Legal Profession Blog

Contingent Fee

The Iowa Supreme Court web page has a nice feature in announcing on Thursdays the opinions it expects to post on Friday.

Up for tomorrow is its review of the Court of Appeals decision dismissing for lack of jurisdiction the complaint of a lawyer who paid $10,000 to an Indiana doctor to evaluate a potential medical malpractice case who sought a return after the "no suit" analysis

Dr. Sasso did not have a relationship with ongoing litigation in Iowa. His agreement with Harding contemplated two steps. First, evaluate a potential malpractice claim. Second, provide testimony in any ensuing litigation. So any commitment by Dr. Sasso to testify in an Iowa court was contingent on a positive evaluation of the potential malpractice claim. Indeed, when Dr. Sasso’s records review revealed no breach of the standard of care by the Iowa medical providers, no litigation ensued. Thus his contacts with Iowa were much more attenuated than the experts in Golden. Before Dr. Sasso completed his preliminary evaluation, neither he nor Harding knew whether an action would be filed, much less whether Dr. Sasso would be called as an expert witness. On this factual record, we cannot find that Dr. Sasso deliberately engaged in significant activities within Iowa.

Precedent

[The] Walden [decision]  forecloses Harding’s claim that their oral agreement was sufficient to subject Dr. Sasso to personal jurisdiction in Iowa. Dr. Sasso’s sole connection with Iowa was initiated by Harding. Dr. Sasso’s knowledge that Harding was an Iowa lawyer exploring the possibility of litigation in Iowa did not create sufficient minimum contacts. “[T]he plaintiff cannot be the only link between the defendant and the forum.” Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 823 (8th Cir. 2014) (quoting Walden, 571 U.S. at 825). Their agreement that Dr. Sasso could provide expert testimony in Iowa if Harding eventually filed suit did not create personal jurisdiction.

The procedural posture of the case is an interlocuory appeal of the district court's denial of a motion to dismiss.

The briefs can be accessed here. (Mike Frisch)

WWE Lawsuits Draw Discovery Sanctions

The United States Court of Appeals for the Second Circuit affirmed the award of sanctions imposed against a law firm that had sued the World Wrestling Entertainment and Vince McMahon

Over the course of several months in 2014 and 2015, Appellants-Cross-Appellees Konstantine W. Kyros and his law firm, Kyros Law P.C. (together, “Kyros”) filed, in jurisdictions across the country, class action lawsuits and wrongful death lawsuits against Appellees-Cross-Appellants World Wrestling Entertainment, Inc. and Vincent K. McMahon (together, “WWE”), asserting various tort claims that related to chronic traumatic encephalopathy (“CTE”) in former wrestlers. In 2016, Kyros filed an additional mass action lawsuit on behalf of fifty-three former wrestlers, asserting a wide range of tort claims. See Laurinaitis v. World Wrestling Entm’t, Inc., No. 3:16-cv-1209-VLB (D. Conn.) (“Laurinaitis”). These lawsuits were all eventually transferred to the United States District Court for the District of Connecticut. We previously affirmed the district court’s dismissal of the Laurinaitis complaint and dismissed Kyros’s appeals of the other consolidated cases against WWE for lack of jurisdiction. See Haynes v. World Wrestling Entm’t, Inc., 827 F. App’x 3 (2d Cir. 2020).

The present appeal concerns only the district court’s awards of sanctions in Laurinaitis and Singleton v. World Wrestling Entertainment, Inc., No. 3:15-cv-425-VLB (D. Conn.) (“Singleton”), one of the class action lawsuits. At an earlier stage of the case, the district court (Vanessa L. Bryant, Judge) ruled that Kyros had repeatedly engaged in pleading and discovery misconduct and decided to impose sanctions in Laurinaitis under Rule 11 of the Federal Rules of Civil Procedure, and in Singleton under Rule 37. Although Kyros challenged these orders in the previous appeal, we dismissed that portion of his appeal because the district court had not yet entered a final order that fixed the amount of sanctions. See Haynes, 827 F. App’x at 11. Following our decision, the district court (Jeffrey A. Meyer, Judge) adopted a recommended ruling of a magistrate judge 7 (Robert A. Richardson, Magistrate Judge) and awarded sanctions to WWE in the amount of $312,143.55—less than WWE’s requested amount of $533,926.44. McCullough v. World Wrestling Ent., Inc., 2021 WL 4472719, at *1, *4–5 (D. Conn. Sept. 30, 2021). With the amount of sanctions calculated, we now consider Kyros’s appeal of the Rule 11 and Rule 37 sanctions and WWE’s cross-appeal, which challenges the district court’s application of the forum rule to award less than the requested amount of sanctions.

On appeal of the District Court's sanctions, the law firm sought reversal; the WWE sought an increase.

On the record before us, we find no abuse of discretion because the district court ordered sanctions based on pleading defects that WWE had identified in their motions seeking Rule 11 sanctions.

No out-of-district counsel increase was warranted

WWE argues that, even if the forum rule applies, WWE is subject to an exception under Simmons because out-of district counsel “likely (not just possibly) produce[d] a substantially better net result” than local counsel would have. 575 F.3d at 172. Citing out-of-district counsel’s extensive experience representing WWE and litigating CTE matters, WWE asserts that no local counsel had comparable specific knowledge, nor could local counsel have improved upon the results achieved below. The district court acknowledged out-of-district counsel’s “longstanding involvement in defending claims brought by former wrestlers,” Special App’x at 281, but, as discussed above, concluded that WWE failed to show that out-of-district counsel likely produced a substantially better net result, especially where the case was dismissed based on deficient pleadings and conduct during discovery—that is, egregious litigation misconduct that in-district counsel would have been equally well placed to identify and oppose. Once again, we see no reason to fault that determination, made within the district court’s broad discretion.

Having carried out our “highly deferential,” H.C., 71 F.4th at 125, review of the district court’s efforts to achieve “rough justice,” Fox, 563 U.S. at 838, in keeping with the goals of fee-shifting, we affirm the district court’s application of the forum rule under the circumstances of this case.

(Mike Frisch)

Settled Law

A staff report on the web page of the Ohio Supreme Court

The Board of Professional Conduct today issued an advisory opinion concerning restrictions on a lawyer’s right to practice law contained in settlement agreements.

