag about his crimes on the air

Lowering the Bar has a post discussing multiple cases where clients get in trouble for bragging about their misconduct on the air (here).  LTB offers good advice about this:  don't do it.

Should a single incident of incompetence or negligence be enough to warrant discipline?

The Legal Profession blog is reporting on an interesting case in which the West Virginia Supreme Court of Appeals imposed sanctions on an attorney for what some members of the court thought was merely a single act of negligence. The case is called Lawyer Disciplinary Board v. Burke and it is available here.

The case is interesting because it raises the question of whether minor transgressions should subject lawyers to discipline.  Or, in other words, the question of at what point does a particular misconduct is "bad enough" to warrant discipline.  The majority opinion rejected the lawyer's argument that, even tough negligent, his conduct did not rise to an ethics violation, while, in a dissenting opinion, Chief Justice Ketchum argued that "nothing [the] lawyer...did came close to being an ethical violation" and that a single act of negligence should not be considered to violate ethical standards. 

In fact, the Chief Justice opinion could be interpreted to say that there should not be discipline for any act of negligence:

The problem with the majority’s opinion is that it fails to define disciplinable incompetence with any clarity so as to allow for predictability. Single lawyer slipups are generally not ethical violations. They may expose the lawyer to professional negligence liability, but it has nothing to do with the lawyer’s ethics. Discipline should only be imposed when the lawyer’s error is intentional, reckless, repeated, or accompanied by some other misconduct like concealment.

What the Chief Justice is saying that a single incident of incompetence would justify discipline only if it was intentional.  But, if it was intentional, then it wouldn't be negligent, would it?  And, he also says if it was "repeated," in which case it would not be a single incident...

I don't necessarily disagree that a single instance of negligent conduct, depending on the circumstances, does not need to result in discipline, but this general assertion by the Chief Justice seems to be too broad.  Discipline can not be limited to instances of intentional conduct.  The very notion of incompetence is based on the fact that an attorney may violate a rule of conduct without intent.  Limiting the disciplinary system to the regulation of intentional conduct is not supported by the current regulatory approach and would be wrong and dangerous.

Does the Constitution Give Pretrial Detainees the Right to Disclosure of Exculpatory Evidence?

As is well known, in Brady v. Maryland, the Supreme Court held that prosecutors have a duty to disclose exculpatory evidence to criminal defendants.  Failure to disclose such information would constitute a violation of the defendant’s right to due process under the Fourteenth Amendment.  However, courts are unclear on whether the Fourteenth Amendment right to the disclosure of exculpatory evidence also extends to pretrial detainees.  As discussed in Circuit Splits, the Eighth Circuit recently touched on the disagreement among the circuits over this issue in a case called Livers v. Schenck.  Go here to see the full post by Circuit Splits.

What Would Happen If Nonlawyers Invested in Law Firms?

One of the, if not the, hottest topic in Professional Responsibility today is whether non-lawyers should be allowed to invest, fund or essentially "own" law firms.  Currently, the prevailing view in the US is that it would be a bad idea, while the opposite seems to be the view in the UK.  Here is a link to a short discussion the subject.  Make sure you read the comments below the main post.

Washington Supreme Court reverses conviction because of prosecutor's improper use of PowerPoint presentation during closing statement

About a month ago, the Washington Supreme Court issued an interesting opinion holding that a prosecutor engaged in prejudicial misconduct requiring a new trial when he used a PowerPoint slide show during closing argument that featured highly inflammatory photos captioned with his own commentary and opinion, including several slides of the defendant with the word “guilty” superimposed across his face.  The case is called In re Glasmann. Writing for the 5-4 majority, Chief Justice Barbara A. Madsen labeled the prosecutor's misconduct “flagrant and ill intentioned” and concluded that it so permeated the state's closing and tainted the case that the error could not have been cured by an instruction to the jury.

