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Practice Points

February 8, 2016

Attorney Advertising Restrictions on LinkedIn Activity

Lawyers and LinkedIn now go hand-in-hand; most private practitioners (among many other types of lawyers) are on LinkedIn. But does a LinkedIn profile constitute a form of attorney advertising (and therefore have to comply with all of the ethical restrictions on legal advertising)? Probably not, at least according to the recent ethics opinion of the New York City Bar. See NYCBA Ethics Op. 2015-7.

This new opinion splits “sharply” from the ethics opinion of the New York County Lawyers Association, which had “conclude[d] that a LinkedIn profile containing only one’s education and a list of one’s current and past employment . . . does not constitute attorney advertising.” NYCLA Ethics Op. 748 (2015). Under this reasoning, then, many if not most lawyer profiles and other activity on LinkedIn do constitute attorney advertising. Lawyers often, for example, post information about trial or appellate victories, describe their practice areas, and receive endorsements and recommendations from colleagues and clients (among others). As discussed below, such “attorney advertising” may face ethical restrictions (e.g., mandatory disclaimers or record-keeping requirements) in certain states.

Eluding these restrictions, the new city bar opinion reasons that LinkedIn activity constitutes attorney advertising “only if it meets all five of the following criteria: (a) it is a communication made by or on behalf of the lawyer; (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; (c) the LinkedIn content relates to the legal services offered by the lawyer; (d) the LinkedIn content is intended to be viewed by potential new clients; and (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.” In light of this long list of prerequisites, the opinion unsurprisingly concludes that regulators should not “presume” that “the primary purpose [of] an attorney’s LinkedIn content is to attract new clients for pecuniary gain, unless it contains express language or other equally compelling evidence to support that conclusion.” NYCBA Ethics Op. 2015-7. This practice point answers below: (1) why the differing approaches in these ethics opinions; and (2) what do they mean, if anything, to the busy practitioner.

States such as New York, Florida, and Texas (among several others) impose detailed requirements and restrictions on legal advertising, unlike the ABA’s Model Rules of Professional Conduct, which impose only relatively modest restrictions. (Although all states except California have essentially adopted the Model Rules, many states have—for better or worse—tinkered with their particular rules on legal advertising.) Had the city bar concluded that most profiles or updates on LinkedIn constitute the feared “attorney advertising,” New York lawyers would presumably have to comply with the corresponding regulations, “including, but not limited to: (1) labeling the LinkedIn content ‘Attorney Advertising’ [either in the profile page’s summary section or in the applicable update]; (2) including the name, principal law office address and telephone number of the lawyer; (3) pre-approving any content posted on LinkedIn; [and] (4) preserving a copy for at least one year. . . .” NYCBA Ethics Op. 2015-7. In other jurisdictions, however, lawyers do not have these worries because their rules omit many of these requirements, rendering almost irrelevant the fact that most LinkedIn activity (at least implicitly) advertises the posting lawyer’s services, skills, and availability.

But what does the split in the ethics opinions mean for lawyers (the vast majority of whom have LinkedIn profiles)? It means that lawyers who would like to proceed cautiously should follow the first approach, i.e., the more restrictive approach. In other words, if the lawyer’s profile goes much beyond educational background and employment history, the lawyer should comply with the jurisdiction’s advertising restrictions. Furthermore, if the lawyer practices (and advertises) in two or more states, one of which has detailed advertising requirements, the lawyer generally ought to follow the more restrictive requirements (i.e., practice “double deontology”). For lawyers taking an arguably less cautious approach, the new ethics opinion will provide a bit of corroboration. Under this approach, a lawyer may post additional information on LinkedIn without automatically being engaged in attorney advertising. For example, “the inclusion of Endorsements or Recommendations does not, without more, make the lawyer’s LinkedIn profile an ‘advertisement.’” NYCBA Ethics Op. 2015-7. Whether the lawyer’s primary purpose is attorney advertising depends on “the subjective intent of the lawyer who makes the communication, but that this intent may be inferred . . . from other factors, including the content of the communication and the audience for the communication.” In short, much LinkedIn activity will not be considered advertising (at least not under New York’s “primary purpose” test), but identifying advertising activity will be highly context-dependent.

LinkedIn currently offers powerful networking potential and provokes many interesting ethical questions (e.g., should you send a connection request to a judge before whom you might appear, see Ariz. Judicial Ethics Op. 14-01 (2014), or should you remove from your profile page inaccurate endorsements or recommendations, see Pa. Ethics Op. 2014-300; N.C. Ethics Op. 8 (2012)). As the dueling New York approaches above suggest, the answers are not always unanimous.

Keith Swisher, Swisher P.C., Phoenix, AZ


January 25, 2016

Whether You Can Threaten Contempt in a Subpoena for Non-Compliance

The New Jersey State Supreme Court's Advisory Committee on Professional Ethics recent Opinion 729 instructs practitioners that it is likely a violation of the Rules of Professional Conduct to threaten contempt for non-compliance with subpoenas delivered by mail. The committee reminds practitioners that mail delivery of subpoenas is not allowed under the court’s rules. Further, the committee indicates that even when a party agrees to accept service by mail, non-compliance subsequent to delivery of subpoenas pursuant to such agreements will not suffice as a basis to threaten contempt, suggesting that a threat of contempt would require service of the subpoena again, but in person, as a predicate. Lastly, the committee does not reach whether threatening contempt comprises a “false statement” in violation of Professional Rule of Conduct 4.1, but warns that such threats might violate the rules.

New Jersey Court Rule 1:9-1, et seq., governs the issuance of subpoenas. Rule 1:9-3, Service, states that a subpoena may be served on any individual of 18 years or older and requires that service be made “by delivering a copy thereof to the person named together with tender of the fee allowed by law . . . .” Further, Rule 1:9-5, Failure to Appear, provides that “Failure without adequate excuse to obey a subpoena served upon any person may be deemed a contempt of the court from which the subpoena issued.”

Considering these rules six years ago, in NJ Cure v. Estate of Robert Hamilton, 407 N.J. Super. 247 (App. Div. 2009), the New Jersey Appellate Division held that service of subpoenas by mail “is not an effective manner of serving a subpoena on an unwilling non-party.” In that case, the plaintiff twice served the defendant with a subpoena by mailing it to him. Despite service by mail having been accomplished twice, the Appellate Division reversed the trial court’s sanctioning of the defendant for failure to comply with it. The clear message of NJ Cure is that subpoenas must be served in person if parties wish to rely on contempt as a means of enforcement.

Despite NJ Cure’s clear admonition, however, attorneys have continued to send subpoenas to non-parties by regular mail. Thus, in Opinion 729, the State Supreme Court’s Advisory Committee on Professional Ethics declared that it is inappropriate for a subpoena served by mail to threaten contempt for non-compliance with the subpoena, particularly because the court rules do not allow for subpoenas to be mailed in the first place: “Failure to obey a subpoena is deemed contempt of court,” but “[w]hen a subpoena is sent by ordinary mail instead of being served personally, a recipient who fails to obey the subpoena cannot be deemed in contempt of court as the court lacks personal jurisdiction over the recipient.”

The committee also addressed the effect of a witness’s agreement to accept service by mail. While parties and witnesses can reach agreements regarding mailed subpoenas, the committee said that: “[s]uch an agreement, however, does not provide a Court with contempt power for failure to comply with a mailed subpoena.” This accords with the ruling in NJ Cure. Thus, in those situations where a witness agrees to accept service of a subpoena by mail and then fails to comply with it, it appears that a contempt motion will only be allowed if the subpoenaing party first re-serves the subpoena by personal service on the witness.

While the committee failed to conclude that threatening sanctions in a mailed subpoena is a “false statement” under RPC 4.1, it did find that doing so was at a minimum inaccurate and misleading. The committee said that going forward, “lawyers who intentionally include such language in mailed subpoenas, threatening the recipient with sanctions for noncompliance,” may be violating the Rules of Professional Conduct for conduct involving misrepresentation.

Ronald L. Israel, Chiesa Shahinian & Giantomasi PC, West Orange, NJ


January 4, 2016

Threatening to File a Disciplinary Complaint Against Another Lawyer

The Association of the Bar of the City of New York Committee on Professional Ethics’ June 2015 Formal Opinion 2015-5 addresses “whether—and under what circumstances—[attorneys] are ethically permitted to threaten another lawyer with disciplinary charges.” The committee warns, “[a]n attorney who intends to threaten disciplinary charges against another lawyer should carefully consider whether doing so violates the New York Rules of Professional Conduct.” Even though the committee concludes that a disciplinary threat does not violate New York Rule 3.4(e)—because that rule addresses only threats of criminal charges—the committee cautions that a disciplinary threat would be subject to other rules: A threat must be made in “good faith belief,” (Rules 3.1, 4.1 & 8.4), reporting the violation must not be mandatory, (Rule 8.3(a)), the threat must have “substantial purpose other than to embarrass or harm another,” (Rules 3.1(b) & 4.4(a)), and the threat must not violate substantive law “such as criminal statutes that prohibit extortion,” (Rules 3.4(a)(6) & 8.4).

The committee begins by highlighting the New York Rules’ purpose “to provide a framework for the ethical practice of law.” The committee then states that the ethics regulatory system depends primarily on understanding and willingness to comply, “secondarily on . . . peer and public opinion,” and lastly upon “disciplinary proceedings,” “where necessary.” The disciplinary system, the committee observes, relies on “mandatory reporting” for “certain types of ethical violations” as “[o]ne of several tools” for enforcement, but “[s]hort of reporting . . . , . . . many attorneys are uncertain of their obligations when they perceive that another lawyer has violated the disciplinary rules.” Hence, the committee notes, the question persists of when “threaten[ing] another lawyer with disciplinary charges” would be “ethically permitted.” The committee clarifies “threat” not to mean “merely advising another lawyer that his [or her] conduct violates a disciplinary rule,” but rather a threat includes an ultimatum requiring “compli[ance] with a particular demand.”

The committee finds that New York Rule 3.4 “arguably comes the closest to addressing this issue, as it prohibits lawyers from threatening ‘to present criminal charges solely to obtain an advantage in a civil matter.’” However, because “it is silent” on “disciplinary charges,” the committee concludes that “disciplinary threats do not violate Rule 3.4(e).” The committee distinguishes Rule 3.4 from other jurisdictions’ rules that expressly ban threats of criminal and disciplinary charges. The committee also cites the Committee on Professional Ethics for the New York State Bar Association’s Ethics Opinion 772 (2003) on Rule 3.4’s predecessor, finding disciplinary threats valid for obtaining the return of client property. While the committee acknowledges contrary authority that found Rule 3.4’s predecessor banned disciplinary threats, it finds that Rule 3.4’s “plain language . . . should govern.”

“Although disciplinary threats do not violate Rule 3.4(e),” the committee warns that its conclusion is no “unfettered license”: “an attorney who contemplates making such a threat should carefully consider whether doing so violates other Rules.”

For instance, the committee finds disciplinary threats banned where Rule 8.3(a) mandates reporting “actual knowledge” of an offense raising “a substantial question [of a] lawyer’s honesty, trustworthiness, or fitness as a lawyer.” For discretionarily reportable grievances, “[d]epending on the circumstances, such threats may be consistent with a disciplinary system that is based, at least in part, on self-regulation”: “it may be appropriate to educate the lawyer about the violation and give . . . an opportunity to change [the] conduct . . . [and] to remedy the harm.”

The committee also warns that disciplinary threats are prohibited “absent a ‘good faith belief.’” “Such baseless threats,” the committee warns, would violate several Rules, including “multiple provisions of Rule 8.4” (prohibiting “conduct involving dishonesty, fraud, deceit or misrepresentation . . . “), Rule 4.1 (prohibiting knowingly false statements to third persons during client representation), and “may also violate Rule 3.1(a)” (prohibiting false material factual statements).

Moreover, the committee cautions that Rules 3.1(b) and 4.4(a) ban threats lacking “substantial purpose other than to embarrass or harm.” The committee warns that “[t]hreatening to file a disciplinary complaint against an adversary . . . to gain a strategic advantage [can] violate[] this rule.” By example, the committee finds that “the goals of the disciplinary rules are [not] served when an attorney ‘uses a disciplinary threat improperly to create a conflict of interest between another lawyer and his client.” Rather, “[t]here are legitimate options available . . . to address . . . misconduct, including seeking sanctions or disqualification.”

Lastly, the committee reiterates: Disciplinary threats may violate substantive law, particularly regarding extortion. The committee warns that knowingly illegal conduct would reflect adversely on lawyerly fitness and prejudice the administration of justice, violating Rules 3.4(a)(6) and 8.4.

John Mastando, web editor, and Jay Minga, associate editor, Weil, Gotshal & Manges LLP, New York, NY


December 29, 2015

Kirkland & Ellis Enjoined from Representing Pharma Giant Teva

In a lawsuit filed by Mylan, Inc. and Mylan N.V. to enjoin Kirkland & Ellis (K&E) from representing Teva Pharmaceuticals in an attempted hostile takeover of Mylan, Magistrate Judge Lisa Pupo Lenihan, on June 9, 2015, recommended enjoining K&E from representing Teva in its takeover bid of Mylan N.V., the corporate parent of two of K&E’s other clients. Mylan, Inc. v. Kirkland & Ellis LLP, No. 2:15-cv-00581-JFC-LPL (WD Pa. June 9, 2015). The magistrate judge found that K&E was conflicted and did not have an effective waiver or consent in advance. The decision serves as a cautionary reminder for drafting engagement letters: (1) the “entity theory” can be a trap for the unwary; (2) foreseeable forms of adverse representations merit specific identification in engagement letters that provide for “advance consents” or waivers; and (3) precluding “related” rather than only “substantially related” future adverse representations may cause problems.

K&E argued that counseling Teva in a takeover of Mylan was permitted under two theories—both of which the Magistrate Judge rejected: first, that the takeover—although hostile to the corporate parent, Mylan—was not directly adverse to K&E’s clients (two wholly owned Mylan subsidiaries); and second, that K&E’s engagement letter permitted the representation.

The magistrate judge rejected K&E’s claim that any adversity to its Mylan clients was indirect. She found that the corporate parent resisted acquisition—and through their parent, K&E’s clients did, too. She further emphasized that Rule 1.7 would have prohibited K&E from representing a client in a hostile takeover of its Mylan clients. She thus rejected as “disquieting” K&E’s notion that Rule 1.7’s prohibition would have been rendered inapplicable by an internal reorganization of Mylan that created K&E’s clients’ corporate parent as a separate entity just prior to K&E being asked to handle for Teva’s takeover bid. Finding K&E’s clients to be the corporate parent’s main asset, the magistrate judge concluded that the clients were the real target of the hostile takeover and thus the representation was directly adverse.

As an alternative basis for disqualification, the magistrate judge rejected K&E’s assertions that its work in advising and handling litigation for the Mylan clients was unrelated to the takeover. She found the information garnered by representing the Mylan clients relevant to counseling Teva in its takeover bid. The magistrate judge concluded that the relatedness of the representations—and the potential advantage the information garnered in the related representation could provide to a competitor—alternatively created direct adversity.

Having found that direct adversity existed based on either hostility to the Mylan clients or the relatedness of K&E’s representations, the magistrate judge dismissed K&E’s arguments and evidence regarding ethical screens that it had put into place as irrelevant because: Under the ethics rules (other than, at times, in conjunction with an attorney’s change in firms), screens were inadequate to resolve conflicts; a screen would be unnecessary if K&E’s Mylan work were unrelated to K&E’s Teva work; and a screen could not transform “related” matters into “unrelated” ones. The magistrate judge therefore concluded that grounds existed to disqualify K&E from its representation of Teva unless K&E had obtained an effective waiver from Mylan.

The magistrate judge addressed K&E’s engagement letter-based “consent in advance” and “waiver of conflicts” arguments by scrutinizing the precise language of the letter’s conflicts of interest provision. K&E and the Mylan clients, she noted, had negotiated a ban not only of “substantially related” adverse representations, but also of any “related” adverse representations. Thus, the provision permitted a narrower set of future adverse representations (i.e., those that were totally unrelated to K&E’s work for Mylan) than language that would allow for K&E representations against Mylan as long as those future matters were not substantially related to K&E’s work for Mylan. She then referred back to her earlier finding that the legal services were related.

Significantly, the magistrate judge found that, even if the takeover representation had been unrelated, it was a type of representation for which K&E had failed to obtain informed consent. The conflict of interest clause specified conflict waivers for unrelated adverse “litigation, arbitration or other dispute resolution” representations. Transactional representations, however, were not specified. Given K&E’s high-profile transactional services, the magistrate judge found this omission significant. She also concluded that K&E had not raised the hostile takeover representation with Mylan (when seeking the advance waiver) and failed to show that the Mylan clients did anticipate, should have anticipated, or would have authorized the representation.

Having found the Mylan clients substantially likely to prevail on the merits for disqualification, the magistrate judge found the balance of harms and public interest also favored recommending that the district court disqualify K&E.

Irwin Warren, committee cochair, and Jay Minga, associate editor, Weil, Gotshal & Manges LLP, New York, NY


December 29, 2015

TX State Bar Ethics Committee Reverses Non-Lawyer Employee Title Opinion

In September 2015, the Professional Ethics Committee for the State Bar of Texas revised—and in effect, withdrew and reversed course on—its May 2014 Opinion No. 642, in the wake of the Philadelphia Bar Association Professional Guidance Committee’s express disagreement on the issues of law firm titles, which we noted in a post earlier this year.

In its Revised Opinion No. 642 (sign-in required), the Professional Ethics Committee for the State Bar of Texas does away with the categorical prohibitions of its prior opinion, and adopts and applies a reasonableness test for use of the terms “officer,” “principal,” and “director.” The application of this reasonableness test leads the Professional Ethics Committee for the State Bar of Texas to reach new conclusions—agreeing in part and disagreeing in part with those reached by the Philadelphia Bar Association Professional Guidance Committee.  

Whereas the Philadelphia Bar Association Professional Guidance Committee draws a categorical distinction between the terms “officer” and “director” as acceptable on the one hand and “principal” as unacceptable on the other, the Professional Ethics Committee for the State Bar of Texas finds that reasonably acceptable titles do not fall into two such categories. Reflecting on empirical law firm practice, the Philadelphia Bar Association Professional Guidance Committee found “officer” and “director” as acceptable titles for non-lawyer employees. However, making no empirical observation of the term “principal” in use by a non-lawyer law-firm employee, the Philadelphia Bar Association Professional Guidance Committee adopted the categorical approach for the term “principal” of the Professional Ethics Committee for the State Bar of Texas at that time. The Philadelphia Bar Association Professional Guidance Committee expressly agreed with Professional Ethics Committee for the State Bar of Texas Opinion No. 642 that the term “principal” inherently conveyed an improper implication of a proprietary interest in a law firm.  By contrast, Revised Opinion No. 642 takes a less clear-cut approach, while maintaining a categorical prohibition on certain “one-word titles.”

Looking to titles in use among law firm non-lawyers in Revised Opinion No. 642, the Professional Ethics Committee for the State Bar of Texas found that titles including not only “chief financial officer” and “human resources director,” but also “principal technology officer” “could not reasonably be understood to indicate authority to exercise control over the law practice of firm lawyers.” Accordingly, under Revised Opinion No. 642, such titles are permissible. Nonetheless, Revised Opinion No. 642 maintains the Professional Ethics Committee for the State Bar of Texas’s prior prohibition on single-word titles like “officer,” “director,” and “principal,” which are held to impermissibly suggest authority over the entirety of law firm functions including legal services. Notably, while prohibiting misleading titles that would include these terms, the Philadelphia Bar Association Professional Guidance Committee does not address their use as “one-word titles” as does Revised Opinion No. 642.

Lastly, unlike the Philadelphia Bar Association Professional Guidance Committee, which passingly finds the title of “chief operating officer” acceptable, the Professional Ethics Committee for the State Bar of Texas finds the title of COO to “present[] a particularly difficult question.” Revised Opinion No. 642 reports the Professional Ethics Committee for the State Bar of Texas’ observations that the term conveys wider authority in the business context than the “limited meaning” found among law firms. These observations reportedly preclude that such a title “necessarily indicates that the [non-lawyer] employee’s authority includes control over” legal services. Still, the Professional Ethics Committee for the State Bar of Texas concerns itself that a Texas law firm must take additional steps as necessary to make clear that a Chief Operating Officer’s scope of authority does not extend to control over the practice of law by the firm’s lawyers.

Irwin Warren, committee cochair, and Jay Minga, associate editor, Weil, Gotshal & Manges LLP, New York, NY


March 20, 2015

Business Law Today: Lessons in Civility from Zenith v. Matsushita

Louis A. Lehr Jr. and John L. Ropiequet of Arnstein & Lehr LLP in Chicago recount the behind-the-scenes efforts of one federal judge and counsel to engender professional civility in the highly contentious litigation that led to the Supreme Court’s famous decision, Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). Lehr and Ropiequet cast several colorful vignettes. Among other stories, they recount the mysterious appearance of a referee’s outfit and whistle on Judge Becker’s bench (and his playful donning thereof), the ceremonial photographing of the literal “setting of the scheduling order in concrete”, with counsel attired in construction outfits, and the creation of the Bon Mot Trophy competition for courtroom “zingers” and the gratis transcript copies awarded to the winners in addition to the storied trophy. And every litigator should consider using Judge Becker’s form of pretrial order, including its “Time-Out” provisions for counsel to invoke when the pace of litigation is just too unbearable.

Irwin Warren, committee cochair, and Jay Minga Weil, Gotshal & Manges LLP, New York, NY


March 18, 2015

Ethics & Professionalism Committee Co-Hosts JIOP Roundtable

Last month, the Section of Litigation’s Committees on Ethics & Professionalism and the Judicial Internship Opportunity Program (JIOP) hosted JIOP’s inaugural Roundtable: “Working for the Judiciary—From Interviews to Ethics.”

Panelists Amber Grand (former Northern District of Texas law clerk), Natalie Bennett (JIOP alum and former Federal Circuit and Eastern District of Texas law clerk), and Justice Ann A. Scott Timmer (Supreme Court of Arizona) offered their advice on putting your best foot forward when interviewing in judicial chambers, what hiring judges are actually looking for in a competitive applicant, and the impact of the Model Code of Judicial Conduct on court employees.

Program takeaways included:

  • Applications: Time to break out that ruler! Because law clerks perform most of the editing and cite-checking for their chambers, it is imperative that your written application materials are neat and free of unsightly formatting or clerical errors.
  • Interviews: Know your materials! Many applicants forget to review their writing sample, often written months prior to the application and interview. If the judge wants to talk substantively about a writing sample, you will miss out on a golden opportunity, because . . .
  • What Judges Want: Judges are looking for someone they get along with! For some, that means a substantive knowledge of certain practice areas. For most, that means finding the right personality fit. Be prepared to discuss recent and important decisions from your judge’s bench, but follow the judge’s lead on conversation topics and, above all, be yourself.
  • The Code of Judicial Conduct: Learn the code, and be ever vigilant to avoid the appearance of impropriety! What you do during your tenure as a judicial employee reflects on your judge and the bench. Accordingly, it is imperative that you learn court policies, avail yourself of administrative resources, and know your judge’s preferences regarding political activity. When in doubt, ask your judge prior to your involvement in extracurricular activities.

The Roundtable had an ABA-record 160 registrants, and this author is aware of at least one listener who used the panel’s advice to land a law clerk position in a federal district court. Given the roundtable’s success, we plan to host it again around the same time next year. To receive notifications, join the JIOP or the Ethics & Professionalism Committee in the Section of Litigation.

Will Knight, Aiken Schenk, Phoenix, AZ


March 11, 2015

DE Supreme Court Applies Fiduciary Exception to Privilege

On July 23, 2014, the Supreme Court of Delaware ruled that Wal-Mart, Inc. stockholders may invade the corporation’s attorney-client privilege to prove fiduciary breaches by those in control. In doing so, the Delaware Supreme Court formally recognized the fiduciary exception to the attorney-client privilege rooted in a 1970 federal appellate court decision. Given that many publicly traded corporations are incorporated in Delaware, this decision is likely to have a significant impact on the application of the corporate attorney-client privilege.

The case arose in the context of a books-and-records request under Title 8, Section 220 of the Delaware General Corporation Law (DGCL). Indiana Electrical Workers Pension Trust Fund (IBEW), a Wal-Mart stockholder, served a demand for inspection of broad categories of documents relating to reports that a Wal-Mart subsidiary, Wal-Mart de Mexico, S.A. de C.V. (WalMex), had made payments to Mexican officials in exchange for favors, such as zoning changes and rapid processing of licenses and permits, in violation of Mexican and U.S. laws.

To support the request, IBEW relied on DGCL Section 220, which allows stockholders to demand to inspect the books and records of a corporation to investigate possible breaches of fiduciary duty. Wal-Mart refused to turn over certain documents, claiming that they were protected by the attorney-client privilege.

Affirming the Chancery Court’s decision, the Supreme Court concluded that IBEW was entitled to documents responsive to the demand that otherwise may have been protected by the attorney-client privilege. In reaching its conclusion, the Delaware Supreme Court relied on an exception to the attorney-client privilege first recognized in 1970 by the U.S. Court of Appeals for the Fifth Circuit in Garner v. Wolfinbarger. There, the court of appeals held that stockholders of a corporation were permitted to invade the corporation’s attorney-client privilege “in order to prove fiduciary breaches by those in control of the corporation upon a showing of good cause.”

