Thursday, January 5, 2012
In this employment discrimination action arising from the termination of the petitioner attorney by the respondent law firm, we reiterate that a petitioner's disability does not shield him from the consequences of workplace misconduct.
Respondent Hill Betts & Nash (hereinafter referred to as "HBN") terminated the petitioner, James Hazen, on March 15, 2006, upon discovering that the petitioner charged hotel rooms, limousines, alcohol, adult movies and calls to escort services to his corporate American Express card and then attempted to have these charges billed to clients. On August 30, 2006, HBN reported the petitioner's misconduct to the Departmental Disciplinary Committee for the First Judicial Department (hereinafter referred to as the "DDC"). The petitioner filed a verified complaint with the New York State Division of Human Rights (hereinafter referred to as the "DHR") on November 7, 2006 charging HBN with unlawful discrimination and retaliation. The petitioner claims that his misconduct was caused by his bipolar disorder, that HBN failed to accommodate his mental illness, that his termination was discriminatory, and that HBN retaliated against him by reporting him to the DDC.
The court concluded:
The record reflects that until the petitioner began receiving requests from HBN in December 2005 to account for his credit card expenses, there was no indication that the petitioner was suffering from a mental illness. By his own account, the petitioner was able to produce "quality professional legal work" during the time he was allegedly disabled, and argued his portion of a complex summary judgment motion on December 9, 2005. [petitioner's friend] Russotti testified that when he saw the petitioner in December, shortly before their January meeting, the petitioner's behavior did not seem unusual. The petitioner's doctor's records also indicate that neither the internist who had been treating him for more than a year for diabetes, nor the therapist who had been treating him for post-9/11 stress, diagnosed the petitioner with bipolar disorder or even mentioned the possibility that he was bipolar.
Furthermore, once the petitioner began alluding to an "emotional illness," HBN specifically requested the details of the petitioner's condition in order to evaluate the medical benefits available to the petitioner, and the petitioner flatly refused to provide any information. The communications from Russotti, the petitioner, and the petitioner's doctor, contained only vague references to emotional illness or "mood disorder," and thus did not fall into the category of an "impairment [...] which [...] is demonstrable by medically accepted clinical [...] techniques." Executive Law § 292(21)(a).
Thus, all that was before HBN when it terminated the petitioner on February 3 was that he had charged more than $21,000 in hotels and other personal expenses to the corporate credit card and tried to bill HBN's clients for personal expenses. Then, when confronted and asked for an explanation, he did not reimburse HBN and instead blamed his conduct on a "mood" illness, which he still did not identify.
Despite this total lack of evidence as to the petitioner's termination due to his bipolar disorder, the ALJ incomprehensibly found that HBN's legitimate reason for terminating the plaintiff was a pretext. The ALJ relied on evidence that another HBN attorney had charged $25,000 to his corporate credit card and was not terminated. However, this demonstrates only that the ALJ misapprehended the nature of the professional misconduct. The other HBN attorney did not attempt to charge clients for his personal expenses and paid the money back over time; therefore, his conduct is clearly distinguishable from the petitioner's, which essentially amounted to attempted theft from HBN and its clients.
Wednesday, December 14, 2011
Georgetown Law has announced a significant addition to its Center for the Study of the Legal Profession:
Georgetown University Law Center Dean William M. Treanor is pleased to announce that James Jones, former chair of the Hildebrandt Institute and managing partner of Arnold & Porter, will assume the role of senior fellow with Georgetown Law’s Center for the Study of the Legal Profession, beginning in January 2012.
"Jim Jones is one of the world’s leading thinkers about trends in law practice and the legal profession," said Dean Treanor. "His affiliation with Georgetown will enhance our ability to anticipate changes in the legal profession, strengthen our efforts to prepare students to meet the challenges they will face and enrich the research that we do on a profession undergoing profound changes."