Comment on issues created by triangular relationship and the appointment of independent counsel to represent an insured

The New York Personal Injury Law blog has a good short comment on the duties of an attorney hired by an insurance company to represent one of several insured parties involved in a medical malpractice claim.  The case scenario discussed in the comment is not uncommon.  The plaintiff sued two physicians (an "attending" and a "resident") for injuries during a procedure but it is not clear which one of them actually caused the injury.  They both want to claim it was the other, but their actions are covered by one same insurance policy.  The insurance company assigns the case to two separate attorneys to represent each individual defendant separately.  Also, and again not unusual, the insurance company retains the right to agree to the terms of any settlement.  What happens when the insurance company wants to agree to a settlement that includes placing the blame on only one of the doctors?  How can it determine which one to blame and what are the rights of that doctor in the negotiating process?  What happens if the insurance company does not invite the attorney for one of the doctors to participate in the negotiation of a settlement?  These are some of the issues discussed.  You can read the comment here.

I think the comment is correct in the end - the bottom line being that the attorney assigned to represent the insured has a duty to demand to be part of all negotiations and a duty to defend the client's interests even if they are contrary to those of the insurance company.  The comment argues that even if the client does not have a financial interest at issue in the negotiation of the settlement, there are other interests at stake that require that he or she be represented fully.

I agree with the bottom line.  However, I think the comment is not entirely accurate in one small point.  It starts from the premise that the resident does not have a financial interest in the settlement negotiations "because the hospital has vicarious liability for its resident."   In other words, according to the premise, the insurance company justifies not inviting the attorney for the resident doctor to participate in the settlement process because the resident does not have to contribute to the settlement from her own funds," or because he or she "has no out-of-pocket responsibility to pay any part of the settlement amount."

It is true the resident doctor has no responsibility to contribute to the settlement amount, but that does not mean that he or she does not have a financial interest at stake.   The fact that there is vicarious liability allows the plaintiff to recover the full amount of compensation from the employer but it does not relieve the actor/tortfeasor from his or her liability to the employer.  The employer has the right to be indemnified in full.  The fact that employers rarely, if ever, decide to exercise that right does not mean the right does not exist.

Thus, unless the employer has agreed beforehand to waive the right to indemnity, the resident does have a duty to repay the employer for what the employer pays in the settlement.  And, for this reason, I would say that the resident can clearly argue that he or she does have a financial interest in participating in the negotiation. 

In other words, I agree there is duty on the attorney to represent the interests of the insured in the negotiation but that duty is based not only on the insured's personal interests but also on his or her financial interests at stake.

New opinion on the right of in-house counsel to sue former employer for retaliatory termination of employment

The question of whether in-house counsel have a right to sue a former employer/client for wrongful termination is one that continues to generate opinions around the country.  In class, for example, we discuss the (in)famous Balla v Gambro decision in which the court denies lawyers the right to sue for wrongful termination when they are fired for acting according to professional conduct obligations.

Other jurisdictions have taken different approaches, and just a few days ago, the D.C. Bar Legal Ethics Committee issued a new opinion in which it concludes that in-house lawyers suing their employers or clients for discrimination or a retaliatory firing can't disclose any confidences or secrets, unless they're defending against a counterclaim or affirmative defense.  The Blog of the Legal Times has more information here.

Video on Connick v Thompson

As you probably remember, back in 2010, the Supreme Court decided Connick v. Thompson, which has been described as "one of the most bitterly divided opinions of the Court in a criminal case in recent years," absolving the New Orleans District Attorney's office (under DA Harry Connick, Sr.) of complaints that it had failed to train prosecutors about their duty to disclose exculpatory evidence.  (If you type "Connick" on the "search this blog" box on the right side panel (under my name), you will find a long list of entries with a lot of information about that case.)  Adding to that wealth of information and materials, here is a very short but informative video on the case.

 

Thank you to Renee Newman Knake of Professional Responsibility: A Contemporary Approach for the link.

Supreme Court hears oral argument on possible retroactive impact of Padilla v. Kentucky

After a two-day delay because of storm Sandy, the Supreme Court heard oral arguments in Chaidez v. United States, which raises the issue of the retroactive application of Padilla v. Kentucky (2010) in which the Court held that a Sixth Amendment ineffective assistance of counsel claim could be based on a defense counsel’s failure to inform his client of the possible immigration consequences of a plea agreement.  Kevin Johnson, a well known professor and scholar in the area of immigration law has posted a brief comment on the oral argument here.

Judge in Trayvon Martin murder case denies request to regulate speech

The New York Times is reporting that the judge in the Trayvon Martin murder case on Monday denied a prosecution request to bar lawyers for George Zimmerman from using a Web site about legal issues, as well as social and traditional news media, to comment about the case.  Go here for the full story.

