Legal Profession Blog

Ethics Of Paying Fact Witness At Issue In Florida

From sunEthics

Under Rule 4-3.4(b), fact witnesses may be paid “reasonable compensation” for “preparing for, attending, and testifying at proceedings,” including assistance with case and discovery preparation. [Added 10/30/17]

Antaramian entered into a “Consulting Agreement” with Trial Practices, Inc. (“TPI”) under which TPI was to provide “various trial support services” for Antaramian in his suit against a third party.  Per the Agreement TPI was to receive 5% of any gross recovery that Antaramian obtained through verdict or settlement.  Antaramian and the third party settled, with each party dropping its claims.  Antaramian refused to pay TPI, asserting that he owed TPI nothing since he did not obtain a gross recovery.  TPI sued Antaramian for breach of contract.

The jury found for Antaramian, who then sought prevailing party fees pursuant to a clause in the Consulting Agreement which provided in part:  “[The] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys' and experts’ fees.” 

The court awarded prevailing party fees to the Hahn law firm, which was substituted for Antaramian at his death.  The award included fees for litigating the amount of fees to which Hahn was entitled.  TPI appealed.

The Second DCA affirmed.  “Both the Florida Supreme Court and this court have recognized that when parties are seeking attorneys’ fees pursuant to a statute, the parties are not necessarily entitled to recover attorneys’ fees for litigating the amount of fees.  . . .  However, in this case, the attorneys’ fees and costs were not awarded pursuant to a statute but were instead awarded pursuant to the fee-shifting provision in the Consulting Agreement.”  The fee provision “was broad enough to encompass the award of fees and costs for litigating the amount of attorneys’ fees.”  The appeals court declined to rewrite the contract to relieve TPI of its obligation.

The court also rejected TPI’s argument that Hahn was not entitled to prevailing party fees “because Antaramian improperly paid expert witness fees to fact witnesses.”  Antaramian paid more than the statutory $5 per day to fact witnesses.  Rule 4-3.4(b) does not make it “unethical or illegal for a party to pay fact witnesses reasonable compensation for their preparation for, attendance at, or testimony at trial.”  The Rule does not conflict with F.S. 92.142, regarding the state’s payment to witnesses.  “The statute restricts payments to witnesses for their attendance and thus presumably their actual testimony at trial.  But the rule addresses payments for entirely different and compensable items: witnesses’ expenses incurred in connection with their attendance and testimony at trial and reasonable compensation for the time spent by the witnesses in preparing for, attending, and testifying at trial so long as the payments are not conditioned on the content of the witnesses’ testimony.  Thus we interpret the rule to mean that witnesses may be compensated not only for travel related expenses, such as airfare, car rentals, and hotel expenses, but also for a witness's time spent in responding to discovery and appearing at depositions.”  (Footnote omitted.)

The court certified the following question to the Florida Supreme Court as one of great public importance:  “Does Rule 4-.34(b) of the Rules Regulating The Florida Bar permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation?”   Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, __ So.3d __ (Fla. 2d DCA, Nos. 2D13-6051, 2D14-86, 10/25/2017) (on clarification), 2017 WL 479894

Hat tip! (Mike Frisch)

Won An Election, Lost A Job And A Claim

The United States Court of Appeals for the Fourth Circuit affirmed the dismissal of a complaint brought by a former assistant county attorney who was terminated from longtime service after a successful run for public office

David Bobzien (“Bobzien”), the County Attorney for Fairfax County, Virginia, terminated the employment of Nancy Loftus (“Loftus”), an assistant county attorney, following her election to the Fairfax City, Virginia, City Council (the “City Council”). After an unsuccessful grievance proceeding, Loftus filed suit in the United States District Court for the Eastern District of Virginia, challenging Bobzien’s decision to terminate her employment “solely because she had been elected to the City Council.” J.A. 4. Loftus contended Bobzien’s actions violated her rights under the First Amendment to the United States Constitution as well as a Virginia statute and Fairfax County ordinance. The district court dismissed Loftus’ complaint, concluding the termination of her employment did not violate the First Amendment, Virginia law or the local ordinance. For the reasons set out below, we affirm the district court’s judgment.

