Friday, May 16, 2014
Good news for attorneys who conduct depositions.
The dismissal of a civil action against the Paul Hastings firm was affirmed by the New York Appellate Division for the First Judicial Department
The court properly dismissed the slander per se claim because the alleged defamatory statements were made during a judicial proceeding and may be considered pertinent to that proceeding...
The court properly dismissed the claim for civil assault. The physical conduct alleged by plaintiff, which amounts to finger pointing and generalized yelling in the context of a heated deposition, is inappropriate behavior, not to be condoned, but, without more, is not the type of menacing conduct that may give rise to a reasonable apprehension of imminent harmful conduct needed to state an actionable claim of assault.
Tuesday, May 13, 2014
A decision today from the New York Court of Appeals
University of Chicago Professor Norman Golb is a scholar of the Dead Sea Scrolls. This [criminal] case involves an internet campaign by Golb's son, Raphael Golb, to attack the integrity and harm the reputation of other Dead Sea Scrolls academics and scholars, while promoting the views of his father.
To accomplish his goal of discrediting and harming these individuals, defendant, using pseudonyms and impersonating real academics and scholars, sent emails to museum administrators, academics and reporters. He published anonymous blogs. He concocted an elaborate scheme in which he used a pseudonym to engage one professor in an email exchange, and then impersonated a different scholar to criticize that professor's emails. Defendant impersonated a New York University (NYU) professor and sent emails to NYU students and NYU deans indicating that the professor had plagiarized the work of Professor Golb.
The court's disposition of the criminal charges
...we affirm the convictions for nine counts of criminal impersonation in the second degree and all of the convictions for forgery. We vacate the conviction for identity theft in the second degree; five of the convictions for criminal impersonation in the second degree; all of the convictions for aggravated harassment in the second degree, and the conviction for unauthorized use of a computer.
Justice Lippman would dismiss the charges in their entirety.
It would be difficult to find the conduct by defendant detailed in the majority opinion admirable. But our very different task is to decide whether that conduct was properly treated as criminal. While I see no constitutional impediment to prosecuting conduct similar to defendant's targeting Professor Schiffman as second degree identity theft -- which requires for its proof evidence of intent to cause highly specific injury of a non-reputational sort -- the particular counts of identity theft with which defendant was charged in the indictment's top two counts were not sufficiently proved...
The use of the criminal impersonation and forgery statutes now approved amounts to an atavism at odds with the First Amendment and the free and uninhibited exchange of ideas it is meant to foster.
Extensive information concerning the case can be found at The Raphael Golb Trial web page. (Mike Frisch)
Monday, May 12, 2014
An interesting decision last week from the Georgia Supreme Court on disqualification premised on a non-attorney employee
We granted certiorari in this case to determine whether the Court of Appeals correctly held that a conflict of interest involving a nonlawyer can be remedied by implementing proper screening measures in order to avoid disqualification of the entire law firm. For the reasons set forth below, we hold that a nonlawyer’s conflict of interest can be remedied by implementing proper screening measures so as to avoid disqualification of an entire law firm. In this particular case, we find that the screening measures implemented by the nonlawyer’s new law firm were effective and appropriate to protect against the nonlawyer’s disclosure of confidential information. However, we remand this case to the trial court for a hearing to determine whether the new law firm promptly disclosed the conflict.
The case involves a wrongful death action brought by the estate of a person who was shot and killed at an apartment complex. The paralegal was the plaintiff 's primary contact and worked on the fact investigation before moving (with an intervening stop at another job) to the firm that represented the defendant apartment complex.
The conflict was not discovered when the paralegal first moved to the defendant's firm, as suit had not yet been filed and the paralegal did not know that the firm represented the defendant.
Screening was implemented after the conflict was discovered.
The court set forth a test for disqualification under the circumstances
...the new firm will be disqualified where (1) the nonlawyer has already revealed the confidential information to lawyers or other personnel in the new firm; (2) screening would be ineffective; or (3) “the nonlawyer necessarily would be required to work [or has actually worked at the new firm] on the other side of the same or a substantially related matter on which the nonlawyer [previously] worked.”