In Garner, the stockholders of First American Life Insurance Company of Alabama (FAL) sued FAL and various officers and directors, alleging both that they were damaged by fraud in the sale and were entitled to recover their purchase price, and also that FAL itself was damaged by the alleged fraud in the purchase and sale of securities. The plaintiffs sought certain documents and testimonial evidence through discovery to establish their claims, some of which the defendants refused to provide as protected by the attorney-client privilege. While recognizing that corporate management must have the tools and protections to allow it to manage, the Garner court reminded the parties that “management does not manage for itself,” rather, “the beneficiaries of its action are the stockholders.” Accordingly, the Garner court refused to allow the corporation to use the attorney-client privilege to shield certain information from stockholders in this context. It concluded,

The corporation is not barred from asserting [the attorney-client privilege] merely because those demanding information enjoy the status of stockholders. But where the corporation is in suit against its stockholders on charges of acting inimically to stockholder interests, protection of those interests as well as those of the corporation and of the public require that the availability of the privilege be subject to the right of the stockholders to show cause why it should not be invoked in the particular instance.

The Delaware Supreme Court not only adopted the Garner doctrine expressly for the first time in connection with IBEW’s demand of Wal-Mart and WalMex, but also ruled that this doctrine applies in the context of plenary stockholder/corporation proceedings, and specifically in section 220 actions. It cautioned, however, that a court must make the following two findings before applying Garner in the context of a section 220 action: first, whether the documents sought “necessary and essential” to the stockholders’ purpose under section 220, and second, whether the stockholders making the demand have demonstrated “good cause.” Only if the documents are deemed “necessary and essential” may the court then apply the Garner doctrine to determine whether the stockholders have demonstrated “good cause.” In making that determination, the court may consider several factors, including whether the plaintiffs have demonstrated a colorable claim and whether the information is available through other means. The Supreme Court affirmed the Chancery Court’s ruling that the plaintiffs clearly established a colorable claim based, in part, on Wal-Mart’s public statements, and that the plaintiffs could not prove their allegations without the privileged materials.

Hope A. Comisky and Jessica K. Davis, Pepper Hamilton LLP, Philadelphia, PA


March 11, 2015

A Note on the Celgard Decision

A court of appeals decision that issued in early December 2014 provides an important reminder to attorneys as to the scope of the analysis in which they need to engage, in deciding whether they can take on a new client or matter—and in assessing whether they will thereby face disqualification from representing clients whose interests will be deemed “directly adverse” under ABA Model Rule 1.7(a). Specifically, in Celgard, LLC v. LG Chem, Ltd., No. 2014-1675 (Fed. Cir. Dec. 10, 2014), a law firm was disqualified from handling an appeal, on the ground that its representation of a party to that appeal was directly adverse to the interests of another firm client, which was not a party to the underlying litigation at all, but which had intervened at the appellate level to seek such disqualification.

Celgard is a manufacturer of lithium battery components. In the underlying litigation, Celgard brought suit against LG Chem, seeking damages and injunctive relief on the ground that LG’s manufacture and sale of its own lithium batteries violated a Celgard patent. Celgard then moved for preliminary injunctive relief, including to preclude the continued sale of LG batteries to customers such as Apple, although those customers (including Apple) were not parties to the litigation. Celgard thereafter sent a copy of its injunction motion to Apple; and it requested the opportunity to find a mutually beneficial business arrangement to resolve the infringement issues. The district court granted the preliminary injunction but stayed that injunction until disposition of LG’s appeal.

Jones Day was not counsel for Celgard in the district-court proceedings leading up to the injunction order. However, after the order issued, Jones Day entered an appearance on behalf of Celgard to represent it in the district court and on the appeal. Apple then moved to intervene for purposes of seeking leave to disqualify Jones Day. Apple contended that disqualification was required because [i] the preliminary injunction covers custom batteries that LG provides for Apple products and [ii] Jones Day represents Apple in several ongoing, albeit unrelated, commercial litigation matters. Jones Day opposed the motion and argued that it had agreed that it would not even counsel Celgard on any matter adverse to Apple, including licensing negotiations.

The Federal Circuit granted the motion to disqualify. Under the applicable choice-of-law analysis, the circuit looked to North Carolina Rule of Professional Conduct 1.7(a), which governs concurrent conflicts of interest—and prohibits representation of a client where such representation “will be directly adverse to another client”. The circuit first concluded that under that rule (and comment 6 to same), Jones Day’s representation of Celgard was “’directly adverse’ to the interests and legal obligations of Apple, and not merely in an ‘economic sense.’” The court concluded that there was “a clear and direct conflict of interest” because “[a]dvocacy by counsel for [plaintiff in support of] . . . the injunction will adversely affect [customer]’s interest in being free of the bar of the injunction.” (citation omitted). The court rejected Jones Day’s argument that it was permitted to represent Celgard because such representation reflected only “the sort of unrelated representation of competing enterprises allowed under Rule 1.7(a).” In that regard, the circuit court observed that Apple faced the possibility of having to find a new supplier, as well as Celgard having the leverage of the injunction in negotiating a possible business relationship with Apple.

The circuit further held that “[t]his conclusion is not altered by the fact that Apple was not named as a defendant.” Rather, the court held, “it is the total context, and not whether a party is named in a lawsuit, that controls whether the adversity is sufficient to warrant disqualification.” Of particular significance to attorneys conducting conflicts checks before taking on clients, the court noted Jones Day’s argument that if Rule 1.7(a) were held to cover conflicting representations of any clients up or down the supply chain, then “lawyers and clients would have no reliable way of determining whether conflicts of interest exist in deciding whether to commence engagements”—but the court then side-stepped that contention. “That, however, is not our holding. Nor is it the facts of this case”—for in the case at hand, both Jones Day and Celgard “clearly knew the potential for conflict [with Apple] here yet elected to continue with the representation.”

Irwin Warren, committee cochair, Weil, Gotshal & Manges LLP, New York, NY


March 5, 2015

Philadelphia Bar Association Joins the Law Firm Officer Title Debate

The level of debate and disagreement whether law firms may or may not give titles to non-lawyer employees reached new heights when the Philadelphia Bar Association Professional Guidance Committee issued Opinion 2014-8 (January 2015). That opinion expressly disagreed with Texas Opinion 642 and adopted a more nuanced interpretation of Rule 5.4 that turns on the role performed by the non-lawyer rather than the non-lawyer’s title. The committee rejected the view that “any use of the word ‘officer’ or ‘director’ in the title of a non-lawyer employee of a law firm is improper” (emphasis added). Thus, it found that there would be nothing improper with the title “Chief Marketing Officer” or “Director of Legal Hiring.” In contrast, the opinion states that Rule 5.4 “would . . . prohibit a non-lawyer from serving as a corporate director or a corporate officer of a law firm, i.e., someone with management authority over the attorneys,” or using the title “principal.” In the latter regard, the Philadelphia opinion expressly agrees with Texas Opinion 642, but as to the former situations (e.g., a chief information officer or chief technology officer, etc.), Philadelphia expressly disagrees with Texas.  

Irwin Warren, committee cochair, Weil, Gotshal & Manges LLP, New York NY


July 17, 2014

District Court "STFU" Advice Draws Attention to Judicial Blogging

In the wake of the U.S. Supreme Court’s June 30, 2014, decision in Burwell v. Hobby Lobby Stores, Inc., Judge Richard Kopf of the U.S. District Court for the District of Nebraska posted an entry entitled “Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases.” Noting that the majority’s decision was rendered by “male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party,” Judge Kopf stated that, “to the average person,” the conclusion that a corporation was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate “looks stupid and smells worse.” Claiming that the decision looked “misogynistic” and “religiously motivated,” Judge Kopf suggested that given “that appearances matter to the public’s acceptance of the law,” “the Court is now causing more harm (division) to our democracy than good by deciding hot button cases that the Court has the power to avoid. As the kids say, it is time for the Court to stfu.” (Link in original).

The “STFU” comment, in particular, has drawn considerable attention in the mainstream press. It has also raised comments in the blogosphere about the proper scope of judicial blogging. While Judge Kopf’s blog, “Hercules and the Umpire,” does remain active, he has noted that in the wake of the controversy—and more particularly in response to a letter received from a Nebraska lawyer—his own blogging “will be light while I figure this out.”

John C. Martin, MartinSirott LLC, Chicago, IL


January 24, 2014

Sanctions for Sarcastic Tweeting During Disciplinary Proceeding

On November 15, 2012, the Kansas Supreme Court heard oral argument in a discipline matter involving former Kansas attorney general Phill Kline. Meanwhile, a research attorney in the Kansas Court of Appeals watched the proceedings from her work computer. According to the Kansas Supreme Court’s final hearing report, the attorney live-tweeted the hearing with numerous comments, including:

  • “Holy balls, There are literally 15 cops here for the Phil Kline [sic] case today. Thus I actually wore my badge.”
  • “You can watch that naughty naughty boy, Mr. Kilein [sic], live!...”
  • “Why is Phil Klein [sic] smiling? There is nothing to smile about douchebag [sic].”
  • “How do you get to re-categorize the grand jury’s request? A – They liked my pony.”
  • “I predict that he will be disbarred for a period of not less than 7 years.”

The court of appeals was contacted by the Associated Press regarding the tweets. A supervisor at the court of appeals then contacted the research attorney, who deleted the tweets by the time the supervisor came to her office.

In its final hearing report, the court concluded that the attorney violated Kansas Rule of Professional Conduct 8.4 (c), (d), and (e). KRPC 8.4(c) prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” The court concluded that by predicting a seven-year disbarment the attorney “misrepresented the law and facts” of the case.

KRPC 8.4(d) prohibits conduct that is “prejudicial to the administration of justice.” The court found that the attorney’s conduct raised issues about bias within the judicial system and made improper predictions about a pending case. Finally, the court found that the attorney’s prediction of a seven-year disbarment implied an ability to influence a government agency, which is forbidden by KRPC 8.4(e).

The attorney received an informal admonition and the matter is closed.

Keywords: litigation, ethics, professionalism, social media, discipline

Josh Camson, CamsonRigby, LLC, Washington, PA


January 24, 2014

Privileged Communications Pass to Surviving Corporation

In November 2013, the Delaware Court of Chancery ruled that absent an express carve-out, the attorney-client privilege protecting all pre-merger communications, including those related to the negotiation of the merger itself, passes to the surviving corporation by plain operation of section 259 of the Delaware General Corporation Law (DGCL).

After the plaintiff-buyer filed an action against the defendant-seller in September 2012—one full year after the merger—it notified the seller that it had discovered that the files it acquired in the merger contained communications between the seller and its then-legal counsel regarding the transaction that would have been protected by the attorney-client privilege. The seller asserted the privilege over those communications, arguing that it, and not the surviving corporation, retained control of the privilege over pre-merger communications about the negotiation of the merger agreement.

The court flatly rejected the seller’s argument, relying on the plain language of DGCL § 259. The pertinent language provides that following a merger, “all property, rights, privileges, powers, and franchises, and all and every other interest shall be thereafter as effectually the property of the surviving or resulting corporation.”

Moreover, the court ruled that the legislative history of the statute did not support the argument that the general assembly intended “privileges” to be limited to property rights, and not privileges established by rules of evidence. The statute, the court stated, uses the “broadest possible language to set a clear and unambiguous default rule: all privileges, including the attorney client privilege, of the constituent corporation pass to the surviving corporation in a merger.”

The seller relied on two cases to support its position. In the first, Tekni-Plex, Inc. v. Meyner & Landis, the New York Court of Appeals ruled that the privilege over attorney-client communications regarding general business operations of a Delaware corporation passed to the surviving corporation, but that pre-merger attorney-client communications regarding merger negotiations did not. In the second, Postorivo v. AG Paintball Holdings, Inc., the Delaware Court of Chancery followed Tekni-Plex and held that under New York law, an asset-purchase agreement was enforceable where the parties agreed that the seller retained the attorney-client privilege over communications relating to the negotiation of the transaction.

The court concluded that the seller’s reliance on Tekni-Plex and Postorivo was misplaced for several reasons. First, both cases applied New York substantive law; the decision in Tekni-Plex ultimately was based on an analysis of policy considerations related to the New York attorney-client privilege. As such, neither case considered or cited DGCL § 259. In addition, the court said Postorivo involved an asset purchase, not a merger, and the asset-purchase agreement expressly excluded certain assets, including the attorney-client privilege over pre-transaction communications.

The court acknowledged that its conclusion that all privileges pass to the surviving corporation may be limited to corporate mergers, and may not be applicable in other types of corporate transactions, such as asset-purchase agreements, where certain assets necessarily are excluded from the sale. But even in the merger context, the court said, parties can negotiate special contractual terms to prevent the transfer of particular privileges that otherwise would belong to the surviving corporation under the clear terms of DGCL § 259. For example, the parties could have excluded pre-merger attorney-client communications regarding the negotiation of the transaction from the assets to be transferred to the buyer, allowing the seller to retain the right to assert the privilege over those communications. Here, however, where the seller “did not carve out from the assets transferred to the surviving corporation any pre-merger attorney-client communications,” the court refused to unilaterally read such a carve-out into the merger agreement.

Keywords: litigation, ethics, professionalism, mergers, privilege

Hope A. Comisky, Jessica K. Davis, Pepper Hamilton LLP


December 27, 2012

Wisconsin Judicial Candidate Criticized over Political Comments

A leading lemon-law attorney in Wisconsin, Vince Megna, has made headlines in his bid
for a state supreme court judicial seat by announcing he is against a controversial voter ID law. Critics of Megna argue that he has run afoul of the state’s supreme court rules regarding the non-partisan conduct of judicial candidates by making what may be interpreted as “pledges” or “promises” in how he would rule as a judge.

In Wisconsin, the state’s voter ID law is widely expected to be headed to the state supreme court after one county’s judges overturned the law, drawing the response of the Wisconsin Department of Justice. Megna issued a statement expressing that he is “against voter ID cards [and] against repealing same day registration,” which he characterized as disenfranchising minority voters and being “probably unconstitutional.” He further stated that“[a]s a Supreme Court Justice, if a voter suppression case were to come before the court, I would vote against suppressing the vote.”

According to the Wisconsin state Supreme Court Rule 60.06, titled “A judge or judicial candidate shall refrain from inappropriate political activity,” judicial candidates “shall not make or permit . . . with respect to cases, controversies, or issues that are likely to come before the court,  pledges, promises or other commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.” (60.06(3)(b)). In the comment section, it is further emphasized that judicial candidates should emphasize in “any public statement the candidate’s duty to uphold the law regardless of his or her personal views,” rather than “make any public comment that may reasonably be viewed as committing [him or her] to a particular case outcome.” Reviewing Megna’s voter ID statements, a University of Wisconsin Law School professor emeritus and legal-ethics expert observed that it is a “fundamental principle that judges decide cases on the merit . . . I couldn't think of any judge who would take [Megna’s] position . . . Judges have the capacity and usually the will to determine their decisions based on the merit and not their opinions."

When challenged on his comments, Megna denied he had actually made commitments to any particular rulings, saying he would judge each case on its facts. He further wondered whether this judicial ethics code violated one’s right to free speech under the First Amendment by requiring “people to lie or withhold the truth” about what they personally believe. "I can treat voters with respect by being honest in outlining my ideology, and still interpret case law fairly and intelligently,” he says. “The two are not mutually exclusive constructs."

Elisa Wong, Atlanta, GA


November 26, 2012

Del. Supreme Court Criticizes Chancellor's Tangent on Preppy Fashion

The Delaware Supreme Court recently rebuked the chief judge of the Delaware Court of Chancery for an improper digression in an opinion, reports the New York Times. The court criticized an opinion related to a contractual dispute, but included an 11-page tangent about whether traditional fiduciary duties of loyalty and care apply by default to managers or members of a limited-liability company.

“The court’s excursus on this issue strayed beyond the proper purview and function of a judicial opinion,” the supreme court wrote, adding, “We remind Delaware judges that the obligation to write judicial opinions on the issues presented is not a license to use those opinions as a platform from which to propagate their individual world views on issues not presented.”

Citing the Delaware Judges’ Code of Judicial Conduct, the state supreme court asserted that, “[t]o the extent Delaware judges wish to stray beyond those issues [presented by the parties] and, without making any definitive pronouncements, ruminate on what the proper direction of Delaware law should be, there are appropriate platforms, such as law review articles, the classroom, continuing legal education presentations, and keynote speeches.”

Although such blatant criticism of lower court opinions are somewhat unusual, the criticism of the chief judge of the Delaware Court of Chancery is particularly noteworthy given the chancery court’s influential role in the nation’s corporate law.

“You rarely see this type of ruling because judges understand that a judicial opinion has a distinct and narrow function and is not supposed to be a platform for your public agenda or your broader views on the law,” said Stephen Gillers, a professor of legal and judicial ethics at New York School of Law.

John Easley, Atlanta, GA


November 13, 2012

Claims by In-House Lawyers and Disclosure of Client Confidences

In late October 2012, the D.C. Bar Legal Ethics Committee released a new opinion that discusses whether in-house lawyers are prohibited from disclosing their employers’ or clients’ secrets and confidences when suing them for retaliatory firing or discrimination. Under the D.C. Bar Rules of Professional Conduct Rule 1.6(b), a “confidence” is information protected by attorney-client privilege, while a “secret” is other information learned in the attorney-client relationship that the client requests be kept private, or the disclosure of which would embarrass or likely be detrimental to the client.

The committee found that under the D.C. professional conduct rules, an in-house lawyer may not disclose confidences about their client/employer when filing such a claim against it, but the in-house lawyer is allowed to disclose confidences should the client/employer put the lawyer’s conduct in issue, such as by counterclaiming or raising an affirmative defense. In addition, when responding to a retaliatory-firing or discrimination suit brought by an in-house lawyer, the client/employer might find it necessary to have to disclose its confidences or secrets in its defense. The committee concluded that knowing that the client/employer might be placed in such a position does not preclude an in-house lawyer from bringing the claim in the first place. The chief legal strategist of the Association of Corporate Counsel commented that these claims are “difficult to navigate, because you want to, as much as possible, safeguard [client] confidence . . . That’s the essence of a relationship.”

The American Bar Association Model Rules of Professional Conduct and the D.C. Rules of Professional Conduct diverge on this issue. The ABA MRPC Rule 1.6(a) states that a lawyer shall not reveal information relating to a client’s representation unless one of several exceptions described in 1.6(b) are met. One of the exceptions, 1.6(b)(5), allows lawyers to reveal client confidences to “establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client” [emphasis added]. Under D.C. Rules of Professional Conduct Rule 1.6(e)(3), D.C. Bar members may knowingly reveal client confidences or secrets only as a defense, but the offensive use of client secrets or confidences by D.C. Bar members is not authorized.

Elisa Wong, Atlanta, GA


November 13, 2012

Judge Allows Zimmerman Defense a Social-Media Presence

Judge Debra Nelson denied the prosecution’s second motion for a gag order against the defense in the George Zimmerman case at the end of October 2012. George Zimmerman is on trial for second-degree murder, after he shot and killed minor Trayvon Martin in February 2012. As a quick Google search will tell you, the media have honed in on the trial and created a cause célèbre; to combat this, Zimmerman’s legal team, led by Mark O’Mara, have developed an aggressive social-media strategy to ensure that Zimmerman’s version of events remains in the public eye. An initial motion for a gag order was rejected earlier in the case; however, the prosecution filed a motion for a new gag order upon consideration of the defense team setting up a website, a Twitter account, and a Facebook page (since deactivated) devoted to their defense of Zimmerman. In the prosecution’s brief to support the motion, the prosecution outlined why it felt the gag order was necessary: “Through these social media sites, Defense Counsel is able to control and filter commentary about the case, in effect bypassing the regular media (television and newspapers—printed and internet) and communicate the spin they want potential jurors to read about the case.”

Zimmerman’s defense team has made its argument both in filings and through an essay published on the website, detailing several goals in its social-media strategy, including discrediting fake profiles of Zimmerman, disputing misinformation, discouraging speculation, opening communication between the public and the defense team, and raising funds. Several media companies have supported the defense’s efforts against the gag order under First Amendment grounds, including the Orlando Sentinel, the Wall Street Journal, the New York Times, and CNN . Judge Nelson has agreed to allow the social-media postings to continue, stating in her order that, “[T]here has not been an overriding pattern of prejudicial commentary that will overcome reasonable efforts to select a fair and impartial jury.” Immediately preceding her ruling, the defense team released a call for scrutiny of their use of social media, calling for readers to email them any “link to [a] statement the defense has made publicly about the case that you think is inappropriate.”

Julia Zebley, Pittsburgh, PA


October 8, 2012

11th Cir.: No Ineffectiveness by Drunk Attorney During Trial

In September 2012,, the 11th U.S. Circuit Court of Appeals upheld the death sentence of Robert Wayne Holsey for the 1995 murder of a sheriff’s deputy, despite the fact that Holsey’s lead lawyer was drinking a quart of vodka every day of the trial. Holsey’s trial lawyer later testified that it was inappropriate for him to have been representing any clients. On appeal from Holsey’s habeasclaim under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Holsey’s new attorneys argued that had trial counsel provided him with competent representation, the jury might not have sentenced Holsey to death.

The ABA’s Model Rules for Professional Conduct state that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” (MRPC 1.1); and that “A lawyer shall act with reasonable diligence and promptness in representing a client” (MRPC 1.3). Holsey’s original trial attorney admitted that each day during the trial he would drink until he “couldn’t drink anymore” and that he “shouldn’t have been representing anybody in any case” and “was just barely getting by.” Shortly after Holsey’s trial, this attorney pled guilty to a theft-by-taking accusation from another of his clients and served time in prison himself (see MRPC 8.4(b) and (c)).

Holsey’s current lawyer argued that during the sentencing phase of the original trial, Holsey’s attorneys had failed to present the jury with enough mitigating evidence regarding his extremely abusive and troubled upbringing, as well evidence showing he might suffer from mental retardation and/or an antisocial personality disorder. The lawyer stated that Holsey’s trial attorney had “opted to anesthetize himself with vodka rather than prepare adequately to defend against the death penalty. The 11th Circuit majority appears similarly to have anesthetized its sense of justice.” In a 2–1 decision, the court of appeals ruled that even if Holsey’s trial lawyers hadn’t done their jobs competently, their performance hadn’t prejudiced the outcome of the trial. The court found that whether Holsey’s attorneys were ineffective was not the key issue. Rather, relying on Strickland and its progeny, the 11th Circuit’s decision turned on whether the attorneys’ representation of Holsey had prejudiced the trial outcome to the extent that there was a reasonable probability he wouldn’t have been sentenced to death.

The majority of the court found that even if Holsey’s original attorneys actually provided competent representation by presenting the jury with the cited mitigating evidence, such evidence would have been outweighed by a host of aggravating factors, including Holsey’s multiple prior aggravated-assault and armed-robbery convictions. The dissent argued that had the jury heard fuller details regarding how violent and abusive Holsey’s childhood upbringing had been, such as the fact that his home was known throughout the neighborhood as “the torture chamber,” there would be a substantial probability that at least one member of the jury would not have sentenced Holsey to death. The dissent found that accordingly, Holsey should have received a new sentencing hearing under the Sixth Amendment.

Elisa Wong, Atlanta, GA


October 8, 2012

IILP: Model Rules Should Make Diversity a Professional Obligation

Should the ABA add a new rule to the Model Rules of Professional Conduct that would require all attorneys to promote diversity and inclusion within the legal profession? The Institute for Inclusion in the Legal Profession (IILP) thinks so.

In a letter recently submitted to ABA president Laurel Bellows, the IILP and an Illinois state delegate to the American Bar Association House of Delegates argued that such a rule would help achieve the objectives laid out in the ABA’s nonbinding Goal III, which calls for the elimination of bias, and enhancement of diversity in the legal profession.

According to the IILP, studies show that the legal profession falls far behind other professions in diversity and in implementing programs that effectively expand diversity. The advocacy group argues that the ABA should make diversity a priority by including a professional obligation in the model rules.

Although the ABA model rules are merely non-binding recommendations, states’ rules of legal professionalism–which are binding–often mirror the ABA model rules. As a result, the IILP claims that the addition of a diversity rule to the ABA rules could produce a “ripple effect” throughout the states.

Some states have already adopted rules that make diversity and the elimination of bias a professional obligation for attorneys. Illinois, for example, includes diversity as a component of professional responsibility in its supreme-court rules. The state also counts CLE courses focused on diversity as part of its professional-responsibility-training requirement.

Although the ABA has not yet adopted a diversity rule, it has adopted a diversity plan. This diversity plan is intended to lead the ABA to achievement of Goal III—as it applies to the association itself—and thereby to ensure (a) full and equal participation in the association by all eligible persons and (b) the elimination of bias in the ABA.

The ABA diversity plan does not explicitly call for amending the Model Rules of Professional Conduct. The plan does, however, urge all ABA sections, divisions, forums, committees, commissions and other pertinent ABA entities to adopt entity-specific diversity plans— including the ABA Standing Committee on Ethics and Professional Responsibility, which has primary oversight of the model rules.

The IILP letter to the ABA asks the ABA Standing Committee on Ethics and Professional Responsibility to work with other entities to propose new language for the Model Rules that will be ready for consideration by the ABA House of Delegates in time for the ABA Midyear Meeting in 2014.

