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)
Thursday, September 19, 2013
The District of Columbia Court of Appeals has affirmed an order to arbitrate a dispute between a former partner of K &L Gates and the firm.
The attorney had filed suit against the firm in California. The firm invoked arbitration and forum selection clauses in the firm partnership agreement, and moved in the D.C. Superior Court to compel arbitration.
The Superior Court ordered the parties to arbitrate the dispute. The attorney appealed the order.
The court here entertained the appeal and concluded that the dispute must be arbitrated.
The attorney had signed a supplement to the firm's partnership agreement when Kilpatrick & Lockhart merged with Preston, Gates & Ellis that bound him to the agreement "as amended."
The attorney (who was a partner at the Preston firm) agreed to the supplement when he chose to become a K &L Gates partner. The agreement provided for arbitration of disputes that arose between him and the firm and chose the District of Columbia as the forum.
The court rejected a host of contentions, including the suggestion that the firm engaged in fraud in having the agreement signed. The court held that the arbitration agreement broadly covered all issues in dispute between the attorney and the firm.
Associate Judge McLeese wrote the opinion. There are concurring opinion from Senior Judge Ferren, joined by Associate Judge Easterly.
The issue of the concurrences involved footnote four of the opinion. The concurring opinion proposes an alternate version.
Judge McLeese defended the footnote in a concurring opinion. (Mike Frisch)
Wednesday, September 11, 2013
From the Tennessee Supreme Court web page:
The Tennessee Supreme Court has held that a trial court erred by failing to follow appropriate procedures after learning that a juror contacted a witness via Facebook during a murder trial.
William Darelle Smith was charged with the 2007 shooting death of Zurisaday Villanueva. During Mr. Smith’s trial in 2010, Dr. Adele Lewis, an assistant medical examiner, testified about the cause of death. Following her testimony, one of the jurors, Glenn Scott Mitchell, communicated with Dr. Lewis through her Facebook account. Mr. Mitchell and Dr. Lewis were acquaintances, and Mr. Mitchell complimented Dr. Lewis on her testimony.
Dr. Lewis informed the trial judge of these communications while the trial was still underway. Rather than taking immediate action, the trial judge informed the attorneys of the communication and sentenced Mr. Smith after the jury returned a guilty verdict. The trial court also denied Mr. Smith’s request to question the jury before they left the courthouse and later denied Mr. Smith’s request for a new trial because of these communications. The Court of Criminal Appeals affirmed Mr. Smith’s conviction and life sentence.
In a unanimous opinion, the Supreme Court reversed the decision of the trial court and the Court of Criminal Appeals regarding the communications between Dr. Lewis and Mr. Mitchell. The Court decided that when communications between a juror and a third party are brought to a trial court’s attention, the trial court must immediately inform the parties and conduct a hearing on the record to establish the nature and extent of the improper communications and to determine whether the communications affected the outcome of the trial. The Court sent the case back to the trial court to conduct a proper hearing.
Saturday, July 27, 2013
The Nebraska Supreme Court has reversed a conviction in a high-profile case involving charges of abuse of developmentally disabled adults in residential care.
The jury was permitted to review a document not in evidence --the prosecution's "road map"--a mistake that resulted in the reversal.
Huffington Post had noted the conviction:
A 31-year-old man has been convicted of abusing residents at a state-run center for developmentally disabled people in Nebraska.
Pangborn was charged with beating and choking residents when he worked at the Beatrice State Developmental Center last summer.
Sixteen employees were suspended after an investigation found that at least seven of the center's developmentally disabled residents were routinely slapped, shoved, violently pinched, punched, ridiculed and choked. Five workers were initially charged with abuse.
Pangborn is the only one to face trial, after the four others pleaded to reduced charges.
The Beatrice Daily Sun had this report on the sentencing. (Mike Frisch)
Friday, July 12, 2013
The Iowa Supreme Court has affirmed its earlier conclusion that a dental assistant terminated because her employer's spouse was jealous of her did not make out a claim of unlawful gender discrimination.
Rather, she was "terminated because of the activity of her personal relationship with her employer, not because of her gender."
Bad treatment, perhaps, but not unlawful discrimination, according to the court.