Bobzian raised ethical concerns during the candidacy, citing Virginia bar ethics opinions

In response to Bobzien’s concerns, Loftus contacted the “Ethics Hotline” of the office of the Virginia State Bar’s Ethics Counsel (“Ethics Counsel”). She inquired: “is it unethical for me to be an [a]ssistant [c]ounty [a]ttorney for Fairfax County and also serve on the Fairfax City Council?” J.A. 57. Answering by letter, Ethics Counsel stated that the “short answer” is “it is not per se unethical for a lawyer to be employed in a law firm or government attorney’s office and concurrently hold a public position or office.” J.A. 57. Ethics Counsel then qualified his abstract answer by cautioning “lawyers that serve on public bodies will create conflicts of interest if the law firm in which the public official practices also interacts with the public body on which one of its lawyers sits.”

Loftus was placed on administrative leave and later terminated, leading to the suit

...Loftus’ claim must fail. Although Loftus contends her termination was in violation of the First Amendment, the Supreme Court has made clear that public employers may permissibly bar their employees from participating in a wide array of political activities, including running for elective office. If a public employee can be prohibited from running for office, it follows all the more strongly that she also can be barred from holding elective office while remaining a public employee. In large part, the constitutional questions raised by this case are resolved by Clements. If the resign-to-run and automatic resignation provisions of the Texas Constitution -- which stripped certain public employees of their office upon declaring their candidacy for the state’s legislature -- pass muster under the First Amendment, surely the termination of Loftus’ employment only after her election to the City Council survives First Amendment scrutiny.

...The record reflects multiple potential points of conflict that could face Loftus as a member of the City Council and an attorney in the Fairfax County Attorney’s Office. As the LEOs from the Standing Committee illustrate, it is not simply Loftus’ status as a public employee that creates a problem, but particularly her status as a lawyer for a public “law firm.” That role appears to create non-waivable conflicts of interest not simply limiting Loftus under her ethical duties as a lawyer, but imposing significant burdens on her public employer.

Moreover, Loftus is unable to point to any appellate authority to suggest that, all else being equal, her employment by a different municipality should be a dispositive factor in our analysis. In fact, she can muster only two district court cases to support her position, both of which are factually inapposite and of no precedential value. See Segars v. Fulton Cty., 644 F. Supp. 682 (N.D. Ga. 1986); Hickman v. City of Dallas, 475 F. Supp. 137 (N.D. Tex. 1979). Neither case involves an attorney representing one municipality while also running for office in another municipality to which her client potentially will be adverse in the future.

The court rejected other claims raised by the plaintiff. She had worked as an assistant county attorney since 1997.

The Washington Post reported on the firing. (Mike Frisch)

Second Thoughts

A client's instruction to her attorney not to deliver an executed deed for property to her grandson negated his interest in the property, according to a decision of the North Dakota Supreme Court.

Cory Rice is Joyce Neether's grandson. Joyce Neether and her late husband, Alvin Neether, raised Rice at their farm. Alvin Neether was diagnosed with ALS in 2009. Sometime before July 29, 2009, Joyce Neether contacted attorney Wayne Enget to draft a bill of sale for the purchase of personal property and two warranty deeds conveying real property to Rice, reserving a life estate in that property for the Neethers.

In July 29, 2009, Enget met with the Neethers to sign the warranty deeds. At that time, Alvin Neether was terminally ill and, while he was physically unable to sign his own name, the district court found he was mentally competent to transfer property. Joyce Neether had authority through a Power of Attorney to manage Alvin Neether's real and personal property. After consulting with Enget, Joyce Neether signed the deeds on behalf of herself and Alvin Neether. Rice was not present when Joyce Neether signed the deeds. Enget told the Neethers he would record the deeds the following day, July 30, 2009.

Before Enget recorded the deeds, Joyce Neether called Enget and instructed him not to record the deeds. Joyce Neether told Enget that she would call him when he was authorized to record the deeds and the bill of sale. Joyce Neether never contacted Enget to either record the deeds or deliver them to Rice.