Jones has served over the years in a variety of leadership positions in the legal industry. He spent more than 20 years at Arnold & Porter, serving as managing partner of the firm from 1986 to 1995. From 1995 to 2000, he was vice chairman and general counsel of APCO Worldwide. Since 2001, he has been at Hildebrandt International (later Hildebrandt Baker Robbins), a leading consultant to law firms and legal departments around the globe. For the past four years, he served as Hildebrandt's managing director. Since 2000, Jones also served as chair of the Hildebrandt Institute, the division responsible for executive education and research activities. Jones received his J.D. from New York University in 1970.
Jones has served since 1993 as chair of the Pro Bono Institute. He was also instrumental in the creation of TrustLaw, a project of the Thomson Reuters Foundation designed to promote pro bono collaboration between leading law firms and major NGOs throughout the world. He is an author and frequent speaker on topics relating to the "business of law" and has been a regular speaker to student audiences at Georgetown on trends in the legal profession.
On his new relationship with Georgetown Law, Jones said, "I am delighted to be affiliated with the Georgetown Center for the Study of the Legal Profession. Under the able direction of Mitt Regan and Jeff Bauman, the Center and its talented members have already made a positive impact on the legal profession through insightful research and publications, as well as well-focused educational programs. I look forward to contributing to the Center's success in the future, particularly in the area of executive education."
The Center for the Study of the Legal Profession was created in 2007 to promote interdisciplinary scholarship on the legal profession informed by the dynamics of modern practice; provide students and faculty with an understanding of the opportunities and challenges of a 21st century legal career; and furnish members of the bar, particularly those in public and private decision-making positions, broad perspectives on trends and developments in law practice.
Wednesday, November 30, 2011
The New York Appellate Division for the First Judicial Department has dismissed a complaint alleging legal malpractice and breach of fiduciary duty against Dechert LLP premised on the following alleged facts:
In 2005, Marc Dreier, who was then an attorney, proposed to plaintiffs that they participate in a short-term note program to finance the purchase of foreign real estate assets. The designated borrower would be Dreier's clients, Solow Realty & Development Company, LLC, and affiliated companies controlled by real estate developer Sheldon Solow (collectively Solow Realty), and Dreier would be the guarantor. The parties executed two loans totaling $60 million in 2006, and, in 2008, Dreier proposed another $50 million loan transaction. For this last loan transaction, plaintiffs required Solow Realty and Dreier to retain independent counsel to issue a legal opinion as to whether Solow Realty and Dreier had carried out the necessary formalities to render the loan documents valid and binding on them. Ostensibly, Solow Realty and Dreier retained defendant for this purpose. Dreier furnished the necessary documents and information to defendant for the preparation of the opinion. All the documents to which Solow Realty was a signatory appeared to have been signed by Solow Realty, and some bore "what appeared to be" the signatures of Sheldon Solow and Solow Realty's CEO.
Plaintiffs contend that they relied on defendant's legal opinion that the loan documents were duly executed and delivered and that the loan was a valid and binding obligation on Solow Realty and Dreier. Plaintiffs wired $50 million to an attorney trust account set up at Dreier's firm. Several months later, Dreier was arrested in connection with another fraud scheme, and plaintiffs discovered that Solow Realty had no knowledge of and was never a party to the loan transactions and that Dreier had falsified the documents and forged the Solow Realty signatures.
The malpractice claim failed because there was no attorney-client relationship. As to the fiducuary claims:
Although there is no contractual privity between the parties, the complaint sufficiently alleges a relationship of "near privity" for the purpose of stating a cause of action for negligent misrepresentation or negligence. Plaintiffs allege that the particular purpose of the opinion letter was to aid them in deciding whether to enter into the loan transaction, that defendant was aware that they were relying on the opinion in making that decision, and that defendant evinced its understanding of that reliance by addressing the legal opinion to them. However, the complaint fails to allege (a) that plaintiffs informed defendant that its obligations were not limited solely to a review of relevant and specified documents or (b) that plaintiffs informed defendant that it was to investigate, verify and report on the legitimacy of the transaction. Absent such factual allegations, plaintiffs cannot establish that defendant breached a duty of care. As Dreier was Solow Realty's attorney and the guarantor of the loan, defendant had no reason to suspect that Solow Realty was not in fact a party to the loan transaction or that Dreier forged the signatures of its principal and CEO. We note that plaintiffs had previously made two large loans to Dreier, while represented by international firms that specialized in financial transactions. Prior to Dreier's arrest, plaintiffs never suspected fraud.