Justice Nahmias concers but has concerns about the state of screening in Georgia
It should be noted... that this is yet another case that raises questions about whether Rule 1.10, and in particular its implicit rejection of the use of screening measures to avoid imputed disqualification of an entire law firm when one of their lawyers would be disqualified, should be reconsidered and amended or at least clarified. After all, the rules already allow the use of screening to avoid conflicts imputed from some lawyers – former government lawyers, judges, and arbitrators. See Rules 1.11 (a) and 1.12 (c). And many of the factors that the Court discusses in support of our conclusion that screening measures, rather than imputed disqualification, may be appropriate for nonlawyers also apply to many other lawyers – especially associates. In addition, we should acknowledge that, as in the rest of our economy, it is becoming far less common for lawyers and their nonlawyer assistants to remain with the same firm for an entire career, whether by choice or due to layoffs or merger and dissolution of firms. This Court can continue deciding – or avoiding deciding – the impact of Rule 1.10 on a case-by-case basis, but the process for amending the Bar Rules provides opportunities for greater and broader input from those whose interests may be affected by imputed disqualification as well as consideration of facts and circumstances beyond those presented in the record of a particular case. That seems a preferable way to address these issues.
Wednesday, April 9, 2014
The Washington Court of Appeals - Division Three- has upheld a trial court determination that Washington State has jurisdiction over Texas lawyers who provide debt relief services to state residents.
[Law firm] LWG purposely advertised on the Internet to Washington residents, made service promises to Washington residents, entered into contracts with Washington residents, and received payments from Washington residents. Ms. Miller's suit relates to these activities. Having Washington as the forum state does not offend traditional notions of fair play and substantial justice, considering the type of the complaint, the convenience of the parties, and the equities involved. Based on the above, Ms. Miller met her burden to show that Washington had personal jurisdiction over LWG to avoid dismissal. The trial court properly concluded likewise.
Further, the court found that a contractual provision that required clients to submit to arbitration in Texas was not explained to the clients and was unenforcable.
Here, no attorney or attorney's representative discussed the arbitration provisions with Ms. Miller, or advised her of the rights at stake. She was not counseled or advised regarding the consequences of relinquishing the legal protections provided by Washington law or of the protections provided by Texas law. Ms. Miller was not informed of the advantages or disadvantages of arbitration, including the requirement she must bring arbitration claims in Texas. Moreover, no one explained the inconsistent and mutually exclusive venue and jurisdiction provisions. Based on existing case law and the RPCs, we, like the trial court, conclude the agreement between the parties was procedurally unconscionable. Therefore, it was void and we need not address substantive unconscionability.
Tuesday, April 8, 2014
Plaintiff is the Director of Security for her employer, the National Basketball Association (NBA). She commenced this action against defendants alleging, inter alia, discrimination and retaliation in violation of the State and City Human Rights Law. Defendants Geno Auriemma and James Tooley are employed, respectively, as the executive director and head coach of USA Basketball, Inc. (USAB), the national governing body for the sport of basketball. Although it is an Illinois corporation, USAB has its main headquarters in Colorado Springs. Tooley is a Colorado resident and Auriemma is a Connecticut resident. The NBA is a New York City based company and a member of the USAB. Although plaintiff resides within the state, she is not a New York City resident.
Plaintiff had expected to provide security to the Women's National Basketball team at the 2012 London Olympics and had traveled with it to the Olympics on at least two prior occasions in 2004 and 2008. In 2011, however, while she was abroad with the team, plaintiff learned that Auriemma had instructed Tooley that he did not want her at the 2012 Olympics. Plaintiff claims that Auriemma's actions were motivated by her rejection of Auriemma's inappropriate sexual advances towards her during a 2009 overseas assignment.
Plaintiff alleges that Tooley cooperated with Auriemma's request, and contacted her supervisor, James Cawley, who agreed to remove her from the 2012 London Olympics assignment. After plaintiff complained about the reassignment, the NBA investigated and found her complaint unsubstantiated. Plaintiff then commenced this action in June 2012. Subsequently, in July 2012, she learned that the NBA had decided that she would be attending the London Olympics after all.