Sanctions for misconduct during depositions

In class we discuss a few cases illustrating improper conduct during depositions.  There are many such cases - and some videos - that are useful for this purpose.   Unfortunately, the problem does not seem to go away.  In part, the problem continues because by their very nature depositions are conducted away from the scrutiny of the court and many lawyers think that they can get away with being overly aggressive and insulting.  I don't know who they are trying to impress; but savy lawyers know how to counter those tactics.  Earlier this year, the ABA Journal reported on a case in New York where an attorney was imposed a $10,000 sanction for his behavior at a deposition.  See here, here and here.  The lawyer was also ordered to pay for the attorney's fees for the costs of pursuing the sanctions motion.  As reported yesterday, this bill came out to a little over $36,000.  So, over $46,000 out of your own pocket for being obnoxious and not knowing how to behave during a deposition should make you want to think twice about learning how to defend a deposition properly...

How not to practice law: beat up your client with a baseball bat!

The Legal Profession blog is reporting today (here) on a recent case in which an attorney was disbarred for, among other things, beating up a "defenseless client" with a baseball bat causing severe injuries.  The court agreed with the Hearing Panel that "causing such injuries to his client constituted a violation of Mr. Robinson’s duty to his client."  The opinion is available here.

So, just to be clear, you have a fiduciary duty to not beat up your client with a baseball bat!

All kidding aside, I wonder what the client did that made the lawyer lose it to the point of wanting to beat him up with the bat.  According to this article, the attorney claimed that the client broke into the lawyer's home but those charges were dismissed. 

Now, let's assume that a client breaks into a lawyer's home and threatens the lawyer or the lawyer's family.  Should the lawyer be disciplined for taking action to defend his life or his family?  I guess it is all a matter of degree.   Just a few days ago there were reports of a recent case from a jurisdiction that recognizes the right of a homeowner to use deadly force to defend his home.  See here and here.

Update on Covington and Burling's disqualification in State of Minnesota v. 3M

Back in August I posted a story about the lawsuit filed by 3M Corporation against the law firm Covington & Burling (here) for an alleged violation of its fiduciary duties to 3M, and about two weeks ago I commented on the fact that Covington was disqualified in the underlying case that gave rise to the allegation.  In that case, Covington was representing the state of Minnesota against 3M who was a former client.  The court found that the current representation was substantially related to the former representation of 3M and granted the motion to disqualify.  See here.

Now comes news that Covington and the state of Minnesota have appealed the disqualification order. 

In its notice to appeal (available here), Covington (represented by different counsel) argues that the lower court erred because none of 3M's confidential information was "known to or used by" Covington lawyers representing the state of Minnesota and that the firm currently has a screen in place to prevent the attorneys who had represented 3M in the past from communicating with the lawyers who were currently representing Minnesota against 3M.

Covington may have a good argument in support of its position, but it is none of these.

In the order to disqualify, the court explained the analysis followed by courts in the state to decide these types of cases.  It is possible the judge was wrong about that, but since -to my knowledge - no one has made that argument I will assume that this is correct.  The Minnesota Supreme Court has established a three-part test to determine whether an attorney may represent a client in an action against the attorney's former client:  (1) first determine if the two representations are substantially related; (2) if so, it is presumed, irrebuttably, that the attorney received confidences from the former client and it is also presumed, but subject to rebuttal, that these confidences were conveyed to the attorney's affiliates; (3) once the presumptions are applied and a decision has been reached as to whether the conflict should result in disqualification, the court may consider other "competing equities" such as the effect of the disqualification on the party that loses its representation.

From what I have seen/read about the case at this point, it seems to me Covington is on the losing end of the first two parts of the analysis, but may have something to say on the last one.

For purposes of Rule 1.9, matters are “substantially related” if there is a “substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”  It is possible Covington may want to argue that the two representations were not substantially related, but the disqualification order makes a good case for its conclusion that they are.   And, more importantly, once the court has concluded that representations are substantially related, Covington cannot argue (as it is now trying to do) there there is no evidence that its lawyers have used or disclosed confidential information.  Covington wants to argue that the court "ignored critical elements of the rule" - meaning rule 1.9 about former client conflicts of interest - and that the court erred because it failed to address whether the firm used or disclosed confidential information. 