Moreover, the opinion, by its very terms, provided only legal conclusions upon which plaintiffs could rely. The opinion was clearly and unequivocally circumscribed by the qualifications that defendant assumed the genuineness of all signatures and the authenticity of the documents, made no independent inquiry into the accuracy of the factual representations or certificates, and undertook no independent investigation in ascertaining those facts. Thus, defendant's statements as contained in the opinion, were not misrepresentations. Finally, in accordance with the loan agreement, the opinion was reviewed by plaintiffs' counsel before plaintiffs accepted it. (citations omitted)
Thursday, November 17, 2011
The West Virginia Supreme Court of Appeals affirmed the grant of summary judgment to Kutak Rock in an action brought by an accounting firm found liable to the FDIC for a negligent bank audit.
The court held that the accounting firm:
...may not file a subsequent action against the bank's law firm alleging direct claims for fraud, negligent misrepresentation and tortious interference with contract where: (1) the law firm, as joint tortfeasor, executed a prior, good faith settlement with the FDIC, thereby extinguishing the accounting firm's right of contribution, (2) the accounting firm was awarded a credit reduction on the verdict based on the settlement, (3) the direct claims alleged by the accounting firm arose from the same facts and circumstances which contributed to the bank's loss and resulted in judgment obtained by the FDIC, (4) the damages sought by the accounting firm against the law firm are substantially the same as the judgment obtained by the FDIC, (5) the accounting firm knew in advance that the audit would involve a high risk of misrepresentation of data by bank managers and (6) the engagement of the accounting firm to perform the audit, originating through the Office of the Comptroller of the Currency, performed a public function.
The claims asserted against the firm "are, in reality, contribution claims rather than direct or independent claims and are, therefore, barred by the May 2003 settlement agreement made in good faith between Kutak and the FDIC."
The underlying representation involved the activities of the First National Bank of Keystone, which had implemented a "securitization" strategy that had led to disaster. (Mike Frisch)
Thursday, September 15, 2011
The New Hampshire Supreme Court has affirmed and reversed in part the dismissal of an action brought by the wife of a Manchester attorney against Nixon Peabody and an attorney there named Regina Rockefeller.
The Manchester attorney had handled an estate matter. The Nixon Peabody attorney accused him of misappropriation and threatened to report him to criminal and bar authorities if he did not repay the estate.
The wife claimed that these threats forced her to execute a reverse mortgage on her family home. The defendants reported him anyway. Suit was brought and the home was foreclosed.
The wife sued on a variety of claims stemming from her alleged resulting severe emotional and physical distress.
The court here found that the claim of fraudulent misrepresentation was sufficiently pled:
The writ alleges that in reliance upon the defendants’ promises not to report her husband’s misconduct, the plaintiff agreed to execute a reverse mortgage on, and release her homestead interest in, the family home in Manchester and the settlement agreement dated April 2, 2007. In her prayer for relief, the plaintiff states that her payments were made to the defendants involuntarily and as a result of fraud. We read the facts set forth in the writ as alleging that the defendants either intended or had reason to expect that the promises made to Attorney Tessier would be communicated to the plaintiff and would influence her decision to enter into the settlement agreement with Dr. Jakobiec. The trial court also erred in denying the plaintiff's motion to amend claims of breach of the duty of good faith and fair dealing. Because the court reversed the trial court's dismissal of some of the claims against the individual attorney, claims against the firm survive on the basis of respondeat superior. The failure to supervise claim against the firm was properly dismissed. The Manchester attorney consented to disbarment. (Mike Frisch)
The writ alleges that in reliance upon the defendants’ promises not to report her husband’s misconduct, the plaintiff agreed to execute a reverse mortgage on, and release her homestead interest in, the family home in Manchester and the settlement agreement dated April 2, 2007. In her prayer for relief, the plaintiff states that her payments were made to the defendants involuntarily and as a result of fraud. We read the facts set forth in the writ as alleging that the defendants either intended or had reason to expect that the promises made to Attorney Tessier would be communicated to the plaintiff and would influence her decision to enter into the settlement agreement with Dr. Jakobiec.