Rice contended that Enget had duties as his attorney but

it is undisputed that Rice knew Enget went to the Neethers' residence on July 29, 2009, but was unaware the purpose was to sign these deeds. The district court found "[a]t all times during this action Attorney Enget was acting as an attorney for the Neethers and was not acting as an attorney for Rice." Rice asked Enget some questions regarding a separate matter. Rice never signed a fee agreement or paid Enget, and Enget never prepared any documents for Rice. Because the district court found there was no attorney-client relationship between Rice and Enget, there could be no agency relationship...

The district court found that while the deeds were not in Joyce Neether's physical possession, she still had dominion or control over them through her attorney. This Court will only overturn the district court's finding "if there is no evidence to support it, if the finding is induced by an erroneous view of the law, or if the reviewing court is left with a definite and firm conviction a mistake has been made." Kelly, 2002 ND 37, ¶ 15, 640 N.W.2d 38. Evidence in this record supports the district court's findings that Enget was not acting as Rice's attorney and was acting as Neether's attorney. Therefore, the district court's finding is not clearly erroneous...

The district court's findings that the deeds never left Joyce Neether's control and the Neethers lacked intent to deliver the deeds to Rice is supported by the record and, therefore, not clearly erroneous.

(Mike Frisch)

Client Perjury Rules Clarified In Virginia

A recent notice on the web page of the Virginia State Bar

September 30, 2016

Supreme Court of Virginia Approves Rule Changes and Legal Ethics Opinion 1884

The Supreme Court of Virginia has approved amendments to Rules 1.6: Confidentiality of Information and 3.3: Candor Toward the Tribunal, as well as Legal Ethics Opinion 1884.

Effective December 1, 2016, the Supreme Court of Virginia has approved amendments to Rules 1.6: Confidentiality of Information and 3.3: Candor Toward the Tribunal.

The amendments clarify a lawyer’s obligations when a client discloses an intent to commit perjury well in advance of trial, and when the lawyer can withdraw from the representation before the client’s intended perjury occurs. The order may be found here.

Effective immediately, the Supreme Court of Virginia has approved Legal Ethics Opinion 1884: Conflicts arising from a lawyer-legislator’s employment with a consulting firm owned by a law firm.

The opinion addresses a situation where a lawyer who is a member of the Virginia General Assembly joins a consulting firm. The lawyer asks whether the lawyers and non-lawyers in the consulting firm would be barred from lobbying the General Assembly and whether that bar would extend to members of the law firm as well. In this opinion, the Committee concluded that both lawyers and non-lawyers in the consulting firm, as well as the lawyers in the law firm that own the consulting firm, would be barred from representing clients or otherwise lobbying before the General Assembly. The order may be found here.

(Mike Frisch)

We Listen And We Care But We Can't Say We Win

An advisory  opinion from the Connecticut Statewide Grievance Committee concludes that a proposed logo violates advertising rules

The logo depicts a multi-point star enclosed in a circle. Underneath is the first listed partner name of the law firm followed by word "law." The proposed phrase is "we listen. we care. we win." Since this phrase will be used in various forms of undetermined future advertising material, the proposed phrase on its own does not contain the name of an attorney admitted in Connecticut responsible for its content as required by Rule 7 .2( d) of the Rules of Professional Conduct. This opinion assumes that the proposed phrase, when placed in the context of actual advertising material, will comply with that requirement when disseminated.

The problem

The proposed advertisement violates Rule 7 .1 of the Rules of Professional Conduct because the reference to the firm winning is likely to create an unjustified expectation as to success. Rule 7.1 prohibits communications that are false or misleading. It is misleading for a lawyer to make claims in an advertisement that cannot be substantiated. Id. In some instances, an appropriate disclaimer given equal weight could correct a statement that is likely to create unjustified expectations or otherwise mislead a consumer. Id.

 By stating, "we win" the firm is creating unjustified expectations for prospective clients. The firm is suggesting that it wins every case and that it will win a prospective client's case regardless of the merits. The statement is misleading. The firm could correct this misleading statement by including a disclaimer, explaining that results are based on the merits ofthe case and that success in the past does not guarantee success in the future.