Advisory Opinion 2019-4 reviews four clauses offered in settlement agreements that impermissibly place restrictions on a plaintiff’s lawyer from bringing additional clients with similar claims against the same defendants in the future.

In the opinion, the board reminds lawyers that the Rules of Professional Conduct prohibit a lawyer from making or offering terms in an agreement that limits a lawyer’s right to practice law. The board found that three of the four clauses it reviewed potentially violate the Rules because they give significantly less discretion to a lawyer to pursue future claims on behalf of clients than a lawyer not subject to the same agreement.

The clauses reviewed by the board require the lawyer to not solicit new clients, to affirm that he or she does not have comparable clients with similar claims, and to keep all information obtained during litigation confidential.

The board opined that a fourth clause prohibiting the public disparagement of a defendant was permissible, as long as it was narrowly drafted and did not prevent a lawyer from bringing a new complaint against the same defendants or advertising prior litigation experience against the same defendant.

The board also advises lawyers that if a client insists on the placement of a prohibited clause in a settlement agreement the lawyer must withdraw from the representation to prevent a violation of the Rules of Professional Conduct.

(Mike Frisch)

Florida Opens Door To Military Spouse Practice

The Florida Supreme Court has adopted new rules to facilitate practice by military spouses

we adopt these proposed amendments to the Rules Regulating the Florida Bar and the Rules of the Supreme Court Relating to Admissions to the Bar. The new rules accommodate the unique mobility requirements of members of the U.S. Armed Services and their families. Service members are frequently required to relocate to duty locations around the globe based on the needs of the particular service to which they belong, with little regard to how the relocation may affect the service member’s family. As a result, the assignment of a service member to a duty location in Florida may place the service member’s spouse in the untenable position of having to choose between giving up the practice of law to relocate with the service member and continuing to practice law in the jurisdiction where he or she is already licensed. New chapter 21 and new rule 2-23.7 establish a process whereby the spouse of a service member who is licensed to practice law in another jurisdiction may obtain authorization to practice law in Florida for up to five years without taking the Florida Bar Examination while the service member is assigned to a duty location in the state.

It is our hope that the adoption of these new rules will assuage some of the hardships associated with service in the U.S. Armed Services. At a minimum, our adoption of these new rules gives form to the abiding gratitude we all share for the men and women who voluntarily serve in the U.S. Armed Services and the sacrifices endured by their families.

(Mike Frisch)

Changin'

From the web page of the Ohio Supreme Court

The Ohio Board of Professional Conduct has issued two new ethics guides to assist the bar and bench with issues commonly faced when changing law firms or leaving the practice of law when becoming a judge.

The Ethics Guide on Switching Law Firms provides guidance on ethical issues that must be addressed when a lawyer switches from one law firm to another. The guide emphasizes the importance of protecting clients’ interests and ensuring clients have the right to choose who represents them. The guide provides practical ethics advice on issues such as confidentiality, notice to clients, and conflicts of interest. The guide includes sample forms for lawyers and law firms to use when a lawyer changes firms.

The Ethics Guide on Transition from the Practice of Law to the Bench addresses the necessary steps an incoming judge must take to wind up his or her legal practice and prepare for the role of judge. The first steps outlined by the guide focus on the duties owed to clients to ensure that their ongoing matters, files, and property are timely and properly transitioned to new counsel. The guide references financial and practical matters related to the receipt of earned fees and settlement proceeds, retirement and partnership benefits, as well as the sale of a law practice. The guide also details whether a new judge should consider recusal in light of appearances by former partners, associates, clients, and defendants.

These new guides mark the third and fourth ethics guides issued by the Board of Professional Conduct. Earlier this year, the Board issued the Ethics Guide on Succession Planning and, in 2016, the Board issued the Ethics Guide on File Retention. Ethics Guides provide nonbinding advice from the staff of the Board based on frequent inquiries from the Ohio bench and bar.

(Mike Frisch)

 

Lipshaw's book on legal reasoning--and beyond--is now published

We are pleased to announce good news about our founding co-editor Jeff Lipshaw: Routledge has just published his book Beyond Legal Reasoning: A Critique of Pure Lawyering. It takes on the cramped view of lawyering and legal argumentation that is traditionally taught in law school, especially in 1L classes. The publisher writes:

This book offers an avenue for getting beyond (or unlearning) merely how to think like a lawyer. It combines legal theory, philosophy of knowledge, and doctrine with an appreciation of real-life judgment calls that multi-disciplinary lawyers are called upon to make. The book will be of great interest to scholars of legal education, legal language and reasoning as well as professors who teach both doctrine and thinking and writing skills in the first year law school curriculum; and for anyone who is interested in seeking a perspective on ‘thinking like a lawyer’ beyond the litigation arena.

Keep an eye on his SSRN author page, as he will soon post the Preface as an excerpt. And from the press's bio page, we learn that his middle name is Marc. Congrats, Jeff! [Alan Childress]

Standing By: The Ethics Of Standby Counsel

The New Hampshire Bar Association has issued a thoughtful analysis of the role of "standby counsel" in a criminal case.

"Standby counsel" is not an advocate or "counsel" in any normal sense. If stand-by counsel acts as an advocate or in any way undermines the pro se defendant's control of that defendant's own case, the defendant's right to self-representation may be violated.

Except when the defendant consents, standby counsel is not in control of the case. Standby counsel must instead serve as a passive source of information, answering questions of law from the defendant when he/she chooses to ask such questions.

Serving as stand-by counsel is not per se unethical. However, stand-by counsel would be wise to seek instruction and guidance from the trial court on a case-by-case basis, to define those responsibilities which stand-by counsel must undertake, and to outline for the defendant the consequences of self-representation.

The analysis

A threshold question is whether service as a stand-by counsel creates an attorney-client relationship between that counsel and the pro se defendant. If, for example, the relationship of stand-by counsel and the pro se defendant is not an attorney-client relationship, then the analysis of the lawyer's ethical duties to that defendant ends there. The Committee believes that although the ethical responsibilities of stand-by counsel substantially depart from those in a typical attorney-client relationship, as noted below, such a relationship arises in spite of these limitations. Recognition of this determination is important because certain fundamental duties and rights such as the preservation of client confidentiality (NHRPC 1.6) and attorney-client privilege, and the duty to avoid conflicts of interest (NHRPC 1.7) remain as part of an attorney's responsibilities to an otherwise self-represented defendant.

