Thursday, June 14, 2012

Secret Recordings No Longer Inherently Unethical in Ohio

From the web page of the Ohio Supreme Court:

In  an advisory opinion issued last week, the Supreme Court of Ohio Board of  Commissioners on Grievances & Discipline found that a legal but secret  recording of a conversation by a lawyer is not inherently unethical. A previous  advisory opinion issued on the topic has been withdrawn because it found the  action to be misconduct.

The  board based its new approach on the American Bar Association (ABA) reversing  its position on the issue in 2001, case law from Ohio and other states, and a  “diminished expectation of privacy given advances in technology.”

Opinion  2012-1 centers on Rule 8.4 (c) (conduct involving dishonesty, fraud,  deceit, or misrepresentation) of the Ohio Rules of Professional Conduct.

The  advisory opinion includes several caveats for lawyers engaging in this  activity.

“Although  the Board is fashioning a new standard for surreptitious recording by Ohio  lawyers, the Board is not in any way indicating that a lawyer cannot be  disciplined for conduct involving such recording,” the opinion states.

“The  mere act of surreptitiously or secretly recording a conversation should not be  the impetus for a charge of misconduct. Instead, the totality of the  circumstances surrounding the recording must be evaluated to determine whether  a lawyer has engaged in conduct involving dishonesty, fraud, deceit, or  misrepresentation in violation of Prof. Cond. R. 8.4 (c).”

In  addition, the board noted it “agrees with the ABA’s general admonition against  surreptitious recording of client conversations.” The board found that lawyers  generally should not record their conversations with clients and prospective  clients without consent.

Read the complete text of the opinion.

(Mike Frisch)

June 14, 2012 in Ethics, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 12, 2012

Keeping Old Client Files

A recent Nebraska Ethics Advisory Opinion overrules an earlier opinion regarding retention/disposal of client files. The new opinion relies on changes in the rules of conduct.

The opinion concludes that client files may be destroyed five years after the end of the representation. The attorney is obligated to make reasonable efforts to contact the client before the files are discarded, which may include Facebook and Goggle searches. If there are documents of value, it may be appropriate to hire a private investigator or attempt to contact the client by publication.

The effort required to contact the client is "proportionate with the value and importance of the file materials..." (Mike Frisch)

June 12, 2012 in Clients, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 11, 2012

Call for scholarly submissions for annual Fred Zacharias Prize

Honoring the memory of a professional responsibility leader and a nice person, this prize is for current scholarship. Last year's recipient noted here. Thanks to Sam Levine for the new notice:

Submissions and nominations of articles are now being accepted for the third
 annual Fred C. Zacharias Memorial Prize for Scholarship in Professional
 Responsibility. To honor Fred's memory, the committee will select from among
 articles in the field of Professional Responsibility with a publication date
 of 2012. The prize will be awarded at the 2013 AALS Annual Meeting in New
 Orleans. Please send submissions and nominations to Professor Samuel Levine
 at Touro Law Center: slevine@tourolaw.edu. The
 deadline for submissions and nominations is September 1, 2012.

[Alan Childress]

April 11, 2012 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Monday, March 19, 2012

The Off Chance

A Delaware Superior Court judge imposed a $500 sanction on an attorney who sent an associate to conduct a deposition in a Delaware action prior to the pro hac vice admission of the associate.

The action involves allegations arising out of the death of an undergraduate who had attended a college fraternity function and died of acute alcohol poisening.

There have been numerous depositions. The deposition at issue had been difficult to schedule. The partner (who was admitted for the case)  had a conflicting obligation to appear before the Department of Homeland Security. The associate went in his stead.

The judge found that the associate could not properly participate without first being admitted. The court had "little doubt" that a timely motion for admission would have been granted and found no prejudice from the associate's participation.

The sanction was imposed on the supervising partner. The court declined to strike the associate's examination of the witness and closed with this thought:

On the off chance that counsel for any of the moving defendants wish to pursue this [unauthorized practice] issue, they should file an appropriate complaint with the Office of Disciplinary Counsel.

(Mike Frisch)

March 19, 2012 in Associates, Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 13, 2012

Pennsylvania Limited Scope Arrangement Opinion

From the web page of the Pennsylvania Disciplinary Board:

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Professional Guidance Committee of the Philadelphia Bar Association have collaborated to produce Joint Formal Opinion 2011-100, regarding limited scope arrangements.