(Mike Frisch)

Ethics Journal Current Developments Issue Is Out

My favorite issue of the Georgetown Journal of Legal Ethics -our yearly compilation of student notes on current developments in ethics law -  has just hit the street.

This issue holds up well with the past editions and gives the reader excellent exposure to the hottest legal ethics issues that face 21st century members of the legal profession.

As co-faculty advisor (along with my colleague Professor Mitt Regan) to the journal, I am biased in its favor.

With that disclaimer, I highly recommend that all practitioners with an interest in ethics take a look.

Kudos to the journal staff for their hard work and dedication to this notable contribution to the profession. (Mike Frisch)

If I Were A Carpenter

A recent decision of the Massachusetts Supreme Judicial Court:

This case presents an issue of first impression:  whether an association that has provided support for litigation, without being a named party in that litigation, has engaged in protected petitioning activities for the purposes of G.L. c. 231, § 59H. The defendant, the New England Regional Council of  Carpenters, appeals from a Superior Court judge's denial of its special motion to dismiss a suit by the town of Hanover (town) claiming that the defendant engaged in abuse of process in prior legal proceedings.  Because we conclude that support of litigation constitutes protected petitioning activity within the meaning of G.L. c. 231, § 59H, and that here, the town did not demonstrate that the defendant's right to petition was "devoid of any reasonable factual support or any arguable basis in law," Office One, Inc. v. Lopez, 437 Mass. 113, 123 (2002), we allow the defendant's special motion to dismiss.

The case is

TOWN OF HANOVER vs. NEW ENGLAND REGIONAL COUNCIL OF CARPENTERS, SJC-11396.

(Mike Frisch)

The Evolving Law Of Letterhead

From the Ohio Supreme Court:

Law firm letterhead and websites may list the names of non-lawyer employees if their status is clearly identified, according to a Supreme Court of Ohio Board of Commissioners on Grievances & Discipline advisory opinion.

Opinion 2012-2 departs from a previous advisory opinion issued by the board, so Advisory Opinion 89-16 is withdrawn.

The board’s 1989 opinion did not discuss law firms communicating with clients and the public via their websites. The opinion did, however, find that the inclusion of non-lawyers on letterhead was prohibited, but their inclusion on business cards was proper.

In revisiting its 23-year-old advice, the board considered Rules 7.1 and 7.5(a) of the Ohio Rules of Professional Conduct and the standard that “law firm letterhead and websites cannot be false or misleading, or contain a non-verifiable communication about a lawyer or the lawyer’s services.”

The board reiterated that firm business cards may identify non-lawyer employees.

Read the complete text of the opinion.

(Mike Frisch)

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)

New book 'Hot Topics in the Legal Profession - 2012' and old classic 'The Bramble Bush'

As promised last weekend, I announce a book truly on-topic for LPB. This is a collection of essays, on ethics and broader issues of the U.S. profession, from students in my Advanced Professional Responsibility Seminar last year. I added an intro but really the substance is in their 14 chapters. Their topics include:

...false guilty pleas and candor to the court, ethical considerations in keeping the client's files as a digital record, legal outsourcing and competition, the dilemma of student debt in a slowed legal economy, the practice of law by legal websites like LegalZoom, the capital defense of Jared Lee Loughner, Justice Scalia's constitutional seminar for conservative congressmembers, sensitivity to "cultural competence" in legal education and practice, prosecutorial relationships with key witnesses, bar discipline for behavior outside the practice of law, negotiation ethics, hybridized MDL settlements, and the advocate-witness rule.

It is available now in paperback at Amazon or the QP page; plus such eBooks as Kindle and Nook, and at Apple iBooks and iTunes bookstores. Proceeds benefit Tulane's Public Interest Law Foundation, so even if it is not a book you'd buy or download for yourself, please consider asking the law library to acquire a paperback.

Also out is the eBook of an old but amazingly relevant book of advice for prelaw and 1L law students, Karl Llewellyn's The Bramble Bush (e.g., in Kindle). I was pretty amazed he discussed active learning, visualizing case facts, better note-taking, and a script for case-briefing and the uses of precedent. Still is a perennial recommended read for the summer before law school, on lots of lists. This classic had not been released in eBooks before today. Sort of odd how little 1L classes and reading have changed.