From there, the ethical analysis grows murkier.  One ABA Standard for Criminal Justice attempts to provide some guidance on the role of stand-by counsel appointed to assist a pro se defendant. The applicable standard notes that the role of counsel may vary from case to case depending on the role specified by the appointing court. As a result, the standard envisions two types of stand-by counsel: A stand-by counsel appointed to actively assist a defendant and stand-by counsel appointed to assist only upon request from a defendant.

"(a) Defense counsel whose duty is to actively assist a pro se accused should permit the accused to make the final decisions on all matters, including strategic and tactical matters relating to the conduct of the case.

"(b) Defense counsel whose duty is to assist a pro se accused only when the accused requests assistance may bring to the attention of the accused matters beneficial to him or her, but should not actively participate in the conduct of the defense unless requested by the accused or insofar as directed by the court."

ABA Standards for Criminal Justice, Defense Function, Standard 4-3.9.

The underlying theme within the Standard actually provides some useful instruction when one is appointed as stand-by counsel. That is, the Standard envisions that the trial court should be asked to provide guidance on the ethical responsibilities and limitations on the role of stand-by counsel in a specific case. The concept of an attorney providing limited services is not new. The existing Rules of Professional Conduct contemplate that an attorney may provide a client with "unbundled" services - that is, limited and specific services - as long as those services are clearly defined. NHRPC 1.2(f) and (g).

In this vein, stand-by counsel may be wise to file a motion for instruction upon appointment as stand-by counsel. That motion may seek instruction from the trial court about whether, based on the circumstances of the case, counsel must:

• Assist in any investigation of the case.
• Identify or prioritize those issues on which the defendant should focus attention.
• Develop a full understanding of the prosecution's records, documents, reports and other investigations pertaining to the case.
• Attend all pre-trial hearings and conferences in the case.
• Assist in specific areas or aspects of the case (e.g. – discovery), given the facts of the case.
• Undertake research and render advice about specific areas of the law applicable to the case.
• Interview, research or develop knowledge about witnesses, and/or assist the defendant in locating witnesses helpful to the defense, including expert witnesses.
• Generally communicate with the pro se defendant to offer assistance versus responding to requests for assistance, only.
• Bring to the attention of the defendant matters beneficial to the defendant.
• Consistent with NHRPC 3.3(a)(3), reveal that evidence offered by the defendant is false, if stand-by counsel knows such evidence is false, or to affirmatively counsel the defendant if the defendant intends to commit a fraudulent or criminal act. See NHRPC 1.2(d).
• Seek more defined guidance at specific points in a case, such as competency hearings, pre-trial discovery, trial and sentencing.

Given the constitutional principles described above, the instructions issued by the trial court will likely need to be developed through consultation between the court and the defendant, and not simply imposed.

It may also be wise for stand-by counsel to seek orders (consistent with the above), including clear statements that:

• The defendant alone is responsible for the preparation and presentation of that defendant's defense.
• Communications between the pro se defendant and stand-by counsel are privileged, and that information obtained in the limited representation of the defendant is confidential.
• The professional conduct rules applicable to conflicts of interest govern the relationship between stand-by counsel and the defendant.
• The rules governing frivolous claims, requests and defenses (NHRPC 3.1 and 3.4(d)) shall not apply absent advice from stand-by counsel to the defendant to undertake such conduct.
• Stand-by counsel is not an advocate, and will play no advocacy role in hearings, pleadings, or at trial.
• Stand-by counsel shall not assume the role of advocate should the defendant have a change of mind immediately before or during the trial. See State v. Ayer, 150 N.H. 14 at 28-29 (trial at which the defendant proceeds pro se for some portions and through counsel for others constitutes a "structural defect" requiring reversal).
• The defendant does not have the option of withdrawing the request to represent himself/herself and requesting that standby counsel serve as counsel in the traditional sense, unless the court, in its discretion, grants a continuance of the trial.
• During trial, stand-by counsel is appointed to answer the defendant's questions of law and courtroom procedure, but may not interject himself/herself into the case without the consent of the defendant.

In conclusion, despite the limitations which face stand-by counsel, serving as stand-by counsel is not per se unethical. However, stand-by counsel would be wise to seek instruction and guidance from the trial court on a case-by-case basis, to define those responsibilities which stand-by counsel must undertake, and to outline for the defendant the consequences of self-representation.

(Mike Frisch)

Not A Client

It's a new school year and Professional Responsibility professors everywhere are teaching students the elements that establish an attorney-client relationship.

As the Preface to the ABA Model Rules notes

for purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists.

Thus, a decision issued yesterday by the Maine Supreme Judicial Court affirming the dismissal of a legal malpractice action is a timely one.

The purported representation related to a medical practice dispute where the attorney (Duddy) clearly represented one side in negotiations with its chief executive officer Savell.

The [lower] court found that Savell failed to adduce evidence that he had “sought legal advice or assistance” from Duddy, thereby failing to satisfy the first prong of the Mangan test. Mangan, 2001 ME 7, ¶ 9, 763 A.2d 1189; see also Oceanic Inn, Inc. v. Sloan’s Cove, LLC, 2016 ME 34, ¶ 26, 133 A.3d 1021 (“The nonmoving plaintiff . . . must make out a prima facie case for its claim.”). Savell argues on appeal, as he did in the trial court, that the series of email exchanges between himself and Duddy amounted to prima facie evidence of an attorney-client relationship.

Savell contends that the first prong of the Mangan test is satisfied because “[i]n every email [he] reiterated to Duddy his request for payment” and therefore he “repeatedly asked Duddy for assistance.” The summary judgment record shows that Savell indeed made various requests and demands of Duddy. For instance, in his October 9 email to Duddy, Savell made the demand, “I want my [$]187[,]402 paid directly to me”; Savell’s October 11 email states, “I would like to have my share of the net proceeds received and placed in escrow after [SMP’s] closing. . . . Thank you for your anticipated cooperation”; and Savell’s October 14 email tells Duddy that he is “requesting that EMMC’s legal [counsel] be made aware” that he wanted the money placed in escrow.