Although she attended the Olympics, plaintiff claims that she had "significantly diminished material responsibilities" while in London. Her complaints included that she was not provided with certain security credentials that would have allowed her access to the basketball arena, she was assigned to transport guests to and from the arena, and she was told she could not sit in the bleachers at the gym while the team was practicing. Plaintiff claims these limitations were all part of Auriemma's retaliation campaign against her, in which Cawley and Tooley were complicit.
USAB, Tooley and Auriemma moved to dismiss the complaint against them. Their motions were granted on the basis that the discriminatory acts alleged took place outside of New York by nonresidents and the conduct alleged had no impact in New York. The court rejected plaintiff's argument that her place of employment was the location of the injury for purposes of evaluating where its impact was felt. Her employer and Cawley have answered the complaint. They have not moved and the order appealed from does not affect plaintiff's claims against them. We agree that the motions by non-residents USAB, Auriemma and Tooley, dismissing the Human Rights Law and collateral tort claims against then, were properly granted.
Monday, April 7, 2014
An inmate who wishes to change his name is entitled to appear in the civil matter by telephone or other means, according to a decision of the Oklahoma Supreme Court.
The court majority did not find the proposed name change should be granted.
There is a dissent
I respectfully dissent from the Court's expansion of prisoner's rights. The petitioner is a thirteen-time convicted felon serving time in prison. He has a lengthy public criminal history beginning in 1993. He already has aliases of Stacey L. Hamphill, Stacey L. Hemphil, Apokalypse Hemphill, Terrance L. Hemphill, Stacey L. Himphill, Laqua Pollard, and Ra Shabazz. Now he wants the Court to order the district court to allow him to get on the telephone and phone in his testimony which would support a legal name change to Apokalypse God Allah. With such a long criminal record and the use of so many aliases, the purpose of the petitioner's name change must be to disassociate himself with his criminal past and to fraudulently deceive the public of his criminal past, rather than for any lawful purpose. Today the Court goes to great lengths to facilitate the petitioner's quest by ignoring our prudential rules, vitiating the due process concept of notice, misapprehending the Oklahoma Constitution and this Court's cases, and usurping the district court's discretion...
This is the perfect example of the swarm of inmate recreational litigation clogging our courts.
I guess it is fortunate that this litigant was not before the Tennessee judge who changed a child's name from Messiah to Martin. (Mike Frisch)
Saturday, March 29, 2014
From the web page of the District of Columbia Bar
The District of Columbia Court of Appeals seeks comments on a proposed amendment to D.C. App. R. 49 that would create an exception allowing internal counsel who have not been admitted to the D.C. Bar to provide pro bono legal services.
The Committee on Unauthorized Practice of Law made the recommendation to the court on September 19, 2013, stating that these changes would help address the need to increase access to justice in the District. The amendment would permit attorneys who are members in good standing of the highest court of a state or territory and are supervised by an active D.C. Bar member to perform pro bono work in the District. The work must be assigned or referred by an organization that provides pro bono legal services to the public for free.
Written comments regarding the proposed rule amendment are due by May 20, 2014. Ten copies should be sent to the Clerk, D.C. Court of Appeals, 430 E Street NW, Suite 209, Washington, DC 20001.
My comment --good idea. (Mike Frisch)
Wednesday, March 26, 2014
A recent decision of the Massachusetts Supreme Judicial Court:
This case presents an issue of first impression: whether an association that has provided support for litigation, without being a named party in that litigation, has engaged in protected petitioning activities for the purposes of G.L. c. 231, § 59H. The defendant, the New England Regional Council of Carpenters, appeals from a Superior Court judge's denial of its special motion to dismiss a suit by the town of Hanover (town) claiming that the defendant engaged in abuse of process in prior legal proceedings. Because we conclude that support of litigation constitutes protected petitioning activity within the meaning of G.L. c. 231, § 59H, and that here, the town did not demonstrate that the defendant's right to petition was "devoid of any reasonable factual support or any arguable basis in law," Office One, Inc. v. Lopez, 437 Mass. 113, 123 (2002), we allow the defendant's special motion to dismiss.