[Alan Childress]

Hatfield on the History of Tax Lawyer Ethics

Michael Hatfield of Texas Tech has published to SSRN his study of the tax legal profession, in a historical context: "Legal Ethics and Federal Taxes, 1945-1965:  Patriotism, Duties and Advice." Its abstract:

Legal Ethics and Federal Taxes, 1945-1965: Patriotism, Duties and Advice provides a timely historical review of legal ethics and federal taxes. Focusing on the first two decades of the modern income tax (1945-1965), the Article reviews the ethics literature of the tax bar, which was mostly written by very prominent tax lawyers (a founder of Paul, Weiss; partners at Sullivan & Cromwell, Willkie Farr, etc.), tax professors (including the dean at Harvard Law School), and government officials (including key advisors to FDR, JFK, and LBJ). This seemingly forgotten literature provides a remarkable contrast to today’s anti-tax climate, especially given that the highest marginal individual tax rate during 1945-1965 was 94%. The writers of this period emphasized the patriotic duty to support the federal government by paying taxes, describing taxes, for example, as the price to maintain capitalism (Merle Miller) and a “blessing” (Erwin Griswold). Several stressed the ethical duty of lawyers to improve their clients’ respect for the tax system (Norris Darrell, e.g.). “Ethics” for these writers was not an issue of the ABA canons but rather a more general, philosophical reflection. For example, in 1949, the tax committee of the ABA issued a report on the importance of natural law jurisprudence in tax. In 1952, the discussion at the Tax Law Review banquet (which was nominally dedicated to discussing “Ethical Problems of Tax Practitioners”) developed into a debate over whether or not Americans were more degenerate then than in the past (Edmond Cahn) or merely more self-conscious (Thomas Tarleau). But the ethics writers were also concerned with specific issues that endure to this day, such as when to disclose an arguable but uncertain tax position – some (Randolph Paul, e.g.) arguing almost any position the government was likely to question should be disclosed, others (Boris Bittker, e.g.) arguing against disclosure so long as the position was reasonable. There was wide disagreement as to whether or not tax lawyers owed a special duty to the system, but wide agreement that this theoretical debate was nearly moot given that conservative tax advice was usually not only the most ethical but the most practical. This pragmatic attitude – emphasizing that good tax practice, good tax ethics, and good tax advice tended to converge – reflected the “real world” orientation of these professionally accomplished writers, even though, by today’s standards, many of their statements seem idealistic. The salvaging of this forgotten literature is timely not only in its relevance to contemporary debates, but also its relevance to the increasing historical research of the income tax as its 100th anniversary approaches.

[Alan Childress]

Brotherly Guilt

A defendant convicted of first degree murder and robbery is entitled to a hearing on a conflict of interest claim, according to a recent opinion of the United States Court of Appeals for the Third Circuit. The defendant received a death sentence for the crime. The death sentence was vacated in 2007 based on a finding of ineffective assistance of counsel in the penalty phase.

The attorney who defended him also was representing his brother in a civil matter at the time of the trial. There was evidence that pointed to the brother as the perpetrator that was not pursued, including a witness (not called) who had identified the brother. The conflict was not disclosed to the trial court and there is conflicting evidence as to client consent.

Why might the attorney have wished to point the finger away from the brother? One reason might be the civil case, which later settled and put over $18,000 in the attorney's pocket.

Here, the court rejected Pennsylvania's appeal of the district court's decision to grant a hearing on the conflict issue. The brother is now deceased. The court notes that the conflict claim was first brought shortly after the brother's death, but concludes that it is not time-barred. (Mike Frisch)

Mercer Announces New Moot Court Competition in Legal Ethics

Announcing the First Annual Mercer Law School Moot Court Competition in Legal Ethics & Professionalism
 
Mercer University Walter F. George School of Law, home of the Mercer Center for Legal Ethics and Professionalism, will host the only national moot court competition focusing on legal ethics and professionalism.  The competition will take place November 12-13, 2010 at Mercer Law School in Macon, Georgia.
 