The Committees define “limited scope arrangements” to include two kinds of activities – unbundled legal services, in which a lawyer is engaged only to perform particular activities rather than undertake comprehensive representation of the client, and undisclosed representation, commonly referred to as “ghostwriting,” in which a lawyer prepares legal material for the client’s use but does not undertake direct representation of the client with a court or opposing party.

The opinion notes that limited scope arrangements are generally permissible under the Rules of Professional Conduct, and indeed are specifically contemplated in many of the rules.

The opinion notes that the comment to RPC 1.2 states that a limitation on representation must be reasonable under the circumstances. The fact that the representation is limited does not relieve the lawyer of the normal duty of competence and preparation under RPC 1.1. Second, the lawyer must be sure that the client has exercised informed consent to the limitation on representation. Informed consent is defined in RPC 1.0(e) as “consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” From the Restatement of the Law Governing Lawyers, the Committees drew five safeguards:

  • a client must be informed of any significant problems a limitation might entail, and the client must consent;
  • any contract limiting the representation is construed from the standpoint of a reasonable client;
  • the fee charged by the lawyer must remain reasonable;
  • any change made, an unreasonably long time after the representation begins must meet the more stringent test for post inception contracts or modifications; and
  • the terms of the limitation must be reasonable under the circumstances.

The Committees provide a list of Rules of Professional Conduct which the lawyer entering into a limited scope engagement should consider:

Finally, after an extensive examination of rules, court decisions, and ethics opinions nationwide, the Committees conclude that the lawyer engaged in limited scope representation is not under an obligation to disclose his or her role to either opposing parties or to a tribunal. The Committees note that there is quite a bit of divergent thought on these issues.

This short summary is no substitute for reading the 31-page analysis through which the Committees reach their conclusion, and the lawyer considering such employment would be wise to study the opinion firsthand.

(Mike Frisch)

March 13, 2012 in Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, March 8, 2012

Staying On Sidelines Dooms Appeal

The Wisconsin Supreme Court unanimously (with the Chief Justice concurring and Justice Prosser not participating) held that the United States had failed to preserve appellate review of the case.

The question:

This case requires us to answer a threshold question concerning whether an appeal in this insurance company rehabilitation case may go forward.  The court of appeals granted the motion of the Office of the Commissioner of Insurance (Commissioner) to dismiss the appeal by the United States. The Commissioner had argued that the appeal should be dismissed either on the grounds that the notice of appeal was fundamentally defective such that the court of appeals had no jurisdiction or on the grounds that the United States had waived its right to appeal issues by failing to appear in the circuit court.  The United States Department of Justice attorney who signed the notice of appeal was not admitted to practice law in Wisconsin and had not obtained pro hac vice admission. The court of appeals concluded that the notice of appeal did not include a signature of an "attorney of record" as Wis. Stat. § 802.05 requires.  The court of appeals did not decide the waiver issue but dismissed on jurisdictional grounds.  The United States petitioned this court for review, which we granted.  We affirm the court of appeals on the basis of waiver.

The conclusion:

What is inescapable in reviewing the record in this case is the sense that the United States almost begrudgingly took steps "to preserve its right to appeal" in only the most technical sense while, ironically, overlooking fundamental appellate principles establishing what parties must do to preserve that right: raise their issues in the circuit court in the first instance.  The court of appeals dismissed the appeal on the basis of an unauthorized signature on the notice of appeal.  In reaching our conclusion, we focus not on the signature, but on the fact that the notice of appeal itself was the only effort by the United States to involve itself with the circuit court.  It did, as noted, attempt to remove this matter to federal court.  Despite its apparent outrage at the injunction (in one filing to the court of appeals it stated, "[W]e are not aware of any other creditor that was so mistreated"), it remained on the sidelines while the rehabilitation was proceeding in the circuit court and chose not to raise its objections until after the final order was entered. 

The United States conceded at oral argument that it made an intentional decision not to litigate any of the issues involved in the circuit court.  Our case law is clear and consistent——failure to preserve issues means that they are waived.  Applying well-established principles of law that apply equally to the government when it is a party, we hold that such a decision precludes the United States from pursuing relief in the court of appeals. We therefore affirm the decision of the court of appeals to dismiss the United States' appeal.

(Mike Frisch)

 

March 8, 2012 in Law & Business, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, December 8, 2011

Hazard's Opinions Sufficient To Withstand Summary Judgment Motion

The District of Columbia Court of Appeals has reversed the grant of summary judgment to three defendants in a legal malpractice case. The attorneys had represented the client in an employment case.