John Easley, Atlanta, GA


September 25, 2012

Eleventh Circuit Judge Files Concurrence Arguing for Brevity

Judge J.L. Edmondson declined to join his colleagues in their majority opinion upholding the conviction of a murderer, citing the majority’s 105-page opinion as unacceptable. Judge Edmonson declared that although he agreed with much of what the majority had to say, Judge Carnes’s writing was simply too drawn-out to be logically consistent:

In my experience, longish opinions always present a strong possibility of error lurking somewhere in the text. That the opinion writer is a skilled and careful judge does not eliminate the risk. Furthermore, no one wishes to join in an opinion that they do not understand fully. It is hard, time-consuming, painstaking work for the panel’s other judges to check long opinions, line by line, cited case by cited case. (Of course, always other cases are awaiting decision and also demand the judges’ time and attention.) Moreover, long opinions, even if correct in every detail, generally make it harder for readers to separate a holding from dicta (or less than dicta: words only of explication and nothing more).

Edmondson cited concerns of loss of transparency to the public as well as other judges lifting “the oddest bits” out of lengthy opinions to make their cases. Edmondson’s critique of wordy opinions was a page-and-a-half and two paragraphs, while his concurrence with upholding the conviction was an additional page-and-a-half and two paragraphs. To bolster his argument, he quoted the venerable writer Mark Twain as related doctrine: “If you want me to give you a two-hour presentation, I am ready today. If you want only a five-minute speech, it will take me two weeks to prepare.”

In semi-related ethical quandaries, the case concerned whether the conviction Robert Wayne Holsey should stand. Holsey was convicted of the murder of Deputy Sheriff Will Robinson and sentenced to death in 1997. On appeal, he suggested that he had ineffective counsel that did not present all possible mitigating factors at his sentencing hearing. Part of his ineffective-counsel argument, amplified by Judge Barkett’s dissent, was his lead defense lawyer’s alcoholism:

Rather than conduct an investigation that could lead to the discovery and presentation of the important mitigating evidence delineated below, Holsey's lead defense lawyer drank a quart of vodka every night of Holsey's trial while also preparing to be sued, criminally prosecuted, and disbarred for stealing client funds. He admitted during collateral proceedings that, at the time he was preparing for Holsey's capital murder trial, he “probably shouldn't have been allowed to represent anybody” due to his condition.

Due to this and what Barkett believes are Georgia’s unconstitutional requirements for proving mental retardation, Barkett would have ordered a new sentencing hearing.

Julia Zebley, Pittsburgh, PA


September 3, 2012

Federal Court Limits Application of State Bar Association's Ethics Rule

In July 2012, the 6th Circuit U.S. Court of Appeals ruled that a state bar association violated the First Amendment rights of a lawyer when it threatened to discipline him after he issued public criticism against ethics officials of the state’s Legislative Ethics Commission. The lawyer had written a letter expressing displeasure with the commission’s handling of a certain case and accused it of dereliction of duty. One of the commissioners, a former state judge, responded by filing a complaint against the lawyer with the state bar association, which issued a warning letter to the lawyer that he had violated the state’s Rule of Professional Conduct 8.2(a) and that he should not engage in similar conduct again. Rule 8.2(a) states that, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . .”

The lawyer attempted state remedies before bringing the First Amendment challenge to federal court. The court decided that the lawyer, like any other citizen, possessed the right to criticize how the commission handled cases. The court found that because the state bar association’s letter implied that the lawyer would be issued disciplinary action should he make similar comments in the future, the letter effectively stopped future criticisms, despite the lawyer’s criticisms being fact-based. “Although [the lawyer] was not disciplined for his circulation of the [letter criticizing the commission], the [bar association’s] warning letter implied a threat of future enforcement that elevated the injury from subjective chill to actual injury," the court found.                

"The right of every citizen, including attorneys, to publicly express opinions about the performance of public agencies and officials is a constitutional right that is vital to the success of our democracy," the lawyer said.

The court noted that balancing a lawyer’s right to free political speech and a state’s right to handle lawyer conduct is “delicate” and that “[s]ometimes, however, the balance is upset and the state applies its rules in a way that impinges upon the free interchange of ideas that is vital to self-government . . . This warning alone more than subjectively chilled [lawyer’s] speech . . . It is evident that the [state bar association] acted unconstitutionally."

The state bar association’s president said that this incident was the first time Rule 8.2(a) has had judicial review and that the state bar association will follow the guidelines of the federal court’s decision in how it applies the rule in the future.

Elisa Wong, Atlanta, GA


September 3, 2012

Federal Court Limits Application of State Bar Association's Ethics Rule

In July 2012, the 6th Circuit U.S. Court of Appeals ruled that a state bar association violated the First Amendment rights of a lawyer when it threatened to discipline him after he issued public criticism against ethics officials of the state’s Legislative Ethics Commission. The lawyer had written a letter expressing displeasure with the commission’s handling of a certain case and accused it of dereliction of duty. One of the commissioners, a former state judge, responded by filing a complaint against the lawyer with the state bar association, which issued a warning letter to the lawyer that he had violated the state’s Rule of Professional Conduct 8.2(a) and that he should not engage in similar conduct again. Rule 8.2(a) states that, “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . .”

The lawyer attempted state remedies before bringing the First Amendment challenge to federal court. The court decided that the lawyer, like any other citizen, possessed the right to criticize how the commission handled cases. The court found that because the state bar association’s letter implied that the lawyer would be issued disciplinary action should he make similar comments in the future, the letter effectively stopped future criticisms, despite the lawyer’s criticisms being fact-based. “Although [the lawyer] was not disciplined for his circulation of the [letter criticizing the commission], the [bar association’s] warning letter implied a threat of future enforcement that elevated the injury from subjective chill to actual injury," the court found.                

"The right of every citizen, including attorneys, to publicly express opinions about the performance of public agencies and officials is a constitutional right that is vital to the success of our democracy," the lawyer said.

The court noted that balancing a lawyer’s right to free political speech and a state’s right to handle lawyer conduct is “delicate” and that “[s]ometimes, however, the balance is upset and the state applies its rules in a way that impinges upon the free interchange of ideas that is vital to self-government . . . This warning alone more than subjectively chilled [lawyer’s] speech . . . It is evident that the [state bar association] acted unconstitutionally."

The state bar association’s president said that this incident was the first time Rule 8.2(a) has had judicial review and that the state bar association will follow the guidelines of the federal court’s decision in how it applies the rule in the future.

Elisa Wong, Atlanta, GA


August 16, 2012

ABA Amends Rule Governing Client Disclosure

The American Bar Association (ABA) House of Delegates approved a new ethical guideline, allowing lawyers switching firms to disclose client information to their new firm. The amendment to the Model Rules of Professional Conduct were enacted to aid transferring lawyers in determining representation conflicts before they officially accept new employment. The new amendments to Rule 1.6 would allow disclosre “only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.” The rule was partly crafted in reaction to firms scouting for new hires, rejecting the hires, and then using the abundance of information they disclosed to steal clients.

Julia Zebley, Pittsburgh, PA


August 16, 2012

ABA Addresses Law Firm Ownership, Ethics Issues at Annual Meeting

The ABA "postponed indefinitely" a decision on Resolution 10A, which would have reaffirmed that nonlawyers cannot own a major financial stake in law firms. Although the original policy was not reaffirmed, it was also not rescinded. The ABA considered proposals earlier this year to create an official policy allowing nonlawyer ownership, but dropped the idea in the spring. Washington, D.C. is one of the few U.S. jurisdictions with permissive ownership rules for law firms, although several foreign jurisdictions including the United Kingdom and Australia allow non-legal financial stakes. The issue was analyzed in a pop culture editorial about the realism of the television show Angel, where a non-attorney (and vampire) is hired as the CEO of a major law firm in California.

Other notable ethics developments occurred at the annual meeting. Several rules were amended to guide lawyers in using technology, particularly in keeping confidentiality, creating a safeguard for attorneys whose client information is accessed without their authorization. The House of Delegates also voted to not accredit foreign law schools.

Julia Zebley, Pittsburgh, PA


August 1, 2012

Former Jailed Mayor Fit to Resume Practice of Law

Joseph Ganim, the former mayor of Bridgeport, Connecticut, was sentenced to nine years in federal prison for charges of corruption and bribery. Nonetheless, according to the Hartford Courant, "the state's Standing Committee found that Ganim is fit to practice law and recommended that he be readmitted to the bar after he completes his court-ordered supervised release next July." A three-judge hearing panel of the Superior Court must still affirm the decision, but no hearing date is set yet.

Patricia King, acting chief disciplinary counsel for the state, disagrees with the decision. King tells the Hartford Courant that a reinstatement would not give citizens confidence in the judicial system. Moreover, King argues that "the record doesn't reflect that Mr. Ganim understands the wrongdoing he did and is sorry. This was a betrayal of the citizens of Bridgeport and he has never said anything about being sorry."

Josh Camson, Pittsburgh, PA


July 16, 2012

Alabama Disciplinary Commission: No Groupons for Lawyers

Siding with the minority of jurisdictions, Alabama's State Disiplinary Commission recently opined that Groupon and similar  deal-of-the-day sites are off-limits for attorneys. In its opinion, the commission said that the percentage fee that Groupon takes on every transaction amounts to fee-splitting with non-attorneys. The commission was also concerned about whether the fees can be properly accounted in an IOLTA account when Groupon takes 50 percent of the fee right away. Finally, the commission expressed concern about attorneys' abilities to conflict-check potential clients when using a deal-of-the-day website.

Josh Camson, Pittsburgh, PA


April 23, 2012

D.C. Circuit Affirms SEC's Sanction of Lawyer for Ethics Violations

In December 2011, the U.S. Court of Appeals for the D.C. Circuit denied a New York commercial litigator’s attempt to overturn the lifetime ban issued to him by the Securities and Exchange Commission (SEC) because of his ethical violations.

In 2008, the SEC found that the litigator broke several ethical rules of the New York Lawyer’s Code of Professional Responsibility, including attempting to extort money from one of his own clients. In its opinion, the D.C. Circuit panel described these violations as “egregious, recurrent” and indicative that the litigator was highly aware of his actions. The SEC issued the ban based on these ethical breaches, marking the first time a lawyer has been received a lifetime ban for conduct violations.

No federal prosecution has charged the litigator with a crime, and no New York state ethics charges have been brought against him. Additionally, the litigator is still able to appear before the courts and to practice in New York. The litigator can simply no longer appear in administrative proceedings before the SEC, which he argues has severely harmed his professional reputation.

The litigator brought suit arguing that the SEC had overreached its bounds and had no actual authority to implement lifetime bans on the basis of violations of state disciplinary rules. The D.C. Circuit’s three judge panel rejected the litigator’s argument, noting that "[the SEC] was entitled to rely on [his] knowledge of and duty to conform to the New York Bar disciplinary rules.” The panel’s opinion stated that should the SEC find a lawyer “to be lacking in character or integrity, or to have engaged in unethical or improper professional conduct,” it has the power to permanently deny the lawyer from appearing before it. The panel noted that the SEC has actually already brought administrative proceedings against an attorney for ethics violations, in 1988.

"The [court’s] opinion ensures that when an attorney's unethical conduct threatens the integrity of the SEC's processes, the agency has the power to respond," said an SEC spokesman.

A former SEC lawyer says the situation raises questions regarding the tension between preserving attorney-client privilege and enforcing actions against ethical misconduct. The litigator’s alleged ethical violations were discovered through taped phone conversations. The former SEC lawyer says that this “certainly serves as a warning to counsel that all discussions between a lawyer and other parties are potentially discoverable.”

The litigator has stated that he will request a rehearing of the panel’s decision, and appeal to the U.S. Supreme Court if the rehearing fails. The SEC’s lifetime ban for ethical violations, and the circuit court’s upholding of the ban, represents “a major expansion of the authority to discipline lawyers in an area where [the SEC] does not have experience,” he argued.

Elisa Wong, Atlanta, GA


April 13, 2012

Ohio's Board on Grievances & Discipline Sets New Record

A recently released annual report from the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline announces that a record 126 new cases and other matters were filed with or referred to the board in 2011.

The 28-member board of commissioners conducts hearings, preserves the record, and makes findings and recommendations to the Supreme Court of Ohio in disciplinary cases involving ethical-misconduct charges against attorneys and judges in the state. The board also hears cases concerning the mental illness of any judge or attorney and hears petitions for reinstatement to the practice of law filed by suspended attorneys.

According to the report, “[t]here were 115 formal complaints certified to the board, two of which involved allegations of judicial misconduct and judicial campaign conduct complaints, for a total of 117 new cases presented to the board.”

“In addition, the Supreme Court directed the board to review seven petitions from lawyers who were seeking reinstatement to the practice of law following indefinite suspensions, and the board received two petitions from lawyers seeking reinstatement following mental illness suspensions.”

The board also finalized amendments governing reinstatements to the practice of law and prepared new amendments to alter the default-judgment process.

John Easley, Atlanta, GA


March 22, 2012

Federal Judge Files Complaint Against Himself

The chief judge of the Montana District Court, Richard Cebull, recently initiated a disciplinary investigation against himself after it became public that he sent what he admits were racist emails about President Obama to friends and family from his court email account.

“By letter to Chief Judge Alex Kozinski of the Ninth Circuit, Judge Cebull has initiated the process by which a complaint of judicial misconduct will be brought against him. Chief Judge Kozinski has informed the Judicial Council of the Ninth Circuit of the complaint. The Judicial Council is expected to act expeditiously in investigating and resolving this matter,” said Cathy Catterson, circuit executive for the U.S. Court of Appeals for the Ninth Circuit, in a prepared statement.

By filing the complaint against himself on March 1, 2012, the chief judge seems to have won a filing race against Common Cause, a self described non-partisan, cross-ideology advocacy group dedicated to openness, accountability, and ethics in government. Earlier that day Common Cause spokeswoman Mary Boyle said that her organization planned to file a complaint with the Ninth Circuit.

The Great Falls Tribune first reported on the email in question on Feb. 29. In Judge Cebull’s subsequent apology, published in both the Tribune and the Billings Gazette, the chief judge acknowledged that the email was racist but insisting that he personally is not. Rather, he said that he forwarded the email because it was “anti-Obama.”

“There's no doubt it’s racist,” Judge Cebull told the Billings Gazette. “It wasn't forwarded for that purpose. If anything, it was political.”

As a result of the email and resulting investigation, Judge Cebull faces potential disciplinary action ranging from a public reprimand to impeachment. Additionally, the council could dismiss the complaint entirely or decline to recommend disciplinary action, opting instead for admonishment or a public apology.

“Once it gets to the judicial council, it has authority that really runs the gamut,” said Dick Carelli, spokesman for the Administrative Office of the U.S. Courts.

The key issue for the investigation will be determining if Judge Cebull violated the federal Codes of Conduct for United States Judges by sending the email.

In calling for Judge Cebull’s resignation, Common Cause identified potential violations of Canon 2 and Canon 5.

The first of these canons broadly mandates that a judge should avoid impropriety and the appearance of impropriety in all activities. Specifically, Canon 2(B) states that a judge “should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment,” and 2(C) asserts that a judge “should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” The official comment to Canon 2(C) also goes on to say, “public manifestation by a judge of the judge’s knowing approval of invidious discrimination on any basis gives the appearance of impropriety under Canon 2 and diminishes public confidence in the integrity and impartiality of the judiciary, in violation of Canon 2A.”

Canon 5 says that “a judge should refrain from political activity,” which includes publicly endorsing or opposing a candidate for public office.

John Easley, Atlanta, GA


March 14, 2012

Prosecutorial Accountability and the Brady Rule

In February 2012, a Texas state court judge made the rare decision to recommend that the Texas Supreme Court convene a special court of inquiry regarding the conduct of a lawyer who prosecuted a spousal murder over two decades ago. In late 2011, DNA evidence exonerated a Texas man wrongfully convicted of murdering his wife. During their investigation, his current lawyers say they discovered evidence that the original trial’s prosecutor violated Brady disclosure rules by failing to produce exculpatory police reports in their client’s case. In a move described by a prosecutorial-misconduct expert as “an extraordinary legal event,” the man’s lawyers requested that the court investigate the original prosecutor, who is now a state judge. The investigation concerns whether the prosecutor overstepped ethical obligations and if so, should he himself be held subject to both professional discipline and criminal charges for withholding evidence. The Texas Supreme Court chief justice acted on the recommendation and has appointed a state district judge to head the court of inquiry.

The wrongfully convicted man’s lawyers had succeeded in unsealing records that revealed the original prosecutor had neglected to provide a wealth of available evidence to the trial court, including police reports, transcripts, and credit-card receipts that seemed to shift culpability from the defendant to a convicted felon living close to the crime scene. Often referred to as “the Brady rule,” the U.S. Supreme Court in Brady v. Maryland decided that in criminal cases a prosecutor must disclose any material exculpatory evidence to the defense; the withholding of such evidence was deemed to be a violation of the defendant’s due-process rights under the Fourteenth Amendment.

Some prosecutor’s officers, such as the New York County District Attorney’s Office, do encourage court audits regarding their Brady compliance, and have an open records policy—albeit a limited one—that allows a defendant accused of particular low-level crimes to have copies of his or her case file’s records. However, in most cases it is difficult to discover a prosecutor’s failure to comply with the Brady rule, and sanctions—either criminal or issued from bar associations—for such prosecutorial misconduct are extremely rare. As for civil suits, the Supreme Court in 2011’s Connick v. Thompson rendered prosecutor’s offices almost absolutely immune to civil actions brought against them for alleged misconduct.

Elisa Wong, Atlanta, GA


February 7, 2012

Need an Ethics Opinion? There's an App for That

The New York State Bar Association (NYSBA) announced its launch of the “Mobile Ethics App,” last month, which allows lawyers, judges and law students instant access from their mobile devices to opinions issued from the bar association’s Professional Ethics Committee. Described as bringing “legal ethics into the 21st century,” the app is searchable by opinion number, keyword, or category, and displays both summaries of the opinions or links to its full text in search results.

Over 900 legal ethics opinions dating from 1964 are included. Mobile Ethics App is free of charge, may be downloaded by everyone, and after the initial download, may be used whether or not there is an Internet connection. The app is also accessible at www.nysba.org/ethicsapp.

Elisa Wong, Atlanta, GA


February 7, 2012

IBM GC Speaks Out Against Expanding Firm Ownership Rights

The idea of allowing nonlawyers to take ownership interests in law firms seems to be gaining momentum throughout the world, as well as here in the United States. Washington D.C. has allowed nonlawyer ownership of law firms for more than two decades, and countries such as the United Kingdom and Australia have even gone a step further and allowed outside investment in law firms.

The idea of expanding firm ownership rights is gaining so much traction that the American Bar Association’s Commission on Ethics 20/20 recently released a discussion paper that proposed allowing nonlawyer professionals, like architects, engineers, and social workers, to gain a minority equity stake in law firms where they work. However, not all lawyers are on board with the idea. IBM General Counsel, Robert Weber, went so far as to call it “frightening.”

In a recent interview with Corporate Counsel senior reporter Sue Reisinger, Weber explained that his key concerns with expanding firm ownership center on the idea that such an expansion would favor lawyers at the detriment of clients.

“Only the most naïve will think that limited ownership is where it will stop,” said Weber. “As nonlawyers and investors and financiers begin owning law firms, that direct relationship, that agency-fiduciary relationship between lawyer and client, is going to become muddled.”

Weber said that he understands why lawyers like the idea of expanding ownership and allowing outside investment as a way to provide additional options for firms to raise capital. However, he says these measures are unnecessary and the idea behind them is flawed.

“[P]artners can contribute working capital, or they can borrow—and those rates are pretty low. If they bring in outside investors, the investors are going to want more of a return than you pay on borrowing. So the business model doesn’t work. To say this is a client-friendly, cost-lowering business model is contrary to economic reality.”

Weber concluded the interview by saying, “[i]t is surprising to see these kind of lawyer-centric financial reforms. Pretty soon we get to the point of losing fundamental protections for clients. And that’s the point where I say, then let’s get rid of one other thing—self-regulation. If you want to put into action the investment banker envy, and water down the protection for clients, then take the whole cake and agree to be regulated like everybody else.”

If you agree or disagree with Weber and would like to share your views on alternative law practice structures, you can do so by emailing the Ethics 20/20 Commission’s senior research paralegal, Natalia Vera. The commission encouraged responses by late January 2012, so that they could be discussed at the commission’s February 2–3, 2012, meeting. Those requiring additional time to submit comments have until February 29, 2012. Comments received may be posted to the commission’s website.

John Easley, Atlanta, GA


February 7, 2012

Chief Justice Roberts Defends Supreme Court Ethics

Chief Justice John Roberts Jr. recently issued his 2011 Year-End Report on the Federal Judiciary, his seventh since he was appointed in September 2005. In an unusual step, Roberts dedicated the entire 12-page report to a discussion on judicial ethics, particularly the ethical standards for Supreme Court justices.

Although his judicial responsibilities precluded him from specifically commenting on any ongoing debates, Roberts did note that observers have suggested that the Supreme Court should adopt the Judicial Code of Conduct, or some other written list of ethical principles, to regulate recusal of justices. These proposals were most recently spurred by Justices Elena Kagan and Clarence Thomas’s failure to recuse themselves from the upcoming cases challenging the constitutionality of the Affordable Care Act.

In a chronological review of judicial ethics, Roberts begins by pointing out that “for the first 130 years of the Nation’s existence, federal judges had no formal source for guidance on the broad array of ethical issues that might arise in the course of judicial service.” It was not until the early 1920s when the ABA finally called the first Commission on Judicial Ethics, which was necessitated by the selection of Judge Kennesaw Mountain Landis, a sitting federal district judge, to serve as the first commissioner of baseball in the wake of the 1919 World Series “Black Sox Scandal.” Since that time, the Judicial Conference of the United States has regularly adopted and updated its Code of Judicial Conduct for lower federal courts.

Roberts then explains that by its express terms, the code of conduct applies only to lower federal courts due to the fact that Article III of the Constitution creates “one Supreme Court” but allows Congress to create inferior courts as it sees fit. Despite this fact, Roberts explains that all Supreme Court justices consult the code as a starting point and key source of guidance when evaluating their ethical obligations. However, Roberts also asserts that because the code was developed for the benefit of lower courts, it does not adequately answer some of the ethical considerations unique to the Supreme Court. For this reason, justices may consult judicial opinions, treatises, scholarly articles, disciplinary decisions, and advice from the Court’s Legal Office, the Judicial Conference’s Committee on Codes of Conduct, and their colleagues. This is why, says Roberts, the Supreme Court has no reason to adopt the Code of Conduct as its definitive source of ethical guidance.

In addition to addressing the justices’ use of the Code of Conduct, Roberts also explains that member of the Court comply with provisions passed by Congress that direct justices and judges to conform to both financial-reporting requirements and limitations on the receipt of gifts and outside earned income, even though the Court has never addressed whether Congress may impose such mandates on the Supreme Court.

Roberts states that justices also follow the same general principles for recusal as other federal judges. Though Congress’s power to require recusal has never been tested, each justice, like other federal judges, determines whether recusal is warranted under the standards set by 28 USC § 455. Unlike other federal courts, however, there is no higher court to review a Supreme Court justice’s decision not to recuse himself or herself. While some may argue that other justices should review decisions not to recuse, Roberts argues that the power would create an “undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.” Roberts also points to the fact that unlike lower courts, justices must consider the fact that they cannot be replaced if they recuse themselves, and the Court would have to sit without its full membership. Thus, “each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”

John Easley, Atlanta, GA


February 7, 2012

Pennsylvania Addresses Errant Emails and Client Disclosure

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility has released an opinion stating that a lawyer who is accidentally copied on an email between opposing counsel and his or her client is required to notify the sender and consult with his or her own client to decide whether the mistakenly sent information should be used and how. The opinion’s topic is echoed in an incident from late 2010 in which engineers for a California design firm left to start their own company and conferred with their attorney through email. However, email auto-complete software inserted the old design firm email address for one of the former engineers, resulting in the design firm’s email monitoring system routing the privileged messages and a draft declaration to its legal department. The design firm’s lawyers inadvertently revealed they had intercepted the former employees’ information when they filed a counterclaim referencing information they could have only known if they had read the emails. In response, a district judge ordered the design firm to replace their lawyers with new counsel, as well as pay $40,000 in fees and costs.

Elisa Wong, Atlanta, GA


January 5, 2012

ABA Proposes Amendments to Rules on Judicial Disqualification

The ABA Standing Committee on Ethics and Professionalism and the Standing Committee on Professional Responsibility have co-authored proposed amendments to the Model Code of Judicial Conduct Regarding Judicial Disqualifications. The proposed amendments are a result of ABA Resolution 107, which directed the committees to “proceed on an expedited basis” to consider possible changes to the rules.

The proposed changes deal mostly with new advisory comments. If adopted, the amendments would add seven new comments to Rule 2.11. The new comments explain that a campaign contribution by itself does not warrant automatic disqualification. Instead, judges should evaluate amended comments 7–10 for further guidance on what mandates disqualification. Under the proposed changes, the monetary amount of a contribution is not as important as how large a role that contribution played in a judge’s campaign. In other words, a $500 donation should rightfully be less of an issue where a judge raises five million dollars, versus a campaign where the judge only raises five thousand dollars.

The new comments also direct judges to examine the timeliness of the contribution. Something that happened many years ago is less likely to affect the judge’s disqualification than a recent contribution. The comments also point out that financial contributions alone are not the only potential grounds for disqualification. Any “substantial support” could create a conflict and lead to disqualification. Substantial support “includes such assistance that a reasonable person would believe is intended to influence the election or defeat of a particular judicial candidate, such as fund-raising, letter-writing, emailing, assisting in telephone banks, managing (including directing or supporting the management of) a campaign, endorsing a judge’s candidacy, getting-out-the-vote efforts, and other advocacy services.”