The competition will consist of the submission of an appellate brief, as well as several rounds of oral argument.  Rounds will begin on Friday November 12, with a reception Friday night at the Georgia Music Hall of Fame.  The competition will conclude with a final round late Saturday afternoon.
 
The competition rules will be posted by September 1, 2010.  The problem will be released on September 15, 2010, and briefs are due (by e-mail and postmark) by midnight on October 15, 2010. 
Early registration deadline is August 23, 2010.  Early registration is $300 for one team, or two teams may register for $500.  After August 23, registration will be $350 for one team and $600 for two teams.

[Alan Childress, from the AALS Section on PR listserv]

Should a lawyer withdraw at the first sign that a client is lying?

I muse about the issue over at my blog (here). 

(Posted by Nancy Rapoport.)

Current events in U.S. legal ethics, 2009-2010, according to my students (and benefit Tulane's PILF)

Posted by Alan Childress

Several students writing Independent Studies papers this spring on legal ethics for me, joined by some from an advanced ethics seminar taught by a colleague, have their work collected into a new digital book on current events May 2009 to present.  I edited the papers and wrote a Foreword to it, which explains its origins, topics covered, and other stories of the year, plus an ode to Mike Frisch here and John Steele at LEF as the leading bloggers for immediate ethics news and insights.  Mike breaks a ton of stories, you already know, and posts multiple times each day, and John among his regular posts does a nice annual roundup of the year's big stories, each December.  Some of those stories got covered, I explain, and some not, but in any event I think users will find the collection useful.  As the Foreword details, it is for a good cause.  Proceeds benefit the Tulane Public Interest Law Foundation, a nonprofit student org that sponsors indigent client representations and placements in public interest work.  Note:  Download FOREWORD here.

More details on the book itself and topics to come (and some chapters to be posted), if you do not want to read the Foreword, but mainly I wanted to preview the opportunity to buy this work.  Already it is available on Smashwords in multiple formats, such as ePub, PDF, HTML, rtf, and Palm, so anyone can read it without an app or Kindle. There the best format is PDF (footnotes do link) or the one for Sony readers, but we covered everything.

An even better format, with search function enabled and all links I added active, is on Kindle or its free apps for PC, iPad, Mac, iPhone, BlackBerry, and related devices or laptops.  The Amazon webpage for this timely book is now active and accepts downloads now, to an app.  But at least for now, Smashwords makes more money for PILF and also has the PDF, printable version, so that may be where you will go if you are not yet into Amazon ebooks.  Oh, on the iPad, use the Amazon app and the format should work great.  If not, let me know.

This is a followup to the post Publish Your Dissertation (but on topic for the blog!), and I can also help you publish other student seminar work and papers from academic conferences, preferably as part of the TPILF series.  The website for all this will be qpbooks.com, active tomorrow.  Submissions are on law and related subjects, not only legal ethics.  Much more info on proposals and other books sold are on the website.  For example, CLS scholar and Tikkun editor Peter Gabel did a digital version of The Bank Teller with me.

A Rose By Any Other Name...

From the web page of the Ohio Supreme Court:

The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion concerning the inclusion of an area of practice or specialization in a law firm name.

Opinion 2010-1 addresses the following question: “Is it proper for a lawyer to name a law firm the lawyer’s surname followed by the words Intellectual Property or the initials IP as an abbreviation for intellectual property?”

The opinion finds that naming a law firm in this way is improper. Professional Conduct and Supreme Court rules “do not authorize the inclusion of an area of practice or specialization in a law firm name and Prof. Cond. Rule 7.5 specifically does not allow a trade name,” the opinion states.

The opinion also noted that Supreme Court rules require that the name of a law firm formed under a corporate structure must include the “proper descriptive designation required by law such as LLC or LLP.”

This link should take you to the opinion. The most pertinent U.S.Supreme Court precedent on the state bar's regulatory authority over letterhead designations is ARDC v. Peel, linked here. (Mike Frisch)

Ineffective Representation Of Juvenile Client

The Supreme Court of Washington vacated the conviction of a juvenile who had pled guilty to first degree sexual molestation at the age of twelve. The court found that the appointed public defender had rendered ineffective assistance of counsel.

