Monday, March 11, 2013

Nominations for Prestigious Prize in Professional Responsibility Scholarship

Word from our long-time reader Sam Levine at Touro:

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

Submissions and nominations of articles are now being accepted for the fourth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee 6a00d8341bf68d53ef0128756f5389970c-800wiwill select from among articles in the field of Professional Responsibility with a publication date of 2013. The prize will be awarded at the 2014 AALS Annual Meeting in New York. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center:

The deadline for submissions and nominations is September 1, 2013.

Fred is shown right; we miss him. [Alan Childress]

March 11, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Childress | Permalink | Comments (0) | TrackBack (0)

No Tortious Interference Claim By Discharged Attorney Against Successor Counsel

The New Jersey Supreme Court has held that a discharged attorney in a medical malpractice case had failed to state a claim against successor counsel for tortious interference with an attorney-client relationship.

The court recognized that competition for clients "must be conducted in adherence to the Rules of Professional Responsibility and the means used to induce a client may be neither improper or wrongful." However, a client may terminate the relationship at any time.


... the complainant's assertions that the client failed to appear for a meeting, discharged her attorney, asked that her file be transferred, and directed the former lawyer not contact her, fell well short of identifying the sort of wrongful means that would give rise to a cognizable claim for tortious interference.

The court found that discovery was not appropriate and that

Dismissal with prejudice was entirely appropriate lest plaintiff's former client and her newly - chosen attorney be subjected to a mere fishing expedition, a remedy that would raise the specter of chilling any client's exercise of free choice to select counsel.

The tort must be specifically pleaded. (Mike Frisch)

March 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Beneficiary May Sue Attorney For Malpractice

The New Mexico Supreme Court held that a viable action exists against an attorney for a personal representative on behalf of a statutory beneficiary who was not a client.

The attorney's client injured in an auto accident. Her daughter and granddaughter were killed in the accident and the client was appointed personal repesentative for their estates. 

The attorney represented the client as an individual and as personal repesentative.

The other statutory beneficiary was the client's estranged husband. She claimed he had abandoned the child and should not share in the estate. The attorney had the husband sign a document that "reduced [his] entitlement to proceeds from the wrongful death litigation." 

The husband thought the better of it, hired his own lawyer, and challenged the agreement. The attorney sued to enforce the settlement. The husband then countersued the attorney for malpractice, fraud, colluision and misrepresentation.

The matter was complicated by a potential conflict of interest, the possible contributory negligence of the attorney's client in the fatal accident.

The court here concluded that the Rules of Professional Conduct were relevant to the situation: "The determination of whether [the attorney] conformed to the standard of conduct requirred by the Rules of Professional Conduct will depend on the evidence produced at trial."

The attorney may have breached duties to the husband and cannot be granted summary judgment

...we conclude that the adversarial exception does not preclude [the husband's] malpractice claim against [the attorney] because there exist genuine issues of material fact regarding whether [the attorney] failed to exercise reasonable skill and care in his representation of...the personal representative, and, if so, whether such failure harmed [the husband]."  

The Court of Appeals' opinion is linked here. (Mike Frisch)

March 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 10, 2013

Cloudy With A Chance Of An Ethical Violation

The New Hampshire Bar Association Ethics Committee has recently issued an opinion on cloud computing.

The summary

The internet has changed the practice of law in many ways, including how data is stored and accessed. "Cloud computing" can be an economical and efficient way to store and use data. However, a lawyer who uses cloud computing must be aware of its effect on the lawyer's professional responsibilities. The NHBA Ethics Committee adopts the consensus among states that a lawyer may use cloud computing consistent with his or her ethical obligations, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential.

The conclusion

The New Hampshire Ethics Committee concurs with the consensus among states that a lawyer may use cloud computing in a manner consistent with his or her ethical duties by taking reasonable steps to protect client data. Granted, a lawyer may not find a provider of cloud computing services whose terms of service address all of the issues addressed in this opinion], but it bears repeating, that while a lawyer need not become an expert in data storage, a lawyer must remain aware of how and where data is stored and what the service agreement says. Although the New Hampshire Rules of Professional Conduct do not impose a strict liability standard, the duties of confidentiality and competence are ongoing and not delegable. The requirement of competence means that even when storing data in the cloud, a lawyer must take reasonable steps to protect client information and cannot allow the storage and retrieval of data to become nebulous.

(Mike Frisch)

March 10, 2013 in Current Affairs | Permalink | Comments (0) | TrackBack (0)