The court held that the opinions of Professor Geoffrey Hazard were sufficient to defeat the motion. Although not an employment law expert, the professor is an expert in legal ethics and the general conduct of litigation. These areas of expertise were sufficient to create issues for a jury. (Mike Frisch)

December 8, 2011 in Clients, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 8, 2011

Michael Cassidy Wins Fred Zacharias Award

Breaking news shared by Touro Law Center's Samuel J. Levine, announcing the second recipient of this scholarship award in our field:

The winner of the second annual Fred C. Zacharias Memorial Prize for
Scholarship in Professional Responsibility is Michael Cassidy, for Plea
Bargaining, Discovery and the Intractable Problem of Impeachment Disclosures.

The Prize will be presented at the Section Lunch of the AALS Section on
Professional Responsibility, which will take place on Friday, January 6,
2012, at 12:30 p.m., at American University Law School.

More on Prof. R. Michael Cassidy of Boston College here. His paper is on SSRN here.

A great way to remember Fred, who is missed. [Alan Childress]

November 8, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, October 6, 2011

No Disqualification For Receipt Of Confidential Information

A decision issued today by the Nevada Supreme Court is summarized below:

In this original writ proceeding we review a district court’s decision to deny a motion to disqualify opposing counsel, when opposing counsel reviewed confidential documents he received, unsolicited, from an anonymous source. We initially conclude that although there is no Nevada Rule of Professional Conduct that specifically governs an attorney’s actions under these facts, the attorney in this case fulfilled any ethical duties by giving prompt notification to opposing counsel, soon after his receipt of the disk from an unidentified source, through an NRCP 16.1 disclosure.

We must also determine whether the district court abused its discretion when it refused to disqualify counsel, even though one of the documents sent to counsel was privileged.  We adopt factors to aid a district court in determining whether disqualification is warranted under such circumstances, and conclude in this case that the factors weigh in favor of the district court’s decision.  Therefore, although we consider the writ petition, we ultimately deny the relief requested.

The plaintiff in the underlying litigation manufactures and sells high-end salon products. Defendants contracted to distribute the products. Prior to the suit, one of the defendants fired an employee who allegedly stole confidential and proprietary information.

The information at issue here was received by plaintiff at its New York headquarters in an anonymous package from Lebanon.

Notably, the court concluded that the receiving attorney did not violate Nevada ethics rules by reading the material. (Mike Frisch)

October 6, 2011 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Friday, September 16, 2011

Filthy Files May Be Destroyed

An order from the South Carolina Supreme Court deals with an issue I had not given much thought:

On several occasions, an attorney appointed to protect the interests of another lawyer's clients...has notified the Court that the lawyer's client files are not maintained in a sanitary and safe condition. In some cases, the attorney to protect has advised the Court that the lawyer's client files are moldy and/or infested with rodents and insects. As a consequence, the attorney to protect clients' interests is hesitant to inventory the lawyer's client files, to remove original documents from the client files, and to relinquish control of the files to the lawyer's clients upon client request.

In such circumstances, on a proper showing such as through photographs, the court may order the destruction of the files. (Mike Frisch)

September 16, 2011 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 24, 2011

Doctor! Doctor! Give Me The News

A new opinion from the District of Columbia Bar Legal Ethics Committee:

The principal question presented is whether a lawyer may ask his or her client’s treating physician not to have ex parte communications with opposing counsel in a medical malpractice case where legal restrictions on such communications based on privacy laws and/or physician-patient privilege have been removed.

Under D.C. Rule 3.4(f), the lawyer may inform his or her client’s treating physician that the treating physician has no obligation to speak with opposing counsel and that the treating physician may decline to speak to opposing counsel without the lawyer also present. To the extent that privacy laws or applicable privileges may restrict the scope of information that the treating physician may disclose, the lawyer may also demand that the physician comply with confidentiality obligations that have not been removed and may state his or her client’s position as to the scope of information that may be legally disclosed. The lawyer may not, however, request or instruct the physician not to have communications with opposing counsel or request or instruct that any communications take place only if the lawyer is present.

(Mike Frisch)

August 24, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Saturday, July 9, 2011

Captive Audience

A criminal conviction for two counts of rape and a count of misdemeanor theft was reversed by the Kansas Supreme Court as a result of misconduct on the part of the prosecutor. The court employed a two-step analysis of the misconduct and its consequences in determining that reversal was appropriate.

