Monday, November 25, 2013
The Kentucky Supreme Court affirmed the holding of the Court of Appeals that there were genuine issues of material fact precluding summary judgment to a law firm that had been sued for malpractice.
The trial court had held the plaintiffs lacked standing "because they did not have an attorney-client relationship" with the defendants.
The Court of Appeals reversed on two grounds.
First, there was a factual issue concerning the existence or not of an attorney-client relationship. Second, the plaintiffs were two minor children when the estate came into existence, and as "statutorily-identified beneficiaries of the wrongful death claim" were owed professional duties by the attorneys.
The suit arose from an accident that killed a man survived by a wife and four children. He was driving a van that struck a wall. A suit against the company charged with maintaining the van was dismissed after experts were excluded. No appeal was filed.
The malpractice suit was filed two years later. By then, one of the minor children had reached the age of majority.
The court majority found that the minor children "were real parties in interest with regard to the wrongful death claim....As intended beneficiaries of the claim," the actions of the attorneys were taken on their behalf.
The statute of limitations was tolled as to the malpractice claim "until they reached the age of majority."
Justices Noble and Scott concurred and dissented, both writing opinions expressing concerning for the position the decision places wrongful death attorneys who may face malpractice actions years in the future when children reach majority age.
Justice Noble would require the personal representative to bring ancillary claims on behalf of children in a timely manner.
Justice Scott laments the dilemma of the attorneys who must now serve multiple masters in the conduct of litigation.
in his view, the majority holding "simply doesn't contribute to an efficient system of litigation; not to mention the conflicts it now raises with one counsel having duties to potentially antagonistic multiple parties. We shouldn't be leaving one hundred years or more of good, workable precedent." (Mike Frisch)
Thursday, November 21, 2013
A legal malpractice claim for allegedly negligent tax advice was time-barred, according to a decision of the New York Appellate Division for the Second Judicial Department:
On March 5, 2003, the defendants, Richard Reichler, Snow Becker Krauss, P.C., and Meltzer, Lippe, Goldstein, and Breitsone, LLP, allegedly advised the plaintiff in an opinion letter that his proposed sale of certain property would not result in the loss of his tax deferment status. In 2007, the Internal Revenue Service (hereinafter the IRS) notified the plaintiff that its determination was to the contrary, and directed him to remit back taxes, along with penalties and interest, totaling approximately $5 million. The plaintiff allegedly retained the services of the defendants to represent him against the IRS. On March 31, 2009, the IRS concluded that its determination was correct. One month later, on April 30, 2009, the plaintiff discharged counsel and retained new counsel. He filed a petition in the United States Tax Court challenging the IRS's determination, but, ultimately, on July 25, 2011, the court concluded that the IRS's determination was correct. On December 29, 2011, the plaintiff commenced this action alleging, inter alia, legal malpractice against the defendants, and they moved, inter alia, to dismiss that cause of action as time-barred.
The court affirmed the Supreme Court's dismissal
The plaintiff, in opposition to the defendants' showing, relies on the continuous representation doctrine as a toll of the three-year statute of limitations; however, he failed to raise a question of fact in this regard. As evidenced by, inter alia, the more than four-year period of time between the issuance of the opinion letter and the plaintiff's alleged retention of the defendants in July 2007, during which no further legal representation was undertaken with respect to the subject matter of the opinion letter, the parties did not contemplate that any further representation was needed.
Friday, November 8, 2013
The Kansas Supreme Court affirmed the dismissal of a legal malpractice suit against a court-appointed attorney and the agency that administers the indigent counsel program.
The client was convicted of sex ccrimes. The conviction was set aside and the client entered a guilty plea to amended charges. He then sued the defense attorneys and the Board of Indigents' Defense Services for legal malpractice.
The court held that the Board is a subordinate government agency that does not have the capacity to sue or be sued.