This argument is weak.  As stated above, once the court concludes the former representation and the current representation are substantially related, it is presumed (irrebuttably) that information was acquired and also - subject to rebuttal - that it was shared.  The firm would have to prove that the confidential information was not and could not have been shared in the past and that it will not be possible to share it in the future by proving the use of timely and effective "institutional mechanisms" (usually called "screens") created for that purpose.

In its notice to appeal, Covington claims the firm "currently" has a screen in place.  However, since the rules require that the screen has to be "timely", a screen that is allegedly in place now may not be sufficient to solve the problem "back then".

The problem is it is not clear when that screen was implemented, since in its order to disqualify the firm the judge concluded that there was no screen in place.  In fact, the judge stated that "Covington admits to not imposing screens or other protections to safeguard 3M’s information. Covington also admits to not taking any measures to prevent Covington lawyers from sharing confidential information with others in the firm." Given these conclusions, applying the two presumption analysis, the court correctly concluded that it must be presumed that Covington received and shared 3M’s confidential information.  If the judge is correct that Covington admitted not having a screen back then, the fact that it has one now is irrelevant.

For these reasons, it seems to me Covington will have a tough time arguing its case.

Covington's better argument, it seems to me, is based on the third part of the test mentioned before.
 
3M filed its motion to disqualify more than a year into the litigation of the case and claimed that it was not until then that it had noticed the conflict because of a change in its management.  The story is plausible, but not necessarily enough to defeat the argument that a disqualification that far into the litigation would cause an undue burden on the party that all of a sudden loses its representation.

So, bottom line, it seems to me the case will come down to this:  what is more important?,  the fact that Covington seems to have been operating under a conflict or the fact that eliminating the conflict now would cause an undue burden on the party that loses its lawyer.

If it is the former, the order should be affirmed and Covington would be disqualified; if it is the latter, the order should be reversed and Covington would be allowed to continue its representation of the state against its former client.

What will happen next, is anyone's guess.  Stay tuned....

Strong criticism of recent report out of DC hearing committee

Mike Frisch (Georgetown) has strong words about a recent report in Washington DC, which he calls "the worst hearing committee report in DC Bar history."  You need to read the full comment here to get see why.  In a nutshell, the report exonerates four attorneys on charges of conflicts of interest and dishonesty in a case involving the alleged abuse and manipulation of an elderly woman even though the evidence supported the conclusion that the attorneys, in the course of representing the woman's son, purported to represent her as well and caused her to execute a series of documents giving control or complete ownership of her property to him. Professor Frisch is concerned (to say the least) about the consequences of the opinion: it makes it nearly impossible to prosecute lawyer elder abuse and discourages other victims from coming forward.

Comment on allegations against former prosecutor in Texas for concealing evidence

Back in March I posted a comment on a case in Texas in which a judge was under investigation for misconduct when he was a prosecutor.  My original post, which includes a segment from the tv show 60 minutes on the case, is available here.  Today, Professor Jonathan Turley published his own comment on the case here.

WSJ on firms buying lunch for clients using clients' own money

In class I am often asked if a lawyer violates the rule that says lawyers can't provide financial assistance to clients if the lawyer takes a client to lunch and pays the bill.  Well, it turns out that the question may be a non-issue since firms may be charging the clients for those lunches after all...  In a short article today, the Wall Street Journal law blog discusses the issue (here).  It starts:  "Here’s a tip for law firms who want to keep clients happy: Don’t buy them fancy lunches with their own money. . . . [Clients are] fighting over line items such as photocopies and food, and pushing back hard on charges for pricey legal research databases such as Westlaw and LexisNexis. Their position: many of these costs are law firm overhead, and so shouldn’t be passed on to the client in the first place."

Covington and Burling disqualified in case against former client for conflict in violation of Rule 1.9

Back in August I posted a story about the lawsuit filed by 3M Corporation against the law firm Covington & Burling arguing that the law firm violated its duties to 3M when it allegedly dropped 3M in one matter to accept representation of another client (the state of Minnesota) against 3M.  Go here for that original post.

Meanwhile, 3M also filed a motion to disqualify Covington from representing the State of Minnesota in the underlying case and today the court has granted the motion to disqualify.  Interestingly, however, the basis for the ruling is not that Covington violated the "hot potato doctrine" (which penalizes a firm for dropping a client to clear the way to accept the representation of a new client) as argued by 3M.  The court simply held that Covington violated rule 1.9 on successive conflicts of interest.  Either way, 3M has scored a big win.