The trial court also erred in denying the plaintiff's motion to amend claims of breach of the duty of good faith and fair dealing.
Because the court reversed the trial court's dismissal of some of the claims against the individual attorney, claims against the firm survive on the basis of respondeat superior. The failure to supervise claim against the firm was properly dismissed.
The Manchester attorney consented to disbarment. (Mike Frisch)
Tuesday, June 7, 2011
From the New York Appellate Division for the First Judicial Department:
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered March 3, 2011, which, to the extent appealed from, granted defendants' motion for an order striking the demand for punitive damages, and denied plaintiff's cross motion for an order permitting plaintiff to seek full economic damages on his claim of conspiracy to commit fraud, unanimously affirmed, without costs.
Plaintiff was an associate at defendants' firm when two of its partners left to open a intellectual property practice at another firm. This new firm offered plaintiff a "partnership track" position with a salary increase and signing bonus. Plaintiff commenced this action alleging that, from March 2002 to May 2005, defendants entered into a deceitful scheme to prevent him from leaving the firm at a point in time when he was the key associate on patent infringement litigation for an important client. Plaintiff claims that, while he was promised that he would be voted on for partnership, and assured that he would eventually be made partner, his employment was terminated soon after he successfully concluded the litigation which the firm had been eager to keep.
Punitive damages are not available "in the ordinary fraud and deceit case" (Walker v Sheldon, 10 NY2d 401, 405  [internal quotation marks and citation omitted]), but are permitted only when a "defendant's wrongdoing is not simply intentional but evince[s] a high degree of moral turpitude and demonstrate[s] such wanton dishonesty as to imply a criminal indifference to civil obligations'" (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489 , quoting Walker at 405). Mere commission of a tort, even an intentional tort requiring proof of common law malice, is insufficient; there must be circumstances of aggravation or outrage, or a fraudulent or evil motive on the part of the defendant (Prozeralik v Capital Cities Communications, 82 NY2d 466, 479 ).
Neither defendants' alleged misrepresentations concerning their support for plaintiff's partner candidacy, nor the breach of their contractual promise to put him up for a partnership, evidence such a high degree of moral turpitude and wanton dishonesty as to imply criminal indifference. Cases involving mere fraudulent misrepresentations to induce a party to accept an employment agreement, do not warrant imposition of punitive damages (see Kelly v Defoe Corp., 223 AD2d 529 ).
As for plaintiff's cross motion, it is well settled that New York does not recognize an independent civil tort of conspiracy (Jebran v LaSalle Bus. Credit, LLC, 33 AD3d 424, 425 ; see Algomod Tech. Corp. v Price, 65 AD3d 974 , lv denied 14 NY3d 707 ). While a plaintiff may allege, in a claim of fraud or other tort, that parties conspired, the conspiracy to commit a fraud or tort is not, of itself, a cause of action (see MBF Clearing Corp. v Shine, 212 AD2d 478, 479 , citing Brackett v Griswold, 112 NY 454 ).