Contrary to Savell’s contention, however, the uncontroverted email exchanges show that Savell did not seek legal advice or assistance from Duddy. As opposed to asking questions of or voicing concerns to Duddy in an effort to seek legal advice or assistance, Savell simply sought to use Duddy as a vehicle, in his capacity as an attorney for SMP and SPC, to relay his conviction that certain escrowed funds were due him. Requests or demands that an attorney obtain his client’s acknowledgement of a claim for monies owed by the client to the claimant do not by themselves constitute the seeking of legal assistance within the purview of Mangan, and do not give rise to an attorney-client relationship.

The court also declined to impose liability on other grounds

Savell argues, in the alternative, that even if he was not Duddy’s client, Duddy owed him a duty as a nonclient based on the multifactor third-party beneficiary test that we adopted in Canders, 2014 ME 133, ¶ 16, 105 A.3d 439. The multifactor balancing test involves analysis of the following six favors: “(1) the extent to which the transaction was intended to benefit the plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury; (5) the policy of preventing future harm; and (6) the extent to which the profession would be unduly burdened by a finding of liability.” Trask v. Butler, 872 P.2d 1080, 1084 (Wash. 1994); see also Canders, 2014 ME 133, ¶ 16, 105 A.3d 439 (adopting the multifactor third-party beneficiary test created by the Trask court).

Because Savell notes in his statement of material facts that Duddy represented SPC and SMP, and because Duddy’s representation of Savell individually would have given rise to a conflict of interest with Duddy’s other clients, Duddy could not have owed Savell a duty of care as a nonclient.

(Mike Frisch)

Disruptive Client Did Not Forfeit Right To Counsel

The Massachusetts Supreme Judicial Court has held that a difficult client (to put it mildly) did not by his behavior forfeit his right to counsel in a probation revocation proceeding.

The principal issue in this appeal is whether a Superior Court judge properly ordered the forfeiture of the defendant's right to counsel in a probation revocation hearing. The judge, faced with a defendant who admittedly engaged in a pattern of quarrelsome, confrontational, hostile, and threatening conduct toward a succession of nine different court appointed attorneys over the course of the trial and post trial proceedings, ordered forfeiture on those grounds. Subsequent to the forfeiture order, the defendant appeared pro se at the probation revocation hearing. A different judge found the defendant in violation of probation and sentenced him to State prison for a term of not less than seven years and not more than eight years, from and after the sentence he was then serving. The defendant appealed, claiming error in the forfeiture order and the probation revocation hearing...

Although we appreciate the imperative to force an end to the defendant's interference with the timely and fair disposition of the probation revocation matter, we are constrained to conclude that the forfeiture order must be reversed, as it does not comply with the strict guidelines we adopted in Means, supra. Therefore, we vacate the forfeiture order based on our conclusion that (1) the forfeiture hearing did not meet the procedural due process requirements of Means; and (2) the defendant's conduct, although egregious in many respects, did not warrant forfeiture under the guidelines established in Means.

The Means factors

The guidelines require consideration of four factors: (1) whether the defendant has had the services of more than one attorney; (2) the type of proceeding in which forfeiture is ordered; (3) the type of conduct offered as the basis for forfeiture; and (4) the availability of a less restrictive measure or whether forfeiture is a last resort.

The outcome

It would be an understatement to say that over the course of the seven years between the defendant's arraignment and the forfeiture order, the defendant's turbulent relationship with his withdrawing attorneys demonstrated an extraordinary inability or unwillingness to cooperate with counsel. Therefore, we have no quarrel with the judge's frustration with what could have been a tactical ploy by the defendant to delay the resolution of the matter likely to result in the revocation of his probation and the imposition of a State prison sentence. And we recognize that cases in which defendants consistently find frivolous reasons to withhold their cooperation from appointed counsel can and must be dealt with appropriately...

We conclude, however, that the forfeiture order in this case was erroneous for two reasons. First, the defendant's conduct, consisting mainly of threats to report counsel to the board over a seven-year period, was not sufficiently "egregious" to warrant forfeiture. Second, even if the defendant's conduct met the threshold for forfeiture, the judge failed to consider whether forfeiture was in the interests of justice, the second prong of the two-part test for forfeiture.

(Mike Frisch)

State Of The Profession

Georgetown Law's Center for the Study of the Legal Profession has an announcement of a significant report

Law firm leaders need to make bold, proactive changes in how legal services are delivered if firms are to thrive in the rapidly changing legal marketplace. That is among the findings of the “2016 Report on the State of the Legal Market” just issued by the Center for the Study of the Legal Profession at Georgetown University Law Center and Thomson Reuters Peer Monitor.

Two thousand fifteen saw a sixth consecutive year of largely flat demand, weakening pricing power and falling productivity. The report notes that since 2008, the law firm market “has changed in significant and fundamental ways.” Clients have assumed active control of the organization, staffing, scheduling and pricing of legal matters, where previously they had largely left those decisions in the hands of law firms. In addition, competitors such as alternative legal services providers, accounting firms and consultants, continue to grow market share.

The report suggests that law firms need to shift their focus from growth to market differentiation and profitability. But resistance to change can make it difficult for firms to adopt new strategies such as redesigning work processes, adopting new staffing models or setting new pricing strategies. In addition, many firms are locked into a “billable hour mentality” that inhibits creative alternate approaches to the delivery of legal services. 

The report is jointly issued on an annual basis by the Center for the Study of the Legal Profession at Georgetown University Law Center and Thomson Reuters Peer Monitor and reviews the performance of U.S. law firms and considers the changed market realities that drive the need for firms to take a longer-range and more strategic view of their market positions going forward.

“Fundamental shifts such as we have seen in the market for law firm services since 2008 require firms to take a hard look at the long-term viability of operating and pricing models that have worked well in the past but may be at risk in the newly developing market environment,” said James W. Jones, a senior fellow at the Center for the Study of the Legal Profession and one of the report's authors. “Firms that are able to redesign their models to better respond to the changing demands and expectations of their clients will have a substantial long-term competitive advantage.”