It remains to be seen what effect the disqualification order will have on the civil claim, but I am sure 3M will try to get some mileage out of the strong language by the judge who concluded that “Covington has exhibited a conscious disregard for its duties of confidentiality, candor, full disclosure, and loyalty to 3M..."

Interestingly, in disqualifying Covington, the judge goes into two different types of analysis used in cases of former client conflicts.

According to Rule 1.9, "[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing."

Thus, the big question is whether the previous representation of 3M was substantially related to the current representation of the state.  If so, Covington would be prevented from continuing to represent the state.  Following the generally accepted analysis in similar cases, the judge stated that matters are “substantially related” if there is a “substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.”

To address the issue, the judge examined the character and content of the previous representation of 3M and concluded that Covington had represented 3M in the past in matters that were substantially related to the case in which it was now representing the State of Minnesota against 3M.  The judge therefore concluded that "Covington has “switched sides” by representing a client who is now suing its former client" and that "[b]y representing the State, Covington will benefit by contradicting the very positions it had long advocated on 3M’s behalf."  The judge, thus, concluded that "[b]ecause a lawyer may not use any information “relating to” a prior representation to the detriment of a former client, disqualification is necessary where an attorney provided legal services to a former client relative to matters substantially related to the subject matter of the present suit."

Once this conclusion is reached, typically a court would have enough reason to justify disqualifying a firm, unless the firm (and its client) could convince that there are other reasons that show disqualification would be too onerous on the client at that point.  Covington may have an argument along those lines because 3M waited so long to protest its representation of the state. I expect Covington to argue that on appeal.

But the judge did not stop there because the case law in the state of Minnesota appears to be slightly different from that in other states.

It appears that the analysis used by courts in Minnesota combines the previously mentioned analysis related to whether the cases are substantially related with the analysis typically used for cases in which the conflict is created by a lawyer who moves from one firm to a new firm.  In a case like that, there is a presumption that the moving lawyer acquired confidential information about his or her former clients (left behind in the old firm) (the so-called "first presumption") and that he or she will share (or has shared) that information with the new firm (the "second presumption").  In support of its opposition to a motion to disqualify, the new firm can try to rebut either presumption.  If unable to do so, the firm would be disqualified from representing an interest adverse to those of a former client of the new attorney joining the firm.

Using this analysis, the judge also found that Covington should be disqualified. The judge found that the State (and Covington) simply could not rebut the presumption that Covington had received relevant confidential information from 3M nor the presumption that Covington shared that confidential information within the firm because Covington admitted to not imposing screens or other protections to safeguard 3M’s information.

I don't think this second part of the judge's analysis necessarily relevant to the facts of the case (because there was no lawyer moving from one firm to another), but it seems to be part of the analysis used in Minnesota and in the end the result is the same.

As expected, Covington has expressed it disagrees with the court's conclusions.  Timothy Hester, chair of Covington’s management committee stated: “The State of Minnesota has been a client of this firm on environmental matters since 1995.We respectfully disagree with the court’s ruling. We believe 3M failed to identify an actual conflict of interest and its attempt to disqualify the firm should in any event be barred because it came 15 months after the case was filed. 3M is a former firm client and the State of Minnesota’s current environmental case against 3M is not substantially related to a food packaging matter that we handled for 3M many years ago.  Our client, the State of Minnesota, will be weighing its options, including an immediate appeal.”

You can read the order in full by going here.  For more on the story go here and here.

How not to practice law: Steal money from clients, then argue in your defense that you needed the money!

Here is another installment of the on-going series on how not to practice law.  In this new case, a lawyer was disbarred for, among other things, stealing money from clients.  That's not newsworthy, of course, since that is the typical sanction for misappropriation (although I just posted a story about a case in which the attorney unjustifiably in my opinion, got away with a lesser sanction).  What is interesting about this particular case is the explanation given by the lawyer "in his defense." 