The case is
TOWN OF HANOVER vs. NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS, SJC-11396.
Thursday, March 20, 2014
A lawyer's attempt to recover unpaid fees failed in a decision affirming dismissal of the claim by the New York Appellate Division for the Second Judicial Department.
Except in limited circumstances, where an attorney institutes an action to recover a fee, the attorney must provide written notice by certified mail or by personal service of the client's right to elect to arbitrate and must allege in the complaint that the client received notice of his or her right to pursue arbitration and did not file a timely request to arbitrate (see 22 NYCRR 137.6). A plaintiff's failure to provide the defendant with written notice of his or her right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration, require dismissal of the complaint (see Herrick v Lyon, 7 AD3d 571). Here, the Supreme Court properly dismissed the complaint upon finding that the plaintiff failed to properly serve the defendant with written notice of his right to arbitrate the fee dispute, and upon the plaintiff's failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration (see 22 NYCRR 137.6; Herrick v Lyon, 7 AD3d 571).
In addition, the Supreme Court properly found that the plaintiff failed to comply with the requirements of 22 NYCRR 1215.1 and failed to establish that he was entitled to recover legal fees in quantum meruit. Except in limited circumstances, an attorney must provide his or her client with a written letter of engagement or enter into a written retainer agreement explaining, inter alia, the scope of the legal services to be provided, the fees to be charged, and the expenses and billing practices (see 22 NYCRR 1215.1). An attorney's noncompliance with 22 NYCRR 1215.1 does not preclude him or her from recovering the value of professional services rendered on a quantum meruit basis (see Seth Rubenstein, P.C. v Ganea, 41 AD3d 54). Nonetheless, an attorney who fails to comply with rule 1215.1 bears the burden of proving the terms of the retainer and establishing that the terms of the alleged fee arrangement were fair, fully understood, and agreed to by the client (see id.). Here, the court properly found that the plaintiff failed to comply with 22 NYCRR 1215.1 and failed to establish that the terms of the fee arrangement were fair, fully understood, and agreed to by the defendant.
Wednesday, January 29, 2014
A recent opinion from the District of Columbia Bar Legal Ethics Committee:
Lawyers who represent clients, whether birth parents or prospective adoptive parents, in private or independent adoption proceedings in the District of Columbia must ensure their conduct conforms to the D.C. Rules of Professional Conduct. Private adoptions frequently give rise to a number of significant ethical obligations, not the least of which are duties arising under conflict of interest rules, that the lawyer must squarely address with his or her client or clients, often at the onset of the representation. In many instances, a lawyer will be required to obtain the informed consent of one or more clients, and in some circumstances that of former clients, regarding certain aspects of the representation, in order to commence or continue representation. Private adoption practitioners should be particularly mindful of ethical duties attendant to communications with unrepresented persons, as well as duties of confidentiality owed to both current and former clients.
Tuesday, December 31, 2013
A seventeen-year-old boy, along with a group of his friends, broke into the former Ladd Center in the Town of Exeter in a search for ghosts.
It was closed in 1994 and has "no trespassing" signs posted.
Instead of finding what the court whimsically called "things that go bump in the night," the group encountered four bottles of what turned out to be sulfuric acid.
The boy was severely burned when one of the bottles broke.
He sued the State of Rhode Island on a theory of attractive nuisance. He lost at trial.
He also lost on appeal to the Rhode Island Supreme Court. (Mike Frisch)
Friday, December 27, 2013
A mother convicted of negligent homicide and related offenses after one of her children drowned in a bathtub and another was severely injured appealed, claiming the the trial court erred in admitting evidence of her internet use while the children were in the tub.
The evidence showed that she was on a web page that was devoted to discussion of breast implants.
The conviction was affirmed by the New Hampshire Supreme Court.
WMUR9 had this report. (Mike Frisch)
Monday, November 18, 2013
An announcement from the web page of the Virginia State Bar:
By order entered November 1, 2013, the Supreme Court of Virginia has adopted, effective February 1, 2014, a new Rule 1A:1, addressing admission to the Virginia bar without examination (often called “admission on motion”). Although the old and new rules are similar in many respects, there are several significant differences.