“A ‘buyer’s market’ for legal services is bringing increasing demands from clients, more nimble and leaner competitors and greater pressures for efficiency,” said Mike Abbott, vice president, Client Management & Global Thought Leadership, Thomson Reuters. “The good news is that some firms are already making strategic changes and performing strongly. The imperative is for firms to identify the best strategy for adapting to the rapidly evolving marketplace, given their unique strengths, talent, geographies and other assets.”

The “2016 Report on the State of the Legal Market” can be downloaded here.

(Mike Frisch)

Nevada Supremes Instruct On Dealing With Allegations Of Attorney Misconduct In Civil Litigation

The Nevada Supreme Court has provided guidance to lower courts with respect to the proper trial and appellate court approach to attorney misconduct

After the jury rendered a verdict in favor of the [defendant] manufacturer, the plaintiff filed a post-trial motion seeking a new trial based upon alleged misconduct committed by the manufacturer's attorney. The district court denied the motion, but failed to make the detailed findings required by the Nevada Supreme Court.

The Nevada Supreme Court recently issued two opinions clarifying how claims of attorney misconduct must be handled both by the district court and subsequently on appeal. In this opinion, we take the opportunity to summarize those recent developments and to provide guidance to district courts tasked with resolving claims of misconduct. Because the district court in this case failed to make detailed findings regarding the alleged misconduct that might have enabled us to determine whether those cases would have affected its decision, we must remand the case to the district court to reconsider its decision in light of those cases and to make the necessary findings. To assist the district court, we identify some factors that must be considered on remand.

Holding

When a party claims misconduct by opposing counsel, the legal standard under which that misconduct is reviewed depends on whether a timely trial objection was made. See Lioce, 124 Nev. at 17-19, 174 P.3d at 980-82. When a timely objection was not made at trial, any review of that misconduct, either post-trial by the trial court or on appeal, is considerably more circumscribed than if an objection was made. When resolving a motion for a new trial based on unobjected-to attorney misconduct, "the district court shall first conclude that the failure to object is critical and the district court must treat the attorney misconduct issue as having been waived, unless plain error exists." Id. at 19, 174 P.3d at 982. To decide whether there is plain error, the district court must then determine "whether the complaining party met its burden of demonstrating that its case is a rare circumstance in which the attorney misconduct amounted to irreparable and fundamental error." Id. And "[lin the context of unobjected-to attorney misconduct, irreparable and fundamental error is error that results in a substantial impairment of justice or denial of fundamental rights such that, but for the misconduct, the verdict would have been different." Id. Thus, in this case, because no objection was lodged at trial, a new trial would only be warranted if Pentair committed misconduct and the misconduct amounted to "plain error."

Trial courts must

On remand, the district court must clarify, at a minimum, whether it found that no misconduct occurred or rather whether it concluded that misconduct did occur but was harmless under the standards of Lioce in view of: (1) the nature of the claims and defenses asserted by the parties; (2) the relative strength of the evidence presented by the parties; (3) the facts and evidence that were either disputed or not substantively disputed during the trial; (4) the type, severity, and scope of any attorney misconduct; (5) whether any misconduct was isolated and incidental on the one hand or repeated and persistent on the other; (6) the context in which any misconduct occurred; (7) the relationship of any misconduct to the parties' evidence and arguments; and (8) any other relevant considerations...when serious and repeated attorney misconduct has demonstrably occurred, the district court's deference to the jury is more limited than if such misconduct had not occurred, and the trial court must carefully consider whether the misconduct led the jury astray and caused it to base its verdict upon something other than the evidence and the applicable law.

The case involves a products liability action against a manufacturer of swimming pool filters. An explosion had cost the plaintiff an eye. (Mike Frisch)

Medical Bill Write-Offs Not Compensable

A decision from the Louisiana Supreme Court

We are presented with a question of first impression as to whether a writeoff from a medical provider, negotiated by the plaintiff‟s attorney, may be considered a collateral source from which the tortfeasor receives no set-off. Applying Louisiana law and the principles set forth in our Civil Code, we find that such a write-off does not fall within the scope of the collateral source rule. For the reasons set forth below, we affirm the lower courts‟ rulings.

The analysis

We decline to extend the collateral source rule to attorney-negotiated medical discounts obtained through the litigation process. We hold that such a discount is not a payment or benefit that falls within the ambit of the collateral source rule. First, allowing the plaintiff to recover an amount for which he has not paid, and for which he has no obligation to pay, is at cross purposes with the basic principles of tort recovery in our Civil Code. The wrongdoer is responsible only for the damages he or she has caused. La. Civ. Code art. 2315. The plaintiff has suffered no diminution of his patrimony to obtain the write-off, and, therefore, the defendant in this case cannot be held responsible for any medical bills or services the plaintiff did not actually incur and which the plaintiff need not repay. Because the evidence before the trial court was that Mr. Hoffman paid $950.00 for the MRIs, he is not entitled to recover any additional amount. Any recovery above $950.00 for the MRIs would amount to a windfall and force the defendant to compensate the plaintiff for medical expenses the plaintiff has neither incurred nor is obligated to pay.

(Mike Frisch)

Conviction Reversed Due to Prosecutor- Juror Ties

The Kentucky Supreme Court has reversed the wanton murder conviction of two defendants because the trial court allowed two jurors with ties to the prosecuting attorney to sit.

Appellants maintain that the trial court abused its discretion in this case by refusing to excuse potential jurors 27 and 75. Both of these jurors acknowledged during voir dire a significant relationship with Lee Tobbe, an attorney of long standing in Wayne County, it appears, and the assistant prosecutor for this case. Both jurors had been represented by attorney Tobbe in the past, and both had a more immediate connection with him. Juror 27, who owned and managed residential rental properties in Monticello, stated that attorney Tobbe was then representing his, Juror 27's, son. We discuss Juror 27 below, but begin with Juror 75 for obvious reasons.

The obvious reason was that the juror could not state that he could be impartial 

The prosecutor...asked whether Juror 75's relationship with attorney Tobbe would make it difficult for the juror to vote to acquit the defendants even if he felt the Commonwealth had failed to prove its case, and Juror 75 responded, "I really can't answer that. I'm trying to be honest with you." These exchanges occurred before the entire venire. At that point the prosecutor declared himself at a loss as to what else to ask Juror 75, said that he was sure defense counsel would have some questions for the juror and then moved on to other topics. Inexplicably, Appellants declined to question Juror 75 further regarding attorney Tobbe, so there the matter stood until the very end of voir dire.