The court condemned a practice at the time (since prohibited) that required counsel to pay the expenses of investigation and expert out of counsel fees, providing a financial disincentive to vigorously defend. The court also expressed concern about systemic problems of overworked appointed defense counsel, invoking the promise of Gideon.  Here, the attorney had basically shut down any investigative avenues after he felt that the client had admitted guilt. The court found that an admission or indication of guilt does not absolve counsel from the duty to investigate, noting that expert evidence suggested that juveniles may be particularly prone to false confessions.

One particularly interesting aspect of the opinion discusses the obligation of counsel to consult with a juvenile client outside of the presence of the parents:

A juvenile client should be given the opportunity to consult with and confide in
his attorney without his parents present.  We hold that the failure to provide
that opportunity to a juvenile defendant is a factor that may be considered by
a court when considering whether a plea was knowingly, voluntarily, and
intelligently made but is not dispositive in this case.

There were two concurring opinions, linked here and here. (Mike Frisch)

Defense Attorney Wears a Wire and Meets with Clients. Fed Prosecutor Apparently Wired Him.

Posted by Alan Childress

Wow.  I missed this harrowing story a few weeks ago, out of Nebraska, but -- thanks to my ethics student Jeff Malfatti -- here it is (in a newsy and interesting article by Todd Cooper of the Omaha World-Herald). It is called Lawyer goes into hiding and is well worth a look.  A peek at it:

In measured words, the Omaha attorney confides that he is in hiding after he wore a wire to help the U.S. government indict inmate Shannon E. Williams and 10 others in a massive marijuana conspiracy.

I realize I could lose my law license over this, his friends have recalled him saying in recent weeks. But, please, don't jump to conclusions. Williams talked about committing crimes, about eliminating witnesses. I had to do something.

And that's it. Just as quickly as he tantalizes former colleagues, he shuts down — saying federal prosecutors have asked him not to talk about why he chose to risk his legal career, even his life, by taking on the marijuana ring and its alleged kingpin.

In a case that will hinge in large part on Haddock's credibility, here's what Haddock doesn't always divulge: His involvement in the federal investigation came after a yearlong stretch in which his personal and professional lives began to circle the drain.

A pretty strong reply by defense attorney Bobby Frederick in his blog -- "this scenario reeks."  And he asks the $64M question:  "The lawyer who participates in this ... probably is facing legal troubles of his own and could care less if he is disbarred for what he has done. But what about the prosecutor who set it up or who uses the evidence after the police have set it up?"

The lawyer's firm lists him as a banking and bankruptcy lawyer.

Kettlewell Award Given To Jeanne Gray

The Association of Professional Responsibility Lawyers ("APRL") announces:

Beginning in April 2010, the Association of Professional Responsibility Lawyers, the nation's largest association of legal ethics practitioners, will present its first Charles W. Kettlewell Legal Ethics Advisor Award to a lawyer who has demonstrated excellence in and dedication to the field of legal ethics and professional responsibility, by representing, advising, educating or mentoring lawyers. APRL was founded in 1990 primarily by lawyers who represent and advise lawyers and the Kettlewell Award is intended to recognize superior lifetime achievement and contribution in the “law of lawyering” field.

The Kettlewell Award is named in honor and in memory of Charles W. (“Chuck”) Kettlewell, who was one of APRL's founders and who served as its first President. Kettlewell, who passed away in 2005 in the prime of an outstanding career, was an internationally known expert in professional responsibility and legal ethics. He was an assistant disciplinary counsel in Ohio for many years and also served as a member of the ABA Commission on Evaluation of Disciplinary Enforcement (the “McKay Commission”), President of the National Organization of Bar Counsel (NOBC), a charter member of the ABA Center for Professional Responsibility, and an adjunct professor of professional responsibility at the Moritz College of Law at Ohio State University for more than 25 years. In 1987, Kettlewell entered private practice and immediately became the most sought-after ethics advisor and disciplinary defense lawyer in Ohio and a national leader in the ethics field. He handled dozens of disciplinary proceedings, advised countless lawyers and law firms on a wide variety of professional responsibility issues, and served as a mentor and teacher to scores of lawyers. In 2003, Chuck Kettlewell received the ABA's Michael Franck Professional Responsibility Award, in recognition of his wide-ranging lifetime contributions to the field of legal ethics.