To continue encouraging other states to grant the same privilege to Virginia lawyers, the Court has retained the requirement that only lawyers who are admitted in jurisdictions that also admit Virginia lawyers without examination (i.e., “reciprocal” jurisdictions) are eligible for admission on motion in Virginia. The new rule requires that admission to the bar of the reciprocal jurisdiction must have been by examination.
Admission on motion is based on the premise that passage of a reciprocal state’s bar exam combined with the experience gained over the course of several years of recent successful law practice may be accepted in place of a second bar exam as evidence of one’s legal knowledge and ability. The minimum practice requirement has been reduced from five of the last seven years under the old rule to three of the last five years. New requirements for twelve hours of approved instruction on Virginia substantive law and/or procedure and familiarity with the Virginia Rules of Professional Conduct have been added. Unchanged is the statutory requirement of a minimum of five years’ bar admission. Persons applying for admission on motion must still establish their good character and fitness to practice law in Virginia.
In what is perhaps the most significant change, the new rule drops the old rule’s requirement that one admitted on motion commit to practice full-time in Virginia; and lawyers admitted on motion, including those who have been admitted under the old rule, are no longer subject to potential license revocation if they move out of state or change their status. Lawyers admitted on motion may change their membership status under the applicable membership rules in the same manner as lawyers admitted by examination.
The Supreme Court of Virginia will be issuing revised regulations consistent with the provisions of new Rule 1A:1, and the Board of Bar Examiners is preparing new application forms. The new regulations and the application forms will be available in January on the board’s website, and the board will begin accepting applications under the new rule on February 1, 2014.
Friday, November 15, 2013
The New York Court of Appeals ruled against an estate that contested the claim of a German museum to a 3,000 year old gold tablet recovered by German archeologists prior to World War One.
The tablet was shipped to the claimant museum in 1926, was missing by 1945 and "resurfaced in 2003, when it was discovered in the possession of the decedent..."
The estate of the Nassau County resident and Holocaust survivor claimed that the tablet was a"spoil of war."
The "spoils of war" theory proffered by the Estate - that the Russian government, when it invaded Germany, gained title to the Museum's property as a spoil of war, and then transferred title to the decedent - is rejected. The Estate's theory rests entirely on conjecture, and the record is bereft of any proof that the Russian government ever had possession of the tablet. Even if there was such proof, we decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by a conquering military force.
The court answered a question certified by the Appellate Division. (Mike Frisch)
Thursday, November 14, 2013
A majority of the New York Appellate Division for the Second Judicial Department has held that one party to a long term committed same-sex relationship stated a cause of action for breach of an oral agreement.
Each had had a biological child that the other adopted. The plaintiff stayed at home while the defendant continued to work.
They ended the relationship in 2007 and were never married.
The parties lived together in a committed, same-sex relationship for nearly 18 years, and are the parents of two children. After the relationship ended, the plaintiff commenced this action seeking, inter alia, damages for breach of an alleged oral "joint venture/partnership" agreement whereby she would share in assets, including the defendant's retirement contributions and earnings, in exchange for leaving her full-time job to care for the parties' children. The plaintiff also asserted several equitable causes of action predicated upon the alleged oral agreement to share in the defendant's retirement contributions and earnings. For the reasons that follow, we conclude that the complaint is sufficiently pleaded to state a cause of action sounding in breach of contract.
Justice Dillon concurred in part and dissented in part:
Distilled to its essence, the plaintiff in this action seeks "equitable distribution" of the defendant's assets and future pension benefits without alleging in the complaint that the defendant had promised to share them if the parties did not stay together. Indeed, there is no allegation that the parties had any meeting of the minds as to the distribution of property or assets upon a termination of their relationship. Absent such an allegation, and absent an affidavit from the plaintiff clarifying or expanding her description of the parties' agreement to cover such an eventuality, the complaint fails to state a cause of action. The plaintiff's theory of recovery is dependent upon implying terms for the distribution of retirement benefits to circumstances involving the dissolution of the parties' familial relationship. The Supreme Court properly refrained from implying such provisions into the oral contract in determining that, under the circumstances alleged, the "complaint lacks a contract for the court to enforce."