There is a special concurring opinion that makes clear that the law supported the claim, but not the specific facts alleged by the discharged employee. (Mike Frisch)
Thursday, July 11, 2013
On July 6, 2013, the Florida Supreme Court promulgated a Code for Resolving Professionalism Complaints.
Today, the court corrected the Code in two respects.
Rather than Anger Management Classes, the corrected order designates a Stress Management Workshop. Certain provisions are triggered by "cause to believe" rather than on "probable cause." (Mike Frisch)
Wednesday, July 10, 2013
A significant decision today by the Massachusetts Supreme Judicial Court.
The issue and holding:
The issue presented on appeal is whether confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by a current client of the firm are protected from disclosure to the client by the attorney-client privilege. We conclude that they are, provided that (1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential. Because these criteria were met in this case, we affirm the judge's order allowing the defendant law firm and its attorneys to invoke the attorney-client privilege to preserve the confidentiality of these communications.
The law firm was retained by a commercial lender to investigate title and foreclose on property secured by what the lender thought was a first mortgage. A third party claimed a superior interest in the property.
A year later, the client (through outside counsel) sent the law firm a draft complaint alleging malpractice and breach of contract.
The lawyers in the firm then consulted with the firm partner "designated to respond to ethical questions and risk management issues on behalf of [the firm]..."
The court underscored the importance of the ethics attorney function:
Where a law firm designates one or more attorneys to serve as its in-house counsel on ethical, regulatory, and risk management issues that are crucial to the firm's reputation and financial success, the attorney-client privilege serves the same purpose as it does for corporations or governmental entities: it guarantees the confidentiality necessary to ensure that the firm's partners, associates, and staff employees provide the information needed to obtain sound legal advice. See Hertzog, Calamari & Gleason v. Prudential Ins. Co. of Am., 850 F.Supp. 255, 255 (S.D.N.Y.1994) ("No principled reason appears for denying ... attorney-client privilege to a law partnership which elects to use a partner or associate as counsel of record in a litigated matter"). "[B]road protection of communications with law firm in-house counsel, including communication about the representation of a current client of the firm, ... would encourage firm members to seek early advice about their duties to clients and to correct mistakes or lapses, if possible, to alleviate harm." Chambliss, supra at 1724. As the United States District Court for the Southern District of Ohio recently noted:
"[I]ndividual lawyers who come to the realization that they have made some error in pursuing their client's legal matters should be encouraged to seek advice promptly about how to correct the error, and to make full disclosure to the attorney from whom that advice is sought about what was done or not done, so that the advice may stand some chance of allowing the mistake to be rectified before the client is irreparably damaged. If such lawyers believe that these communications will eventually be revealed to the client in the context of a legal malpractice case, they will be much less likely to seek prompt advice from members of the same firm."
The court rejected a differing result when the situation involves a current, rather than former, client:
In law, as in architecture, form should follow function, and we prefer a formulation of the attorney-client privilege that encourages attorneys faced with the threat of legal action by a client to seek the legal advice of in-house ethics counsel before deciding whether they must withdraw from the representation to one that would encourage attorneys to withdraw or disclose a poorly understood potential conflict before seeking such advice. The "current client" exception is a flawed interpretation of the rules of professional conduct that yields a dysfunctional result. See N.Y. St. Bar Ass'n Comm. on Prof. Ethics, Op. 789 (2005) ("We do not believe that the conflicts rules ... were intended to prohibit ethics consultation when it is most helpful: during the client representation"). As such, we decline to adopt it in Massachusetts.
Briefs were submitted by several amicus curiae, including the Association of Professional Responsibility Lawyers, the American Bar Association and the Attorneys' Liability Assurance Society, Inc.
The case is RFF Family Partnership, LP v. Burns & Levinson LLP. One should be able to access the decision through this link.
Law firm ethics counsel --every firm of sufficient size needs one. (Mike Frisch)
Wednesday, July 3, 2013
The Wisconsin Supreme Court has affirmed convictions for second-degree reckless homicide in the death of an 11 year old child who died on Easter Sunday 2008.
The parents relied on prayers rather than treatment.