The committees also propose a new Rule 5.1A: Responsibility of Partners, Managers, and Supervisory Lawyers Regarding Contributions to Judicial Campaigns. The proposed rule requires managing partners to keep a database of all the political contributions attorneys from the firm make to judges’ campaigns. The partners must then report the aggregate total from the firm to a state agency if it exists. Alternatively, if no such agency exists, when a lawyer appears in front of a judge, that lawyer must inform the judge of the aggregate amount the law firm gave to the judge’s most recent election campaign.

Josh Camson, Pittsburgh, PA


January 5, 2012

Schools Can Enforce Professional Ethics

The Eleventh Circuit Court of Appeals recently upheld a ruling that colleges and universities can require graduate counseling students to keep their biblical views that homosexuality is morally wrong to themselves.

“When someone voluntarily chooses to enter a profession, he or she must comply with its rules and ethical requirements. Lawyers must present legal arguments on behalf of their clients, notwithstanding their personal views. Judges must apply the law, even when they disagree with it. So too counselors must refrain from imposing their moral and religious values on their clients,” wrote Judge Rosemary Barkett in the court’s opinion.

The student, Jennifer Keeton, filed a lawsuit against her school claiming that she was being punished for her Christian views. Keeton, a devout Christian who claims to be “committed to the truth of the Bible,” began to have trouble with the school when she “voiced disagreement in several class discussions and in written assignments with the gay and lesbian ‘lifestyle.’” Keeton stated in one paper that she believes “gay, lesbian, bisexual, transgender, and queer/questioning (GLBTQ) lifestyles to be identity confusion.” She also “relayed her interest in conversion therapy for GLBTQ populations, and she . . . tried to convince other students to support and believe her views.”

In response to Keeton’s actions, the school became concerned that Keeton would practice counseling in middle and high schools as part of her clinical practicum through the school and could possibly harm the students at those schools with her views. The faculty became increasingly worried after she wrote in a paper that it would be difficult for her to work with gay people.

Keeton’s comments ultimately led the school to tell her that her language violated the American Counseling Association (ACA) Code of Ethics. She was then put on probation and warned that she could be expelled. The school later asked Keeton to agree to a remediation plan that would require her to attend sensitivity training, read counseling journals, and interact with gay people. However, Keeton refused the plan and instead sued school officials for violating her First Amendment free speech rights in three ways: by discriminating against her viewpoint; by retaliating against her for exercising her First Amendment rights; and finally by compelling her to express beliefs with which she disagrees.

On Keeton’s first claim, the court held that the school did not discriminate against Keeton’s viewpoint because it was a nonpublic forum that “may impose restrictions on speech that are reasonable and viewpoint neutral.” The court found the school’s restrictions met these requirements because the school held all students to “the ACA’s fundamental principles, including that counselors must support their client’s welfare.” As such, the court said that neither the school’s curriculum nor the ACA ethical rules are designed to suppress viewpoints, but instead apply to all regardless of their particular viewpoint.

The court then asserted that the school officials imposed the remediation plan because Keeton was unwilling to comply with the ACA Code of Ethics, not in retaliation for Keeton’s expressed personal religious views regarding homosexuality. According to the court, the fact that “this unwillingness to abide by [school’s] curriculum and her chosen profession’s ethical standards initially became apparent through her writings and class discussions does not cloak it in First Amendment protection.”

The court further stated that that the school did not attempt to compel Keeton to express beliefs contrary to her own personal beliefs. Rather, it tried to compel her to comply with the ACA Code of Ethics, “which requires those who wish to be counselors to separate their personal beliefs from their work.” Since Keeton voluntarily enrolled in the program, she does not have a constitutional right to refuse to comply with those conditions.

John Easley, Atlanta, GA


January 5, 2012

Tax Evasion and Wronged Secretaries in Maine

The Maine Supreme Judicial Court ruled in December that the executive committee of a Portland law office had violated its professional responsibilities as supervisory lawyers when it failed to make reasonable efforts to implement ethical policies among the firm’s lawyers. Only after an independent audit occurred and a whistleblowing secretary threatened a wrongful-discharge suit did the firm fire a lawyer who had stolen thousands of dollars from both the firm and its clients. The attorney pleaded guilty to tax evasion and theft. He was sentenced to federal prison and disbarred for life.

But did the executive committee also commit an ethics violation when it decided to continue to let him work at the firm for months after the initial word of his theft?

A Maine Supreme Judicial Court judge presided over the initial disciplinary hearing and ruled that the firm’s partners had not violated any ethical rules in the course of their conduct regarding the lawyer. In response, the bar board appealed to the Supreme Judicial Court. In a 3–1 decision (not including the judge from the initial disciplinary hearing), the court ruled that while the firm did not violate ethical rules when it failed to report the lawyer at an earlier time, it had violated its responsibility to implement practices and policies that require partners to “contemplate” reporting errant lawyers

Rule 5.1(a) of the 2011 American Bar Association Model Rules requires that firm partners and other supervisory lawyers shall “make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers conform to the Rules of Professional Conduct.” The majority opinion noted that the errant lawyer had been allowed to continue working at the firm for months after the initial discovery of theft, during which the firm did not enact any policies to ensure his adherence to professional ethics. The managing partner who heard the lawyer’s tearful July confession hadn’t informed the head of the lawyer’s department—as required—until October, saying he feared the lawyer was suicidal and wanted to wait to report the matter until the lawyer was in a more stable mental state. The managing partner has since stepped down.

Elisa Wong, Atlanta, GA


December 28, 2011

Judge Retires Amidst Ethics Charges

A Georgia Superior Court chief judge announced her retirement this week as part of a consent order that concluded a lengthy ethics investigation by the state’s judicial disciplinary agency, the Judicial Qualifications Commission (JQC).

Though the consent agreement, which prevents the judge from ever holding any judicial office in the future, ended the ethics investigation, it still leaves open the possibility that the judge could face criminal charges. However, Stephen B. Bright, president and senior council of the Southern Center for Human Rights, said that the judge likely cannot be prosecuted because she has judicial immunity.

Prior to the announced retirement, the JQC enlisted former Georgia attorney general Michael J. Bowers and former Georgia Supreme Court chief justice Leah Ward Sears to jointly prosecute the judge on ethics charges, which accused her of “willful misconduct in office” and demonstrating “a tyrannical partiality.”

According to the ethics charges, the judge allegedly made repeated false statements to members of the JQC during its investigation and violated her oath of office. Additionally, the judge was accused of potential federal civil-rights violations that included jailing or holding drug-court defendants indefinitely while preventing them from contacting attorneys, family, and friends. The charges also accused the judge of allowing members of her family and her son’s partner to litigate cases in front of her and of demonstrating marked favoritism towards them and their clients, issuing ex parte orders, holding ex parte hearings in chambers without a court reporter present, improperly jailing people who appeared before her, demonstrating bias against defendants, and using “rude, abusive and insulting language” in court.

One of the more egregious charges against the judge accuses her of using her judicial authority to do improper favors in violation of state judicial ethics cannons for lawyers that she knew personally. In one instance of this, the judge allegedly gave favorable treatment to the nephew of an attorney who had “been there [for her] for years and years and years. . . .” Specifically, the judge dead-docketed a felony indictment against the nephew that charged him with beating his minor sons in a drunken rage. The judge then allowed the nephew to enroll in her drug-court program, even though defendants accused of violent crimes are not eligible for drug court. The judge then went on to preside over the nephew’s divorce, during which she gave him custody of the boys he had beaten and ordered his ex-wife’s wages garnished for child support. These orders were overturned by another judge.

John Easley, Atlanta, GA


December 28, 2011

Nonlawyers Could Gain Law Firm Ownership Rights

The American Bar Association’s Commission on Ethics 20/20 released a discussion paper and proposed resolution on December 2, 2011, which presented its views on how technological advances and globalization are affecting the regulation of lawyers and law firms. The release included a possible recommendation that nonlawyers be allowed to gain an equity stake in law firms where they work. Among the professionals that the commission noted as possibly qualifying to take such an interest in their law firms are architects, engineers, and social workers or investigators who assist in areas such as land use, intellectual property, family law, or personal injury.

The ownership model mapped out in the draft report would allow firms to give nonlawyers they employ a financial interest in the firm and a share of profits, but would require law firms to remain exclusively focused on practicing law. To accomplish this, the commission recommended placing some conditions on expanding law-firm ownership rights to nonlawyers, such as requiring lawyers to investigate the professional reputation of anyone considered for an equity stake; ensuring that a firm’s lawyers maintain a controlling financial interest and voting rights in the firm, and prohibiting nonlawyer owners from having their own clients or offering non-legal services to firm clients.

If the recommendation moves forward, it would not go before the ABA’s decision-making body until February 2013 and even then would still need to be adopted by individual states. Currently, Washington D.C. is the only bar association that allows nonlawyer ownership of law firms.

Though the commission announced its support for nonlawyer employee ownership, the commission strongly rejected suggestions that would allow law firms to become publicly traded entities or multidisciplinary practices that serve as one-stop shops for accounting, legal needs, and other professional services. These types of outside investments in law firms are now possible in the United Kingdom and Australia.

The commission is currently seeking input from members of the legal community on these recommendations.

John Easley, Atlanta, GA


December 28, 2011

Firm Not Liable for Issuing Legal Opinion Letter in Fraudulent Deal

After Fortress Credit Corporation lost $50 million in a fraudulent loan transaction orchestrated by Marc Dreier, the investment management firm sought to recover damages from Dechert, the law firm that had issued an opinion letter confirming the legality of the deal. In Fortress Credit Corp., et al v. Dechert LLP, however, the New York Supreme Court Appellate Division, First Department, held that Fortress had failed to state a cause of action against Dechert, finding that the law firm had “provided only legal conclusions upon which [Fortress] could rely.”

Read the full case note.

Thomas G. Wilkinson, Jr. and Michael P. Zabel, Cozen O'Connor, Philadelphia, PA


November 16, 2011

Colorado Becomes Sixth Jurisdiction to Adopt UBE

This month, the National Conference of Bar Examiners announced that Colorado would be the sixth jurisdiction to adopt the Uniform Bar Examination (UBE). The Centennial State will administer the UBE for the first time in February 2012. Idaho will also be administering the UBE at the February 2012 examination.

The UBE is an examination composed of the Multistate Essay Examination (MEE), two Multistate Performance Test (MPT) tasks, and Multistate Bar Examination (MBE) that is uniformly administered, graded, and scored by adopting jurisdictions.

The prospect of a uniform test and portable score could help to make lawyers more mobile, according to the ABA Journal. Students who pass the uniform exam in one state must meet certain criteria set by other states to be admitted to the bar in other states that adopt the test. However, scores would be more easily transferable and applicants would not necessarily need to undergo additional testing. The UBE could also save consumers some out-of-pocket expenses when a case involves multiple states.

Other states that have adopted and administered the UBE are Missouri (first administered in February 2011), North Dakota (February 2011), and Alabama (July 2011). Washington will administer its first UBE in July 2013.

Other jurisdictions considering a uniform exam include Arizona, Minnesota, New Hampshire, North Dakota, and Washington, D.C., USA Today reported last November.

Jocelyn Hsiao, Cleveland, OH


November 16, 2011

Virginia State Bar Amends Rules on Advertising

The Virginia State Bar Council unanimously approved proposed amendments to Rules 7.1–7.5 of the Rules of Professional Conduct on advertising proposed by the Standing Committee on Legal Ethics and by the Executive Committee at its October 21, 2011, meeting. The proposed amendments shifted specific examples of lawyer advertising statements or claims from the text of the rules to the comments section, thus broadening the application of the rules.

The committee decided that the terms “false” or “misleading” incorporate actions that are “fraudulent” and “deceptive.” It deleted the terms “fraudulent” and “deceptive” in Rule 7.1 to eliminate the requirement of intent of a lawyer to deceive the public or defraud a consumer.

Rule 7.2 was largely redundant of Rules 7.1 and 7.3. The committee incorporated parts of Rule 7.2 regarding lawyer advertising within Rule 7.1 as “communications” to cover all lawyer advertising. It incorporated parts of Rule 7.2 regarding referral services under Rule 7.3.

Some changes to Rule 7.3 broadened the scope of the prohibition against in-person solicitation by expanding coverage from personal injury and wrongful death cases to all matters, on the grounds that “(a) person in need of legal services for a divorce, bankruptcy, or criminal defense may be just as overwhelmed and vulnerable to suggestion as a person in need of legal services in cases involving personal injury or wrongful death.” See comment [2].

However, other changes to Rule 7.3 narrowed the scope of the prohibition against in-person solicitation. The committee’s revised proposal limited the scope of the prohibition against in-person solicitation to solicitations involving harassment, coercion, duress, compulsion, intimidation, threats, or unwarranted promises of benefits. According to comment [3], the propriety of communication will be judged by the totality of the circumstances. The rule maintained the requirement that the words “ADVERTISING MATERIAL” appear on targeted advertisements to potential clients known to be in need of legal services, but expanded the exceptions to exempt communication from a lawyer to a recipient who had prior contact with the lawyer.

The committee deleted Rule 7.4, concluding that any claim or statement of specialization should be measured by the “false” or “misleading” standard used in Rule 7.1. Amendments to Rule 7.5 added a new comment [3] clarifying that lawyers should practice using the official name under which the lawyer is licensed or seek an appropriate and legal change of name from the Supreme Court of Virginia.

Jocelyn Hsiao, Cleveland, OH


November 16, 2011

In re Shared Memory Graphics LLC sets Confidentiality Precedent

In a split panel decision, the U.S. Court of Appeals for the Federal Circuit vacated a district court order disqualifying the plaintiff’s counsel. In this case, Shared Memory Graphics (plaintiff) sued Nintendo for patent infringement and got slapped with a disqualification motion because one partner in the firm Floyd & Buss had received confidential information while working at a different company, Advanced Micro Devices. While working there, the partner worked on a case in which Advanced Micro Devices and Nintendo were co-litigants in a trial. The two companies entered into an agreement that stated that “compliance with the terms of this Agreement by either party, [shall not] be used as a basis to seek to disqualify the respective counsel of such party in any future litigation.”

Now the partner is working for Shared Memory Graphics, and according to the federal court, that’s entirely legal. The waiver provision of a joint-defense agreement was upheld, recognizing that it renounces the claim of future conflicts of interest. Under California law, advance waiver of future conflicts are recognized between sophisticated parties. Therefore Nintendo would know that Cooper, as a “respective counsel”, was bound to confidentiality and had created the waiver, meaning a conflict was foreseen and dealt with.

Still, the area remains highly controversial. Judge Newman wrote a dissent, which states that a stricter standard should be applied. Because the partner’s “former employment was at the highest level in interaction with Nintendo’s legal and strategic interests,” Judge Newman argued that a higher standard should be imposed. Judge Newman stated that “if there is doubt, it must be resolved in favor of the entity whose information is in jeopardy. “

Unfortunately, in a specialized field like video games, lawyers without conflicts might become a scarce entity.

Elke Weiss


October 25, 2011

Private Lawyer-Referral Services under Fire

Florida investigators have found instances of fraud associated with private lawyer-referral services. In one instance, a patient injured in an accident unknowingly signed an unexplained retainer agreement with a law firm that was included with medical paperwork.

Only 12 states, including Florida, allow private lawyer-referral services.

The Florida Bar News reported on October 15, 2011, that the Florida Bar’s Special Committee on Lawyer Referral Services discussed a range of options, ranging from strengthening ad regulations for referral services to recommending an outright ban in Florida of for-profit legal referral services. However, the committee took no specific action at the end of the meeting.

Two issues arise from regulation of private referral services. First, the state bar cannot directly regulate lawyer-referral services but can prohibit lawyers from belonging to services that don’t follow state bar rules, including advertising regulations. Second, any enforcement of violations of advertising, unauthorized practice of law, or other state bar rules cannot start without someone making a complaint to the bar.

Washington, a state that does not allow private referrals, has recently clarified its rule on referrals on page 37 of the October 2011 issue of the Washington State Bar News. “A lawyer may pay the reason­able costs of advertising (RPC 7.2), but may not give anything of value to a person for recommending the lawyer’s services ex­cept, as set forth in 7.2(b), where the orga­nization is a legal services plan or a not-for-profit referral service.” See Advisory Opinion 2203.

Grier Wells, chair of Florida Bar’s Special Committee on Lawyer Referral Services, said he plans to consult with committee members on whether to have a second public hearing or begin discussions on possible recommendations. While the bar cannot require attorneys to submit copies of their contracts with private referral services, Wells said it could require lawyers to make affirmative statements on their conduct related to the service and to list the services in which they participate.

Jocelyn Hsiao, Cleveland, OH


October 25, 2011

Former OSBA President Accused of Underreporting Income by $250k

Leslie “Les” Jacobs, a former president of the Ohio State Bar Association and partner at Thompson Hine, filed tax returns fraudulently inflating his tax deductions for business expenses and underreporting his partnership income.

As first reported in the Cleveland Plain Dealer on October 13, 2011, Assistant U.S. Attorney John Siegel filed an information outlining the offense.

According to the information, from 2004 through 2007, Jacobs allegedly filed four federal income-tax returns that inflated his deductions for business expenses by $25,000 to $94,000 per year. Prosecutors say that resulted in Jacobs under-reporting his annual partnership income from the Thompson Hine law firm by about $250,000, which accurately should have ranged from $633,000 to $780,000. Jacobs is accused of underpaying his taxes by $75,000.

Jacobs is the senior partner in the Competition, Antitrust and White-Collar Crime practice group at Thompson Hine and serves on the Board of Governors of the American Bar Association. His lawyer, Frederick Widen, said Jacobs hopes to remain “in good standing” at Thompson Hine.

In his interview with the Plain Dealer, he called his current situation “a terrible embarrassment and regrettable.” If found guilty of tax fraud, Jacobs could be sentenced to up to three years in prison and fined up to $100,000.

Jocelyn Hsiao, Cleveland, OH


October 18, 2011

Ohio Lawyer Indefinitely Suspended and Ordered to Pay Nearly $50k

In a 7-0 per curiam decision on September 29, 2011, the Supreme Court of Ohio announced the indefinite suspension of Lake County attorney Bartley J. Troyfor violating Prof. Cond. R. 1.1, 1.3, 1.4, and 8.4(c) in his dealings with three clients and Gov. Bar. R. V(4)(G) for refusing to assist in a disciplinary investigation. The court also ordered him to make restitution to the clients in the amount of $48,970.

Troy had accepted fee advances for two clients in divorce proceedings without making the necessary court filings. In the third count, a client won a judgment of $44,700 in a malpractice action against Troy, but was not able to collect because Troy lacked professional liability insurance. Further, Troy did not respond to six attempts to contact him by counsel for the Lake County Bar Association to discuss the allegations.

The only mitigating factor mentioned by the board was that Troy did not have a prior disciplinary record other than an attorney-registration suspension. However, the court noted that he was previously suspended for one year in February 2009 for violating three disciplinary rules.

Weighing the aggravating factors against the (lack of) mitigating factors, the court affirmed the decision of the Board of Commissioners on Grievances and Discipline, which found that Troy had “demonstrated a pattern of misconduct, engaged in multiple offenses, harmed vulnerable clients, failed to cooperate in the disciplinary process, and failed to make restitution.”

Jocelyn Hsiao, Cleveland, OH


October 7, 2011

Failure to Disclose Criminal Records Precludes Grads from Georgia Bar

Earlier this month, the Georgia Supreme Court held that a failure to disclose their criminal history on their law school application was cause for precluding both John Andrew Payne and Roy W. Yunker, Jr. from sitting for the Georgia bar examination. As reported by the Fulton County Daily Report, Payne failed to initially disclose some of his criminal history when applying to law school and Junker failed to initially disclose criminal history when applying for both law school and the bar exam.

Stating “I never tried to conceal anything from the Georgia Bar”, Yunker failed to disclose three misdemeanor offenses and a number of convictions including DUI, family violence battery, disorderly conduct, and damage to property to the Board of Bar Examiners. Though he later submitted the additional information, the board recommended that Yunker be barred from the exam because of the omissions.

Payne initially disclosed only a portion of his criminal history when applying to law school, though he continued to disclose additional information while he was enrolled in law school. The Board of Bar Examiners was troubled not only by these initial omissions, but also by the fact that Payne answered no to a question on the fitness application inquiring into possible conditions or impairments (including substance abuse) that could affect the applicant’s ability to practice law. Payne has been in recovery for substance abuse and addiction problems for more than 20 years. Though Payne has the ability to re-apply for the Georgia bar exam in three years, he has stated, “I don’t know of anything I can do in the next three years to change their [Georgia bar officials’] opinion.”

Holly Forsberg, Pittsburgh, PA


August 19, 2011

Judge Recommends Vigilante Justice, Garners Suspension

A Mississippi County Justice Court judge was suspended for nine months after the judge recommended that citizens take fighting crime into their own hands. The Legal Profession Blog reports that at a defendant’s sentencing hearing, the judge stated on the record in open court:

I could assure you that if anything like this ever happened to anybody that I know, my advice to them would be do not use the court, handle it themselves.

I would like for everyone in this court to know that had I had this to do over again we would never had went to a grand jury, that we would have taken care of this down at Biggersville, Mississippi, down on the farm like things should have been taken care of.

Apparently the judge decided to take a play from Batman’s book and become the symbol that Biggersville needed. The Supreme Court of Mississippi disagreed. The court also went on to reverse the commission’s finding as to count two, which involved the potentially illegal handling of DUI cases by the judge.

Josh Camson, Pittsburgh, PA


August 19, 2011

Third Circuit Overturns Sanctions for Rule 3.5 Violation

In a case of first impression, the Third Circuit Court of Appeals overturned a magistrate judge’s order finding that an attorney violated Rule 3.5 of the Rules of Professional Conduct. After a jury trial, the attorney contacted one of the jurors in the case. The phone call lasted about a minute, when the juror informed the attorney she didn’t feel comfortable talking to him. The attorney then ended the call. Afterward, the juror sent the presiding judge a letter. The judge, without conducting a hearing or calling witnesses, entered an order that stated that the ‘attorney “‘engaged in misconduct by his post-verdict communication with a juror in contravention of American Bar Association Model Rule of Professional Conduct 3.5(c).’ (App. 3).” The Third Circuit explains that “[t]he court stated that it would not disbar, suspend, or reprimand counsel pursuant to Local Rule 83.2(b)(3) or initiate disciplinary proceedings pursuant to Local Rule 83.2(b)(5). Instead, the magistrate judge referred the matter to the Virgin Islands Bar Association for a ‘formal investigation and disciplinary proceedings.’ (App. 4).”

In its opinion, the Third Circuit found that the attorney did not violate Rule 3.5. The court further held that the lower court judge violated the attorney’s due process rights by not properly adhering to the local rules. Beyond the ethical issue of first impression, the opinion is worth reading for its discussion of standing. The circuit courts are split on whether an attorney has standing to appeal from a non-sanctioned reprimand. The Third Circuit obviously held that the attorney did have standing, because the judge’s order directly undermined the attorney’s “professional reputation and standing in the community.”

Josh Camson, Pittsburgh, PA


July 20, 2011

Allegations of Brady Violation Surface in Anthony Trial

The New York Times reports that the software used to investigate Casey Anthony’s web search history was critically flawed. In a July 18 story, software engineer John Bradley says that his software was used to track Ms. Anthony’s browsing history. Initially, the software revealed that Ms. Anthony searched for the term “chloroform” 84 times. This number was referenced repeatedly by prosecutors, but Mr. Bradley says it’s inaccurate.

When Bradley realized there was a flaw in his software, he immediately alerted prosecutors, and gave them all of his new information. He ran the test again and found that “chloroform” was searched only once, not 84 times. Nonetheless, this discrepancy was never revealed to the defense; a potential Brady violation.

The state attorney’s office responded to the article and explained what happened:
After the results [of the computer analysis] were mentioned in court on June 23, Mr. Bradley contacted the state the same day. He consulted as to a potential rebuttal to the defense regarding the error in his program and recommended using NetAnalysis findings. All findings had previously been supplied to the defense in discovery.

On June 27 the discrepancy was discussed with Mr. Baez and both he and the prosecution agreed to use the NetAnalysis return of one site-visit count as the most accurate information available at the time. If additional information became available, the state agreed to disclose. Mr. Baez brought the discrepancy forward in court testimony and again at closing with his court exhibit.

During jury deliberations Mr. Bradley admitted to sending additional report information to the wrong email address but was able to deliver information to prosecutors on the evening of July 4. On July 5 prosecutors prepared a notice of supplemental discovery for defense but it was never provided because the jury had reached their verdict.

Of course, any Brady violation here is irrelevant because Ms. Anthony was acquitted. The only implications of any alleged violation are possible disciplinary proceedings. But it does not appear there is enough evidence to warrant any kind of disciplinary proceedings.

Josh Camson, Pittsburgh, PA


May 2, 2011

Criminal Justice Section Calls for Codification of Disclosure Rules

In an effort to create some national uniformity for state and federal prosecutors, the Council of the Criminal Justice Section has passed a resolution for the approval of the ABA House of Delegates. The resolution attempts to address Brady and its progeny and create a set of disclosure rules with more teeth than the Model Rules of Professional Conduct.