No aspect of this partial dissent speaks to the merits of the New York's more recent enactment of the Marriage Equality Act. This Court is sensitive to the complications occasioned by various forms of familial relationships that necessarily result in financial agreements or entanglements. The judiciary, however, is limited in addressing and determining the ownership and/or distribution of familial assets, absent either the existence of a lawfully recognized marriage or an enforceable expressed contract between persons in a cohabitational relationship.
Wednesday, November 13, 2013
An attorney who shot a person in the leg claimed self-defense. He was found not guilty of criminal charges brought as a result of the shooting.
The shooting victim then filed a civil complaint against the attorney, who responded by bringing a third-party complaint against the prosecuting attorney.
The West Virginia Supreme Court of Appeals affirmed the dismissal with prejudice of the third-party action based on the doctrine of absolute prosecutorial immunity.
WV Metro News had this account of the verdict in the criminal case.
The State Journal also reported the verdict and noted charges of witness intimidation against the attorney
After a Clay County jury found former political candidate, Hiram Lewis, not guilty of maliciously shooting another person in the leg, Lewis says he's just glad the trial is over.
"I'm feeling pretty good," Lewis told The State Journal. "It was a great relief. I can get to work now and get back to a regular life."
Lewis said he will continue with his ministry and his law practice. He also plans to create Kayakers for Christ, which would be kayak rentals for youth groups.
However, Lewis is not yet out of the woods. He still faces another charge of intimidation of a witness, which goes to trial Aug. 7.
Prosecutors allege Lewis intimidated former Clay County Sheriff Randy Holcomb, following the initial October shooting incident. Lewis said in a previous interview that he was just exercising his rights for redress of grievances.
In that interview, Lewis said he went to the sheriff's home, following the incident, wanting Holcomb to express a preference to prosecutors about Lewis' guilt. Lewis said the sheriff told him that was unethical, but Lewis argues it wasn't because of a prosecutor's discretion.
The attorney had been a candidate for state attorney general. (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)
Thursday, October 31, 2013
The Spring 2013 edition of the Georgetown Journal of Legal Ethics is now available at this link.
Monroe Freedman has again published with us -- an article entitled "The Unconstitutionality of Electing State Judges."
There are also fine pieces on advising the president by William R. Casto, the development of law firm marketing by Silvia Hodges, the "reason-giving" lawyer by Donald J. Kochan and the forgotten foundations of the attorney-client privilege by Norman W. Spaulding.
Thanks to the authors and editors for this contribution to the legal profession. (Mike Frisch)
Saturday, October 26, 2013
The Kentucky Supreme Court has affirmed on statute of limitations grounds the dismissal of claims of fraud, misepesentation and breach of fiduciary duty brought against attorneys involved in the litigation of Fen-Phen claims.
The court's opinion describes how "50 plaintiffs in Kentucky with Kentucky attorneys could end up in an Alabama court case represented by law firms in Mississippi and Alabama."
The 50 were a group of plaintiffs in Kentucky case that had what their Kentucky attorneys felt were "low value" claims.
They were sold off without their knowledge (and with a cut of the fee) to other law firms in an Alabama case that needed them because of a requirement that they certify within a given time frame that a minimum number of the claimants that they represented were willing to participate in a settlement.
The plaintiffs got no individualized consideration of their claims; rather, they were treated as "fungible commodities." They each got a settlement check for $29,500 of a $72,000 settlement but were left in the dark over the amount and distribution of the proceeds.
Suffice it to say that the lawyers divided up the rest.
The matter came to light when a lawyer conducted an investigation that peeled back the Fen-Phen litigation onion and found that the clients were supposed to have received slightly less than $48,000.
That discovery triggered the start of the statute of limitations.
Here, the court held that Kentucky statute of limitations law applied (not Alabama, as the Circuit Court had held) but that the suit was nonetheless filed too late. (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)