From Chief Justice Abrahamson's majority opinion:
Kara died when her father and mother, Dale R. Neumann and Leilani E. Neumann, chose to treat Kara's undiagnosed serious illness with prayer, rather than medicine. Each parent was charged with and convicted of the second-degree reckless homicide of Madeline Kara Neumann in violation of Wis. Stat. § 940.06(1) (2009) in separate trials with different juries.
The cause of death was diabetic ketoacidosis resulting from untreated juvenile onset diabetes mellitus.
Justice Prosser dissented:
This case is a tragedy in virtually every respect. I cannot say that the result of the Neumann trials is unjust. Nonetheless, there were and are serious deficiencies in the law and they ought to be addressed by the legislature and the courts. Failing to acknowledge these deficiencies will not advance the long-term administration of justice.
Monday, July 1, 2013
A decision last week from the Indiana Supreme Court:
The concept of parents negotiating away parenting time as a means to elimate the obligation to pay child support is repugnant and contrary to public policy. Attorneys should refuse to be a part of such discussion and should advise their clients that any such discussion is unacceptable. Here, an agreement to forego parenting time in exchange for relief from child support is declared void against public policy.
The court decried the use of a child as a "bargaining chip." (Mike Frisch)
Tuesday, June 25, 2013
An announcement from the Georgetown Law web page:
Georgetown Law's Georgetown Journal of Legal Ethics has been honored by the New York State Bar Association's committee on professional ethics with its Sanford D. Levy Award. The award is given to "recognize those who have contributed to understanding and advancement in the field of professional ethics."
"The Georgetown Journal of Legal Ethics has published many of the most thought-provoking and influential articles in the field," said Steve Krantz, co-chair of the committee and an attorney with the New York State Department of Taxation and Finance. "The committee congratulates the Journal and looks forward to its continuing and vigorous explorations of topics in legal ethics."
Previous recipients of the award include Georgetown Law Professors Tanina Rostain and David Luban, as well as Judge Judith S. Kaye, the longest-serving chief judge of the New York Court of Appeals in the state's history.
The Georgetown Journal of Legal Ethics, which was founded by the late Georgetown Law Professor Fr. Robert Drinan, S.J., aspires to serve as the main forum for the discussion and development of the most compelling and pertinent issues currently affecting both the bench and the bar.
Congratulations and thanks to the superb journal staff for this recognition.
Somewhere Father Drinan is smiling! (Mike Frisch)
Wednesday, June 19, 2013
The South Carolina Supreme Court has held that modifying a loan without the participation of an attorney does not constitute the unauthorized practice of law.
The case involved petitioners who had obtained loan modifications and failed to make timely payments under the new terms.
They tried to prevent foreclosure by contending that the lenders had engaged in unauthorized practice by modifying the loans without using an attorney.
The court disagreed. (Mike Frisch)
Wednesday, June 12, 2013
A non-attorney may file a claim on behalf of a business entity in probate court without running afoul of unauthorized practice restrictions, according to an opinion issued today by the South Carolina Supreme Court.
The process for an allowance of claim merely requires the filing of a single page standard form that can be found on a court web page. The form requires an attestation that the claim is valid, timely and unpaid.
None of these activities require the professional judgment of an attorney or entail specialized legal knowledge and ability.
Bravo. (Mike Frisch)
Wednesday, June 5, 2013
The Oklahoma Supreme Court has held that the requirement of an affidavit of merit in a professional negligence action is an unconstitutional infringement on access to the courts:
The Oklahoma Constitution does not anticipate that litigants will be burdened with the entire bill for maintenance of the court system. The Oklahoma courts were never intended to be self-funded, and the increasing degree to which they have become so is disturbing. Despite our holding in Fent v. State ex. rel. Dep't of Human Services, 2010 OK 2, 236 P.3d 61, the judicial department of government is burdened with collecting fees for thirty seven entities--only seven of which have a relationship to the third branch of government. The Okla. Const. art. 2, §6, guarantees the right of individuals to access the courts, and while litigation does not have to be free and entirely at the public expense, at the very least the provision means that justice cannot be for sale. The idea that money cannot be used as a bar to deny justice long predates the Oklahoma Constitution, and is one of the fundamental values of our legal system.