Because the plea to lesser charges precluded a finding of actual innocence, the trial court did not err in dismissing the malpractice case. (Mike Frisch)
A single retainer agreement sufficed to cover a second matter and entitled counsel to legal fees, according to a decision of the New York Appellate Division for the First Judicial Department:
The record establishes plaintiff's entitlement to recover the unpaid legal fees that arose from its representation of defendants in two underlying actions. Contrary to defendants' contention, the subject retainer agreement governs plaintiff's work on both underlying matters. In compliance with 22 NYCRR 1215.1, which mandates that retainer agreements contain an "explanation of the scope of the legal services to be provided" (22 NYCRR 1215.1[b]), the agreement specifies that plaintiff's services "will include legal representation and advice with respect to specific matters that you refer to the Firm." Although defendants initially sought plaintiff to represent them in only one of the underlying actions, it is undisputed that they requested plaintiff's services with respect to the other action, shortly thereafter. Plaintiff's representation of defendants in the latter matter therefore falls within the ambit of the retainer.
The client did not challenge the invoices when rendered and could thus not attack the reasonableness of the fees. (Mike Frisch)
Thursday, November 7, 2013
A court-appointed guardian ad litem forms an attorney-client relationship with an incarcerated inmate, according to an opinion of the West Virginia Supreme Court of Appeals.
When the incarcerated client directs the guardian ad litem to convey a statement to a third party, however, the attorney-client privilege is waived.
The case involves a domestic violence petition against one Chubby Hosten.
After a meeting with the client, the appointed guardian made an in-court statement at his client's direction. Charges of intimidation and witness harassment were brought based on the lawyer's statement:
what he [the client] said was if she doesn't leave me alone I am going to her place of employment and kill her....I do not believe that I am breaching confidentiality by saying that. I think there's actually an exception to the rules for this kind of information. But I was told by my client to say this, um, so there it is.
The prosecutor sought the lawyer's testimony and admission of the video of the in-court statement. The circuit court determined that the evidence was protected by privilege and the prosecutor appealed. (Mike Frisch)
Wednesday, October 23, 2013
The Washington State Court of Appeals, Division II has reversed and remanded a trial court order denying an attorney's motion to withdraw from the representation of the plaintiffs in a medical malpractice case.
The clients, after an initial payment, had failed to satisfy obligations under the fee agreement to pay costs. The attorney had advanced significant sums for experts and depositions in the litigation.
Further representation would result in an unreasonable financial burden on [the attorney] and that with their dispute over fees and the resulting professional conflict, the [clients] rendered [the attorney's] representation unreasonably difficult...This is not one of those rare cases where [the attorney's] withdrawal would have harmed the efficiency of the judicial system, and we do not see that her withdrawal would have had a materially adverse effect on the [clients'] interests. Trial had not been set and there were no dispositive motions before the court when [the attorney] moved to withdraw.
The attorney had given notice of her intent to withdraw with ample time to secure new counsel. In fact, successor counsel was eventually retained.
That fact did not moot the withdrawal issue, according to the court.
The court concluded that the trial court abused its discretion in denying the motion to withdraw and remanded for entry of an order granting withdrawal as of June 15, 2012. (Mike Frisch)
Thursday, October 3, 2013
The denial of a collateral attack on a first-degree murder conviction was affirmed by the District of Columbia Court of Appeals in light of the trial court's ruling that the defendant was not prejudiced by the putative error of his attorneys.
Prior to trial, a psychologist evaluated the client and opined to counsel that he was not competent to stand trial.
The attorneys "discounted the significance of that opinion and, after consulting with the client, chose not to raise the issue of his competency with the court."
After conviction at trial, the client moved to vacate the conviction on grounds of ineffective assistance of counsel for failing to raise the competency issue.
The trial court found "no reasonable probability that [the defendant] actually would have been found incompetent."
A second hearing was held by the trial court at which conflicting testimony from medical professionals was received. The trial court adhered to its earlier ruling and the defendant appealed.
The court here declined to adopt a bright-line rule of deficient performance and a presumption of prejudice.
While the court considered it a "close question whether [the] attorneys were obligated to bring the issue of his competency to the court's attention prior to trial" it did not decide the issue in light of the finding of no prejudice. (Mike Frisch)
Tuesday, October 1, 2013
A former colleague at the Office of Bar Counsel brought a 2010 decision of the District of Columbia Court of Appeals to my attention.