The prosecutor made reference during voir dire in at trial to the Stockholm Syndrome and other cases and later argued facts not in evidence:

More regrettably, the prosecutor's overall comments implied he was an authority on the Stockholm Syndrome and was capable of diagnosing an individual as suffering from this purported condition. He clearly was neither. Ironically, the [Patty]Hearst and Hornbeck cases the prosecutor discussed with the panel were two of those the journal authors studied before concluding: "No validated diagnostic criteria for 'Stockholm syndrome' have been described; existing literature is of limited research value and does little to support 'Stockholm syndrome' as a psychiatric diagnosis."

The prosecutor also made a comment in closing argument that the victim would remember the crime every time she took a shower. An objection was sustained and admonition given to the jury. The court  found the remark improper and prejudicial.

The court reversed the Court of Appeals.

It is, I think, somewhat unusual for a claim of misconduct based principally on behavior during voir dire to result in a new trial. (Mike Frisch)

July 9, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

Invasion Of Privilege By Prosecutor Requires Reversal Of Conviction

A decision from the Connecticut Supreme Court:

The central issue in this case is whether a prosecutor’s intrusion into communications between a defendant and his attorney that are subject to the attorney-client privilege requires the dismissal of the criminal charges against the defendant. The defendant, Patrick J. Lenarz, was charged in three informations, each of which charged the defendant with risk of injury to a child in violation of General Statutes § 53- 21 (a) (1) and (2), and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1)(A). Before trial, the prosecutor came into possession of and read certain written materials belonging to the defendant that were subject to the attorney-client privilege. Upon learning this fact, the defendant filed a motion to dismiss the charges against him, which the trial court denied. After a trial, the jury returned a verdict of guilty on one count of risk of injury to a child in violation of § 53-21 (a) (1). The jury found the defendant not guilty of all of the remaining charges, and the trial court rendered judgments in accordance with the verdict. The defendant then appealed...

The court majority held that prejudice is presumed when the prosecutor intrudes on confidential communications "regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on [the question of prejudice]."

 There is a lengthy dissent that would not reverse the conviction for the prosecutor's good-faith conduct in reading a single e-mail about defense trial strategy. The dissent takes the majority to task for its Sixth Amendment jurisprudence as well as "improper" fact-finding in reaching a question not raised by the defendant.

In sum, the dissent accuses the majority of breaking new ground as the first court ever to reverse a criminal conviction for an inadvertant invasion of privileged material by a prosecutor.

The dissent notes that the defendant's computer was lawfully seized in November 2004. It took until July 2005 for the lab to complete its work. There were five e-mails that were arguably privileged out of a mountain of material. One--to the defendant's spouse--dealt with trial strategy. All of the documents were provided to defense counsel. (Mike Frisch)

 

July 6, 2011 in Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, May 26, 2011

Shield Law

The New York Appellate Division for the First Judicial Department affirmed the dismissal of tort claims against an Epstein Becker attorney and the firm in a suit claiming complicity in a co-defendant's theft of "personal and revealing photographs of plaintiff taken by her husband" to be returned only on payment of $2.5 million to settle claims of sexual harassment and retaliation.

The court concluded:

The allegations against the law firm and the individual attorney defendant also were correctly dismissed. The complaint contains, at most, wholly conclusory allegations that defendant Wigdor, the attorney for the other individual defendants, knew to be true what plaintiff's husband alleges to be true, that [co-defendant]] Pecile had stolen one of the two compact discs containing photographs of plaintiff after improperly viewing the contents of the discs. Regardless of how implausible Pecile's claim that she retained one of the discs inadvertently may be, at most the complaint implicitly alleges that Wigdor knew that Pecile's claim was false and that she in fact had stolen them, as plaintiff's husband claims. But any such implicit allegation is wholly conclusory.

Moreover, there is no allegation that Wigdor played the slightest role in any of the actions Pecile took to obtain possession of the discs and photographs in the first place. Of course, Wigdor knew that Pecile had no right to possess the photographs and, as is undisputed, he refused the demand of plaintiff's husband that they be returned immediately. Rather, Wigdor stated that he could not return the photographs because they were evidence of the alleged unlawful conduct of plaintiff's husband, as they indeed are if, as Pecile maintains, he committed the alleged conduct. About two months after the demand was refused, Wigdor turned the photographs over to a third party; he contends that neither he nor his firm ever had possession of the compact disc.