Defense counsel did seek a peremptory challenge at the end of voir dire.

The other juror

 Unlike prospective Juror 75, prospective Juror 27 indicated that neither attorney Tobbe's prior representation of him, nor Tobbe's then current representation of Juror 27's son would have any bearing on the juror's ability to weigh the evidence. The cases cited above, however, make clear that the prosecutor's on-going representation of potential Juror 27's son gives that juror a close and presumptively disqualifying relationship with the prosecutor, a relationship so apt to produce bias that even confident assurances to the contrary by the juror cannot erase significant doubts about his impartiality.

Juror 27 also had ties to the case. (Mike Frisch)

"Neither Accurate Nor Helpful"

The Maine Supreme Judicial Court denied reconsideration of the dismissal of an appeal in a probate matter due to the attorney's deficient briefs.

A pro se appellee had objected to the initial brief because "it contained myriad substantial errors."

The attorney admitted the errors but replied in part

However inartfully presented, counsel submits that the issues presented in this appeal are very important substantive issues for the future of the probate law and that the Arguments presented are persuasive.

Justice demands form should not be elevated over substance.

The court permitted the attorney two weeks to file a new brief.

Once again the pro se appellee "then filed a motion requesting that we reject the amended brief, which still contained numerous errors, including erroneous record citations."

The attorney 's response in part

Counsel is, however, a one man office without benefit of any secretary or any clerk, or law student, who like many sole practitioners scratches out a living during not the best economic times. Every expense is out of pocket.

The court

As he admits, Attorney Robinson’s amended brief still contains errors he was ordered to resolve in the July 30, 2015, order. Instead of accepting the opportunity to correct the errors that even he acknowledged, he used the time to chart a different path of analysis for the appeal. He again provided the Court and the appellee with a document replete with so many errors that no reader is able to evaluate the assertions on appeal.

"Limited resources" do not excuse

Although we are sympathetic, we cannot overlook two facts: first, he failed to comply with our order of July 30, 2015, and second, the document he filed in response to that order requires any reader—be it members of this Court or the appellee—to refer to an eight-page errata sheet in order to even attempt to assess the accuracy, persuasiveness, or merits of his arguments. Moreover, this errata sheet was not even filed until after [appelle] Gero filed a second motion to strike pointing out the errors in his replacement brief...

Robinson’s references to sole practitioners in the Maine Bar as individuals who cannot be expected to comply with the Rules of Procedure does Maine lawyers a serious disservice. Every day, Maine lawyers, in sole practices, small practices, and other firms, work diligently and successfully to comply with the Rules.

Substance counts, but so does form

Robinson’s assertion that the dismissal places form over substance is simply wrong. A failure to comply with the Maine Rules of Appellate Procedure in fact compromises both the appellee’s ability to defend against the appeal and our ability to decide it.

Time to dismiss the appeal

Ultimately, despite being afforded the opportunity to correct his initial brief, and despite a full two-week timeframe to do so, Robinson failed to comply with a direct order from this Court, and the result of his work is a document that is neither accurate nor helpful.

The attorney who initially represented the client (replaced by the attorney taken to task here) was reported to be the subject of a bar complaint in the matter by the Portland Press-Herald. The complainant is the appellee.

He was reinstated after his disbarment for a federal drug conviction.

The conviction also led to his disbarment in the District of Columbia. I handled that case. (Mike Frisch) 

Attorney Who Failed To Report Abuse Disqualified

An opinion from the Oklahoma Supreme Court

The issue before this Court is whether the district court erred in sustaining the legal parent's motion to disqualify opposing counsel. The question we consider is whether the integrity of the judicial process is likely to suffer real harm when an attorney who represents a client in a proceeding to establish paternity and to determine custody of a minor child fails to report suspected child abuse to the proper authorities as required by statute, conducts a forensic interview of the child to obtain evidence to support the client's position, does not obtain the legal parent's permission prior to the interview, and files his own affidavit attesting to the credibility of the child's affidavit. We find that the district court did not err in sustaining the motion to disqualify opposing counsel when the attorney likely compromised the legal parent's right to a fair proceeding by contaminating the fact-finding procedure and by establishing a relationship of undue influence with the child...

Attorney inserted himself into the paternity proceeding as a forensic interviewer, interviewed a minor child without parental consent, and submitted a signed affidavit attesting to Child's credibility. Attorney and Child were the only persons present during the interview. Thus, Mother's only option to rebut the evidence presented in Child's affidavit, to ascertain what type of relationship Attorney may have established with Child during the interview, and to determine if Attorney distorted Child's recollections by suggestive or leading questions would be to call Attorney as a witness to Child's credibility. Were Attorney to testify at trial, the integrity of the judicial process would be harmed in all the ways Rule 3.7 is designed to protect against: (1) Attorney's interest in winning the case for Client would call into question his objectivity as a witness, (2) Attorney's dual role as advocate-witness could confuse the factfinder, and (3) public confidence would be shaken were Attorney allowed to interview Child without parental consent.

Holding

A lawyer is not prohibited from interviewing a child witness, and nothing in this opinion should be construed to prevent an attorney from interviewing a child witness. However, if an interview scenario results in circumstances similar to those here, then he or she is no longer able to continue as an attorney in that particular case. A lawyer in a proceeding to establish paternity and to determine custody of a minor child who ignores his statutory duty to report suspected child abuse, inserts himself into the role of forensic interviewer, interviews the minor child without the legal parent's consent, likely taints the fact-finding process with improper interviewing techniques, likely establishes a relationship of undue influence with the child witness, and submits affidavits attesting to a fact witness's credibility should be disqualified from all aspects of the proceeding. Mother proved by a preponderance of the evidence that Attorney's continued representation will likely cause real harm to the integrity of the judicial process. We affirm the district court's order sustaining the motion to disqualify counsel and remand for further proceedings. Attorney is disqualified not only from acting as an advocate at trial, but also from acting as an advocate in all aspects of the underlying proceeding.

There is a concurring/dissenting opinion that would disqualify counsel but not impose the "blanket restrictions" of the majority opinion.