The section passed the following resolution:

Resolved, that the American Bar Association urges state and federal legislation and/or the codification of disclosure rules in state and federal courts to require the prosecution to seek from its agents and to make timely disclosure to the defense before the commencement of trial all information known to the prosecution that tends to negate the guilt of the accused, mitigate the offense charged or sentence, or impeach the prosecution’s witnesses or evidence, except when relieved of this responsibility by a protective order of a court.

Further resolved, that the American Bar Association urges state and federal legislation and/or the codification of disclosure rules in state and federal courts to require the prosecution to make timely disclosure to the defense before a guilty plea of all information, which may include impeachment evidence, known to the prosecution that tends to negate the guilt of the accused or mitigate the offense charged or sentence, except when relieved of this responsibility by a protective order of a court.

Josh Camson, Pittsburgh, PA


May 2, 2011

Law Student Protected by Prosecutorial Immunity

A third-year law student working at a prosecutor’s office is protected by the prosecutor’s immunity, according to an order from the Montana Supreme Court. The Montana Supreme Court affirmed a lower-court dismissal of the case and held: Neither [the student or supervising prosecutor] violated the [Student Practice] Rule. Additionally, had [the student or supervising prosecutor] failed to strictly comply with the [Student Practice] Rule, Spreadbury has presented no legal authority to support his argument that such lack of compliance deprives a student prosecutor or the supervising prosecutor of prosecutorial immunity.

The Legal Profession Blog provides some background of the civil case: The defendant was charged with assault. He was convicted in absentia when he failed to appear for trial after the case had been continued over his objection. The conviction was overturned on appeal based on a speedy-trial violation.

Josh Camson, Pittsburgh, PA


May 2, 2011

Judge Reminds Counsel of the Importance of Professionalism

In a scathing order, a federal judge in Kansas granted a request for a continuance from a defense attorney, and admonished the plaintiffs’ counsel for opposing the motion. The reason for the continuance? One of the defense attorneys was scheduled to have his first child a week after the trial. Explaining that because of “… the proposed length of trial and the famous disregard that newborns (especially first-borns) have for such schedules, and given that the trial is scheduled in Kansas City while the new Erman’s arrival is scheduled in Dallas” the continuance is appropriate.

The Kansas federal court spent the majority of the opinion pointing out how baseless and unprofessional counsel’s opposition to the motion were. Judge Melgren concluded that "Certainly this judge is convinced of the importance of federal court, but he has always
tried not to confuse what he does with who he is, nor to distort the priorities of his day job with hislife’s role. Counsel are encouraged to order their priorities similarly. Defendants’ Motion is GRANTED. The Ermans are CONGRATULATED."

Josh Camson, Pittsburgh, PA


May 2, 2011

Ethics 20/20 Commission Reaches Consensus on Early Recommendations

The ABA Commission on Ethics 20/20 recently reached an agreement on recommendations concerning outsourcing, confidentiality, and foreign lawyers. The recommendations have not been codified or published to the commission’s website yet. The ABA Journal reports that the recommendations cover these issues:

Outsourcing. Without taking a position on the practice, the commission proposes revisions to comments to existing rules in the ABA Model Rules of Professional Conduct, which are widely followed by the states, that identify factors lawyers need to consider when retaining outside lawyers to work on client matters, and affirming that a client’s informed consent should be obtained before outside lawyers are retained.

Confidentiality. The commission proposes revisions to the Model Rules recognizing that electronically stored information, including metadata, is material subject to confidentiality rules. It also proposed revisions directing lawyers to make reasonable efforts to prevent inadvertent disclosure of information relating to representation of a client.

Inbound foreign lawyers. One recommendation would apply the ABA Model Rule for Registration of In-House Counsel to lawyers from foreign jurisdictions. A related recommendation would also apply the ABA Model Rule on Pro Hac Vice Admission to foreign lawyers. Finally, the commission will propose revisions to Rule 5.5 of the Model Rules of Professional Conduct to allow temporary practice in U.S. jurisdictions, but with tougher restrictions than apply to American lawyers.

The commission was formed in 2009 by then ABA President Carolyn Lamn. It is charged with performing “a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”

Josh Camson, Pittsburgh, PA


April 8, 2011

Pennsylvania Supreme Court Clarifies Attorney-Client Privilege

The Pennsylvania Supreme Court recently held that the "attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice."

In Gillard v. AIG Insurance Co., the court was interpreting a Pennsylvania statute that states that "counsel shall not be competent or permitted to testify to confidential communication made to him by his clients, nor shall the clients be compelled to disclose the same." 42 Pa. Cons. Stat. § 5928 (2010). The appellee argued that a Pennsylvania appellate court had previously interpreted this statute to only extend the privilege to "confidential communications made by the client to counsel." Nationwide Mutual Ins. Co. v. Fleming, 924 A.2d 1259, 1269 (Pa. Super.Ct. 2007) aff’d on other grounds by an equally divided court, --- Pa. ---, 992 A.2d 65 (2010). (emphasis in original).

The court analyzed the competing policy considerations raised by extending the attorney-client privilege to communications from attorney to client. Specifically, the court noted the "ongoing tension between the two strong, competing interests-of-justice factors in play—namely—the encouragement of trust and candid communication between lawyers and their clients, . . ., and the accessibility of material evidence to further the truth-determining process."

In ultimately concluding that the privilege also applied to attorney-to-client communications, the Gillard court emphasized "the difficulty in unraveling attorney advice from client input and stressed the need for greater certainty to encourage the desired frankness."

The opinion can be located at Gillard v. AIG Insurance Co., No. 10 EAP 2010, 2011 WL 650552 (Pa. Feb. 23, 2001).

Larry Heftman, Schiff Hardin LLP, Chicago, IL


April 8, 2011

Massachusetts Lawyer Suspended for Résumé Fabrications

While applying for jobs, a Massachusetts attorney made several material fabrications to his résumé. The Massachusetts Board of Bar Overseers explained in its summary that the attorney "intentionally made the following misrepresentations:"

(i) he received an LL.M. degree from Boston University School of Law in May of 2010; (ii) he received a Bachelor of Science degree from Tufts University in May of 1997; and (iii) while attending Tufts University, he was on the "Dean’s Honor List" on three separate occasions, was the recipient of a department scholarship and a prize for overall achievement, and was a six-time varsity letter winner in hockey and lacrosse. He also falsely claimed to have worked as an attorney at another law firm for two years; he had only worked there for less than a year.

The ABA Journal reports that the attorney was suspended from practice for six months.

Josh Camson, Pittsburgh, PA


March 29, 2011

Prosecutors Not Liable for Failure to Train about Brady Violations

In Connick v. Thompson the U.S. Supreme Court vacated a $14 million verdict against the Orleans Parish District Attorney’s Office. The original lawsuit was filed by Thompson against the office for damages under 42 U.S.C § 1983. Thompson had been sentenced to death for two armed-robbery convictions. A month before his execution, an investigator discovered exculpatory evidence that the district attorney had failed to disclose. As a result of the Brady violation, both convictions were vacated.

Justice Thomas, writing for a 5–4 majority, explained: “Thompson alleged that Connick had failed to train his prosecutors adequately about their duty to produce exculpatory evidence and that the lack of training had caused the nondisclosure in Thompson’s robbery case.”

The Court went on to hold that Thompson had failed to establish the necessary “deliberate indifference” on behalf of the district attorney’s office concerning the Brady training.

The Legal Profession Blog notes that “One interesting aspect of the case is that the information leading to exoneration came from an attorney friend of the prosecutor. The Louisiana Supreme Court found that the attorney had violated Rule 8.3 (duty to report misconduct) for not coming forward sooner.”

Josh Camson, Pittsburgh, PA


February 25, 2011

Texas Rejects Proposed Rule Limiting Sex with Clients

After a referendum, 44 percent of Texas attorneys voted to strike down proposed changes to the Rules of Professional Conduct. Of the 44 percent of attorneys who voted in the referendum, 80 percent voted to strike down the proposed changes, according to the detailed results.

There were six questions on the referendum ballot, dealing with various proposed rule changes. Changes ranged from conflicts of interest to the integrity of the profession. The proposal catching headlines is Rule 1.13 Prohibited Sexual Relations:

(a) A lawyer shall not condition the representation of a client or prospective client, or the quality of such representation, on having any person engage in sexual relations with the lawyer.
(b) A lawyer shall not solicit or accept sexual relations as payment of fees or expenses.
(c) A lawyer shall not have sexual relations with a client that the lawyer is personally representing unless the lawyer and client are married to each other, or are engaged in an ongoing consensual sexual relationship that began before the representation.

It should be noted that the same referendum question also addresses proposed rules governing diminished capacity and the relationship with prospective clients. State Bar of Texas President Terry Tottenham stated that the debate about the proposed amendments was rigorous, "from the time the Supreme Court first put the proposed amendments out for comment in October 2009 through . . . the final day of voting."

Josh Camson, Pittsburgh, PA


February 25, 2011

Law Professors Call for Code of Ethics for SCOTUS Justices

In a letter sent to the House and Senate Judiciary Committees, over 100 ethics professors across the nation are calling on Congress to extend the Code of Conduct for U.S. judges to the Supreme Court justices. The Washington Post reports that the move from academia "comes after recent controversies involving travel and appearances at political events by several Supreme Court justices, including Clarence Thomas and Antonin Scalia."

Currently, the rules that govern conduct for federal judges does not apply to Supreme Court justices. Instead, the justices govern their own conduct. The letter also calls on Congress to craft specific recusal rules, including requiring a written opinion when a justice denies a motion for recusal. According to the various professors, "[o]n recusal motions, justices may sit in silent judgment of their own impartiality, with no opportunity for review, even though the standard to be applied is the appearance of bias, which by necessity depends on the views of others."

According to JURIST, Rep. Chris Murphy (D-CT) announced last week that he plans to introduce a bill to address such ethical issues.

Josh Camson, Pittsburgh, PA


February 16, 2011

Fifth Circuit Strikes Down Portions of Louisiana Rules Governing Attorney Advertising

The Fifth Circuit Court of Appeals recently held that portions of the Louisiana Rules of Professional Conduct governing attorney advertising were unconstitutional. The Fifth Circuit applied the constitutional test for commercial speech to portions of Louisiana Rule of Professional Conduct 7.2(c).

Specifically, the Fifth Circuit found unconstitutional Louisiana’s restriction on communications referencing past successes or results in other representations. The court found that the Louisiana Attorney Disciplinary Board (LADB) “has not met its burden . . . to show that prohibiting all references or testimonials to past results in advertisements will materially advance the State’s asserted interests in preventing consumer deception or setting standards for ethical conduct by Louisiana lawyers.” The court further held that LADB also failed to prove its prohibition was “no more extensive than reasonably necessary to further [its] substantial interests.” Similarly, the Fifth Circuit held that restrictions on advertisements depicting a judge or jury were not inherently misleading and that LADB failed in its burden to prove that such a restriction would further its interest in avoiding deceptive attorney advertising. Finally, the Fifth Circuit found Louisiana’s format requirements for disclaimers were overly burdensome because they would effectively prohibit attorneys from including their specialty on a business card or yellow-pages listing.

The Fifth Circuit did uphold as constitutional restrictions on attorney communications promising results or implying an ability to obtain results in a matter based on the use of a nickname or motto. The Fifth Circuit also upheld Louisiana’s regulation of communications that include a portrayal of a client or depiction of events without an appropriate disclaimer that the client or events are not actual or authentic.

The opinion can be located at Public Citizen, Inc.; William N. Gee, III; William N. Gee, III, Ltd.; Morris Bart; Morris Bart, L.L.C. v. Louisiana Attorney Disciplinary Board; Billy R. Pesnell; Charles B. Plattsmier, No. 09-30925 (5th Cir. January 31, 2011).

Larry Heftman, Schiff Hardin LLP, Chicago, IL


February 1, 2011

Controversial Gucci Decision Overturned

Judge Shira Scheindlin recently overturned a decision from a federal magistrate judge and held that a corporate client’s communications with in-house counsel are privileged, even where counsel is not an active member of the bar. In its order, the court gives a nice explanation of the procedural history in the case:

Gucci America, Inc. ("Gucci") is suing Guess?, Inc. ("Guess") and others for trademark infringement arising out of defendants’ use of certain trademarks, logos, and designs. During discovery, Gucci submitted a privilege log identifying communications to and from Jonathon Moss, its in-house legal counsel. When Moss was deposed he testified that he was an “inactive” member of the California Bar. Indeed, investigation by the parties has revealed that he was on inactive status at the time of all the communications identified on the privilege log. As a result, Guess demanded that Gucci produce all of the Moss communications, arguing that they were not protected by the attorney-client privilege, as Moss was not covered by the privilege.

I referred this matter, and other discovery matters, to a Magistrate Judge. Gucci moved for a protective order under Rule 26(c) of the Federal Rules of Civil Procedure to prevent the disclosure of the Moss communications. After extensive briefing that included four briefs and ten affidavits (or declarations), the Magistrate Judge denied Gucci’s motion, finding that Gucci had forfeited its right to invoke the privilege based on its failure to discover that Moss was not entitled to practice law based on his inactive status as a member of the California Bar.

Judge Scheindlin held that counsel’s status as inactive in California was not dispositive. The court explained that counsel was admitted in two federal jurisdictions, and “the language of the California Business and Professional Code is less than clear as to whether his inactive status as a member of the California bar prohibited him from practicing law outside the jurisdiction.” Because of this ambiguity, and the purpose of the attorney-client privilege, “Gucci should not be penalized because its attorney, a member of the bar in two jurisdictions, may not have been ‘authorized to practice law’ based on his ‘inactive’ status as a member of the California bar.”

Finally, Judge Scheindlin explained that the reasonable-belief doctrine applies to corporations, and that corporations need not make a continuous effort to ensure that their in-house counsel is a member of the bar. “While an attorney has an obligation to ensure that he is properly practicing law—and faces the specter of disciplinary action if he engages in unauthorized practice—the sins of the attorney must not be visited on the client so long as the client has acted reasonably in its belief that its counsel is, in fact, an attorney.”

Josh Camson, Pittsburgh, PA

Keywords: Judiciary, Attorney-Client Privilege


January 4, 2011

Pennsylvania Supreme Court Orders Entire County Bench to Recuse Themselves

The Pennsylvania Supreme Court recently ordered all of the judges in Montgomery County to recuse themselves from a lawsuit involving a township in the county. The plaintiff in the suit’s original recusal motion was denied. According to the Pittsburgh Post Gazette, the recusal was mandated “because one of the judges—a fairly new judge—is one of many defendants” in the litigation. The Supreme Court’s order stays any further proceedings, but does not offer any rationale for the recusal.

Josh Camson, Pittsburgh, PA


January 4, 2011

Two States Issue Ethics Opinions Approving of Cloud Storage

The Alabama and New York Bar Associations both recently approved the use of cloud storage, a way of backing up one’s files on the Internet instead of on local servers. In Opinion 2010-02, the Alabama Bar Association explains that the

advantage to ‘cloud computing’ is the lawyer’s increased access to client data. As long as there is an internet connection available, the lawyer would have the capability of accessing client data whether he was out of the office, out of the state, or even out of the country. In addition, ‘cloud computing’ may also allow clients greater access to their own files over the internet.

Of course, with such benefits there are also ethical dangers because client “secrets are no longer under the direct control of the lawyer.”

Both bar associations agree that protecting the confidentiality of client information is of the utmost importance. To that end, they both adopt a “reasonable care” standard when deciding on a cloud-storage provider, and discuss what steps should be taken to exercise reasonable care. Beyond auditing the security of their backup systems, New York’s Opinion 842 explains that lawyers “using online storage systems (and electronic means of communication generally) should monitor these legal developments, especially regarding instances when using technology may waive an otherwise applicable privilege.”

Alabama and New York are not the first states to address the use of cloud computing. Nevada, Arizona, and New Jersey have also addressed off-site storage for client files and approved the practice.

Josh Camson, Pittsburgh, PA


December 15, 2010

New Jersey Court Disqualifies Firm for Prior Representation Pursuant to Rule 1.9

The District Court of New Jersey recently disqualified a law firm from representing a defendant in litigation because the law firm previously represented the plaintiff in the sale of its business and had access to confidential information in the due-diligence process.

Pursuant to New Jersey Rule of Professional Conduct 1.9(a), the district court found the law firm’s representation in the sale of the business was “substantially related” to the subsequent breach of contract/warranty action. As a matter of first impression under the new rules of professional conduct adopted in 2004, the New Jersey Supreme Court recently addressed the types of matters that may be “substantially related” under Rule 1.9(a) in City of Atlantic City v. Trupos, 201 N.J. 447, 460–67, 992 A.2d 762 (2010). The Trupos court adopted the following test for whether a matter is “substantially related”:

(1) the lawyer for whom disqualification is sought received confidential information from the former client that can be used against that client in the subsequent representation of parties adverse to the former client or (2) facts relevant to the prior representation are both relevant and material to the subsequent representation.

Focusing principally on the first Trupos test identified above, the court found that, as part of the due-diligence process, the law firm had access to confidential documents regarding manufacturing and Food and Drug Administration documentation that could be relevant to the subsequent action and, on that basis, disqualified the law firm from representing the defendant in the litigation.

Larry Heftman, Schiff Hardin LLP, Chicago, IL


November 23, 2010

Federal Court Hears Argument on “Red Flags Rule”

On November 15th, 2010, the U.S. Court of Appeals for the D.C. Circuit heard argument in the ABA’s lawsuit against the Federal Trade Commission (FTC) over the FTC’s proposed “red flags rule.” David Ingram from the Blog of Legal Times reports that the panel seemed split in their questioning. Judge Judith Rogers “suggested that the issue might not be ripe for decision because the FTC has not had a chance to enforce its rules.” When the ABA attorney was questioned on the issue of ripeness, he cited a 2005 case from the D.C. Circuit that “he said make[s] clear lawyers have a special status in federal regulations.”

The case arises from the FTC’s proposed regulations to combat identity theft. The so-called red flags rule would require lawyers to comply with the same requirements as creditors and financial institutions to protect consumers from identity theft. The ABA Journal has more.

Josh Camson, Pittsburgh, PA


November 23, 2010

Kentucky Bar Proposes Regulations of Facebook Ads

The Kentucky Bar Association’s latest proposal would change the definition of advertising to include posts on Facebook and Myspace. The proposed changes would edit definitions as follows:

‘Advertise’ means to furnish any information or communication containing a lawyer’s name or other identifying information. and an ‘advertisement’ is any information containing a lawyer’s name or other identifying information. except the following . . . Information and communication by a lawyer to members of the public in the format of web log journals on the internet that permit real time communication and exchanges on topics of general interest in legal issues provided there is no reference to an offer by the lawyer to render legal services”

Communications made by a lawyer using a social media website such as MySpace and Facebook that are of a non-legal nature are not considered advertisements: however. those that are of a legal nature are governed by SCR 3.130-7.02(1(j).

Retired Judge Stan Billingsley, senior editor of LawReader.com, said that the “regulation is so vague that simply listing an attorney’s employment and education might be a violation.” Kathleen Bergin points out that “[i]n one sense, the proposal is a predictable response to the growing use of social media sites as marketing tools by lawyers. But some say the definition of an “advertisement” is too vague to provide adequate notice of the types of communication that are subject to regulation. Thus the lurking First Amendment problem.”

Josh Camson, Pittsburgh, PA


November 9, 2010

California to Investigate Prosecutors after Report on Misconduct

A report by the Northern California Innocence Project says that “[t]he failure of judges, prosecutors and the California State Bar to live up to their responsibilities to report, monitor and discipline prosecutorial misconduct fosters misconduct, undercuts public trust and casts a cloud over those prosecutors who do their jobs properly. The problem is critical.” The report found that in over 700 cases where courts found that prosecutors committed misconduct, only 22 percent were reversed.

The Mercury News reports that as a result of the report, the California Bar Association will investigate 130 prosecutors for potential misconduct.

Josh Camson, Pittsburgh, PA


November 9, 2010

Pennsylvania Examines Legal-Document-Preparation Services for Unauthorized Practice of Law

In a recent opinion from the Pennsylvania Bar Association, the Unauthorized Practice of Law Committee hands down a thorough discussion of legal-document-preparation services. The committee concludes:

While the PBA UPL committee clearly recognizes that anyone may sell “forms” or provide solely clerical assistance in completing them, it is clear from the advertising and the fees being charged by LDPS that are offering more than rote forms to be typed upon by a clerk. It is the PBA UPL Committee’s opinion that there is a reasonable factual basis that legal document preparation services, whether online or in person at a specific site, are engaging in the unauthorized practice of law in Pennsylvania. This conclusion is based upon such services, and public descriptions of their own activities.

Legal Ethics Forum points to a response by one of the larger document-preparation services, LegalZoom. According to a letter from LegalZoom’s general counsel:

LegalZoom emphatically denies this accusation. I am chagrined that your Committee would issue an opinion specifically referencing my company and alleging illegal activity without complying with the most basic guidelines of professional courtesy and rules of due process. Predictably, many of the factual assumptions underlying the Opinion are inaccurate. Furthermore, the Opinion cites inapplicable case law, draws inaccurate conclusions, and ignores case law affirming the right of individuals to represent themselves in their own legal matters.

Josh Camson, Pittsburgh, PA


October 27, 2010

Court Reprimands Attorney for Failure to Keep Client’s Pre-Representation Communications Confidential

The Indiana Supreme Court recently reprimanded an attorney for failure to maintain the confidentiality of client communications received by the attorney prior to the initiation of the representation. The attorney was told by a friend about the details of a domestic dispute. That friend later requested that the attorney provide a referral to a family law practitioner. The attorney referred his friend to one of his partners and she subsequently became a client of his firm for legal advice regarding a divorce. The divorce petition was subsequently dismissed.

After the conclusion of the divorce representation, the attorney disclosed his former client’s marital difficulties to a mutual friend in a social setting and encouraged the mutual friend to comfort his former client. Upon learning of this disclosure, the former client filed a disciplinary grievance. The Indiana disciplinary commission found that the attorney violated Indiana Rule of Professional Conduct 1.9, which governs duties to former clients, by disclosing information relating to the representation of a former client.

The Indiana Supreme Court found the information regarding the marital dispute confidential pursuant to Indiana Rule of Professional Conduct 1.6 even though the attorney first received the information before the representation. The court held that the information became confidential once that information was repeated as part of the potential client’s request for representation. The attorney attempted to excuse this disclosure on the grounds that the information was common knowledge, but the Indiana court held that knowledge by a few other individuals did not make the information “generally known.”

The attorney was privately reprimanded. The opinion can be located at Anonymous Respondent, 932 N.E.2d 671 (Ind. 2010).

Larry Heftman, Schiff Hardin LLP, Chicago, IL


October 27, 2010

Law Firm Disqualified for Failure to Sufficiently Screen Legal Assistant for Conflicts of Interest

The Texas Supreme Court recently expounded on the necessary conflicts screening procedures for lateral hires of paralegals and legal assistants in In re Columbia Valley Healthcare System, L.P., 2010 WL 3366007 (Aug. 27, 2010).

The Texas Supreme Court had previously held that “a firm can usually avoid disqualification when hiring an assistant who previously worked on a matter for opposing counsel if the firm (1) instructs the assistant not to work on the matter, and (2) takes other reasonable steps to shield the assistant from working in connection with the matter.” The court clarified that the “other reasonable steps” necessary to shield the assistant included a formal screening from all relevant matters.

In Columbia Valley, a legal assistant assisted in the defense of a medical-malpractice claim. The assistant’s role consisted of filing privileged documents reflecting attorney impressions, settlement and defense strategy, and consultations with experts. The legal assistant subsequently left that law firm, signing a confidentiality agreement barring her from working on any matter that she worked on at the firm.

The legal assistant was then hired by the plaintiff’s law firm on the opposing side of the same malpractice case. The legal assistant was verbally instructed by the plaintiff’s law firm not to work on the malpractice case and was not assigned to the matter. However, the legal assistant ended up helping on the case to fill in for a colleague who had a medical problem. Specifically, the legal assistant filed correspondence and assisted with docket-control conferences. Upon learning of the assistant’s participation on the malpractice matter, the firm instructed the assistant that she would be terminated if she did any further work on the matter. Nonetheless, the assistant subsequently filed some correspondence and helped with the calendar for the case.

The Texas Supreme Court disqualified the law firm from further participation in the malpractice case. Despite the direction to the legal assistant not to work on the case, backed up by the threat of termination, the court found that the law firm had not taken “other reasonable steps” to shield the assistant. The court instructed that “the other reasonable measures must include, at a minimum, formal, institutionalized screening measures that render the possibility of the nonlawyer having contact with the file less likely.” The court suggested a formal, written conflicts-of-interest policy would promote employee awareness to avoid such conflicts and also suggested restricting access to files to avoid the potential disclosure of confidential information to screened employees.

Larry Heftman, Schiff Hardin LLP, Chicago, IL


October 5, 2010

North Dakota Supreme Court: Pro Se Attorneys Cannot Communicate Directly with Represented Parties

In Disciplinary Board of the Supreme Court of the State of North Dakota v. A. William Lucas, the North Dakota Supreme Court held that Rule 4.2 applies to pro se attorneys. Rule 4.2 prohibits attorneys from communicating with represented parties. Citing decisions from Nevada and Illinois, the court explained that its holding supports the purpose of Rule 4.2.

The court explained that the rule “protects a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the lawyer-client relationship, and the uncounseled disclosure of information relating to the representation.” The court disagreed with the Connecticut Supreme Court’s decision in holding that a pro seattorney is not governed by Rule 4.2.

