Term
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Definition
| Respondent clients were successful in their action for legal malpractice against appellants, attorney and law firm, as a jury found that appellant attorney was negligent, and as a result, respondents suffered damages. Appellants sought review of the trial court's denial of their motions for judgment notwithstanding the verdict, or alternatively, for a new trial. The court affirmed the trial court's denial of appellants' motions, holding that there was sufficient evidence in the record that established that an attorney-client relationship existed, that appellant attorney acted negligently or in breach of contract, that such acts were the proximate cause of respondents' damages, and that but for appellant attorney's conduct respondents would have been successful in the prosecution of their medical malpractice claim. The court also held that appellants were not entitled to a new trial under Minn. R. Civ. P. 59.01(5), because the trial court acted within its discretionary authority in ruling that respondents' damage award was not excessive. Appellants were not entitled to a reduction of that award for a hypothetical contingency fee.[Liability to Clients] |
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Definition
| Appellant attorney successfully represented appellee clients, a husband and wife, in a claim for Social Security Disability Insurance benefits. During the representation he had a sexual relation with the wife. Appellees brought action for malpractice and breach of fiduciary duty. The trial court granted summary judgment on liability for appellees, and the lower appellate court affirmed. Appellant sought review. The court reversed the judgment on the malpractice claim and affirmed on the fiduciary duty claim. The court held that, because appellees won the Social Security claim, appellant was not liable for legal malpractice. However, having misused confidential information in the course of seduction, appellant was liable for breaching his fiduciary duty, and the court remanded for determination of damages.[Breach of Fiduciary Duty] |
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Definition
| A legal malpractice action arose out of respondent law firm's representation of appellant clients in a real estate development scheme that resulted in the foreclosure of the lots involved. The trial court excluded the client's expert's testimony based on the law firm's contention that his testimony concerning the S.C. Rules of Prof'l Conduct R. 407 was inadmissible, and that the expert was not qualified to give an expert opinion as he was neither a real estate lawyer nor licensed to practice law in South Carolina. The court reversed the judgment and remanded the case for a new trial. A plaintiff in a legal malpractice action generally had to establish the standard of care by expert testimony. Where a bar rule was intended to protect a person in the clients' position or addressed the particular harm, such rules were relevant and admissible in assessing the legal duty of the attorney. Further, that the expert was not licensed to practice law in the state or that he was not a real estate lawyer did not prohibit his testimony concerning the ethical obligations relevant to the case.[Proving Malpractice] |
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Definition
| The court agreed with the district court's ruling that the record contained insufficient evidence for a reasonable jury to find that lawyers willfully disregarded clients' rights. Clients' allegations suggested lawyers acted imprudently or incompetently, but they fell far short of showing blatant wrongdoing necessary to show deliberate malice or conscious disregard of clients' rights; thus, the punitive damages request was properly denied. In seeking disgorgement of legal fees for a breach of lawyers' fiduciary duty of loyalty, clients needed only to prove that lawyers breached that duty, not that the breach injured them. Here, clients presented sufficient evidence for a jury to conclude that lawyers breached their duty of loyalty because they represented property owners who had conflicting interests. Thus, the judgment for lawyers on fiduciary duty claim was set aside. Finally, because clients had a valid breach of fiduciary duty claim, the court set aside the district court's ruling that precluded them from using that breach as a defense to lawyers' counterclaim for unpaid fees.[Ethical violations as basis for reduction/denial of fees] |
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| Applicant served as a co-chief justice of his law school's moot court program and shared access to and control over the program's checking account. Over a five-month period, applicant converted some of the funds to his personal use. Applicant passed the Bar examination and was recommended for admission by the Committee on Admission, despite his misconduct. The court denied the application for admission to the bar of District of Columbia. The court held that applicant failed to establish the good moral character required for admission and stated that a short time had elapsed since he abused his position of trust. The court also stated that it appeared likely applicant would be able to establish the requisite good moral character at some future time.[Character Inquiries] |
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| Professional Adjusters v. Tandon |
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Definition
| The court held that the trial court properly found that Ind. Code � 27-1-24-1 et seq., which created a type of adjuster known as a Certified Public Adjuster, was unconstitutional in that it violated the Ind. Const. art. VII, � 4, which placed the exclusive control of regulation and supervision of the practice of law in the Supreme Court of Indiana, and art. III, � 1, which provided for the separation of powers of the legislative, executive, and judicial branches, and prohibited any of these branches from exercising any of the functions of another branch except as expressly provided in the Constitution. The contract further violated the Code of Professional Responsibility as adopted and promulgated by the Indiana Supreme Court. Because adjuster's claim was based upon an illegal contract between adjuster and insureds, the contract was unenforceable, and adjuster had failed to state a cause of action.[Unauthorized Practice of Law] |
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| In re Opinion No. 26 of the Comm. |
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Definition
