Monday, April 15, 2013
The Georgia Supreme Court has issued an opinion approving the conclusion of the State Bar Formal Advisory Opinion Board concluding that it is impermissible for attorneys employed in the circuit public defender office to represent co-defendants when a single lawyer would be prohibited from doing so.
The court found that the board's opinion was correct in light of the constitutional right to conflict-free counsel and the construction of Georgia's ethical rule concerning imputed conflicts. (Mike Frisch)
Saturday, January 12, 2013
A recently issued opinion of the District of Columbia Bar's Legal Ethics Committee deals with the issue of confidentiality when a former client claims ineffective assistance of counsel:
When a former client challenges a criminal conviction or sentence on the grounds of ineffective assistance of counsel (“IAC”), D.C. Rule 1.6(e)(3) permits the lawyer to disclose client confidences and secrets only insofar as reasonably necessary to respond to the client’s specific allegations about the lawyer’s representation. Where appropriate, the lawyer should take steps, such as seeking a judicial protective order or entering into an agreement with the prosecutor, to limit the use of such disclosures to the IAC proceeding.
The committee's conclusion:
D.C. Rule 1.6(e)(3) permits a defense lawyer whose conduct has been placed in issue by a former client’s ineffective assistance of counsel claim to make, without judicial approval or supervision, such disclosures of information protected by Rule 1.6 as are reasonably necessary to respond to the client’s specific allegations about the lawyer’s performance. Even so, a lawyer should reflect before making disclosures of protected information to prosecutors, courts, or others. A lawyer’s confidentiality obligations to her former client are broader than the attorney-client privilege. Although the former client’s claim likely waives the evidentiary privilege, that alone does not eliminate the broader confidentiality obligation owed under Rule 1.6. Nor does the limited “self-defense” exception to confidentiality in Rule 1.6(e)(3) open the door to unlimited disclosures to prosecutors, courts or others of protected information. The rule allows a lawyer to disclose protected information only to the extent “reasonably necessary” to respond to “specific allegations” by the former client. Reasonableness is a fact-bound issue about which others may later disagree. Lawyers who are uncertain about the permissibility of disclosing protected information in response to an IAC claim should consider seeking independent advice or judicial approval of the disclosure.
Friday, December 28, 2012
The Kansas Supreme Court has held that a defendant in a probation revocation proceeding is entitled to the effective assistance of counsel.
The case involved allegations of a conflict in interest. The attorney who represented the defendant also served as the victim's guardian ad litem. He briefly noted the conflict in a proffer to the probation revocation court. No objections were lodged and the court did not conduct any inquiry.
The court here remanded for either a fresh revocation hearing with conflict-free counsel or a hearing into whether the conflict created an adverse effect on the representation. (MIke Frisch)
Tuesday, October 23, 2012
The Delaware Supreme Court has affirmed a trial court holding applying an objective standard to the determination whether a Rule 11 violation has taken place.
The court extended an earlier decision "to bar judges from sanctioning attorneys except where the attorney's conduct prejudically disrupts the administration of justice in a particular case."
The trial court had issued two sua sponte orders to show cause to an attorney concerning his representations to the court in representing a client in an asbestos suit. A $25,000 penalty was imposed on the attorney.
The court here reaffirmed the objective standard: "Delaware demands more from attorneys than pure hearts and empty heads."
However, the trial court did abuse its discretion in imposing sanction. The first contempt order involved his incorrect citation of a case, where he relied on a faulty memory; the second a failure to make a "thorough" argument.
Neither lapse rose to a sanctionable level: "The practice of law imposes many informal penalties on attorneys who do not make thorough arguments. Rule 11 sanctions are not among them."
The court vacated the sanction, noting that its holding "is not intended to leave a judge confronted with an attorney's problematic behavior without recourse. The Office of Disciplinary Counsel is well equipped to investigate attorneys and recommend appropriate action." (Mike Frisch)
Thursday, August 30, 2012
The Maryland Court of Special Appeals has held that an attorney may appeal an interlocatory order denying his motion to withdraw as counsel. The court held that the denial of the motion was an abuse of discretion and remanded the case to the Circuit Court with instructions to grant the attorney's motion.
The case involved unpaid legal fees and a motion filed five weeks before a scheduled trial.
The court here held that there was no injustice to the client; rather, denying the motion was an injustice to the attorney:
...the circuit court's order, effectively compelling [the attorney] to continue representing [the client], without reasonable likelihood of compensation, imposed an unreasonable financial burden on him.
Monday, August 20, 2012
From Samuel Levine (Law, Touro) comes this announcement/reminder of a worthy award honoring the very worthy memory of Fred Zacharias:
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: firstname.lastname@example.org
The deadline for submissions and nominations is September 1, 2012.
Saturday, August 11, 2012
The Nevada Supreme Court has held that the son of a divorcing couple is not disqualified from representing his father in the litigation:
This original petition for a writ of mandamus raises two novel issues regarding attorney disqualification: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney’s representation will constitute an appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7? Because appearance of impropriety is no longer recognized by the American Bar Association, and we have not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer, we reject that conclusion when the alleged impropriety is based solely on a familial relationship with the attorney. We also conclude that absent an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney, the nonclient parent lacks standing to seek disqualification under RPC 1.7.
The court reversed the trial court, which had disqualified the son.
The Las Vegas Review-Journal noted that the representation might be contrary to common sense, if not legal ethics. (Mike Frisch)
Saturday, July 7, 2012
The Utah Supreme Court has held that the judicial proceedings privilege applies to an attorney's course of conduct as well as to statements made in the course of litgation.
The law firm represented an employer who had sued a former employee for misappropriation of trade secrets and violation of a non-compete agreement. The firm sought and was granted a civil discovery court order authorizing its entry into the employee's home to seize electronic files from his computer and other electronic devices.
A firm attorney attended the execution of the order. The employee's fiancee (the employee was not there) objected. A second, ex parte order was obtained and she relented.
The employer-employee litigation settled. The employee did not raise the issue of the seizures in the litigation.
The employee then sued the law firm for on a variety of theories for the violation of his Fourth Amendment rights.
A lower court had applied res judicata principles based on the settled case and found the claims were barred.
Here, the court found res judicata inapplicable but nonetheless affirmed on the judicial proceedings privilege. The law firm had acted pursuant to a court order that had not been obtained by fraud or other improper means. (Mike Frisch)
Thursday, June 14, 2012
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.
Tuesday, June 12, 2012
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)
Wednesday, April 11, 2012
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: email@example.com. The
deadline for submissions and nominations is September 1, 2012.
Monday, March 19, 2012
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.
Tuesday, March 13, 2012
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:
- competent representation (RPC 1.1);
- diligence (RPC 1.2);
- communication (RPC 1.4);
- representation agreements (RPC 1.5);
- confidentiality (RPCs 1.6 and 1.9); and
- avoidance of conflicts of interest (RPCs 1.7, 1.8, 1.9, 1.10, 1.11, 1.12).
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.
Thursday, March 8, 2012
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.
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.
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.
Thursday, December 8, 2011
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)
Tuesday, November 8, 2011
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.
A great way to remember Fred, who is missed. [Alan Childress]
Thursday, October 6, 2011
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)
Friday, September 16, 2011
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)
Wednesday, August 24, 2011
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.
Saturday, July 9, 2011
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)