While I concur that under the particular circumstances, the attorney in this case should be disqualified; I do not believe lawyers should be per se prohibited from interviewing a child witness in custody disputes. Of paramount importance in any legal decision affecting the welfare of a child is consideration of his or her best interests. The majority opinion renders this basic principle subservient to the mother's custodial rights and the majority's perceived transgression of ethical boundaries governing attorney conduct...

the abuse suffered by the minor child in this case was shocking. So much so, the trial court issued an emergency order placing custody of the child with father--a direct result of the efforts undertaken by counsel and father. There were allegations the step-father drank excessively, hit the minor child, and imposed inappropriate discipline such as forced calisthenics. Additionally, it was suggested mother inflicted undue physical punishment on her son. However, the real issue presented in the trial court was the sexual abuse endured by this child. Although mother and step-father were not the perpetrators, mother had knowledge of the child's illicit encounters. She discovered the molestation and notified father. However, she apparently did not fully disclose the severity of the situation and urged him not to confront the child. On January 11, 2014, the child voluntarily disclosed the ongoing sexual activity to his father.

The father's efforts to get help through public agencies failed

After receiving no assistance from DHS and weighing the urgency of the situation, father sought to protect his son by contacting his attorney. While the attorney's interview in this case may have exceeded what was necessary, there is no ethical proscription which forbids attorney interviews of children.  Moreover, at the time the child was not represented by counsel and a guardian ad litem had not been appointed. Inherent in a lawyer's responsibilities is the obligation to thoroughly evaluate the facts of each case. This includes seeking information through witness interviews. It should be noted that [attorney] Thomas served as a Tulsa County Sherriff's Deputy for ten years prior to entering law school. During his service, Mr. Thomas interviewed numerous victims of criminal acts, including child and domestic abuse.

 (Mike Frisch)

No Ghosts In Rhode Island

The Rhode Island Supreme Court has decided that ghostwritten pleadings are improper but nonetheless vacated sanctions against three attorneys who had engaged in the practice

We have carefully considered the various comments of amici and, pursuant to our general supervisory authority, we declare the policy in our courts to be as follows: An attorney may provide legal assistance to litigants appearing pro se before courts, provided the scope of the attorney’s representation is reasonable and the litigant gives informed consent. See Rule 1.2(c). Such consent shall be in writing and shall set forth the nature and extent of the attorney-client relationship. An attorney, however, shall not assist a pro se litigant with the preparation of pleadings, motions, or other written submissions unless the attorney signs the document and discloses thereon his or her identity and the nature and extent of the assistance that he or she is providing to the tribunal and to all parties to the litigation. The attorney shall also indicate on the written document, if applicable, that his or her signature does not constitute an entry of appearance.

Unless and until we are persuaded otherwise, we believe that full disclosure of the attorney’s involvement, albeit limited, is the better practice.

The court's web page summary

This set of appeals emanated from the activities of three attorneys who authored pleadings, but did not disclose their respective identities, on behalf of pro se defendants in three separate debt collection cases, a practice colloquially known as ghostwriting.  These appeals presented the Supreme Court with two issues of first impression: (1) whether Rule 11 of the Superior Court Rules of Civil Procedure applies to an attorney who neither signed a pleading nor entered his or her appearance in the case; and (2) whether the anonymous preparation of pleadings for self-represented litigants is a permissible practice pursuant to the Supreme Court Rules of Professional Conduct.
 
The hearing justices imposed sanctions on each attorney for drafting, but not signing, answers and objections to dispositive motions on behalf of the three pro se defendants.  All three attorneys argued that Rule 11 did not apply to their respective situations because none had either signed the pleadings or entered an appearance.  The Supreme Court held that the conduct of the three attorneys did not violate Rule 11 and, accordingly, vacated the sanctions imposed by the three Superior Court orders.
  
The attorneys also argued that ghostwriting was a permissible form of limited-scope representation pursuant to Article V, Rule 1.2(c) of the Supreme Court Rules of Professional Conduct.  The Supreme Court declared the policy in our courts to be as follows: An attorney may provide legal assistance to litigants appearing pro se before courts, provided the scope of the attorney’s representation is reasonable and the litigant gave informed consent.  Such consent shall be in writing and shall set forth the nature and extent of the attorney-client relationship.  An attorney, however, shall not assist a pro se litigant with the preparation of pleadings, motions, or other written submissions unless the attorney signs the document and discloses thereon his or her identity and the nature and extent of the assistance that he or she is providing to the tribunal and to all parties to the litigation.  The attorney shall also indicate on the written document, if applicable, that his or her signature does not constitute an entry of appearance.
  
Through an order, the Supreme Court invited comment from members of the bench, bar, and public on the subject of limited scope representation in general and the practice of ghostwriting in particular.

In my view, the benefits that ghostwriting pleadings provide in terms of access to justice outweighs the harms. (Mike Frisch)

Litigation Privilege Protects Disparaging Opening Statement

The Maryland Court of Special Appeals has held that the litigation privilege requires dismissal of an action brought by a party ("OBG") who had settled a claim with a mutual non-disparagement clause.

After the settlement, the other party went to trial against another defendant. 

This claim was based on OBG's contention that the plaintiff's attorney violated the provision in opening statement by accusations against the defendant who had settled.

Well over 100 years ago the Court of Appeals recognized in Maryland common law an absolute litigation privilege that immunizes litigation participants from liability in tort for words spoken or written in the course of a judicial proceeding. It crafted an absolute litigation privilege for Maryland that is a hybrid of the English and American versions of that privilege. Lawyers are protected by the American version, which immunizes them from liability in tort for words spoken or written in the course of a judicial proceeding so long as the words are relevant to the proceeding... (citations omitted)

Lawyers are duty bound by the Maryland Lawyer’s Rules of Professional Conduct to zealously advocate for their clients, which includes introducing evidence that supports their clients’ positions and presenting argument in furtherance of their clients’ claims or defenses. See Preamble to MRPC (“as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”). The specter of civil liability for words spoken or written in the course of a judicial proceeding will inhibit lawyers from abiding by their professional obligation to advocate zealously, imperiling the rights of their clients. See T. Leigh Anenson, “Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers,” 31 Pepp. L. Rev. 915, 922 (2004); see also Greenberg Traurig, LLP v. Frias Holding Co., 331 P. 3d 901, 903 (Nev. 2014) (explaining that “[t]he policy behind the [litigation] privilege, as it applies to attorneys participating in judicial proceedings, is to grant them as officers of the court the utmost freedom in their efforts to obtain justice for their clients.”) (internal quotation marks and citations omitted) (alteration in Greenberg).