Josh Camson, Pittsburgh, PA


October 5, 2010

ABA Opinion Cautions Against Former Lawyer’s Disclosure of Information to Prosecutor

On July 14, 2010, the Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 10-456 concerning disclosure of information to a prosecutor when a lawyer’s former client brings an ineffective-assistance-of-counsel claim. The opinion addressed whether a criminal-defense lawyer whose former client asserted an ineffective-assistance claim may, without the client’s informed consent, disclose confidential information to government lawyers prior to any legal proceeding regarding the competence of the representation.

The opinion focused on the scope of the “self-defense exception” of Rule 1.6(b)(5). Rule 1.6(b)(5) permits a lawyer to reveal information relating to a client representation

to the extent the lawyer reasonably believes necessary . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer . . ., or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

Stressing that Rule 1.6(b)(5) adopts an objective standard regarding the need for the lawyer’s disclosure, the opinion concluded that “it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable” because such communications will rarely be necessary to respond to the allegations against the lawyer.

Larry Heftman, Schiff Hardin LLP, Chicago, IL


October 5, 2010

ABA Cautions Against Misleading Information Stemming from Website Contacts

ABA Formal Opinion 10-457 discusses lawyers’ websites:

Websites have become a common means by which lawyers communicate with the public. Lawyers must not include misleading information on websites, must be mindful of the expectations created by the website, and must carefully manage inquiries invited through the website. Websites that invite inquiries may create a prospective client-lawyer relationship under Rule 1.18. Lawyers who respond to website-initiated inquiries about legal services should consider the possibility that Rule 1.18 may apply.

As the Legal Ethics Forum points out, the opinion is nothing groundbreaking. Instead, it offers a helpful discussion of “issues of honesty, providing general information about law, how to handle website visitor inquiries, and disclaimers of duties to website visitors.”

Formal Opinion 10-457 has led to a discussion on the ABA’s policy regarding copyrights on ethics opinions. Solo practitioner and avid blogger Carolyn Elefant said “By cloaking its ethics opinions in opaque copyright wrappings, the ABA is impeding lawyers from complying with our ethics obligations and stymying discourse and debate over appropriate ethics standards for our profession as we move at the speed of light through the twenty-first century.” The debate continues in the comments on Elefant’s post and Legal Ethics Forum’s post.

Josh Camson, Pittsburgh, PA


October 4, 2010

Illinois Court of Appeals Overturns Three Cases Due to Prosecutors’ Remarks

Professor Alberto Bernabe observed that within the last three months, the Illinois Appellate Court has ruled on People v. Chester, People v. Smith, and People v. Adams. In each case, the court addressed challenges to convictions on the basis of comments made by the prosecuting attorney.

In Adams the prosecutor improperly bolstered the testimony of a police officer during closing argument and the court overturned the conviction. Smith involved a prosecutor who discussed the defendant’s decision not to testify. That conviction was also overturned. However, according to Professor Bernabe, a different division of the Illinois Appellate Court upheld a conviction in similar circumstances in Chester.

Josh Camson, Pittsburgh, PA


October 4, 2010

Pennsylvania Proposes Changes to Mental-Disability Defenses in Disciplinary Hearings

The Legal Profession Blog reported that the Keystone State is accepting comments on a proposed change to its Rules of Disciplinary Enforcement. The state explains:

The Disciplinary Board is publishing changes to Rule 301(e) of the Pennsylvania Rules of Disciplinary Enforcement, which deals with attorneys who assert mental disability defenses in disciplinary hearings.

The current Rule 301(e) does not require the attorney to identify the condition causing the claimed disability, or provide proof of a causal connection between the condition and the attorney’s ability to adequately defend against the charges in the pending disciplinary proceeding. The attorney only needs to sign a certificate of admission of disability and file the certificate with the Supreme Court, which automatically transfers the attorney to disability inactive status. This places all disciplinary proceedings in abeyance until the attorney is found able to provide a defense.

The revisions will require the attorney asserting a mental disability defense to file a certificate with the Supreme Court identifying the precise nature of the disability; the date of the onset or initial diagnosis of the disability; and an explanation of the manner in which the disability makes it impossible for the respondent to prepare an adequate defense. The attorney must append to the certificate an opinion of at least one medical expert stating that the respondent is unable to prepare an adequate defense including the basis for the medical expert’s opinion. The Supreme Court may deny the application or take other action, including the option of ordering an examination of the attorney by medical experts, at the attorney’s expense. The attorney would be placed on inactive disability status pending the Court’s determination. The order transferring the attorney to that status would be a public order, but the certificate and evidence in support of it would not be available to the public.

The Notice of Proposed Rulemaking will be published in the Pennsylvania Bulletin on September 4, 2010. Comments will be accepted until October 1, 2010. The text of the Notice may be viewed here.

Josh Camson, Pittsburgh, PA


October 4, 2010

New Trial Ordered After Trial Judge Ridicules Defense Attorney

David Leggett was granted a new trial when a panel of the New York Appellate Division, 1st Department found that the “trial court’s pervasive denigration of defendant’s counsel, in front of the jury, deprived the defendant of a fair trial” according to Law.com. The judge repeatedly commented on the defense attorney’s conduct, and used words like “clown” and “outrageous.” At one point, in denying counsel’s objection, the court asked “Would you behave like a professional, please and not a clown.” The full opinion is here.

Law.com has more on the story.

Josh Camson, Pittsburgh, PA


September 21 , 2010

Lawyer Suspended for Failing to Supervise Paralegal with Whom He Shared Fees

The Supreme Judicial Court of Massachusetts has upheld the suspension of a lawyer for assisting a paralegal in the unauthorized practice of law and sharing fees with a nonlawyer. The case, In the Matter of Hrones, involved a lawyer in charge of a small law firm who allowed a law school graduate—who had not yet passed the bar examination—to share office space with his firm and use the firm’s staff. The lawyer agreed that the graduate, working as a paralegal, would develop a practice representing employment-discrimination claimants before the EEOC and state agencies and would split fees resulting from those representations with the firm. The lawyer himself generally did not handle employment-discrimination claims and had little experience in that field. While the lawyer and paralegal indicated that they believed nonlawyers could represent claimants in these proceedings, the lawyer also knew that the appearance of an attorney of record was required—and the lawyer gave the paralegal authority to sign his name to filings without the lawyer’s review. In one case, the lawyer was sanctioned for the paralegal’s conduct, requiring him to withdraw as counsel in all cases before a state agency—though this did not lead the lawyer to terminate his relationship with the paralegal immediately. Only later, after several complaints of neglect and misrepresentation (and a violation of the lawyer and paralegal’s agreement with respect to the handling of fees), did the lawyer take charge of the cases.  

In upholding a suspension imposed by a disciplinary board, the court rejected the lawyer’s claim that he should be held liable merely for failing to adequately supervise the paralegal, not for assisting in the unauthorized practice of law. Noting that the Massachusetts version of Model Rule 5.5 precluded assisting “a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law,” the court concluded that the paralegal’s activities in advising clients about their legal rights, conducting discovery, negotiating settlements and determining fee agreements all constituted unauthorized practice. Moreover, even if a paralegal could have performed some of those activities with supervision, the paralegal in this case was not supervised.

John C. Martin


September 21 , 2010

Disclosing Client Identities in the Name of Ethics Reform Becomes Campaign Issue

In a debate on September 7, state senator and New York attorney general candidate Eric T. Schneiderman endured criticism for cosponsoring a compromise ethics bill that would exempt state lawmakers who were also attorneys from disclosing the identities of their legal clients. (“In Attorney General Debate, Humor and Surprise,” New York Times, September 7, 2010.) The provision has been a point of contention between Governor David Paterson, who favors disclosure of client identities (and vetoed an earlier version with no disclosure requirement), and attorneys in the state legislature’s Democratic leadership, who strongly oppose it. Under the compromise bill, a commission would evaluate legislators’ potential conflicts of interest based on client identity in secret, without requiring public disclosure of client identities or payments. (“An ethics bill compromise?” Lenina Mortimer, Legislative Gazette, February 8, 2010.) Sen. Schneiderman said that while he favored the disclosure requirement, the compromise solution was better than passing no ethics reform at all. (“Sean Coffey/Eric Schneiderman Attorney General Smashup,” Celeste Katz, The Daily Politics / New York Daily News, August 10, 2010.)

Joseph A. Bingham


September 21 , 2010

Florida Firm Fined for Handling of Foreclosure Cases

A Florida circuit court judge fined a prominent Fort Lauderdale firm $49,000 for its handling of area foreclosure cases. Judge Janette Dunnigan found that the firm’s business model itself “violates legal ethics.” (“Judge fines major legal firm for disclosure conduct,” Todd Ruger, Sarasota Herald Tribune, August 31, 2010.) The firm, which files thousands of cases per month, repeatedly failed to appear in court for hearings it had requested. The judge found that the behavior was “willful, deliberate and flagrant and violates oaths of professional practice[.]” This is the first major fine leveled against a Florida foreclosure firm by the state judiciary, which is facing a formidable backlog of foreclosure cases. (“Courts work to clear housing cases,” Todd Ruger, Sarasota Herald Tribune, September 6, 2010.)

Joseph A. Bingham


September 21 , 2010

7th Circuit Upholds Lawyer Convictions Based on “Pro Se” Work, Drunken Seclusion Notwithstanding

The U.S. Court of Appeals for the Seventh Circuit recently upheld the conviction of an attorney who attempted to hide work done on behalf of ostensibly “pro se” bankruptcy clients. In United States v. Holstein an attorney under suspension for professional misconduct continued to accept clients. According to testimony at his trial, he directed his paralegal to continue to accept fees from clients and to file bankruptcy petitions on their behalf, but to black out his name and mark the filings “pro se”—representing to the court that they paid no legal fees. The “pro se” litigants then appeared at their bankruptcy hearings expecting to be represented by counsel, with no idea that they were pro se. The attorney argued that the government had presented insufficient evidence to convict him because, among other things, “[f]or almost the entire time . . . he was drunk and secluded at his summer home,” and his paralegal might have engaged in the misrepresentations to “retaliate[e] against [him] for a failed romance.” The court of appeals held that there was “scant evidence” to support the attorney’s theories, and there was sufficient evidence for conviction.

Joseph A. Bingham


September 21 , 2010

A Reminder: Arbitration Requires Your Client’s Consent

In FTC v. Network Services Depot, the Ninth Circuit required a constructive trust of the defendant’s attorney fees. CaliforniaAttorneysFees.com explains:

Constructive trust is an equitable remedy, with the federal court of appeals finding use of the remedy was justified where commingled funds (some from unlawful activities) had been used to pay attorney. Appellants mainly relied on the bona fide purchaser rule, arguing that client’s attorney accepted the ill-gotten money in good faith and after a diligent review of the circumstances. Not so much, in essence, was the Ninth Circuit’s response.

Attorney had a duty of inquiry into the source of the funds under the circumstances, a duty he did not fulfill by primarily relying on the contrary representations of his client. (FTC v. Assail, Inc., 410 F.3d 256, 266 (5th Cir. 2005).)

The case arises from a Federal Trade Commission (FTC) Act violation, where the district judge determined that the attorney fees were paid from his client’s illegal FTC activities.

Joseph A. Bingham


September 16 , 2010

Ninth Circuit: Attorneys have a Duty of Inquiry into Source of Fees

In FTC v. Network Services Depot, the Ninth Circuit required a constructive trust of the defendant’s attorney fees. CaliforniaAttorneysFees.com explains:

Constructive trust is an equitable remedy, with the federal court of appeals finding use of the remedy was justified where commingled funds (some from unlawful activities) had been used to pay attorney. Appellants mainly relied on the bona fide purchaser rule, arguing that client’s attorney accepted the ill-gotten money in good faith and after a diligent review of the circumstances. Not so much, in essence, was the Ninth Circuit’s response.

Attorney had a duty of inquiry into the source of the funds under the circumstances, a duty he did not fulfill by primarily relying on the contrary representations of his client. (FTC v. Assail, Inc., 410 F.3d 256, 266 (5th Cir. 2005).)

The case arises from a Federal Trade Commission (FTC) Act violation, where the district judge determined that the attorney fees were paid from his client’s illegal FTC activities.

Josh Camson, Pittsburgh, PA


September 16 , 2010

North Dakota Solicits Commentary on Proposed Ethics Rule

The North Dakota Supreme Court is soliciting commentary on a new section to be added to Rule 7.1 of their Rules of Professional Conduct. Rule 7.1 governs Communications Concerning the Services of a Lawyer or Persons Professionally Associated with the Lawyer. The new section (underlined) would read:

A lawyer shall not make a false or misleading communication about the lawyer, a person professionally associated with the lawyer, or their services. A communication is false or misleading if it: 

(d) compares the lawyer’s services with other lawyers’ services based on the lawyer having received an honor or accolade, unless:
(1) the name of the comparing organization is stated, and
(2) the basis for the comparison can be substantiated.

The proposed explanatory comment goes on to say:

A truthful communication that the lawyer has received an honor or accolade is not misleading or impermissibly comparative for purposes of this Rule if: (1) the comparing organization has made inquiry into the lawyer’s fitness, (2) the comparing organization does not issue the honor or accolade for a price, and (3) a truthful, plain language description of the standard or methodology upon which the honor or accolade is based is available for inspection either as part of the communication itself or by reference to a convenient, publicly available source.

Joseph A. Bingham, Chicago, IL


August 31, 2010

Federal Courts of Appeals Strike Down Judicial Ethics Laws

Two recent circuit-court decisions struck down state restrictions on the free speech of candidates for judicial office as violations of the First Amendment.

Writing for a Sixth Circuit panel in Carey v. Wolnitzek, Judge Jeffrey Sutton wrote that Kentucky’s ban on party-affiliation disclosure is not narrowly tailored to serve the state’s legitimate interest in avoiding the appearance of a biased judiciary. Citing Republican Party of Minn. v. White, 536 U.S. 765 (2002), which struck down a rule prohibiting candidates from expressing opinions on controversial legal or political matters, the Sixth Circuit determined that Kentucky’s prohibition on party identification is more onerous than the restriction in White. In reaching this conclusion, the court determined that candidates expressed opinions on a range of issues at once by identifying with a party platform, which was nothing but an aggregation of the sort of positions at issue in White. The state’s ban on direct solicitation of campaign funds (limiting fundraising to political-action committees) was similarly overbroad, prohibiting solicitations in speeches before groups and through mass mailings.

The Minnesota Code of Judicial Conduct provision struck down by the Eighth Circuit in Wersal v. Sexton prohibited judicial candidates from endorsing or (except for the candidate’s opponent) opposing candidates for public office. This provision was likewise struck down for insufficiently narrow tailoring under White. The state’s interests in preventing favoritism toward potential litigants was not served narrowly by a ban on all endorsements including, for example, endorsement of a presidential candidate who would almost certainly not appear as a party to litigation before the judicial candidate. The court held that, under White, the state’s interest in impartiality only extends “to preventing bias for or against a party to a proceeding.”

Josh Camson, Pittsburgh, PA


August 31, 2010

Lawyer’s Post 9-11 PTSD Means He Lacked “Venal Intent”

The New York Supreme Court, Appellate Division, First Department ruled in July that a lawyer’s serious ethical breaches in his handling of his trust account did not constitute intentional misappropriation of funds. In In re Salo, an attorney had kept $40,000 in settlement proceeds in a client’s trust account to cover a workers’ compensation lien. While the lien was pending, the lawyer withdrew most of the $40,000 to pay personal expenses. The lawyer subsequently made restitution to the account, but was still charged with ethics violations for commingling funds.

The lawyer advanced a unique defense, attributing his misuse of the funds to his extreme anxiety triggered by the child abuse in his past coupled with the events of 9-11. His office had been located near the World Trade Center and, although he was not present for the attacks, he testified that they disrupted his law practice. Experts for both sides agreed that he was suffering from post-traumatic stress disorder, and this interfered with his ability to manage his practice and finances properly. The court accepted this to some degree, finding that while the evidence justified punishment for commingling funds, misdirecting client money, and other ethics breaches, mental-health experts’ testimony made it impossible to establish the requisite intent for the most serious charge of intentional misappropriation. The court did, however, impose a one-year suspension of the lawyer’s license for the less serious charges.


Maine Ethics Commission: Counseling Clients on Medical Marijuana Entails Significant Risk

The Maine Board of Bar Overseers has published an opinion offering guidance to lawyers seeking to advise clients under the state’s new medical marijuana law (Maine Bd. of Bar Overseers Professional Ethics Comm’n, Op. 199, July 7, 2010). The law allows the creation of dispensaries that may legally provide qualified medical patients with marijuana. The interaction between the state legalization of medical marijuana and the ongoing federal prohibition on the drug is made more complicated by the current directive to U.S. attorneys not to focus federal resources on individuals who are clearly in compliance with state medical marijuana laws (DOJ Press Release, 10/19/09). The Board’s opinion emphasizes that even if a federal crime is not currently being prosecuted, the Maine Rules of Professional Conduct prohibit assisting clients in the criminal behavior: “the Rule which governs attorney conduct does not make a distinction between crimes which are enforced and those which are not.” (Op. 199). The opinion notes that any counsel regarding medical marijuana use carries significant risk to an attorney, who must evaluate whether a requested legal service amounts to assisting a client in engaging in illegal business or substance use.

Joseph A. Bingham, Chicago, IL


Rule Against Real-Time Electronic Contact Does Not Prevent Solicitation Via Social Media

The Philadelphia Bar Association’s Ethics Committee has published an opinion saying that the solicitation of prospective clients through Internet social media such as blogs, networking sites like Facebook, or even Internet chat rooms does not violate the Pennsylvania Rule of Professional Conduct, which prohibits direct solicitation including “real-time electronic contact.” The Committee recognized that the reporter’s explanation of ABA Model Rule 7.3 interprets the rule (from which Pennsylvania’s rule is directly adopted) to include chat rooms, but argues that “those risks which might be inherent in an individualized, overbearing communication are not sufficiently present” to ban the use of these methods of solicitation (Op. at 6). The opinion does warn, however, that IP voice communications probably do fall within the rule. It also cautions that attorneys could abuse social media communications if they suggest potential clients must respond immediately to their messages, and reminds lawyers that they are required to keep records of all such solicitations for at least two years.

Joseph A. Bingham, Chicago, IL


FTC Files Brief for Enforcement of Red Flags Rule

A 2005 ruling from the U.S. Court of Appeals for the D.C. Circuit, which prevented the FTC from requiring lawyers to comply with rules about privacy notifications, doesn’t apply to the recent red flag rules the FTC is proposing, according to the FTC’s 75-page brief [PDF]. In late 2009, the D.C. District Court ruled in favor of the American Bar Association and said that the red flags rule could not be applied to lawyers. The FTC has since appealed to the D.C. Circuit, where it argues that the key question is whether lawyers fall under the definition of financial institution.

According to the FTC website:

Under the Red Flags Rules, financial institutions and creditors must develop a written program that identifies and detects the relevant warning signs—or “red flags”—of identity theft. These may include, for example, unusual account activity, fraud alerts on a consumer report, or attempted use of suspicious account application documents. The program must also describe appropriate responses that would prevent and mitigate the crime and detail a plan to update the program.

Read more at the Blog of Legal Times.

Joseph A. Bingham, Chicago, IL


Yale Law School to Open Ethics Clinic

The Ethics Bureau at Yale is slated to open this spring. In the clinic, students will provide ethics counseling for pro bono organizations. Students will also prepare standard of care opinions for cases alleging ineffective assistance of counsel, where a client cannot afford expert assistance. Finally, the students will assist in the drafting of amici curiae briefs.

The clinic came about from the work of Tanya Abrams (Yale’ 11) and Jason Wittlin-Cohen (Yale’ 10) who helped visiting lecturer Lawrence Fox author an amicus brief in the Supreme Court case of Holland v. State of Florida.

Joshua H. Camson, Pittsburgh, PA


Disclosure of Partner’s Cocaine Use Didn’t Violate Confidentiality Requirements

The ABA Journal reports that the Louisiana Supreme Court ruled that a law firm “didn’t violate confidentiality requirements by reporting a partner’s cocaine use to attorney discipline authorities.” The law firm reported the attorney after he returned to work after attending a rehabilitation program. The Louisiana high court held that the firm did not owe its partner the same duty of confidentiality that applied to members of the Lawyers Assistance Program.

The Louisiana Supreme Court suspended the attorney for one year and one day, with half the sentence deferred on the condition of continuing drug treatment.

Joshua H. Camson, Pittsburgh, PA


Failure to Follow Ethics Opinion Excludes Inadvertent Email

A recent decision from a New York trial court examines the potential repercussions of receiving an inadvertent message from one’s opponent. In an April 13, 2010, order issued in MNT Sales LLC v. Acme Television Holdings LLC, Judge Bernard Fried castigated counsel for having sought to make use of an inadvertently disclosed email. The email, which was between defense counsel and another lawyer, had been attached to an -mail sent to the plaintiff’s counsel; defense counsel had requested that it be discarded upon recognizing that it had been mistakenly sent. The court found that the plaintiff’s counsel should either have discarded the email as requested or advised that counsel would not do so, irrespective of whether the document was privileged. In any event, citing a formal opinion of the Committee on Professional and Judicial Ethics of the Bar Association of the City of New York, the judge held that it should have been submitted immediately to the court for consideration of its disposition. It therefore denied the plaintiff’s request to make use of the email.

John C. Martin, Chicago, IL


More on the Perils of Expertise

As noted in the News & Developments below (see “If My Firm’s Partner Is Your Expert, Do We Both Have a Problem?”), lawyers serving as experts can give rise to disqualification motions against their firms even when they are not providing legal advice. So, apparently, can improper consultations between experts prior to suit. A recent article in the ABA Journal notes a New Jersey case in which a defense expert’s consultation with the plaintiff’s expert in a legal-malpractice matter was viewed as grounds to disqualify not only the expert, but the law firm that retained him. The defense expert had consulted with one of his partners, who had been hired as an expert by the plaintiff, shortly before the expert left the partnership. The New Jersey court found that this consultation (which was reflected in a bill for 15 minutes of the expert’s time) gave rise to the possibility that the defense lawyers had obtained confidential information from their expert. The court therefore disqualified both and directed the law firm to sanitize its files of any communications with the expert before passing it along to successor counsel.

John C. Martin, Chicago, IL


Missouri Considers “Nonrefundable” Fees

In Formal Opinion 128 the Advisory Committee of the Supreme Court of Missouri concluded that any part of a fee that has not been earned by the end of representation must be refunded. Missouri Rule of Professional Conduct 4-1.16 states that:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. (emphasis added in formal opinion)

In rejecting the concept of truly “nonrefundable” fees, Opinion 128 examines two scenarios where nonrefundable fees are used, namely, domestic-relations cases and criminal cases. In domestic-relations cases, a “nonrefundable” fee might properly be charged “for initially interviewing the prospective client or taking the case because once the attorney has received enough information it creates a conflict of interest . . . [and] the attorney may have to decline representation of others involved in the case.” The opinion noted, however, that such a fee was not “ truly nonrefundable” but instead “earned” by taking on the client to the exclusion of other potential clients. In criminal cases, representation “may terminate early because the attorney withdraws, the client discharges the attorney, or the prosecution dismisses the charges. In any of these situations, the attorney may owe a refund.” In such cases, as in others, a refund might be owed based on the reasonable value of the legal services actually provided.

Joshua H. Camson, Pittsburgh, PA


Florida Sheriff Plans to Record Prisoners' Calls to Lawyers

The Ledger reports that Sheriff Grady Judd of Polk County, Florida, “is preparing to monitor and record all telephone calls from the jail, including conversations between lawyers and their clients.” The change will take place July 1, 2010. Under the current system, lawyers can register their phone number with the jail, and those calls will not be recorded. The sheriff notified the Polk County Criminal Defense Attorney’s Association and the Polk County Trial Lawyers Association that, according to case law from the Florida Supreme Court, the sheriff’s office can record all calls, even calls made to a lawyer.

Public defender J. Marion Moorman told the Ledger that “. . . no ethical lawyer would knowingly participate in phone conversations with a client that he or she knows are being recorded and therefore not confidential.” Moorman is also concerned on how this will impact his office. Lawyers will now have to drive to the jail to have routine conversations with clients, which can no longer be held confidentially via phone.

Joshua H. Camson, Pittsburgh, PA


New Jersey Requires Affidavit of Merit in Legal Malpractice Claims Against Law Firms

The New Jersey Appellate Division held that plaintiffs are “obligated to serve a timely affidavit of merit upon the defendant law firms” in a legal-malpractice case. The case, Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP and Obermeyer Rebmann Maxwell & Hippel, LLP, and National IP Rights Center, LLC is a case of first impression on the issue. New Jersey’s affidavit-of-merit statute only discusses lawyers admitted to practice law in New Jersey, and not law firms. Here, the plaintiff argues that the defendant law firm is not licensed to practice law in New Jersey, and thus the affidavit of merit is unnecessary. However, the Appellate Division explains:

It is an undeniable reality of the modern practice of law that attorneys ordinarily ply their craft within business entities. Those business entities have been created to serve clients more effectively, and also, in some respects, to limit the lawyers’ personal liabilities to creditors as the risks of the profession have expanded. The days in which the private practice of law was almost exclusively populated by individual practitioners has long passed. That being so, we doubt that the Legislature intended to penalize the legal profession by confining the important protections of the affidavit of merit statute to single-attorney law offices.

Joshua H. Camson, Pittsburgh, PA


Legal Ethics: “Subjective” and “Least Analytically Rigorous”?