The Magna Carta, one of the oldest progenitors of American legal principles, states: "We will sell to no man, we will not deny or defer to any man, either justice or right." When the cost of obtaining an affidavit of merit in professional negligence actions is added to the already high and increasingly rising cost of using the court system to resolve disputes, the result is that a line is crossed, and litigation costs go from being merely a hurdle to being an unconstitutional burden on accessing the courts.
The title expresses my views. (Mike Frisch)
Monday, May 13, 2013
A recent Rhode Island Supreme Court decision is summarized on the court's web page:
Accordingly, the Court vacated the order of the Superior Court denying Sherwin-Williams’ motion for a protective order and remanded the case to the Superior Court.
Tuesday, April 30, 2013
The New York Court of Appeals has held that an attorney who participates in an assigned counsel program ("ACP") for indigent persons "lacks standing to challenge how the ACP Plan deals with the provision of counsel to unemancipated minors in adult criminal court..."
The attorney was never a minor charged with a crime or the parent of a charged minor.
The court noted that the attorney contended that sections of the Plan "caused him to be assigned fewer cases. But personal disagreement and speculative financial loss are insufficient to confer standing." (Mike Frisch)
Monday, April 22, 2013
A recent opinion of the District of Columbia Bar Legal Ethics Committee is summarized below:
Can a government lawyer represent an agency employer in defending the agency from furlough-related complaints brought by other agency employees when the lawyer was also furloughed and is pursuing her own complaint in which the allegations are substantially similar to those in the complaint she is defending? Under the D.C. Rules of Professional Conduct, a lawyer has a conflict of interest in a matter when “[t]he lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.” Rule 1.7(b)(4). Such a conflict plainly exists in this situation. However, so-called individual interest conflicts like this one can be waived under Rule 1.7(c) if:
- Each potentially affected client provides informed consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and
- The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
The only affected client here is the agency. The agency’s informed consent to the conflicted lawyer’s representation notwithstanding her individual interest conflict would satisfy the requirements of the first paragraph. But client consent alone is not enough. Under the second paragraph, the lawyer must also reasonably believe that she can provide competent and diligent representation to the agency in the matter despite her personal interest, and her belief must be objectively reasonable under the circumstances. That may be a difficult standard to meet when the lawyer is pursuing her own challenge to the furlough while being asked to defend the agency against substantially similar challenges by other affected agency employees.
The opinion was adopted this month, in response to a hypothetical raised by the "sequester." (Mike Frisch)
Thursday, March 14, 2013
The New Jersey Supreme Court has issued an opinion that amends RPC 7.5 to allow the use of a law firm trade name "so long as [the name] describes the nature of the legal practice in terms that are accurate, descriptive, and informative, but not misleading, comparative, or suggestive of the ability to obtain results."
The court considered the trade name Alpha Center for Divorce Mediation, P.C. and concluded that all of the name was permissible save for the "Alpha." The rest of the name, along with the name of a managing New Jersey attorney, passes muster.
Alpha is impermissibly comparative, like (as the court had suggested) "Best Tax Lawyers" and "Tax Fixers" would be.
The court also directed that a committee be established to implement its new Rule.
The case had been remanded in 2009 and reargued twice after the remand.
Question: What if your last name is Best? What if I change my name to Mike Superlawyer? (Mike Frisch)
Sunday, March 10, 2013
The New Hampshire Bar Association Ethics Committee has recently issued an opinion on cloud computing.
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 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.
Wednesday, March 6, 2013
From the web page of the Ohio Supreme Court:
The Ninth District Court of Appeals has ruled that the Medina County Court of Common Pleas cannot issue a lifelong ban to a Florida man from entering the state of Ohio.
According to court documents, George Mose, of Bradenton, Florida, drove to Brunswick, Ohio with plans to kill a woman he was previously involved with. Acting on a tip, police later found Mose in a motel room with incriminating evidence. He was charged with two counts of attempted murder and one count of attempted aggravated burglary.
As part of a plea agreement, Mose pleaded guilty to all three counts and “agreed never to return to the State of Ohio during his lifetime other than for parole requirements.” The trial court accepted the agreement and sentenced Mose to three years of prison with credit for time served.
Mose then filed an application for a delayed appeal and said the common pleas court erred by “not providing [Mr. Mose] with the proper post release control terms in the sentence.” He also said the trial court “lacked subject matter jurisdiction to accept his guilty pleas because his actions did not constitute an ‘attempt’ to commit murder or burglary.”