Given that civil conspiracy is not an independent tort, it cannot have its own independent measure of damages; any damages attributable to plaintiff's conspiracy claim exists only within those damages that may be assessed for fraud. Those damages, as previously determined by this Court, are "the difference between the immediately payable portion of the other firm's offer, such as the signing bonus, and the sum [plaintiff] received from defendant law firm immediately after agreeing to remain with defendant" (citations omitted)...We have previously held that plaintiff's damages may not include any amount based on continued employment with the other firm, since the duration and success of his career with that firm are speculative (citation omitted)
I'm having trouble with links. The case is Hoeffner v. Orrick, Herrington & Sutcliffe LLP, decided today. (Mike Frisch)
Monday, April 25, 2011
The Maine Professional Ethics Commission has issued an opinion on the propriety of a waiver of right to a jury trial in a retainer asgreement in the event of a dispute between attorney and client. The bottom line:
The Commission concludes that a client’s informed consent to a jury trial waiver in an engagement agreement must be confirmed in writing and that prior to agreeing to such a limitation, the client must be advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, the advice of independent legal counsel. In contrast to arbitration agreements, there is no public policy favoring the waiver of jury trials, and a limitation that excludes the right to a jury trial has potentially serious constitutional dimensions. Hence, a jury trial waiver is of a commensurate level of importance with business transactions between lawyers and clients or the settlement of potential or actual claims for liability.
Clients range from extremely sophisticated business clients to those with limited mental capacity. What constitutes “informed consent” for different clients within that spectrum will, as a result, vary as will the resulting written confirmation. The sophisticated client will in all likelihood already understand that they can retain independent legal counsel when entering into an engagement agreement as they can with any other contractual arrangement. It costs nothing to inform that client of the desirability of doing so in the context of a jury waiver agreement, while for those clients who would have difficulty evaluating the desirability of such an agreement before a dispute has arisen, it emphasizes to them the importance of the issue.
The answer to the question posed is therefore that while the Maine Rules of Professional Conduct do not prohibit engagement agreements from stating that “[i]n the event that a dispute between us ends up in court, both parties agree that it shall be tried exclusively in a court in Maine without a jury,” they do require that the client be fully informed as to the scope and effect of a jury waiver, that the client’s informed consent be confirmed in writing, and that the client be advised in writing of the desirability of seeking, and given a reasonable opportunity to seek, the advice of independent legal counsel prior to entering into such an agreement.
Monday, March 28, 2011
The New York Appellate Division for the Second Judicial Department affirmed an order denying a defendant law firm's motion to dismiss claims of fraud and negligent hiring:
In May 2008, the plaintiff Robin Shimoff, through her attorney, tendered a check in the sum of $710,000 to the defendant Mario A. Tolisano, an employee of the defendant Law Office of Howard R. Birnbach (hereinafter the law office), to cover the purchase price of certain parcels of real property. In July 2008, Shimoff tendered to Tolisano the additional sum of $502,500 as a down payment for the purchase of certain other real property. Shimoff apparently borrowed the aforesaid funds from the plaintiff Jacob Selechnik. No closings of title occurred on either transaction, and the plaintiffs later learned, among other things, that Tolisano, whom they believed to be an attorney representing the seller of the properties, was not a licensed attorney. The plaintiffs commenced this action in November 2009, inter alia, to recover damages for fraud and negligent hiring and retention, and the law office moved to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7). The Supreme Court denied the motion. We affirm.
The court concluded:
Here, while the complaint contains no allegations of any affirmative misrepresentations by the law office itself, a fraud cause of action was sufficiently stated by the allegations contained therein which give rise to permissible inferences that the law office had certain knowledge or information regarding Tolisano's employment with it and his activities thereunder that were not ascertainable by the plaintiffs.
The complaint alleges, inter alia, that Tolisano was employed by the law office, held himself out as an attorney with the law office, and distributed his business card to the plaintiffs, which, while not explicitly stating that he was an attorney, indicated that he was employed by the law office. Furthermore, the complaint alleges that at the time Tolisano made his representations to the plaintiffs, which induced them to turn over their money to him, the law office knew or should have known "that its attorney-employee-impersonator, cloaked with the apparent authority that comes from employment at the [law office], would offer false representations." These allegations were supplemented by the affidavit of the plaintiffs' real estate attorney, wherein he stated that when he met with Tolisano, Tolisano said he was a lawyer and gave him a business card "that made it appear as if [Tolisano] was a lawyer at the [law office]," and that during the pendency of the transactions, the plaintiffs' attorney sent a certified letter to Tolisano at the law office and made several telephone calls to the law office asking to speak with Tolisano and left messages, to which he received no reply.