The case - Bergman v. District of Columbia, et al. , - raises some interesting questions concerning the ethical obligations of attorneys who solicit clients in the District of Columbia.
Historically, enforcement of solicitation restrictions has been the lowest of priorities in D.C. The Court of Appeals did not adopt ABA Model Rules 7.2 through 7.4 and seeded in its Rule 7.1 a provision that permits in-person solicitations that do not involve false statements or undue influence.
As a result, prosecutions for improper client solicitation rarely, if ever, take place.
In one reciprocal case I handled, the court declined to impose any discipline on an attorney sanctioned in Maryland for approaching a potential client as he was leaving a courthouse. The case is In re Roger Gregory.
The Bergman case involved a suit by a D.C. Bar member challenging the validity of a City Council act that, among other thing, makes it unlawful for an attorney to solicit business from a potential motor vehicle accident client within 21 days of an accident.
In an opinion authored by Senior Judge Frank Schwelb, the court upheld the provision and rejected the contention that the act contravened the court's exclusive authority to regulate the legal profession. The court relied on United States Supreme Court jurisprudence in the area of attorney solicitation, primarily Ohralik v. Ohio and Florida Bar v. Went For It.
Rather, the power is inherent but not exclusive: "we believe that it would be an inappropriate exercise of judicial power to restrict the legislative authority of our elected representatives in the manner that Bergman suggests...we are dealing here with uninvited attempts to secure employment for renumeration - a classic example of a business transaction."
The court gave short shrift to the attorney's First Amendment claims: "this case...is not about the benign democratic ideal of opposing views competing for public acceptance. Rather, it is about practitioners aggressively seeking to secure potentially profitable employment."
So, as a result, in the District of Columbia, attorneys are forbidden by legislative act from a form of solicitation that is not in any manner in violation of the court's own ethical rules.
Are D.C. lawyers now subject to bar proceedings if they violate the statute but not the ethics rules?
Should the ethics rules be amended to harmonize with the now-governing law?
Will the City initiate criminal prosecutions of soliciting attorneys?
I will confess myself a bit surprised to see the court's embrace of Ohralik and Went For It given the state of its own disciplinary rules.
The opinion is linked here. (Mike Frisch)
Monday, July 8, 2013
In a matter involving an attorney's representation of a wife in negotiations with her philandering husband, the Maryland Court of Special Appeals disagreed with the trial court's holding that there had been no attorney-client relationship between the husband and the attorney for the wife.
The court nonetheless affirmed and enforced the agreements.
The attorney had handled an immigration petition that resulted in an attorney-client relationship with both spouses:
The testimony established that [attorney] Gu prepared the petitions for the benefit of Wife, using documentation supplied by Husband. Husband was required to be the petitioner, thus making any services provided by Gu in furtherence of the immigration petition for his benefit as well as Wife's. Husband's furnishing of the necessary documentation to enable Gu to prepare the petition was a manifestion of his intent that she provide legal services to him...Gu, as an experienced immigration lawyer, manifested her consent to provide legal services for Husband by preparing forms obligating him to support Wife and using documentation supplied by him. The circuit court erred when it concluded that no attorney-client relationship existed between Husband and Gu in the immigration matters.
The immigration petitions and the separation agreements involve wholly different practical areas of law and issues and, therefore, are not substantially related.
The information that husband provided to the attorney related to a different employment than at the time that the separation was negotiated.
Husband had acknowledged in an e-mail that attorney was not representing him in the separation process and, indeed, was specifically advised to seek his own counsel. (Mike Frisch)
Friday, July 5, 2013
The Connecticut Appellate Court has resolved an "important question" and held that an attorney's charging lien can arise as a matter of law to be applied to assets that are assigned to a party in a divorce action.
The court majority holds that the lien makes an attorney a priority creditor on the proceeds secured through the representation. This result is by operation of law without notice or filing requirements, when expessly or impliedly understood by the client.
A dissent would hold that the public policy interests that underpin Rule of Professional Conduct 1.5(d), which prohibits the charging of a contingent fee in a domestic action, apply here.