Thus, the contentions at the trial were immunized from the assertion that they violated the non-disparagement clause.

The court also affirmed the trial court's denial of a motion to disqualify counsel as a necessary witness.

Judge Nazarian dissented

The ultimate question...is whether the City agreed, as part of settling its differences with OBG, not to disparage OBG in the Plant Upgrade Case. The outcome of that question depends in the first instance on what the parties intended the non-disparagement clause to cover. The circuit court erred in dismissing the case in the face of that looming factual dispute, and I would reverse and remand on that basis. From there, I would hold that the City could well have agreed to limit its litigation positions in the ongoing litigation, whether viewed as a positional or tactical decision or as a waiver of the litigation privilege, and direct the circuit court on remand to address OBG’s claims against that backdrop. And for those reasons, I respectfully dissent.

(Mike Frisch)

First Wife's Club Overturned

Hat tip to my favorite Florida ethics blog sunEthics for finding this opinion of the Florida Fourth District Court of Appeal.

In this case involving divorce and related proceedings, the husband's attorney also is his second wife.

His first wife moved to disqualify her.

The court here found the trial court's order of disqualification to be overbroad

We conclude that the order of disqualification departs from the essential requirements of law because it is not limited to Ferrer’s participation during the contempt hearing. As is well established by numerous Florida courts, the fact that Ferrer was a potentially necessary witness at the contempt hearing would not prevent her from serving as the former husband’s attorney in other pre-trial, trial, and post-trial proceedings.

But harsh words and a sanction for the first wife's counsel

Under normal circumstances, we would conclude this opinion by simply granting the petition and quashing the trial court’s order of disqualification and therein recognize that the order of disqualification was impermissibly overbroad. However, the actions of counsel for the former wife, Kenneth Kaplan, have transformed this "simple" matter into an unnecessary and protracted controversy by the failure of Kaplan to acknowledge clear and unambiguous controlling law directly adverse to his client’s position. As such, we are compelled to take the extraordinary but not unprecedented step of awarding appellate attorney’s fees as a sanction.

Nor did the court spare the second wife in a footnote

...we are deeply troubled by attorney Ferrer’s reply, since stricken, to the response to the petition. Ferrer does not aid her husband (and client’s) case by lobbing acrimonious grenades in the form of unprofessional comments directed at opposing counsel and the trial court. We are stunned at Ferrer’s disrespectful, offensive, and inflammatory argument directed at the trial judge...

Ferrer’s filings in this court, and indeed below, are verbose and unnecessarily digress in excruciating detail into irrelevant matters. An attorney who is too personally involved with the issues in a litigation should consider withdrawing or risk violating ethical duties owed to the client.

 The court found that the reply bordered on contempt. (Mike Frisch)

Practice Pointer: If Your Case Settles, Tell The Court

The New Jersey Appellate Division sharply criticized counsel who had failed to timely advise the court that the case had settled.

We were on the eve of filing a comprehensive opinion on the many issues raised in this appeal when, on April 9, 2014, respondent's counsel advised the matter had settled. Upon further inquiry, we learned the parties reached a settlement months ago. Despite our discretion to file an opinion when notified at such a late hour, we have decided not to file our opinion on the merits and now write to dismiss the appeal with the emphatic reminder that counsel must advise this court in a far more timely manner of a settlement or serious settlement discussions so that scarce judicial resources are not needlessly wasted.

But no sanctions

Because of the enormous amount of time needlessly expended in this matter, we have seriously considered the imposition of sanctions against both counsel pursuant to Rule 2:9-9, but instead have determined that the publication of this decision is sufficient deterrent to repetition. It is within our discretion to issue an opinion when notified of a settlement shortly before an opinion is scheduled to be released, and we have done so many times. We nonetheless dismiss this appeal.

(Mike Frisch)

Dismissal Of Tax Malpractice Claim Reversed

An order dismissing a legal malpractice claim based on allegedly erroneous tax advice was reversed by the New York Appellate Division for the Second Judicial Department.

The facts of the alleged malpractice

The plaintiff commenced this action to recover damages allegedly sustained as a result of the defendants' legal malpractice. As alleged in the complaint, the plaintiff retained the defendants to represent it in connection with the sale of certain real property and a related exchange of "like-kind property" pursuant to the Internal Revenue Code (see 26 USC § 1031). According to the allegations in the complaint, the plaintiff, based upon the defendants' advice, selected LandAmerica 1031 Exchange Services, Inc. (hereinafter LandAmerica), as the qualified intermediary to hold a portion of the sale proceeds, totaling $5.5 million, for the exchange of like-kind property pursuant to 26 USC § 1031. The complaint alleged, inter alia, that the defendants negligently represented the plaintiff inasmuch as they reviewed, and advised the plaintiff to execute, an agreement with LandAmerica, under which the exchange funds were to be held in a commingled account and not a qualified escrow account or trust. Soon after the sale proceeds were transferred to LandAmerica, its parent corporation, LandAmerica Financial Group, Inc., declared bankruptcy. According to the complaint, the plaintiff's funds were frozen for several years during the bankruptcy proceedings, and the plaintiff lost a portion of the funds because they were not held in a qualified escrow account or trust. The complaint further alleged that the plaintiff could not defer the taxes on the capital gains from the initial sale, as it did not have access to its funds to purchase a replacement property within the required 180-day period.

The defendant law firm failed to demonstrate that dismissal was appropriate

Here, construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as we are required to do, the plaintiff stated a cause of action to recover damages for legal malpractice (citations omitted) The plaintiff alleged in the complaint that the defendants were negligent in failing, inter alia, to advise it to keep its exchange funds in a qualified escrow account or trust, and that this negligence was a proximate cause of its damages. The defendants' contentions that it was the conduct of the plaintiff's manager and unforeseeable events that were the proximate causes of the plaintiff's damages, and that the defendants did not depart from the standard of care, concern disputed factual issues that are not properly raised and resolved on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7).

(Mike Frisch)