Friday, July 29, 2011

Pro Hac Counsel May Represent Plaintiff In Legal Malpractice Case

A plaintiff who is suing Seyfarth Shaw for legal malpractice sought the asdmission of counsel pro hac vice in the litigation. Seyfarth Shaw opposed. The Massachusetts Supreme Judicial Court granted the motion.

The court rejected the firm's Rule 3.6 argument:

Rule 3.6(a) precludes a lawyer who is involved in the litigation of a case from making an out-of-court statement "that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." However, rule 3.6(b) "identifies specific matters about which a lawyer's statements would not ordinarily be considered to present a substantial likelihood of material prejudice, and should not in any event be considered prohibited by the general prohibition of paragraph (a)." Comment [4] to rule 3.6. See Matter of Cobb, 445 Mass. 452, 475 n. 7 (2005) ("Rule 3.6 ... concerning trial publicity, contains a safe harbor provision for certain extrajudicial statements"). See also Restatement (Third) of the Law Governing Lawyers, ยง 109(c), at 162-163 (2000) (same, discussing earlier version of rule).

Seyfarth Shaw focuses on Brewer's statement that Seyfarth Shaw "misstated the facts," and argues that Brewer, in using this phrase, was charging Seyfarth Shaw with lying in court papers, or, as Seyfarth Shaw puts it, using words "which describe Seyfarth as a law firm that, in its own self-interest, intentionally filed false submissions to courts." As such, the argument goes, Brewer was impugning Seyfarth Shaw's "character, credibility, and reputation," thereby placing the comment within the class of subjects "which are more likely than not to have a material prejudicial effect on a proceeding," Comment [5] to rule 3.6, and thus covered by the proscription set forth in rule 3.6(a).

We think Seyfarth Shaw's characterization of Brewer's statement exaggerates the level of the statement's negative impact, but in any event, Seyfarth Shaw's argument fails. Rule 3.6, adopted in the Commonwealth in 1997, replaced the more restrictive S.J.C. Rule 3:07, DR 7-107(G), as appearing in 382 Mass. 788 (1981). Rule 3.6 follows in substance the corresponding American Bar Association (ABA) Model Rule of Professional Conduct, as amended in 1994.

A review of the record establishes that Brewer's remark quoted in the National Law Journal falls well within these two exceptions. Brewer's statement that Seyfarth Shaw, "in an attempt to relieve itself of its responsibility to ... Converge," filed court papers "that not only misstated the facts, but stated the facts in a way" that supported Costigan's notion of PCG's successor liability, in large measure tracks directly the allegations of PCG's complaint.

The court also rejected the argument that local counsel could adequately represent the plaintiff.

The link looks like it does not work. The case is PGC Trading LLC v. Seyfathe Shaw LLP & others, decided today. (Mike Frisch)

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