The dissent would thus hold that the charging lien does not arise as a matter of law. (Mike Frisch)
Monday, June 10, 2013
The Vermont Supeme Court has affirmed the termination of parental rights of a father who had claimed that his attorney was ineffective and conflicted.
The court summarized the claim
At the beginning of the hearing, father told the court that he was receiving ineffective assistance of counsel. Father argued that his lawyer had failed to pursue various strategies recommended by father to investigate and prepare for the trial, projected that she would not introduce or object to important evidence at trial, and said she would not advocate aggressively for him in the trial because she had been a foster parent and was thus sympathetic to DCF [the Department for Children and Families].
The court explained that it could not assess father’s lawyer’s effectiveness at trial until after the hearing, but did invite counsel to address father’s concerns regarding her preparedness. Father’s lawyer explained that she would, in the hearing, be raising many of the points identified by father, and that she had assessed and made decisions about the appropriateness of various issues raised by father based on her knowledge of the law. She indicated that she was prepared for trial.
The attorney denied being a foster parent and stated she had adopted a child. She had no current relationship with DCF.
The trial court found there was no conflict and the hearing went forward.
We discern no conflict of interest that precluded father’s attorney from representing him. Rule 1.7 deals with a lawyer’s obligation to avoid concurrent conflicts of interest, including not representing a client when there is a “significant risk” that the representation is “materially limited . . . by a personal interest of the lawyer.” V.R.Pr.C. 1.7(a)(2). The comments to the rules explain that such personal interest conflicts may include a lawyer’s business or employment interest with an opponent’s client or law firm, a lawyer’s financial interest in an opponent, or a lawyer’s personal connection to other lawyers in the action. Here, there is simply no conflict. Father’s attorney had no personal interest in the outcome of the case that prevented her from providing father with adequate representation. Counsel had not represented DCF in the past and had no current or past relationship to DCF beyond counsel’s adoption five years previously of a child who had been in DCF custody. This created no inherent bias that would prevent counsel from adequately representing father.
Justice Dooley concurred, stating that he has not decided that ineffective assistance claims should be allowed in termination of parental rights cases. (Mike Frisch)
Thursday, May 30, 2013
The New York Appellate Division for the Second Judicial Department affirmed the dismissal of a legal malpractice case on statute of limitations grounds.
The court interpreted the "continuous representation" rule:
Here, contrary to the plaintiff's sole contention on the issue of timeliness, the Supreme Court did not err in concluding that the relationship necessary to invoke the continuous representation rule ceased to exist by November 5, 2007, when the plaintiff surreptitiously removed his file from the defendants' office. By so removing the file, the plaintiff evinced his lack of trust and confidence in the parties' relationship, and his intention to discharge the defendants as his attorneys. Accordingly, because, contrary to the plaintiff's contention, the relationship necessary to invoke the continuous representation doctrine terminated more than three years prior to the commencement of this action, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged legal malpractice against the defendants... (citations omitted)
In a case dealing with a law firm's entitlement to fees in representing a divorce client, the New York Appellate Division for the First Judicial Department remanded in light of the non-compliance of the firm with with written retainer requirements:
Following arbitration, the law office commenced this action seeking unpaid legal fees in the amount of $83,775.69 and a trial was held on the claim. [Client] Blisko asserted that the retainer did not comply with 22 NYCRR 1400.3 because it did not state the "hourly rate of each person whose time" was charged to her, but rather only stated the hourly rate of [attorney] Eisenberger and made no mention of any other attorney working on the case. Blisko also contended that the retainer expressly stated that the law office's representation did not include being trial counsel. The trial court rejected Blisko's arguments and ordered her to pay $83,775.69 to the law office, in addition to the substantial amount she already had paid.
We modify because the law office should be denied any legal fees arising from representation of Blisko after the grounds trial commenced. The plain language of the retainer states that the law office's representation of Blisko includes work leading "up to" a trial, "but not including an actual trial." Indeed, the law office acknowledges that the retainer did not include representation at trial. Following the commencement of the trial on August 18, 2009, the retainer between the law office and Blisko terminated and plaintiff was representing Blisko without a written retainer.