We need not determine whether Wigdor wrongly refused the unconditional demand for the immediate return of the photographs. Even if he should have acceded to the demand, the allegations in the complaint provide no basis for depriving him of immunity from liability "under the shield afforded attorneys in advising their clients, even when such advice is erroneous, in the absence of fraud, collusion, malice or bad faith" (citation omitted)...To the extent the complaint alleges fraud, collusion, malice or bad faith on the part of Wigdor, the allegations are wholly conclusory. If the shield does not deflect these allegations, it is so flimsy as to be of little use.

The court declined to impose costs. (Mike Frisch)

May 26, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 24, 2011

Non-Party Standing For Motion To Disqualify Counsel

The Wisconsin Supreme Court reversed and remanded a case, concluding that a non-party had standing to raise disqualification of counsel but that the lower court improperly applied an "appearance of impropriety" test to the motion:

...to determine whether disqualification is required, a court must determine: (1) whether there was an attorney-client relationship and whether it has ceased; (2) whether the subsequent representation of another person involves the same or a substantially related matter; (3) whether the interests of the subsequent client are materially adverse to those of the former client; and (4) whether the former client consented to the new representation. In the instant appeal, it is undisputed that an attorney-client relationship had existed between the Cramer firm and Wayne Foster and the Foster Group and that the Cramer firm no longer represented Wayne Foster or the Foster Group at the time the slip-and-fall litigation began. Furthermore, no one asserts that the former clients (Wayne Foster and the Foster Group) have consented to the Cramer firm's representation of the plaintiffs in the present case...

 We conclude that the circuit court applied an incorrect standard of law in disqualifying the plaintiffs' attorney, namely disqualifying the attorney on the basis of the "appearance of impropriety."  Given the paucity of facts in the record relating to the attorney's prior representation of the Foster Group and Wayne Foster, we are unable to determine whether the two representations are substantially related such that the confidences of the Foster Group and Wayne Foster are implicated in this personal injury action or whether the current representation is materially adverse to the former client.

We cannot determine from the record before us whether the circuit court's order disqualifying the plaintiffs' attorney is erroneous when applying the correct standard.  Accordingly, we reverse the order of the circuit court disqualifying the plaintiffs' attorney and remand the matter to the circuit court for such further proceedings as the circuit court determines are appropriate to resolve the question presented.

Justice Prosser (joined by Justices Ziegler and Gableman) concurred but

In reaching this result, however, the lead opinion engages in a lengthy review of Wisconsin cases and produces, in effect, a restatement of the law.  It is this restatement of Wisconsin law on standing that triggers two concurrences and some angst.

To the extent that the lead opinion attempts to bring order out of chaos in our law on standing, it serves a constructive purpose.  We all benefit when the court provides a clear restatement of the law.  However, if the restatement changes the law while purporting simply to clarify it, it goes beyond the facts, effects a result that was neither requested nor briefed by the parties, and creates confusion among the bench and bar.

(Mike Frisch)

May 24, 2011 in Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, May 19, 2011

No Appealable Order In Divorce Disqualification

The Ohio Supreme Court web page reports:

The Supreme Court of Ohio ruled today that the denial of a motion to disqualify opposing counsel in a divorce proceeding is not a “final” order subject to immediate appeal.

The Court’s 6-0 decision, which affirmed a ruling by the 9th District Court of Appeals, was authored by Justice Yvette McGee Brown.

The case involved a divorce action between Jeffrey R. Kissinger and Beth A. Wilhelm-Kissinger of Summit County. During the proceedings, a dispute arose regarding allegedly illegally obtained and privileged email messages between Kissinger and his attorney that Wilhelm-Kissinger had apparently taken from Kissinger’s computer and given to her attorney. Kissinger moved the Summit County Court of Common Pleas Domestic Relations Division to disqualify Wilhelm-Kissinger’s attorney.  After a hearing in which Wilhelm-Kissinger’s attorney reported that he never sought or reviewed any of the email messages in question, the trial court denied the disqualification motion. 

Kissinger appealed. The 9th District Court of Appeals dismissed Kissinger’s appeal, based on its determination that it had no jurisdiction to hear the case because the denial of a motion to disqualify opposing counsel was not a final, appealable order under R.C. 2505.02(B)(4). In response to a motion by Kissinger, the 9th District certified a conflict between its ruling in this case and a 2003 decision of the 10th District Court of Appeals, Crockett v. Crockett, in which that court held that denial of a motion to disqualify opposing counsel was a final, appealable order.

