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.
Wednesday, February 27, 2013
The Winter 2013 (Vol. XXVI, No. 1) of the Georgetown Journal of Legal Ethics has just been released.
The volume has the following:
What If Legal Ethics Can't Be Reduced To A Maxim? by Andrew B. Ayers
Achieving Procedural Goals Through Indirection: The Use Of Ethics Doctrine To Justify Contingency Fee Caps In MDL Aggregate Settlements by Morris A. Ratner
Supreme Court Recusal From Marberry To Modern Day by James Sample
Law Firm Ethics In The Shadow Of Corporate Social Responsibility by Christopher J. Whelan and Neta Ziv
Kudos to the journal editors for their fine work.
Disclosure: I am (along with my colleague Mitt Regan) co-faculty advisor to the journal. (Mike Frisch)
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)
Friday, February 22, 2013
The New Jersey Appellate Division has rejected an asserted Second Amendment violation in a case that involves the denial of a permit to carry a firearm outside his home.
The applicant sought to establish his justifiable need to carry because he received substantial cash payments in connection with his landscaping business. The trial court rejected his contention regarding his justifiable need.
Both trial and appellate court rejected the constitutional claim, as stated by the Appellate Division:
...given the presumption of constitutionality, the lack of clarity that the Supreme Court in Heller intended the extend the Second Amendment right to a state regulation of the right to carry outside the home, and the Second Circuit's explicit affirmation of a law similar to ours, we affirm [the trial court's] determination that [applicant's] rights were not infringed.
The State had appealed a police chief's decision to issue a permit to the applicant. (Mike Frisch)
Friday, December 21, 2012
The question of the day comes from the Iowa Supreme Court:
Can a male employer terminate a female employee because the employer's wife, due to no fault of the employee, is concerned about the nature of the relationship between the employer and the employee?
...we ultimately conclude the conduct does not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act.
The employee was hired in 1999 as a dental assistent in the employer's dental office. She worked there capably for over 10 1/2 years. However, the employer had complained that she dressed in a "too tight" and revealing manner.
During the last six months of her tenure, they "started texting each other on both work and personal matters outside the workplace." The employee denied that she flirted with the employer although there was some sexual banter between them.
When the employer was with his children for a Colorado Christmas, Mrs. Employer found the text messages.
There ensued a confrontation between them and pastoral counseling. As a result of the perceived ongoing threat to the marriage, the employee was terminated.
The court concluded:
...the issue is not whether [employer] treated [employee] badly. We are asked to decide only if a genuine fact issue exists as to whether [employer] engaged in unlawful gender discrimination when he fired [employee] at the request of his wife....we believe that this conduct did not amount to unlawful discrimination...
Tuesday, December 18, 2012
The United States Court of Appeals for the District of Columbia Circuit reversed and remanded the dismissal of a claim brought against the Administrative Office of the United States Court ("the central administrative support organization for the federal judiciary" ) by a rejected applicant for an attorney position.
The plaintiff is an attorney who resides in Kentucky. She applied online for a position as an Attorney-Advisor. Her application did not meet a job requirement that she live and work in the D.C. area. She received an automated rejection letter because of her Kentucky home.
She then sued AO, arguing that the geographic limitation was unconstitutional.
The district court granted dismissal for both lack of subject matter jurisdiction and failure to state a claim due to sovereign immunity.
The remand directs the district court to explain its conclusion that the plaintiff had failed to state a claim. (Mike Frisch)