The law office contends that, even if the retainer terminated when the trial began, it may still collect unpaid fees from Blisko because it substantially complied with the requirements of 22 NYCR 1400.3. The substantial compliance argument has no relevance to this issue because there was no trial retainer at all. If the law office wanted to be paid for representing Blisko at trial, it needed to have the client sign a new retainer. Moreover, there is no indication that the law office explained the limited nature of the retainer to the client, who then agreed to expand its scope to include the actual trial.
Although the law office cannot receive legal fees for any services completed after trial commenced, it may receive any outstanding unpaid fees for work completed prior to commencement of the actual trial. The law office substantially complied with the requirements of 22 NYCRR 1400.3 by giving the client the required statement of client rights and responsibilities and by listing the fee of the primary attorney. Blisko's testimony indicates that she was aware that more than one attorney was working on her case, and that she received bills reflecting the work of multiple attorneys.
Finally, as a general principle, the law office "need not return fees [it] properly earned." Although the retainer does not fully comply with 22 NYCRR 1400.3, the law office did complete work that was within the scope of the pretrial retainer, and therefore it is not required to return fees already paid to it for work completed before the trial. When a client is seeking the return of funds already paid to the attorney, the attorney does not need to show substantial compliance with 22 NYCRR 1400.3, but only that the fees paid were properly earned.
(citations omitted throughout)
Friday, May 24, 2013
The New York Appellate Division for the First Judicial Department has remanded a matter involving legal fees charged to and gifts received from a wealthy widow in an estate matter:
Beginning in 1983, defendant law firm represented the family of Sylvan Lawrence in litigation concerning the administration of his estate. In 1998, Alice Lawrence, Sylvan's widow, paid three of the firm's partners, the individual defendants, a bonus or gift totaling $5.05 million and also paid the firm $400,000 as a bonus or gift. By the end of 2004, the widow had paid, approximately $22 million in legal fees on an hourly fee basis.
In the hope of reducing her anticipated legal fees in the ongoing litigation, the widow entered into a revised retainer agreement with the law firm in January 2005. The revised retainer agreement provided, inter alia, for a 40% contingency fee. In May 2005, the estate litigation settled with a payment to the estate of more than $111 million and, in accordance with the revised retainer agreement, the firm sought a fee of 40% of that amount. When the widow refused to pay the 40% contingency fee, this litigation resulted, in which, among other relief, the return of the gifts the widow made in 1998 is sought.
The court held
The revised retainer agreement is both procedurally and substantively unconscionable (Lawrence v Graubard Miller, 48 AD3d 1, 6 [1st Dept 2007], affd 11 NY3d 558 ). The evidence shows that the widow believed that under the contingency arrangement, she would receive the "lion's share" of any recovery. In fact, as it operated, the law firm obtained over 50% of the widow's share of proceeds. Thus, the law firm failed to show that the widow fully knew and understood the terms of the retainer agreement — an agreement she entered into in an effort to reduce her legal fees...
In considering the substantive unconscionability of the revised retainer agreement, the Referee correctly considered such factors as the proportionality of the fee to the value of the professional services rendered, the sheer amount of the fee, and the risks and rewards to the attorney upon entering into the contingency agreement. With regard to the last factor, the law firm had internally assessed the estate's claims to be worth approximately $47 million so that the contingency fee provision in the revised retainer would have meant a fee of about $19 million. Contrary to the law firm's assertion, on this record it seems highly unlikely that the firm undertook a significant risk of losing a substantial amount of fees as a result of the revised retainer agreement's contingency provision. Rather, the Referee accurately characterized this attempt by the law firm to justify its action as "nothing but a self-serving afterthought."(citations omitted)
The amount the law firm seeks ($44 million) is also disproportionate to the value of the services rendered (approximately $1.7 million) (see Lawrence v Graubard Miller, 11 NY3d at 596). The record shows that the law firm spent a total of 3,795 hours on the litigation after the revised retainer agreement became effective, resulting in an hourly rate of $11,000, which, as the Referee stated, is "an astounding rate of return for legal services."