Based on these allegations, the complaint adequately states causes of action to recover damages from the law office for the torts allegedly committed by Tolisano under the doctrine of respondeat superior and on the theory of negligent hiring and retention, which are not required to be pleaded with specificity.
Wednesday, March 23, 2011
The New York Appellate Division for the First Judicial Department affirmed an order disqualifying counsel in civil litigation:
Plaintiff law firm demonstrated that defendant's counsel played a vital role in the final settlement negotiations flowing from a settlement offer that plaintiff had allegedly previously procured and that defendant client later accepted, that the negotiations were an important part of the underlying dispute, that defendant's counsel was likely to be a key witness at trial, and that his proposed testimony would be adverse to his client's interests.
While plaintiff improperly submitted the affirmation, rather than affidavit, of a partner, under the circumstances, "this defect was merely a technical procedural irregularity which did not prejudice the defendant" (citations omitted)
Posted by Jeff Lipshaw
This is the dignified name of the online lawyer bidding service created by a New York Law School student, and which merited an article in today's Wall Street Journal. Back when I was in the business world and e-commerce was just beginning, most sophisticated "supply chain managers" put in place online bidding systems for some of their purchased materials. I'm pretty sure it tended to work best with uniform, commoditized products, and it certainly did not favor the seller with a unique value proposition. I'll take $200 worth of summary judgment, please.
Kidding (and the usual knee-jerk "we're different" reaction) aside, there are no doubt relatively commoditized legal products for which this system would work.
Thursday, February 17, 2011
From the web page of the District of Columbia Bar:
On March 2 the Young Lawyers Committee of the Corporation, Finance and Securities Law Section will host a luncheon program titled “Annoying Habits of Associates: A Partner’s Perspective,” which highlights behaviors that can make a bad impression at a law firm.
The program will focus on the activities or habits of associates that could undermine long-term career prospects. To provide context for why certain habits are viewed negatively, panelists will discuss key attributes that partners value in associates.
Sara Hanks, general counsel of the Congressional Oversight Panel, and Martina E. Vandenberg and Scott B. Wilkens, both partners at Jenner & Block LLP, will lead the panel discussion. Thomas H. Kim, an associate at Jenner & Block LLP, will moderate.
The program is cosponsored by the Administrative Law and Agency Practice Section; Antitrust and Consumer Law Section; Arts, Entertainment, Media and Sports Law Section; Computer and Telecommunications Law Section; Corporation, Finance, and Securities Law Section; Criminal Law and Individual Rights Section; International Law Section; Labor and Employment Law Section; Law Practice Management Section; Litigation Section; Real Estate, Housing and Land Use Section; and Taxation Section.
It will run from 12 to 1:30 p.m. and take place at the D.C. Bar Conference Center, 1101 K Street NW, first floor.
For more information or to register, contact the Sections Office at 202-626-3463 or firstname.lastname@example.org.
Looking forward to the follow up session on the Annoying Habits of Partners: An Associate's Perspective. (Mike Frisch)
The New York Court of Appeals has reversed the Appellate Division and granted a defendant law firm's motion to dismiss the complaint on the condition that the law firm waive any statute of limitations defense that might be available in Texas.
The law firm had moved (and lost) a forum non conveniens motion seeking that the matter be heard in Texas:
This case involves the alleged malpractice by Texas lawyers representing Alaskan clients, whose principal places of business are in Connecticut, in a transaction with Texas companies that involves land in Texas. Further, the documentary evidence is located in defendant's Texas office, as are most of the attorneys who allegedly committed the malpractice and most of the potential witnesses.
Tuesday, February 8, 2011
The North Carolina Court of Appeals reversed a number of rulings of the Special Superior Court for Complex Business Cases and remanded for further proceedings in a matter involving the breakup of a PLLC.
The court started the opinion with an old saying that "the cobbler's children have no shoes."