Chuck Kettlewell was nationally recognized for his practical, common-sense approach to professional responsibility and attorney regulation. He had an unfailing talent for applying ethics rules in a practical, objective, and farsighted manner. He was an advisor and consultant to thousands of lawyers, a formidable advocate for clients involved in disciplinary and bar applicant proceedings, and an outstanding colleague to professional responsibility lawyers around the world. Kettlewell exemplified the highest standards of professionalism and the Kettlewell Award will recognize other lawyers who have made similar achievements.

The first Kettlewell Award will be presented at APRL's special 20th Anniversary Meeting in New Orleans, April 15-17, 2010. APRL's Board of Directors established a Special Committee to review nominations for the Kettlewell Award and appointed Past APRL President Ellen A. Pansky as Chair of the Kettlewell Award Committee. The Committee completed its work and made a recommendation of its selection to the APRL Board, which approved the selection by acclamation.

The Kettlewell Award Committee and the APRL Board of Directors is thrilled to announce that the first recipient of the Kettlewell Award is Jeanne P. Gray, a founding member of APRL, Director of the American Bar Association Center for Professional Responsibility, a dear friend and colleague of Chuck Kettlewell, and a visionary leader in developing legal ethics policy through the publication of scholarly resources, professional consultation services, promotion of competence and professionalism, and providing lawyers assistance in solving ethical conundrums with a unerring view toward client protection.

(Mike Frisch)

A Wild Ride, A Well-Told Story

The District of Columbia Court of Appeals has issued an opinion that begins "Sally Jumper is dead but a dispute arising from her assets lives on." The court then tells us that "Sally Jumper led an interesting life" and takes us on a wild ride concerning a bitter dispute between a 30-year  friend of the late Ms. Jumper (one Mr. Anderson) and a financial advisor who later came on the scene (one Col. Jan Verfurth). Sounds like the participants in a game of Clue.

Mr. Anderson had a power of attorney for Ms. Jumper and hired an attorney to initiate a guardianship proceeding, seeking appointment of himself as guardian and describing himself as "her closest and oldest friend." The petition claimed that Col. Verfurth was dissipating Ms. Jumper's assets. The court heard opposition but appointed Mr. Anderson as guardian but not conservator because he was not an attorney. A lawyer who happened to be in the courtroom (Ms. Sloan) was appointed as conservator, and for her trouble is still embroiled in this litigation.

When Ms. Sloan encountered difficultly in marshalling assets from Col. Verfurth, she went back to court. It eventually turned out that Mr. Anderson and his lawyer were aware of estate-planning documents that were relevant to Ms. Jumper's intentions but unhelpful to Mr. Anderson's claims. These documents had not been brought to the attention of the probate court. The trial court also was not told that Ms. Jumper had her own lawyer.

After hearing testimony concerning Ms. Jumper's competence, the trial court vacated the appointment and sanctioned  Mr. Anderson and his attorney for "ethically questionable behavior." Further, there was no basis in evidence for the claim of dissipated assets by the good Colonel. The court here affirmed the sanctions ordered to be paid to Ms. Sloan but remanded the portion of the award to Col. Verfurth's attorney. Col. Verfurth sent his regrets and did not participate in the appeal.

The court also discusses the ethically questionable behavior of Mr. Anderson's attorney and the ulterior motives of the client: "We need not decide...whether [the attorney] initiated the Petition in bad faith so as to justify sanctions because the trial court plainly did not abuse its discretion in holding that [his] post-filing conduct was sanctionable...even after the guardianship was vacated, [he] drafted legal documents for Ms. Jumper and participated in tape-recorded meetings with her, all without inviting [her lawyer] or any of the attorneys who had represented Ms. Jumper over the years." The court opines that this conduct would run afoul of either Rule 4.2 or 4.3: "Whether [the attorney] should be disciplined under the Rules of Professional Conduct is for the Office of Bar Counsel to consider in the first instance." The court's Clerk was directed to forward a copy of the opinion to the OBC.

Worth a read. (Mike Frisch)