However, the remedy recommended by the Referee and adopted by the Surrogate — namely, a new "reasonable" fee arrangement for the parties — was improper. Where, as here, there is a preexisting, valid retainer agreement, the proper remedy is to revert to the original agreement. For the reasons found by the Referee, we reject the firm's suggestion that it receive a reduced contingency fee. Accordingly, the matter is remanded for the determination of the fees due the law firm under the original retainer agreement. Given that the firm is entitled to fees under the original retainer agreement, it is also entitled to prejudgment interest from the date of the breach. (citations omitted)
Because the individual defendants acted alone, and in secret from the rest of the law firm, with respect to the gifts, we decline to rule that such conduct by the individual defendants results in the firm's forfeiture of its lawful fees from the date the individual defendants received the gifts.
The Surrogate's Court (opinion linked here) had awarded the law firm fees in the amount of $15,837,374.02 but found that the gifts solicted by the attorneys (concealed from their law firm and the widow's children) emanated an "odor of overreaching too potent to be ignored." (Mike Frisch)
Tuesday, May 7, 2013
The New Jersey Appellate Division reversed the grant of summary judgment to a defendant attorney in a legal malpractice case.
One plaintiff is a former police officer who claimed that the defendant's incorrect legal advice led to his conviction for third degree promotion of gambling. The other plaintiff is married to the co-plaintiff and was the legal owner of the gambling enterprise.
...a rational jury in this case could find that defendant's role as legal advisor was a substantial factor that led plaintiffs to engage in criminal conduct.
The conviction of one of the plaintiffs was held to be no bar to the legal malpractice claim. Notably, all of the criminal conduct took place after the attorney was retained as legal advisor.
The court affirmed the dismissal of emotional stress claims.
The conduct of the plaintiffs involved a poker tournament. (Mike Frisch)
Wednesday, April 24, 2013
The New York Appellate Division for the First Judicial Department reversed an order dismissing a case brought against an attorney who received a million dollar gift from his client shortly before the client died:
Defendant served as decedent's attorney on personal and corporate matters for more than 40 years and thus held a fiduciary relationship with decedent. Defendant therefore had the burden of proving by clear evidence that there was no fraud or undue influence in connection with decedent's gift of $1million, made weeks before his death at the age of 82, and deposited in a trust account held jointly by decedent and defendant, clearly for defendant's benefit.
Surrogate's Court erred in dismissing the claim of undue influence as there were conflicting inferences of both undue influence and the lack thereof. For example, the evidence showed that, from September 2009 to January 2010, as decedent's health continued to deteriorate, defendant repeatedly wrote and called decedent to request the creation of a $1 million trust account and suggested that he would suffer a financial crisis if he did not receive it, and decedent complained to plaintiff (his wife) that defendant would not stop asking him for money. While such evidence allowed for an inference of undue influence, the evidence presented by defendant suggested that decedent on occasion expressed a desire to compensate defendant for legal services defendant had performed and might perform for decedent's company after his death, by the creation of this account. Under the circumstances presented, defendant failed to overcome the presumption of undue influence and failed to eliminate any triable issue of fact warranting dismissal of the count.
Surrogate's Court further erred in concluding that decedent had the benefit of consulting with independent counsel regarding the $1 million gift. Decedent's estate planning counsel were introduced to him by defendant to advise decedent regarding his will. Counsel, who were not truly independent, further averred that they did not advise decedent regarding the $1 million gift and instead told him to contact his financial advisor should he wish to proceed. When decedent terminated the representation and obtained other independent counsel, it was solely for purposes of revising his will, and there was no evidence to suggest that he consulted with them regarding the $1 million gift. Thus, there was no meaningful consultation with independent counsel that would support a finding that decedent was not unduly influenced by defendant.