The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Writing for the Court in today’s unanimous decision, Justice McGee Brown noted that under the applicable statutory criteria for a final appealable order, Kissinger must show that the trial court order denying his motion was made in a “special proceeding” and that it affected a substantial right.  Since prior Supreme Court decisions have held that a divorce action qualifies as a “special proceeding,”  Justice McGee Brown said the remaining question for the Court to answer was whether denial of a motion such as Kissinger’s in this case affects a substantial right.

She wrote: “An order affects a substantial right for the purposes of R.C. 2505.02(B)(2) only if an immediate appeal is necessary to protect the right effectively. ... Covered rights include any ‘right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.’ ... We have previously held that a decision granting a motion to disqualify opposing counsel is a final, appealable order that a party deprived of counsel can appeal immediately. ... We now address whether in the special proceeding of divorce, an order denying a motion to disqualify opposing counsel also qualifies as a final, appealable order under R.C. 2505.02(B)(2).”

“Orders granting and denying disqualification of counsel differ in two key respects. First, an order granting disqualification immediately and definitely affects the party it deprives of chosen counsel; the purpose of appealing such an order is to prevent the removal itself.  By contrast, an order denying disqualification, standing alone, affects no right held by the unsuccessful movant because there is no substantial right to disqualify opposing counsel. Second, an order granting disqualification typically imposes a permanent effect because it is unlikely to be reconsidered as a trial progresses. ...Therefore, a grant of a motion to disqualify counsel must be appealed immediately or its effect will be irreversible.”

“An order denying disqualification, however, lacks a similarly permanent effect. ...  That order may be revisited throughout trial, and the party seeking disqualification may pursue other avenues, such as disciplinary proceedings, to address any improprieties that occur. With these differences in mind, we cannot conclude that an order denying disqualification in the divorce context requires immediate appeal to ensure the protection of a substantial right. Accordingly, although it occurs in a special proceeding, such a denial is not a final, appealable order under R.C. 2505.02(B)(2).”

Justice McGee Brown’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp. Chief Justice Maureen O’Connor did not participate in the Court’s deliberations or decision in the case.

The opinion is attached here. (Mike Frisch)

May 19, 2011 in Professional Responsibility, The Practice | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 26, 2011

Sketchy Reasons For Disqualification

The Maryland Court of Appeals reversed a criminal conviction for common law murder because the trial court had disqualified retained counsel. The attorney for the co-defendant brought to the court's attention that one of the three retained counsel had spoken to her client and that such conduct involved potential Rule 1.18 (duty to prospective client) and/or 4.2 (unauthorized communication with represented person) violations. The State expressed concern that the attorney whose conduct was at issue had improperly coached a witness.

The trial court had conducted a hearing and ordered disqualification. Here, the court agreed with the defendant that the basis for disqualification was "sketchy." The trial court must conduct an "adequate inquiry into the circumstances underlying the purported conflict to determine whether there is an actual or serious potential for conflict." The inquiry of the trial court was not sufficent. The error was structural and prejudice is assumed.

A concurring/dissenting opinion would defer to the trial court's exercise of discretion. (Mike Frisch)

April 26, 2011 in Clients, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Monday, April 25, 2011

A Jury Question

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.

(Mike Frisch)

April 25, 2011 in Clients, Law Firms, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Friday, April 15, 2011

Certain Flaws But No Sanction....Yet

The Wisconsin Court of Appeals affirmed the dismissal of a civil case with the following admonitory language to plaintiff/appellant's counsel:

For future reference of appellant’s counsel, we also note certain flaws in the brief.  The brief lacked sufficient citations to the record.  See Wis. Stat. Rule 809.19(1)(d) and (1)(e).  This deficiency makes the work of opposing counsel and the court more difficult than it should be.  If the deficiency had been brought to our attention earlier by a motion to strike, we likely would have rejected the brief.  The brief’s appendix also fails to provide the decision of the trial court, as required by Wis. Stat. Rule 809.19(2)(a).  In spite of that obvious deficiency, appellant’s counsel signed a certification stating specifically, but inaccurately, that the appendix contained “the findings or opinion of the circuit court” and “oral or written rulings or decisions showing the circuit court’s reasoning regarding” the issues raised.  We exercise our discretion not to impose a monetary sanction in this case, but caution counsel that similar filing in the future may lead to sanctions. 

Fair warning. (Mike Frisch)

April 15, 2011 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 23, 2011

Witness Advocate Rule Applied

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)

(Mike Frisch)

March 23, 2011 in Clients, Law Firms, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)