In its June 14, 2010, decision in Holland v. Florida, the U.S. Supreme Court determined that the statute of limitations for seeking federal habeas corpus review under the Antiterrorism and Effective Death Penalty Act (AEDPA) was subject to equitable tolling in appropriate cases. Albert Holland, a death-row inmate, ended up filing his federal habeas petition after the AEDPA statute had run. A lower court had therefore denied it as untimely, despite the fact that he had written numerous letters to his counsel and state court officials seeking to make sure that he and his counsel were aware of the appropriate deadlines and that his petition would be filed within the statutory period. By a 7–2 vote, the Court determined that a late filing might be excused by unprofessional conduct, even if that conduct did not rise to the level of “bad faith, dishonesty, divided loyalty, mental impairment or so forth.” Instead, assuming that the client showed diligent pursuit of his rights, “serious instances of attorney misconduct” rising beyond the level of “garden variety” or “excusable neglect” might qualify as “extraordinary circumstances” warranting equitable tolling of the AEDPA limitation period. While remanding the matter to the district court to determine whether the facts warranted a finding of “extraordinary circumstances,” the majority opinion did note an amicus brief, filed on behalf of a group of legal ethics professors, asserting that the lawyer’s failure to take action “violated fundamental canons of professional responsibility.”

In dissent, Justice Scalia disagreed with the conclusion that the AEDPA allowed for equitable tolling. But the dissent may have been more interesting in its approach to the field of legal ethics. Stating that the majority had failed to articulate a clear test for the misconduct that would rise to the level of “extraordinary circumstances,” Scalia asserted:

The only thing the Court offers that approaches substantive instruction is its implicit approval of “fundamental canons of professional responsibility,” articulated by an ad hoc group of legal-ethicist amici consisting mainly of professors of that least analytically rigorous and hence most subjective of law-school subjects, legal ethics.

John C. Martin, Chicago, IL


A Ruling Deferred Leads to Request for Replacement

According to a report in the New York Times, families of certain 9/11 victims have petitioned the Second Circuit to replace a judge overseeing a group of lawsuits that seek to hold various charities, financial institutions, and other defendants responsible for providing support to Al Queda and for the 9/11 attacks. The petition asserts that the district-court judge overseeing the suits has yet to rule on almost 100 motions to dismiss and is “effectively suspending the litigation.” According to the article, the judge in question has been the subject of eight similar petitions in other cases though the writer also notes that delays in the case may have resulted from earlier appeals from orders dismissing certain defendants on immunity grounds. The article does not address particular rules of judicial ethics that may have some bearing on the matter (such as Model Rule of Judicial Conduct 2.5), but does quote legal ethics expert Stephen Gillers of NYU, who notes that “Judges get paid to decide cases expeditiously. If they have trouble doing that, they should look for work elsewhere.”

John C. Martin, Chicago, IL


Ethics 20/20 Commission Announces Next Public Hearing

The Ethics 20/20 Commission has announced that it is holding a public hearing on Friday, August 6, 2010, in connection with the 2010 ABA Annual Meeting in San Francisco. The hearing’s principal purpose is to provide comments on issues relating to domestic and international outsourcing. The commission is also soliciting comments regarding memoranda and templates from its Inbound Foreign Lawyers Working Group, which is addressing how foreign lawyers can be added to the ABA Model Rules on Registration of In-House Counsel, Pro Hac Vice Admission, and Model Rule 5.5. The formal announcement of the meeting is available here.

John C. Martin, Chicago, IL


Social Media Ethics Concerns

Laura Bergus, contributor at the website Lawyerist, wrote an article discussing the Top 5 Social Media Ethics Concerns for Lawyers. Number two on the list is “Beware of unauthorized practice of law.” Bergus explains:

In some cases, you might communicate with someone in a way that inadvertently creates an attorney-client relationship. If so, you may give advice or provide other services that would be considered practicing law in some states. Many states have fuzzy definitions of legal practice, but every state regulates who can practice law and under what circumstances. If you advise someone in another state, where you aren’t licensed, you may open yourself up to claims of unauthorized practice.

Joshua H. Camson, Pittsburgh, PA


New Jersey Judge Quits Job to Make Movies

New Jersey’s Advisory Committee on Extrajudicial Activities recently informed a local judge that he could not “be interviewed, promote and participate in the press and publicity” of low-budget movies that he makes. As a result, Judge Kenneth Del Vecchio resigned from his position. The New York Times reportsthat Del Vecchio “makes highly political films that are liable to infuriate a lot of people. His last release, an anti-Obama satire, depicts a man reaching the presidency with the help of Satan, and his next picture is a defense of gay marriage.” Yet the court took no issue with the films’ content.

Joshua H. Camson, Pittsburgh, PA


FTC Delays Identity-Theft Program

After lawsuits from the American Bar Association and American Medical Association, as well as pressure from legislators, the Federal Trade Commission (FTC) has agreed to postpone its new Red Flags Rule scheduled to begin June 1, 2010. The rule would implement “a new federal law that the FTC had interpreted to require professionals including lawyers and physicians to comply with requirements that ‘creditors’ and ‘financial institutions’ take measures to protect consumers from identity theft” according to the ABA Journal.

Joshua H. Camson, Pittsburgh, PA


Department of Justice Finds No Wrongdoing in Georgia Thompson Prosecution

The Department of Justice’s Office of Professional Responsibility informed the House Committee on the Judiciary that former U.S. Attorney Steven Biskupic did not commit ethical violations. According to the letter to the committee, “Mr. Biskupic did not violate a clearly and unambiguously applicable obligation by prosecuting Ms. Thompson.” The Office of Professional Responsibility concluded that “the government was not precluded from charging her as it did in this case . . . [and] found no evidence to support the allegation that Mr. Biskupic indicted Ms. Thompson for improper partisan political reasons.”

“Thompson was a Wisconsin state bureaucrat convicted of improperly steering state travel contracts to a firm with connections to Democrats. A federal appeals court later overturned the conviction and ordered Thompson freed from prison immediately” according to the Journal Sentinel. The investigation into Mr. Biskupic, a George W. Bush appointee, began when Democrats questioned whether he brought the case for political reasons.

Joshua H. Camson, Pittsburgh, PA


Disclosure of Deposition Testimony Leads to Fine, Possible Bar Investigation

As reported in the ABA Journal, a San Francisco lawyer was fined $1,500 for producing and distributing a DVD containing deposition testimony that was the subject of a protective order. The lawyer represented seven high-ranking black police officers in a discrimination suit that was filed in 2007. In February 2010, the lawyer released a DVD to local media and politicians that appeared to show defendants admitting to racially discriminatory conduct in depositions. A Superior Court Judge found that parts of that DVD, including excerpts of deposition testimony that discussed a protected report, violated a protective order, and fined the attorney $1,500. The Court also reported this conduct to the State Bar of California. According to the San Jose Mercury News, the release of the DVD was only the latest salvo in extremely contentious litigation that involved “A heavy drift of accusations, recriminations, personal sniping and paperwork” in two separate cases and the recusal of at least one judge.

John C. Martin, Chicago, IL


Committee Devotes Lunch to Clients

The Ethics and Professionalism Committee made its presence known at this year’s Section Annual Conference in New York. In addition to an informal dinner following the conference’s welcome reception, the committee put on two programs addressing ethical issues in the electronic age and hosted a Practice Area and Discussion networking lunch at which discussion was led by former section chair and ethics expert Larry Fox (who was good enough to substitute for Fordham law professor Bruce Green). The discussion began with a consideration of what issues a law firm might face if confronted by a client (such as Goldman Sachs, perhaps) that asked the firm to create an ethical wall to advise two internal client constituencies on opposite sides of the same transaction.  From there, the participants moved through a wide-ranging consideration of the desirability of “Carfax for Clients” or “Time Sharing for Lawyers” to ponder the question whether a lawyer could require a client to enter into a prospective waiver of the confidentiality obligations of Rule 1.6 (and, if not, why lawyers should feel any more comfortable with prospective waivers of the duty of loyalty). Fox’s written presentation on problems of prospective waivers is available here.

John C. Martin, Chicago, IL


Mississippi Association for Justice asks Attorney General to Investigate Out-of-State Client Solicitations

The Sun Herald reports that businesses along the Mississippi Gulf Coast are getting upwards of half a dozen phone calls a day from out-of-state law firms soliciting their business in the wake of the gulf oil spill. This has prompted action from the Mississippi Association for Justice, an organization of trial lawyers, to seek the intervention of the state attorney general to investigate potential unlicensed practice and ethical violations. Mississippi Rule of Professional Conduct 7.3(a) states that:

A lawyer shall not by in-person live telephone or real-time electronic contact solicit professional employment from a particular prospective client with whom the lawyer has no family, close personal, or prior professional relationship when a significant motive of the lawyer’s doing so is the lawyer’s pecuniary gain.

Mississippi Ethics Opinion No. 158 opened the door for direct client solicitation by mail, but no such exemption exists for direct phone calls.

Joshua H. Camson, Pittsburgh, PA


South Carolina Supreme Court: Advice from National Attorney Generals Association Protected by Privilege

The South Carolina attorney general, in the course of litigation against a cigarette distributor, consulted with the National Association of Attorneys General (NAAG). During discovery, the attorney general produced a privilege log and asserted that communications between the attorney general’s office and the NAAG were protected from discovery. The South Carolina Supreme Court held:

While the relationship the AG has with the NAAG is not the traditional attorney-client relationship envisioned in Doster, we nonetheless find that these communications may be covered by the attorney-client privilege. As the ALC noted, the AG has not “retained” the NAAG attorneys in this matter or with respect to the disputed documents. However, the AG is a paid member of the NAAG, and NAAG staff attorneys are available to provide legal advice relating to the MSA and tobacco regulation and enforcement. We find it instructive that one court has previously held that similar documents between a state attorney general and the NAAG were protected by the attorney-client privilege. See Grand River Enterprise Six Nations, Ltd. v. Pryor, No. 02 Civ. 5069(JFK)(DFE), 2008 WL 1826490, at *3 (Apr. 18, 2008 S.D.N.Y.).

Thus we hold that the attorney-client privilege may apply to this very narrow factual scenario because the AG, as a paid member, has solicited the NAAG attorneys for legal advice and consultation on matters relating to the tobacco litigation, the MSA, subsequent enforcement of the MSA, and tobacco regulation. We remand the matter to the ALC to determine if the allegedly privileged documents are confidential communications pertaining to the above legal matters.

The opinion can be found here.

Joshua H. Camson, Pittsburgh, PA


Former Qualcomm Attorneys Discuss Impact of Sanctions Decision

As previously reported, proposed sanctions against lawyers representing Qualcomm in their patent dispute against Broadcom were dropped after a federal court found that the litigation mistakes the six attorneys made were not willful. This video, compliments of Cal Law, features three of the lawyers involved discussing how the potential sanctions, and having those sanctions dropped, has impacted their lives.

Surviving the Qualcomm sanctions from Cal Law on Vimeo.

Joshua H. Camson, Pittsburgh, PA


New Jersey Supreme Court Holds That Personal Emails Sent from Work Computer Are Privileged

In the case of Stengart v. Loving Care Agency, Inc.the plaintiff used her work-issued laptop to exchange emails with her attorney. She later quit her job and filed the underlying employment discrimination lawsuit. In anticipation of discovery, the defendant used computer forensics to retrieve information from the plaintiff’s work computer, including several emails between the plaintiff and her lawyer. The trial court found that because of the defendant’s written policy about electronic communications, explaining that they were not private, the plaintiff waived her attorney-client privilege. The Appellate Division reversed and held that the defendant’s counsel violated RPC 4.4(b) by reading and using the privileged documents.

The New Jersey Supreme Court unanimously affirmed and held that “under the circumstances, Stengart could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them.”

This is an issue of first impression for the New Jersey Supreme Court. However, the issue of personal emails and employer-owned computers is spreading quickly through courts across the nation. For example, in New York, Scott v. Beth Israel Medical Centerheld that a former employee’s communications with an attorney from a work computer were not privileged, partly because the company policy explained that employees had no expectation of privacy in their emails. Finally, both Leor Exploration & Production LLC, et al. v. Aguiar and Convertino v. United States Department of Justiceuse a four-part balancing test to determine if the emails were privileged. Leor Exploration found that emails were not privileged, and Convertino held that they were privileged.

Joshua H. Camson, Pittsburgh, PA


Are Frequent-Flyer Miles, Gifts, Discounts, and Rebates Ethically Acceptable Benefits?

This month’s ABA e-newsletter, YourABA has an articleby Peter Geraghty discussing the possible ethical implications of third-party provider benefits stemming from client interactions. Geraghty poses two questions many practitioners may face:

1. You have a solo practice that concentrates in family law. A court-reporting firm has offered you discount points that can be redeemed at the end of the year for cash refunds and other benefits. Can you keep the benefits?

2. You also use a credit card for your practice that generates frequent-flyer miles for every purchase you make. Do you have an obligation to inform your clients that you are receiving miles when you make purchases on their behalf? Must these miles be allocated to your clients?

The article discusses ethics opinions from the ABA and various states on these issues.


Joshua H. Camson, Pittsburgh, PA


Ethics Tip: Don’t Pay Your State Bar Dues with Your Clients’ Money

According to the monthly newsletter of the Pennsylvania Supreme Court Disciplinary Board, some attorneys are just asking for it. The board explains “12 attorneys paid their annual fees with checks marked as drawn on a trust or escrow account, prompting an immediate inquiry from Disciplinary Counsel.” A footnote suggests that this is the “ethical equivalent of a 'please kick me'” sign.

Joshua H. Camson, Pittsburgh, PA


Committee Dinner at Section Annual Conference

Committee members attending the Section of Litigation Annual Conferenceare invited to join us for dinner on Wednesday, April 21, 2010, at 8:00 p.m. (shortly after the end of the welcome reception). The dinner will be held at Azalea, 224 W. 51st Street, an Italian restaurant within walking distance of the Hilton, and the cost per person of the three-course fixed price dinner will be $65.00, including tax and tip. If you would like to join us, please RSVP by email to Debra Swain by April 14, 2010.

John C. Martin, Chicago, IL


Zeal Minus Direction Equals Discipline

The Legal Profession Blogreports on a Massachusetts case that points out the limits on zealous representation. The matter arose out of a lawyer’s representation of a client “with disposable income and a zealous interest in litigating” claims against two former employers. Faced with this situation, the lawyer “allowed the client to dictate a misguided strategy involving excessive and improper discovery requests that did not materially advance the client’s cases but did generate large hourly-based fees.” The case, however, went nowhere. A hearing board found that “although the pleadings and motion papers in both cases generally were competently prepared, that the respondent was reasonably prepared in the depositions he defended, and that his pursuit of interlocutory relief was appropriate, he failed to focus on the two employers’ reasons for terminating the client’s employment” and instead “allowed the client to dictate the general thrust of the litigation by turning it into a forum to validate the client’s scientific opinions.” This led the board to conclude “that the respondent failed to design and implement a strategy to move the cases forward in a reasonably diligent and prompt manner.” In view of this failure to help the client focus in on the goals of the litigation, the board concluded that the lawyer violated Massachusetts Rules of Professional Conduct 1.1 (competent representation), 1.3 (diligent representation), and 1.4 (b) (explaining matters to permit informed client decisions). The board also found that the total fee charge for the two cases, about $700,000, “destroyed the economic viability of the cases,” and was plainly excessive. As a result, the board suspended the lawyer from practice for a period of four months and directed the lawyer to retake the Massachusetts Professional Responsibility Exam and comply with the results of any fee arbitration as a condition of reinstatement.


Supreme Court of Ohio Proposes Changes to Rules on Unauthorized Practice of Law

The Supreme Court of Ohio is accepting public comment on proposed amendments to section 2 of Rule VII of the Rules for the Government of the Bar of Ohio. According to the court’s website, the amendments will allow the attorney general to investigate and prosecute UPL cases. The amendments will also provide caseload assistance for attorneys who volunteer to investigate and prosecute UPL cases on behalf of bar associations. Finally, the proposed amendments will expand the current definition of unauthorized practice to lay out more specific exceptions found elsewhere in Ohio law.

Comments will be accepted until April 13 and should be sent to Michelle Hall.

Joshua H. Camson, Pittsburgh, PA


ABA Seeks Comments on Suggested Amendments to Model Code of Judicial Conduct

The ABA Standing Committee on Judicial Independence and the members of the Working Group on Judicial Disqualification have completed a draft of amendments to the Model Code of Judicial Conduct. The proposed amendments attempt to incorporate the Caperton and Citizens United decisions. As the draft notes, “. . . the enormous additional influx of campaign support in judicial elections during the past decade has considerably raised the stakes for state judiciaries in terms of judicial independence and public perception of the integrity, impartiality, fairness—and, indeed, the legitimacy—of the judicial branch of government.” The amendments seek to provide further guidance to states and judges in light of these changes.

Comments will be accepted until April 2 and should be sent to William Weisenberg and Keith Fisher.

Joshua H. Camson, Pittsburgh, PA


Supreme Court Decides Bankruptcy Abuse Act Permissibly Limits Advice

The U.S. Supreme Court has issued its opinion in Milavetz, Gallop & Milavetz, P.A. v. United States. The case involved a claim that a provision of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) that prohibited advice “to incur more debt in contemplation of” a bankruptcy proceeding was as unconstitutional if applied to bankruptcy attorneys rendering legal advice. The district court had held that attorneys did not fall within the definition of “debt relief agencies” covered by BAPCPA, and the Eighth Circuit—while finding that attorneys were covered by BAPCPA—held that prohibiting advice to incur any additional debt while contemplating bankruptcy was unconstitutional.

The Supreme Court unanimously (with concurring opinions by Justices Scalia and Thomas) reached a different conclusion. The Supreme Court had no problem determining that the statute applied to attorneys. Among other things, the assistance contemplated by the statute included the provision of legal representation, which could only be provided by attorneys. The Court also concluded, however, that the only advice really restricted by BAPCPA was advice that attorneys couldn’t properly give in the first place. The Court read the relevant provision to narrowly prohibit advising a client to abuse the bankruptcy system by loading up on debt in anticipation of obtaining its discharge. The court suggested that such advice might not only be bad for the client (because such debts might be found nondischargeable), but also might be unethical. While an attorney could, consistent with BAPCA, talk fully and candidly about the incurrence of such debt, the Court suggested that instructing or encouraging clients to take on those debts might run afoul of Model Rule 1.2(d)’s prohibition against counseling a client to engage in criminal or fraudulent conduct.

John C. Martin, Chicago, IL


Conflict of Interest Results in Loss of $12 Million Attorney Fees

A class-action lawsuit against Kaplan and BARBRI for alleged antitrust violations resulted in a $49 million settlement. However, Judge Manuel Real of the Central District of California found that the conduct of the lead plaintiffs’ attorneys resulted in a conflict of interest and thus they were prohibited from collecting their fees.

Judge Real’s order arose from objections made by other attorneys in the case. The objectors took issue with an agreement between several of the lead plaintiffs and their attorneys. The agreement provided for a sliding-scale fee system, with the lead attorneys receiving a larger fee for a larger settlement. However, the incentive was capped for any settlement over $10 million. The objectors argued that this provided a disincentive for the lead attorneys to pursue any settlement beyond $10 million. Judge Real agreed:

That a fair settlement was ultimately reached does not bear upon the seriousness of the ethical violation. This is all according to, at least, the Ninth Circuit. Under California law in the absence of informed written consent, the simultaneous representation of clients with conflicting interest constitutes an automatic ethics violation that results in the forfeiture of attorneys’ fees. Moreover, quantum meruit recovery is barred where an attorney has violated an ethical rule that proscribed the very conduct for which compensation was sought.

The attorneys have moved for Judge Real to reconsider the ruling.

Joshua H. Camson, Pittsburgh, PA


New Jersey Solo Practitioner Challenges New York Office Requirement

New York Judiciary Law § 470 requires any attorney practicing in New York to have an office in New York. This can even be an office shared with another firm, as long as the office exists “for the transaction of law business” according to Keenan v. Mitsubishi Estate. Solo practitioner Ekaterina Schoenefeld is admitted to practice in New Jersey and New York. However, because she does not have an office in New York, she cannot practice there. To comply with the requirements of section 470, Schoenefeld has turned away clients from New York.

Now Schoenefeld asserts that the law is discriminatory against out-of-state practitioners. Section 470 does not apply to resident New York attorneys, who can practice from wherever they want. Schoenefeld cites Article IV § 2 of the U.S. Constitution, the privileges and immunities clause, to support her claim.

Judge Lawrence Kahn from the U.S. District Court for the Northern District of New York held that the lawsuit could go forward. The New York Attorney General’s Office had asserted that Schoenefeld had to be prosecuted under the statute before she could proceed, but Judge Kahn disagreed, finding that Schoenefeld “correctly notes that she need not violate and be prosecuted for the violation of a statute in order to maintain an action challenging the statute’s constitutionality.”

Joshua H. Camson, Pittsburgh, PA


Supreme Court Hears Arguments over Legal Support to Terrorists

On February 22, 2010, the U.S. Supreme Court heard argument in Holder v. Humanitarian Law Project. The case involves a challenge to 18 U.S.C. § 2339B, which prohibits the provision of “any . . . service, . . . training, [or] expert advice or assistance” to designated foreign terrorist organizations. The Ninth Circuit had held that the statute was unconstitutionally vague, noting (among other things) that apparently even the filing of an amicus brief in support of a foreign terrorist organization would violate the statute.

According to an account of the arguments provided by SCOTUSBLOG, Solicitor General Elena Kagan was asked numerous questions about the scope of the law on the provision of legal services to terrorist organizations. She conceded that it would not be illegal to defend such a group if charged with a crime in a U.S. court because it would have a constitutional right to defend itself. But, she indicated, the law would forbid the group from hiring a lawyer to file an amicus brief on its behalf, because that would be an outlawed service. It remains to be seen whether the Court will accept such a distinction (or, indeed, whether it will decide the case at all—because apparently Chief Justice Roberts suggested that it might need to be reexamined in the lower courts under a different standard).

John C. Martin, Chicago, IL


Ethics 20/20 Commission Holds First Hearing

As reported earlier, the ABA Commission on Ethics 20/20 held the first of a series of public hearings on February 5, 2010 in connection with the 2010 ABA Midyear Meeting. An account (taken from the ABA/BNA Lawyers’ Manual on Professional Conduct) is available here. While the commission’s preliminary agenda suggested a focus on interdisciplinary practice (especially across national lines), the report indicates that discussion at the hearing also involved serious concerns being expressed over proposals to let nonlawyers own interests in law firms, and client confidentiality in connection with advances in technology. Further public hearings of the commission are scheduled for August 6, 2010 at the 2010 ABA Annual Meeting in San Francisco and for October 16, 2010 at the 2010 Fall Leadership Meeting in Chicago.

John C. Martin, Chicago, IL


Committee Programming on Tap at Section Annual

The Ethics & Professionalism Committee is pleased to announce that it will be sponsoring a variety of events at the upcoming Section of Litigation Annual Conference. After an initial informal dinner with committee chairs, subcommittee chairs, and members following the Welcome and Outreach Reception on Wednesday, April 21, the committee will host a networking luncheon featuring a discussion of the ABA’s Ethics 20/20 project on Thursday, April 22 at 11:45 a.m. Thereafter, the committee is sponsoring two CLE events: “The Ethics of E-Discovery” on Thursday, April 22 at 4:00 p.m. and “Getting Caught in a Web—Ethical Issues of Web 2.0” on Friday, April 23 at 4:00 p.m. Watch this space for more detail on all events.

John C. Martin, Chicago, IL


If My Firm’s Partner Is Your Expert, Do We Both Have a Problem?

A recent Federal Circuit order points out that conflicts don’t just arise from attorney-client relationships. In a nonprecedential order issued in the case of Outside the Box Innovations LLC v. Travel Caddy, Inc.,the Federal Circuit disqualified a law firm that ended up on both sides of a patent case, though not as lawyers.

The underlying patent-infringement case involved a finding of inequitable conduct, resulting in a motion for attorney fees before the district court. The party claiming fees—Union Rich—supported its motion with the expert’s declaration of a law-firm partner who opined that the fees requested were reasonable based on his experience. The district court ultimately denied the request for fees, stating that both parties bore some responsibility for the protracted litigation. Thereafter, Union Rich’s opponent—Travel Caddy—hired three attorneys from the expert’s firm to represent it on appeal. The Federal Circuit disqualified them. The appellate court was actually not interested in whether there was an attorney-client relationship between the expert and Union Rich (indeed, the order notes “doubt” about the existence of such a relationship based on mere service as an expert witness). But it did find that the representation of Travel Caddy on appeal was improper under the Georgia corollary toModel Rule 1.7(a). Because Union Rich was likely to be in the position of arguing that their counsel’s conduct was necessary and proper—relying in part on the expert’s testimony—the lawyers representing Travel Caddy would need to consider challenging their own partner’s opinion in the appeal. Because that would “materially and adversely affect the firm’s representation of Travel Caddy on appeal” (and because it had no evidence of an appropriate waiver of that conflict, the Federal Circuit directed Travel Caddy to find a new lawyer.

John C. Martin, Chicago, IL


Soliciting Ex Parte Contacts with Court Not a Great Sales Pitch

Lawyers generally have an ethical duty to refrain from ex partecommunications with judges under Model Rule 3.5(b). A recent case coming out of the Chicago federal courthouse , however, might serve as a reminder that such ex partecontacts by non-lawyers may also not achieve their intended result.