The count of constructive fraud was also improperly dismissed. Defendant, who had a substantial net worth at the time of decedent's death, nevertheless repeatedly represented that his savings were suffer a financial crisis if decedent did not give him the $1 million. While decedent was aware of the salary paid to defendant over the years as counsel to decedent's company, this alone did not amount to clear evidence to eliminate any triable issue of fact as to whether defendant had misrepresented his financial condition, and whether decedent relied upon it. (citations omitted)
Friday, April 19, 2013
CNO has this report of a recent Ohio ethics opinion:
Ohio lawyers can text prospective clients if they comply with applicable rules and abide by restrictions, according to an Ohio Supreme Court Board of Commissioners on Grievances & Discipline advisory opinion.
Opinion 2013-2 notes that Prof.Cond.R. 7.2, which governs lawyer advertising, allows text message advertising but “all lawyer advertising, including text message advertising, must comply with Prof.Cond.R. 7.1 and 7.3.”
The opinion’s ethical guidance examines the implications of text message advertising in light of these rules.
Under Rule 7.1, “the text message may not contain a false, misleading, or nonverifiable communication about the lawyer or the lawyer’s service.”
The opinion cites additional requirements under Rule 7.3. The text cannot create a “real-time” interaction or involve coercion, duress, or harassment. The lawyer must state how he or she learned of the prospective client’s need for legal services. A lawyer must verify that a prospective client who’s a defendant in a civil case has been served. Texts sent within 30 days of an accident or disaster must include the “Understanding Your Rights” statement in the body of the text and not as a link, attachment, or photograph.
In addition to the requirements under the rules, the opinion also identified three practical considerations.
- “First, the text message should not create a cost to the prospective client.”
- “Second, the lawyer should be mindful of the age of the recipient of the text message.”
- “Finally, lawyers must use due diligence to ensure that any text message advertisement or solicitation complies with the applicable federal and state telemarketing laws.”
Tuesday, March 12, 2013
The Utah Supreme Court has considered whether an attorney-client relationship betwen the United Effort Plan Trust ("UEP") and a law firm continued after the trust was reformed cy pres.
The trust was created in 1942 and reformed in 2005. The district court used the doctrine of cy pres to reform the trust to fulfill its purpose to "provide for the wants and needs of FLDS Church members."
The court held that the UEP and the reformed trust are not the same client. As there was no attorney-client relationship between the law firm and the reformed trust, the district court erred in disqualifying the law firm in the litigation and ordering the firm to disgorge privileged information to the reformed trust.
Chief Justice Durrant concurred and dissented in part.
The Chief Justice would hold that the district court did not abuse its discretion in ordering the law firm to turn over privileged information and disqualifying the law firm:
The reformed trust is the same trust [the law firm] previously represented. As a result, the district court did not abuse its discretion when it disqualified [them] and ordered disclosure of privileged communications. But even under the court's legal fiction that the two trust are distinct for the narrow purpose of deciding matters of attorney-client relations, I believe that the special fiduciary remains the best person to assert privileges on behalf of a hypothetically nonexistent trust and that this case is too full of potential nascent conflicts to hold that the district court's order was an abuse of discertion.
Wednesday, February 27, 2013
An attorney represented an organization in defense of several employment matters from 2002-2004. The relationship ended when the client sued the attorney for malpractice.
The organization moved for disqualification in a pending case in which the attorney represented a plaintiff suing it in an employment matter. The trial court denied a motion to disqualify.
The South Carolina Supreme Court held that interlocutory appeal of the denial is not an available remedy. The issue can be addressed on appeal of the judgment. (Mike Frisch)
Saturday, February 2, 2013
An Alaskan Native corporation entered into a fee agreement with a law firm in connection with litigation over "its certification of and title to certain lands" under the Native Claims Settlement Act.
The contingent fee agreement gave the law firm an interest in the lands at issue.
After the client had prevailed, a bar arbitration panel found that the firm could not take the land, but was entitled to a fee payment equal to the land's value. A 1995 court judgment enforced the arbitration award. The client paid the law firm for several years.
The client eventually was unable to continue the payments and litigation ensued.
The Alaska Supreme Court held that the contingency agreement violated provisions of the Act and that the arbitration award was improper. The court noted tht the case presented "complex" issues as to whether the 1995 judgment was void or voidable.
The court ordered the law firm to return $643,760 in paid fees.
The firm may now establish its entitlement for fees under quantum meruit. (Mike Frisch)