Lawyers may suffer from the same problems, if they are too busy dealing with their clients' legal affairs to address their own. This cases arises because the members of a law firm organized as a PLLC did not adopt an operating agreement or any other documents governing the operation of the PLLC. In theit actions and communications relevant to the individual plaintiffs' cessation of practice with the indivual defendants, the parties at times seem to treat their business as a partnership and at other times as a PLLC, and certainly a PLLC has elements of both types of business entities.
The court addressed a number of standing issues stemming from the breakup of a firm founded in 2000. (Mike Frisch)
Friday, November 19, 2010
The Nevada Supreme Court affirmed the grant of summary judgment to a law firm defendant because the plaintiff had already achieved a full recovery in a claim against a departed firm partner. The court lays out the facts:
Elyousef, a client of the O’Reilly firm, entered into a business transaction with his attorney, C. Dean Homayouni, who was employed by O’Reilly during the early stages of the transaction. The transaction resulted in Homayouni obtaining Elyousef’s interest in Nevada Oil and Land Development, LLC (NOLD), which in turn owns a gas station in Las Vegas. Homayouni left O’Reilly because the law firm opposed the transaction due to a conflict of interest between Homayouni and the firm’s client, Elyousef.
When the business relationship soured, Homayouni sued Elyousef. Elyousef filed a counterclaim against Homayouni, alleging that Homayouni negligently caused him to lose his interest in NOLD. The district court awarded Elyousef $150,000 in damages plus $225,631.22 in costs and fees. Homayouni subsequently settled with Elyousef for $50,000 plus the return of his interest in NOLD. Elyousef then sued O’Reilly for breach of fiduciary duty, negligence and legal malpractice, negligent supervision, respondeat superior, breach of contract, and breach of implied covenant of good faith and fair dealing. The district court granted summary judgment in O’Reilly’s favor, concluding that the doctrines of double recovery and issue preclusion barred Elyousef’s ability to recover from O’Reilly. On appeal, Elyousef maintains that neither doctrine bars him from further recovery.
Tuesday, September 14, 2010
Thursday, August 26, 2010
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing two questions that arise from the State Public Defender having a central office and branch offices.
Opinion 2010-5 addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.
The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.
The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”
Several portions of two Ohio Rules of Professional Conduct were consulted in issuing this advisory opinion, including: Prof. Cond. Rules 1.10 and 1.7.
Wednesday, July 28, 2010
The New York Appellate Division for the First Judicial Department affirmed the denial of a motion to move a legal malpractice action to Texas. The case involves allegations that the defendant law firm identified the wrong entity entitled to payment from the client, causing the client to pay the wrong entity.
A dissent makes a powerful argument in favor of Texas, recounted in part below:
The motion court never expressly applied the factors that go into deciding a forum non conveniens motion but seemed to recognize that this case had little connection to New York. Instead, the court denied the motion because the parties represented that the Texas statute of limitations was shorter than New York's and defendant did not agree to the application of the borrowing statute. Nevertheless, this case clearly does not belong in New York. Defendant maintains an office here, but none of the attorneys at the New York office were involved in the events underlying this case. Plaintiffs' principal places of business are now in Connecticut and virtually all the underlying events occurred, for the most part, after plaintiffs had moved their offices. That plaintiffs previously maintained places of business in New York is not relevant, because the documents and witnesses are no longer within this jurisdiction.
More important, there will likely be a need for testimony from non-party witnesses, such as individuals from the two Apollo entities, who are located in Texas. Plaintiff argues that there will be no need to call anyone from Apollo. I cannot agree. Rather, testimony from Apollo witnesses may be integral to determine whether defendant law firm was negligent in confusing the Apollo entities. For instance, the determination could depend on what someone at one of the Apollo entities communicated to defendant. The lead attorney on the underlying transaction, who lives in Texas, no longer works for defendant, and as with the Apollo witnesses, it is unlikely a New York court itself can compel his live testimony without assistance from a Texas court. This case thus represents an unnecessary burden on the New York courts. In addition, all records that either Apollo entity has are located in Texas. Further, the events pertinent to this case all occurred outside New York, the documents are in Texas and, as this case concerns what defendant did or did not do, all of the relevant witnesses are in Texas. Finally, Texas certainly has an overriding interest in regulating the conduct of the lawyers admitted in that state. (citation omitted)
Monday, July 26, 2010
An ethics opinion from Nebraska deals with ethics of the use of the "Of Counsel" designation. The summary:
An attorney may only be listed on firm letterhead and in firm advertisements as "Of Counsel" where there is close, ongoing, regular, and frequent contact with the firm for the purpose of providing consultation and advice.