In response to charges of theft of estate funds, the attorney testified that he  used the funds because he needed them for his business operations in difficult times and that it was all due to "the worst financial crisis in our nation's history."   In other words, he claimed he stole the client's money because the economy was bad and he needed the money.  The court said the lawyer's testimony can only be characterized as "a lame attempt to rationalize his theft."  I agree.  If you think that argument is going to help your case, you better look for another line of work.  Oh, wait!, you do need to look for another line of work because you just got disbarred!  

You can read the full opinion here.

Lawyer steals money from clients but does not get disbarred because he had been in the military; I don't get the connection

The Legal Profession blog is reporting on a recent opinion from the Ohio Supreme Court in which an attorney was indefinitely suspended  for  violations of the Rules of Professional Conduct in  his dealings with more than 20 bankruptcy clients including the fact that the attorney accepted fee advances from those clients but deposited the unearned fees in his office operating account and spent the clients’ funds on personal and office  expenses without performing the legal services for which he had been retained. In other words, that he stole client's money.

You would think this is not newsworthy since stealing from clients is essentially the easiest way to get disbarred, right?  But that is the strange thing.  Here, the attorney was not disbarred.  There is a distinction between indefinite suspension (a suspension that can be lifted) and disbarment (which, at least in theory, is permanent).

What made the difference in this case?  In imposing an indefinite suspension rather than permanent disbarment, the court noted as mitigating factors that the attorney had served in the U.S. Air Force for 20 years,  expressed sincere remorse and  accepted  full responsibility for his actions, cooperated with disciplinary authorities, and was making ongoing attempts to make restitution to his clients.  You can read the opinion here.

I don't understand this. The lawyer has admitted that he stole money from clients in multiple instances but he doesn't get disbarred (which the court says is the proper sanction for misappropriation) because he is a veteran? What does military service have anything to do with anything? With all due respect to the members of the military all of whom should be admired for their courage, why should military service operate as a mitigating factor and not other kinds of service? What if a lawyer had been a nurse for 20 years before going to law school, or a high school teacher or a firefighter? How do we make the distinction? 

I just don't think past military service is relevant at all.  The lawyer may have served the country admirably for 20 years in the past, but now he was stealing money from clients.  He should have been disbarred.

Judge found guilty of judging a defendant and imposing sentence without trial

Just when you think you have seen (or heard) it all... Here is a report on something I had not heard before, other than at the movies.  Remember that movie The Star Chamber in which Michael Douglas plays a judge who gets together with other judges to decide cases on their own and then impose their own kind of vigilante justice?

Well, here is a report of a case in which the New York State Commission on Judicial Conduct accepted a 122 page stipulation that resulted in the resignation of a judge.  Among other things, it was determined that the judge found a defendant guilty without a plea or trial and imposed sentence without giving the defendant an opportunity to contest charges.  I have to say, I don't think I had heard of a judge doing that before. 

Thanks to the Legal Profession blog for the report.

How not to practice law: bring your recreational drugs to court, then drop them in the middle of court in front of a police officer

Lowering the Bar (here) and Prof. Jonathan Turley (here) are reporting today on a story about a New Orleans prosecutor who recently resigned after he dropped some marijuana out of his pocket in the middle of court in front of a police officer. In this case, the incident cost the prosecutor his job.  Should he be disciplined too?  If so, what sanction would you impose? 

These questions raise the issue of whether violating the law, in and of itself, regardless of what the law is, is a punishable offense for professional responsibility purposes.  There has always been some debate as to whether courts are consistent when imposing sanctions for illegal conduct. Often, violations of tax laws are treated leniently, while misappropriation (ie, stealing) violations are dealt with harshly.  DUIs, sexual misconduct, misdemeanor shoplifting and others are somewhere in between.  Part of the analysis has to do with the danger posed to others and whether the "others" involve children or other vulnerable people who are less likely to be able to protect themselves, or whether the illegal conduct involves a so-called "victimless" crime.  (It is debatable whether there is such a thing as a "victimless crime", but that is another story.)

I think there is something to say about taking into account the circumstances and the character of the conduct.  I do disagree with the cases that impose the lightest of sanctions for illegal conduct, but I don't think that all illegal conduct is of the same character or that disbarment is always the proper sanction.  I also think it is important whether the conduct is an isolated incident and whether the person would benefit from counseling or treatment, particularly if it is a case of addiction. 

Go here, here and here for three recent examples of cases on the issue of appropriate sanctions for illegal conduct.  For many more, click on "sanctions" and scroll down.