As noted here, a recent effort by an infomercial pitchman to solicit direct-to-the-court email support for his cause did not go well. The salesman, Kevin Trudeau, who has appeared on a host of late-night infomercials pitching a variety of health-care products, is facing a civil lawsuit from the Federal Trade Commission, and had previously been held in contempt for using deceptive practices in some of his advertising. In an effort to aid his cause, Trudeau posted a message on his website asking supporters to email U.S. District Judge Robert Gettleman and tell him how Trudeau had improved their lives. The judge was not amused. Finding his email account flooded with messages (which apparently ranged from the supporting to the angry to the threatening), the judge directed Trudeau to appear in court, where he was found in criminal contempt. The contempt hearing was apparently interrupted at various points by the ring of email “bells” indicating that yet another web-inspired message had arrived. The court has yet to rule on sanctions—though Trudeau apparently did promptly change his website to ask readers not to contact the judge.

John C. Martin, Chicago, IL


Court Recommends Reprimand for Attorney Who Prejudiced Prospective Class Clients

An attorney represented the citizens of Miami against the City of Miami in a class action alleging an improper imposition of emergency medical-assessment fees. The class action was settled for $7 million, but the settlement benefited only seven people. Further, the lawyer accepted a $2 million fee for his work on the settlement.

The lawyer negotiated the settlement on behalf of the class with representatives for Miami and announced the settlement at the trial court. Broward Circuit Judge Jack Tuter, acting as a referee for the Florida Supreme Court in a subsequent disciplinary case, found that the lawyer breached his fiduciary duty to prospective members of the class. Judge Tuter found that “when the negotiations broke down, [the lawyer] entered into a separate settlement with the City of Miami for $7 million dollars—but only for the seven individual plaintiffs in the lawsuit.” Further, Judge Tuter found that “[a]s a result of [the lawyer]’s prejudice to the class, it follows [the lawyer] took an excessive and indefensible attorney fee.” Judge Tuter recommended a formal reprimand.

The Florida Bar also alleged that the lawyer misled the trial court when he presented the proposed settlement. However, Judge Tuter found that the evidence was not of “such weight that it produces a firm belief or conviction, without hesitation about the matter that Respondent” misled the trial judge.

Joshua H. Camson, Pittsburgh, PA


CPR Announces New Professionalism Award for Young Lawyers

The ABA Center for Professional Responsibility has announced a new award to recognize and encourage young lawyers who are dedicated to lawyer professionalism. The Rosner and Rosner Young Lawyers Professionalism Award will honor those who have demonstrated an interest in and commitment to areas such as legal and judicial ethics, lawyer professionalism, client protection, and professional regulation. The award recipient receives a complimentary lifetime membership in the Center for Professional Responsibility, complimentary registration for the center’s National Professional Responsibility Conference, and a one-year subscription to the web-based version of the ABA/BNA Lawyers’ Manual on Professional Conduct.

Nominations for the inaugural award are being accepted until March 31, 2010, and the award will be presented at the ABA Annual Meeting in August. Nomination forms and further information are available at the award website.

John C. Martin, Chicago, IL


The Wait for Supreme Court Guidance on Prosecutorial Ethics is Over Because It Won’t Be Coming

Back in November, the U.S. Supreme Court heard argument in Pottawattamie County v. McGhee, a case that presented the question of whether a prosecutor (already subject to special ethical responsibilities under Model Rule 3.8) can be subjected to civil liability for damages for purportedly procuring false testimony and introducing that testimony at trial. The case raised real questions about the limits of “absolute” prosecutorial immunity and the potential practical consequences of exposing prosecutors to suit for their actions at trial. A good summary of the case and oral argument is found here and an ABA Journal report regarding the case is here.

It now appears that resolution of these questions will have to wait. While the Supreme Court may have been willing to reach a resolution, the parties have decided to reach one of their own—entering into a settlement [PDF]. Apparently even the Supreme Court is at the mercy of clients who find it in their interests to resolve cases rather than explore interesting legal issues.

John C. Martin, Chicago, IL


Judges Cannot “Friend” Practitioners in their Court According to Florida Ethics Committee

Florida’s Judicial Ethics Advisory Committee recently released Opinion 2009-20answering questions about social media and the ethical ramifications on judges. The committee found that judges cannot accept friend requests on social media websites such as LinkedIn, Facebook, and MySpace from litigants in their court. However, the committee took special care to note that the “opinion should not be interpreted to mean that the . . . judge is prohibited from identifying any person as a “friend” on a social networking site. Instead, it is limited to the facts presented . . . related to lawyers who may appear before the judge.”

The opinion is mainly concerned with the potential appearance of impropriety that can arise from these friends. “The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.” However, the committee also concludes that a judge’s election campaign committee can establish a social-networking page on the judge’s behalf, and allow people to become “fans” of the judge, “so long as the judge or committee does not control who is permitted to list himself or herself as a supporter.”


Supreme Court Considers Challenge on Bankruptcy Advice

The U.S. Supreme Court has heard argument in the Milavetz, Gallop & Milavetz v. U.S. case, which contends that the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act, if applied to lawyers, would conflict with state ethics regulations and violate the First Amendment. The United States asserted that the act’s restrictions applied only to advice intended to abuse the bankruptcy system, but Chief Justice Roberts suggested that this construction would require “a lawyer trying to give correct, ethical advice . . . to pause before every sentence.” Justices Breyer and Ginsberg also took issue with the United States’ assertion that the law did not apply to lawyers—suggesting that the definition of “bankruptcy assistance” expressly included legal representation. Not all the justices, however, seemed sympathetic to the challenge. Justice Scalia purportedly described the act as “a stupid law,” but asked “Where is the prohibition of stupid laws in the Constitution?”

The ABA Journal’s account of the argument is here. The National Law Journal’s coverage is here.


Michigan Adopts Judicial Disqualification Rule

On November 25th the Michigan Supreme Court handed down an order amending Rule 2.003 of the Michigan Court Rules. The new Rule 2.003 allows Supreme Court justices to disqualify each other from cases where an individual justice refuses to step aside. To disqualify a Supreme Court justice, a party must file a written motion or the justice must raise the issue himself or herself. The challenged justice initially decides the issue and publishes his or her reasons for that decision. However, if the motion for disqualification is denied, a party may move for the motion to be decided by the entire Michigan Supreme Court, which will examine the motion de novo.

The new Rule 2.003 also explicitly adopts Caperton v. Massey, which the Supreme Court decided earlier this year. To that end, Rule 2.003 now allows for disqualification where there is “a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey . . .” Michigan is the second state to formally adopt Caperton. In October, Wisconsin adopted a campaign-contribution rule in line with Caperton, the Milwaukee Journal Sentinel reports.


Ethics 20/20 Commission Releases Preliminary Issues Outline

The ABA Commission on Ethics 20/20 has issued its Preliminary Issues Outline for review and comment. At present, the outline pays particular attention to ethical concerns arising out of the increasingly interstate and international practice of law—proposing to consider such issues as the admission of lawyers in other countries, legal outsourcing, conflicts arising out of the growth and globalization of law firms, the application of Model Rule 1.6 in view of competing international standards, and the ethics rules applicable to international arbitration. Other topics for discussion include the application of existing ethical rules to new technologies, social networking, and public access to information about lawyers.

The commission seeks comments by December 31, 2009, and has indicated that it will post all written comments to its website. The commission will consider this feedback at its February 4, 2010, meeting in Orlando, Florida.


States Split over Internet Advertising

Zenas Zelotes, an attorney in Norwich, Connecticut, filed ethics complaints in 47 states against Total Attorneys Inc. of Chicago. The Norwich Bulletin discusses Mr. Zelotes’s complaints here. Hawaii and Connecticut are the first states to rule on Mr. Zelotes’s ethical complaints against Total Attorneys Inc.

According to BusinessWire, “Hawaii’s Office of Disciplinary Counsel completed a full inquiry and determined that there is no basis upon which to take any action in the case. Hawaii also stated in its letter that the complaint raised serious First Amendment free commercial speech and other legal issues.”

Connecticut’s Statewide Grievance Committee, however, also addressed Mr. Zelotes’s complaint against TotalBankruptcy.com, an affiliate of Total Attorneys, LLC. In contrast to Hawaii, the Grievance Committee held that the website is “not a cooperative advertising website. Total Bankruptcy channels leads to attorneys who purchase the rights to certain territories. The attorneys pay a fixed price per lead, and potential clients have no role in actively choosing the attorney to which they are funneled. This conduct violates professional ethical standards.”

In Virginia, the state bar’s Standing Committee on Legal Ethics withdrew draft Legal Ethics Opinion 1851, “Participation in a Third Party Internet Website” on September 24 “for future consideration.” The original draft can be found here.


New Ethics Opinion Issued on Disclosure of Conflicts

The ABA Standing Committee on Ethics and Professional Liability issued a new opinion discussing the duty to detect and resolve conflicts of interest. Formal Opinion 09-455, entitled “Disclosure of Conflicts Information When Lawyers Move Between Law Firms,” finds that the “disclosure of conflicts information should be no greater than reasonably necessary to accomplish the purpose of detecting and resolving conflicts and must not compromise the attorney-client privilege or otherwise prejudice a client or former client.” Further, the opinion asserts that these disclosures should not occur “until the moving lawyer and the prospective new firm have engaged in substantive discussions regarding a possible new association.”


If You Must Solicit, Don’t Lie

An Illinois state disciplinary complaint has drawn substantial attention for its salacious content. It seems that a Chicago lawyer placed an advertisement for a new assistant in the “adult gigs” section of Craigslist. A woman who responded was then advised (in an email) that the job entailed not only secretarial duties, but providing sexual services to the two law firm partners. The horrified candidate then advised the attorney disciplinary commission of the exchange. The ABA Journal describes the matter here while the Legal Profession Blog’s account is here.

Students of professional ethics might note that the resultant disciplinary complaint focuses not on the lawyer’s disreputable behavior, but on his dishonesty. The sole count arising out of the Craigslist posting (two others focus on unrelated claims of neglect) charges the lawyer with violating Illinois Rule of Professional Conduct 8.1(a)(1) (involving misrepresentations in connection with disciplinary matters) and 8.4(a)(4) (prohibiting conduct involving fraud, deceit, or misrepresentation). The obvious predicate for both violations is the lawyer’s initial assertion to the disciplinary authority that he had nothing to do with the Craigslist posting. To be sure, the lawyer was also charged under an Illinois Supreme Court rule broadly addressing conduct “which tends to defeat the administration of justice or bring the courts or legal profession into disrepute” Still, the complaint serves as a reminder that—while the drafters of the Model Rules and its corollaries could not have foreseen every way in which lawyers might fail to act ethically—no bad situation is likely to be improved by lying to disciplinary authorities.


The Attorneys Strike Back

An infamous discovery scandal has led to a no-holds-barred fight between Qualcomm, Inc. and its former lawyers. In January 2008, a federal magistrate sanctioned Qualcomm for intentionally withholding “tens of thousands” of emails relating to a patent infringement case and six of Qualcomm’s outside lawyers for assisting, either knowingly or recklessly, in the discovery violation. While outside counsel were originally denied permission to employ otherwise privileged documents in their defense, the court later determined that the filing of affidavits by Qualcomm employees sought to blame outside counsel for the discovery violations, and therefore set aside the sanctions as to the lawyers to allow them to invoke the “self-defense” exception to Qualcomm’s assertions of privilege. That self-defense has been vigorous—with one recently filed brief accusing Qualcomm personnel (including attorneys and paralegals) of failing to provide “critical information” and another making flat accusations that Qualcomm provided answers that were not merely “wrong,” but “false.”

A Law.com report on the dispute is available here. A recently filed brief evidencing the pull-no-punches nature of the attorney’s defense is here.


Vermont Weighs in on Ethical Obligations Regarding Metadata

The Vermont Bar Association Professional Responsibility Section is the latest state bar to weigh in on the issue of metadata and an attorney’s obligation regarding it. In Vermont Ethics Opinion 2009-1 [PDF], the section determines that the “Vermont Rules of Professional Conduct do not compel a specific answer to the question whether a lawyer can search for metadata within an electronic document prepared by and received from opposing counsel. The section further concludes that a lawyer who receives an electronic document from opposing counsel that contains inadvertently disclosed, privileged, and confidential metadata must (pursuant to the Vermont version of Model Rule 4.4(b)) notify the sending lawyer, with the question whether the receiving lawyer can use this information being decided by a court of competent jurisdiction. With respect to discovery practice in the litigation context, the section finds that, with limited exceptions relating to privileged matters, lawyers are obligated to disclose all responsive information, including metadata, to opposing counsel, and nothing prohibits the recipient from searching for electronic information about the history of the document or file.


John Minor Wisdom Award Nominations Are Open

The Section of Litigation has invited nominations for the 2010 John Minor Wisdom Award. The award, named after the late John Minor Wisdom of the U.S. Court of Appeals for the Fifth Circuit, recognizes members of the legal profession whose accomplishments reflect the highest professional ideals of service while also contributing meaningfully to the quality of justice in their communities, in particular thoses those who ensure that our legal system meets the needs of the poor, the disenfranchised, and other persons in need of access to justice. Nominees may be career public service or public interest lawyers, private practitioners, corporate counsel, educators, or judges. The award also recognizes firms that have made a substantial commitment to public service through their accomplishments in significant pro bono litigation and their support of pro bono work on a firm-wide basis. The Section of Litigation will present the 2010 Wisdom Awards at its Section Annual Conference, April 21–23, 2010 at The Hilton New York, New York. A description of selection criteria and an award nomination form are available here.


Nominations for Professional Responsibility Award Now Open

The ABA’s Center for Professional Responsibility has announced that it is now accepting nominations for the 2010 Michael Franck Professional Responsibility Award. The award annually recognizes individuals whose career commitments in areas such as legal ethics, disciplinary enforcement, and lawyer professionalism demonstrate the best accomplishments of lawyers. A full description of the award is available here, while the nomination form and related instructions are available here [PDF]. Nominations will remain open until December 11, 2009.


Supreme Court to Address Lawyer Ethics

Not only is the U.S. Supreme Court poised to take on questions of lawyer ethics this term, it will do so no fewer than six times. In the criminal-law context, the cases involve questions about the scope of a criminal defense lawyer’s duties to advise a client of the possible effect of a guilty plea on the client’s immigration status (Padilla v. Kentucky); investigation of  mental deficiencies of a client facing the death penalty (Wood v. Allen); and questions about a prosecutor’s immunity for fabricating false evidence (Pottawattamie v. McGhee). On the civil side, the Court will be hearing cases involving the enhancement of fee awards under federal fee-shifting statutes (Perdue v. Kenny A),questions concerning the appealability of discovery orders relating to the attorney-client privilege (Mohawk Industries v. Carpenter), and whether the 2005 Bankruptcy Abuse Prevention and Consumer Protection Act’s provisions relating to “debt relief agencies” (including lawyers) infringe on First Amendment rights and lawyers’ ethical duties (Milavetz, Galop & Milavetz v. United States). (The ABA has filed an amicus brief supporting the petitioner – available here.)

A National Law Journal article describing these cases in greater detail is available here.


Do You Make A Difference? The Supreme Court May Decide

The U.S. Supreme Court heard argument in the Perdue v. Kenny A. case, which addresses the propriety of enhancing an award of attorney fees calculated using a “lodestar” figure based on prevailing hourly rates. By all reports, the justices were skeptical of the $4.5 million enhancement that had been awarded by a district judge in a long-running class action addressing the Georgia foster care system. Chief Justice Roberts, in particular, questioned whether lawyering really makes a difference in a case, or whether results were, instead, simply “dictated or commanded or required under the law.” Ultimately, Judge Roberts suggested that perhaps judges and lawyers “have a different perspective. You think the lawyers are responsible for a good result, and I think the judges are.”

» Read More from the ABA Journal
» Read More from the National Law Journal


A Reminder: Competence is the First Rule of Ethics

The first substantive provision of the Model Rules of Professional Conduct—Model Rule 1.1—provides that a lawyer “shall provide competent representation to a client,” requiring in particular “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” A not-so-gentle reminder of this obligation’s significance has been provided by U.S. Bankruptcy Judge Alan Jaroslovsky of the Northern District of California. In his Notice to Bar Regarding Individual Chapter 11 Cases [PDF], Judge Jaroslovsky states that he has seen 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.” The notice recites “rampant errors” being made in issues relating to cash collateral, conflicts issues, and compensation—including lawyers who forget that the bankrupt estate, and not the debtor personally, is their client in a Chapter 11 case and those who spend retainers prior to fees being approved (creating the possibility of “having to return money you have already spent.”) Lest his remarks be taken too lightly, Judge Jaroslovsky concludes with the caution “I see frequent malpractice in individual Chapter 11 cases and I am quick to note in on the record. Your employment will not be approved unless you have substantial current malpractice insurance.”


Resolution Regarding Positional Conflicts Passes House of Delegates

A proposal relating to waivers of positional conflicts (previously mentioned in this space) has in fact passed the ABA House of Delegates. Proposal 102A urgescorporate counsel

to work with the corporation and outside counsel to waive certain limited positional conflicts in areas related to mortgage, bankruptcy and consumer finance in order to reduce the number of pro bono matters declined by outside counsel due to conflicts, so long as the waivers are not inconsistent with applicable rules of professional conduct.

The proposal could potentially generate further discussion of positional conflicts, addressed generally by Comment 24 to Rule of Professional Conduct 1.7.


New Opinion Issued on Duty to Disclose Evidence

The ABA Standing Committee on Ethics and Professional Liability has issued a new opinion regarding the duty to disclose evidence in criminal cases. Formal Opinion 09-454 [PDF], entitled “Prosecutor’s Duty to Disclose Evidence and Information Favorable to the Defense,” addresses a prosecutor’s duty under Rule 3.8(d) of the Model Rules of Professional Conduct to make timely disclosure of evidence tending to negate the guilt of the accused or to mitigate the offence or sentence. It specifically notes that this duty is separate from obligations imposed under the Constitution or applicable statutes or rules, and in particular it does not include materiality limitations recognized under constitutional case law.  The ABA news release on this opinion is found here.


Proposal to Waive Positional Conflicts On Agenda for ABA House of Delegates Meeting

Among the reports on the Preliminary Agenda [PDF] for the 2009 House of Delegates Meeting in Chicago is one relating to waivers of positional conflicts. Proposal 102A urges corporate counsel “to work with the corporation and outside counsel to waive certain limited positional conflicts in areas related to mortgage, bankruptcy and consumer finance in order to reduce the number of pro bono matters declined by outside counsel due to conflicts, so long as the waivers are not inconsistent with applicable rules of professional conduct.” The proposal could potentially generate further discussion of positional conflicts, addressed generally by Comment 24 to Rule of Professional Conduct 1.7.


More Changes to Rule 1.10 on Their Way

Following the February 16, 2009, vote to approve changes to Rule 1.10, the Section of Litigation and Standing Committee on Professionalism have jointly proposed two clarifying amendments contained in a Recommendation and Report to the House of Delegates. The first consists of a word change in section (a)(1) from “prohibited” to “disqualified,” a more accurate term. The second, more significant, change in section (a)(2) confirms that the new screening provisions may be employed only in situations where a lawyer moves laterally from one firm to another. As the recommendation points out, the second change was suggested after “several commentators have noted that the language of the amended Rule might be interpreted to allowing screening not consented to by the former client even where a lawyer never left the firm in which he acquired the disqualification.” (See, e.g., the commentary). Indeed, the Section of Litigation and Standing Committee on Professionalism indicated that they cosponsored the recommendation, notwithstanding earlier opposition to the amendment, not only “to communicate that in their view the making of this amendment should not be an invitation to reopen last year’s debate” but also because they believed it critical to “make it abundantly clear that [new Rule 1.10] only applies to the laterally moving lawyer.”


Role of In-House Ethics Counsel Topic of Formal Guidance, Committee Luncheon

In October 2008, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 08-453 [PDF], which addresses law firms’ use of internal ethics counsel. The opinion determines that sharing client confidences with such counsel (at least absent express client instructions to the contrary) appears to be an “impliedly authorized” disclosure within the scope of Model Rule 1.6(b), and that Model Rule 1.6(b)(4) expressly permit disclosure of confidential client information—even to a lawyer who is not employed by the firm—to obtain advice about compliance with rules of professional guidance. The opinion also concludes that a lawyer’s effort to conform his or her conduct to applicable ethical standards should not ordinarily limit the lawyer’s ability to represent the client, and thus does not create a per se conflict of interest for the law firm. The opinion does, however, identify potential issues raised by consultation with in-house ethics advisors, including the dual representation concerns under Model Rule 1.13 raised by a lawyer, employed as counsel to the law firm, advising an individual constituent, and the possibility that a consulting lawyer’s misconduct might need to be revealed to others within the firm under Rule 1.13 or to disciplinary authorities under Rule 8.3.

Litigation News has posted an article on Opinion 08-453 that includes an overview of both the opinion and the background to it (featuring, among other things, commentary by our own cochair Michelle Hangley). The evolution of the law firm counsel position has also been the subject of empirical research in recent years.

More recently, attendees at the Ethics and Professionalism Committee’s Practice Area and Discussion Networking lunch, conducted at the Section Annual Conference in Atlanta on April 30, were asked to assume the position of an in-firm ethics advisor by Fordham Law School professor Bruce Green. Professor Green led an informal discussion of the possible ethical dilemmas posed by requests by a client that the law firm represent both it and one of its officers in connection with an ever-escalating employment discrimination case. The hypothetical addressed not only questions of joint representation, but also reviewed both Opinion 08-453 and recent cases in considering the extent to which advice on the permissibility of the representation was permissible or would remain privileged in the event of a later malpractice claim. A copy of the Professor Green’s handout is available here [PDF].


ABA Approves Changes to Rule 1.10 Following Substantial Debate

The ABA House of Delegates voted on February 16, 2009, to amend Model Rule of Professional Conduct 1.10, which governs imputed conflicts of interest, in a manner that should make it easier for law firms to resolve conflicts of interest stemming from lateral hiring.

Recommendation 109 [PDF] was approved by the ABA House of Delegates at the ABA Midyear Meeting by a vote of 226–191. The recommendation changes Rule 1.10 and related comments to allow law firms to hire lawyers with conflicts of interest without receiving a waiver from the affected client. Instead, under the amended provision, a firm can simply screen the disqualified lawyer from the matter and provide the affected former client with a written notice that describes the screening procedures in place and alerts it to the potential availability of review before a tribunal. The firm must also certify its compliance with the screening procedures and applicable rules of professional conduct.

As the close vote suggests, the amendment had generated some controversy. Indeed, the debate over the recommendation lasted over 90 minutes. Summaries of that debate and the background to the House of Delegates’ action are available here and here. For those who are interested in witnessing the debate itself, the webcast of the deliberations is available here.

For those wishing an even more complete overview of the changes, the ABA Center for Professional Responsibility has assembled a comprehensive set of background materials on the amendment, including both the report of the Standing Committee on Ethics and Professional Responsibility on the recommendation, the competing proposal for dealing with lateral hiring that had been offered by the Section of Litigation, and a host of articles addressing the debate over lateral screening rules. Those materials are available here. Debate also abounded in the blogosphere, including some interesting posts in the Legal Ethics Forum (both pro and con). That forum subsequently has pointed out a potential problem with the amendment as passed—it may not only apply to lateral hires.


Nominations for E. Smythe Gambrell Professionalism Awards Are Open

Nominations are now being accepted for the Nineteenth Annual E. Smythe Gambrell Professionalism Awards, recognizing projects that enhance professionalism among lawyers. Bar associations, law schools, law firms and other not-for-profit law related organizations are eligible for the awards.

In conjunction with the ABA effort to better serve solo and small firm practitioners, the Standing Committee on Professionalism would like to remind potential applicants that programs designed to provide guidance to lawyers with practice management and skills issues are eligible for Gambrell Awards. These programs are particularly helpful to the solo practitioners (and small firm lawyers) who often find themselves the subject of complaints to disciplinary agencies, but who need practice assistance rather than discipline.  Such programs allow lawyers to address the issues that have caused or may cause contact with the agencies, so that they can better serve their clients and avoid the discipline process in the future.

The ABA Standing Committee on Professionalism, a component of the ABA Center for Professional Responsibility, will present up to three awards of $3,500 each during the 2009 ABA Annual Meeting in Chicago, Illinois.  Award criteria include overall quality, replicability, likelihood of continuation, innovation, success, substantive strength in the area of professionalism, scope and other distinguishing features of the applicant programs.

The award is named for E. Smythe Gambrell, who served simultaneously as president of the ABA and the American Bar Foundation from 1955 to 1956.  Gambrell founded the Legal Aid Society in Atlanta, where he practiced law from 1922 until his death in 1986.

The deadline for entries is March 31, 2009. Entry forms, guidelines and information about previous award recipients are available here. Questions regarding the awards should be directed to Art Garwin (312) 988-5294.


ABA Ethics Opinion Addresses Judges Soliciting Contributions for “Therapeutic” or “Problem Solving” Courts

The ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 08-452 [PDF] addressing the problems raised by judges soliciting contributions for “Therapeutic” or “Problem Solving” courts. Such courts typically address unique challenges associated with drug, mental health, or domestic-violence related charges, and frequently must rely upon private contributions to fund alternative remedies that may involve mental-health professionals, social workers, or drug-testing laboratories. Judges on such courts may be urged to solicit such contributions. The Committee reviews how such fundraising efforts might be constrained by Model Code of Judicial Conduct Rules 1.2, 1.3, 3.1 and 3.7 and takes into account sources including advisory opinions addressing similar issues from Arizona [PDF] and Florida.