A firm name may retain the name of a retired partner, but not if the retired partner resumes the practice of law elsewhere, even if he maintains an "Of Counsel" relationship to the former firm.
Monday, July 12, 2010
Posted by Jeff Lipshaw
I drove up I-75 from the Detroit area to Charlevoix yesterday, and was listening to the baseball game somewhere near Flint (WTRX, 1330-AM, part of the Detroit Tigers Baseball Network*) and heard an ad that I have to admit caught my attention. I've debated whether I really wanted to give this lawyer the free advertising that this post would entail, but what the heck. I leave to Mike and Alan to tell me technically whether there's a professional responsibility issue here; I can't decide if the lawyer is doing a public service or not.
It was a pretty standard divorce lawyer's radio ad ("When Matrimony Turns to Acrimony"), but what caught my attention was that the URL for the website was "dumpmyspouse.com." It went by quickly, so at first I thought that was the URL for a law firm, and that seemed pretty squirrelly to me. Would you really be doing a service to your clients by sending out communications to the courts, lawyers, and the public with your e-mail as "email@example.com?" (I should add, by the way, that I looked at this particular lawyer's online resume, and he seems to be a fully qualified, upstanding guy.)
I was wrong, however, about the website. "Dump My Spouse" is not a law firm, or a law firm's URL. It is a private referral service, obviously originated by this particular Flint lawyer. It has a map of the state of Michigan with all 83 counties outlined, and you are supposed to click on a county to find a lawyer who is part of the "Dump My Spouse" referral network. You can register to be part of the network. I wasn't going to click through all 83 counties, but I clicked on a random sample and, as far as I can tell, this Flint lawyer is still the only member of the network, which may answer the question posed in the preceding paragraph.
De gustibus non est disputandum.
* When I'm in Michigan, I get to watch my beloved Tigers to my heart's content on Fox Sports Detroit, but this pleasure has been sullied somewhat by the fact that 1-800-CALLSAM, the quintessential wee hours cheap advertising personal injury law firm of my professional youth in the Detroit area, has obviously prospered to the point that it is now the major sponsor of the ballgames, including the CALLSAM Post-Game Report. I think it even has one of the advertising spots right behind home plate, so that you get to watch Justin Verlander aim his slider at the right side of the M in alternate innings. By the way, just to make it clear that I'm an equal opportunity curmudgeon on this issue, I would get almost as disgusted (note the Latin root by the way) when I'd be listening to "All Things Considered" on NPR, and find out that it was underwritten in part by Silk & Stocking, the biggest law firm in town, and one to whom I was sending thousands of dollars of our legal business, with some goony slogan like "It's an Uncertain World: Be Advised" or "We Know the Territory."
When a married couple enter into a law partnership, the divorce and resulting termination of the partnership is likely to wind up as a published opinion. The lawyers married in 1987 and commenced the partnership in 1988. The partnership lasted about a year before one spouse (here the plaintiff)left the partnership. A divorce action was filed in 1999.
After the divorce, one spouse sued the other claiming that the fee-splitting agreement that was incorporated into the decree covered workers compensation matters as "personal injury" cases. The claim, if sustained, would have entitled that spouse to a share of fees. The Connecticut Supreme Court agreed with the lower court that collateral estoppel (from the divorce) barred the claim.
A dissent would find that the issue in the present litigation was not barred by collateral estoppel and that a trial on the merits should go forward.