Judge Carla Moore wrote the appeals court’s unanimous decision and said: “We agree that Mr. Mose’s lifelong banishment from the State of Ohio is contrary to law … While we understand that Mr. Mose agreed to this sanction, the trial court was without authority to impose a punishment which is not authorized by statute. As such, we must vacate only that portion of Mr. Mose’s sentence.”
Judges Beth Whitmore and Donna Carr concurred in the February 25 opinion that vacated only the portion of the judgment banishing Mose from the State of Ohio, and affirmed the remainder of judgment of the Medina County Court of Common Pleas.
Thursday, February 28, 2013
The New York Appellate Division for the First Judicial Department has affirmed the dismissal of legal malpractice claims involving the handling and distribution of insurance payments for a business that was located in the World Trade Center on September 11, 2001.
The attorneys had initiated a chapter 11 proceeding on behalf of the business in August 2011.
The defendant attorneys had, by the time of the payment, moved their practice to the Marc Dreier firm.
This complicated things.
Defendants could not release the escrowed funds to their clients until the bankruptcy case was formally dismissed. They sought a "structured dismissal" of the case, negotiating with the creditors' committee and the U.S. trustee as to when and how the various interested parties would be paid by the estate. Defendants had advised plaintiffs that winding up the estate could "take some time." On September 26, 2008, after agreement with all of the necessary parties had been reached, Fox submitted a motion to the bankruptcy court to approve the voluntary dismissal of the bankruptcy proceeding. The bankruptcy court approved the dismissal in an order dated October 30, 2008. The order provided, in relevant part, for distribution of the cash held for plaintiffs within 15 days, with U.S. trustee fees being paid first, administrative expenses in the amount of $61,972.94 second, and all remaining cash to be paid to the secured creditors in partial satisfaction of the secured claim.
Following the bankruptcy dismissal order, Fox distributed $61,972.94 from a
TBF escrow account to pay the administrative fees, which largely consisted of its own legal fees. On December 2, 2008, after reconciliation of outstanding accounts with the U.S. trustee had been finalized, $3,475 was paid out of the TBF escrow account to the U.S. trustee in full satisfaction of fees. The remaining cash in the TBF escrow account belonged to plaintiffs, and was paid to them. Onthe same date, Fox sent an internal email to Dreier LLP accounting personnel requesting that a check payable to plaintiffs for $350,000 be drawn from the 5966 account and forwarded to Fox for delivery to plaintiffs.
Unfortunately and coincidentally, Marc Dreier was arrested the next day. Upon learning of the arrest, Traub immediately repeated his demand that Dreier LLP transfer funds being held in the 5966 account to the TBF escrow account. Dreier LLP acceded to this request, and the next day wired $441,145.58 to the TBF escrow account. These monies included the settlement payment to plaintiffs, as well as funds belonging to other clients of defendants. After the monies were transferred, Fox and Traub resigned from Dreier LLP and returned to TBF. On December 10, 2008, a federal district judge appointed a receiver for Dreier LLP and restrained the firm's assets. On December 16, 2008, Dreier LLP filed for bankruptcy.
The court found no basis for malpractice liability:
What separates this case from the cases cited by plaintiffs is the nature of the escrow account in which the subject funds were placed. Because the 5966 account had been used by Marc Dreier to operate his Ponzi scheme, the settlement funds became part of the pool to be distributed on a pro rata basis with the victims of the fraud (see Securities & Exch. Comm. v Credit Bancorp., 290 F3d at 89-90). Accordingly, the analysis performed in Carlson and OPM Leasing Servs. as to when the funds became the property of the intended beneficiary of the funds is irrelevant. Further, contrary to plaintiffs' argument, it makes no difference that when defendants transferred the funds to the Dreier LLP bankruptcy trustee they had been transferred to the TBF escrow account and were no longer in the escrow account which Marc Dreier had used to perpetrate his Ponzi scheme. Plaintiffs do not dispute defendants' position that the funds were transferred into the TBF escrow account with the understanding that they would not be released to plaintiffs without prior approval by whoever was ultimately assigned the tasks of sorting out the various claims which were sure to be made against the Dreier LLP bankruptcy estate.