| The New Jersey Supreme Court Committee on the Unauthorized Practice of Law issued a response to one of many inquiries into whether the practice of real estate brokers and title company officers committing the unauthorized practice of law when they controlled and guided all aspects of a residential real estate sale when neither buyer nor seller were represented by counsel. The court found that such a practice was not the unauthorized practice of law and that the line between permissible business and professional activities and the unauthorized practice of law was often blurred and that the purpose of the court's power was to serve the public's right to protection against unlearned and unskilled advice in matters relating to the law and such practices were not a disservice to the public. However, the court found that such practices and there propensity to be a conflict of interest for the brokers and title company required an affirmative notice to the buyer and seller of the potential for a conflict of interest.[Unauthorized Practice of Law] |
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Term
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Definition
| Truck driver involved in fatal school bus accident brought action against attorneys who obtained statement from him, driver's employer, and employer's liability insurer for breach of fiduciary duty, negligent and intentional infliction of emotional distress, violation of Deceptive Trade Practices-Consumer Protection Act (DTPA) and conspiracy to violate Insurance Code. The 93rd District Court, Hidalgo County, Fernando Mancias, J., granted summary judgment in favor of defendants. Truck driver appealed. The Court of Appeals, Dorsey, J., held that: (1) disclosure of statement to district attorney may have been breach of attorneys' breach of fiduciary duty; (2) truck driver may have been consumer under DTPA; and (3) summary judgment was erroneously entered on Insurance Code civil conspiracy claim. Reversed and remanded. [Confidentiality] |
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Term
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Definition
| Responding to a claim that its foreign subsidiary made illegal payments to secure a government business, petitioner corporation initiated an investigation and sent out a questionnaire to all of its foreign general and area managers to determine the nature and magnitude of such payments. After petitioner disclosed such payments to the Securities and Exchange Commission, the Internal Revenue Service demanded a production of all the files relating to the investigation. Petitioner refused to produce the documents. The court rejected the "control group" test applied by the lower appellate court, concluding that even low-level and mid-level employees could have the information necessary to defend against the potential litigation, and that Fed. R. Evid. 501 protected any client information that aided the orderly administration of justice. The court rejected the lower appellate court's conclusion that the work-product doctrine did not apply to tax summonses, but remanded the issue because the work-product at issue was based on potentially privileged oral statements. The doctrine could only be overcome upon a strong showing of necessity for disclosure, and unavailability by other means.[Entity Clients] |
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Term
| Samaritan Found. v. Goldfarb |
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Definition
| Petitioner hospital and medical foundation were defendants in a medical negligence action and the lower court affirmed an order that rendered communications between petitioners' employees and petitioners' counsel as discoverable attorney work-product and not within the absolute protection of petitioners' attorney-client privilege. Petitioners sought review of the lower court's decision and the court affirmed the denial of petitioners' relief. The court found that application of a functional approach focusing on the communication rather than the communicator resulted in a finding that the communications were not privileged. The court held that the communications were not privileged because petitioners' employees were not seeking legal advice in confidence, their actions did not subject petitioners to potential liability, their statements concerned the events going on around them and not their conduct, and the statements were not made in response to the legal consequences of their conduct within the scope of their employment. The court found that as the employees were merely witnesses to the event, their statements were not protected under an attorney-client privilege. [Entity Clients] |
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Term
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Definition
| The client sold the attorney real estate in exchange for the attorney executing a promissory note. The conditions under which repayment was to be made were not favorable to the client. The client filed a complaint with the state bar. The committee ruled that the attorney violated Ariz. Code of Prof'l Responsibility DR 5-104 that regulated a lawyer's business relationships with his client. The attorney appealed to the disciplinary board, which accepted the committee's decision, except that it reduced the suspension from 90 to 60 days. On appeal, the court held that the attorney's most serious violation was dealing adversely with his client without full disclosure and without obtaining a knowing consent. The court reasoned that the client was aware that the attorney did not purport to act for him in the transaction at issue; however, under Ariz. Code of Prof'l Responsibility DR 5-104(A), the attorney should have fully disclosed the risks and disadvantages to the client that flowed from the transaction. The court noted that there was no evidence of fraudulent intent. The court believed that the suspension was too harsh a sanction and instead censured the attorney. [Client-Lawyer Conflicts] |
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Term
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Definition
| The hospital argued that it would be prejudiced if the former partner divulged to the patient's attorney the knowledge she acquired during her prior representation of the hospital. The court held that the hospital did not allege sufficient facts to support an inference that the former partner was privy to information that might damage the hospital if revealed or that she would improperly disclose any potentially damaging knowledge. The former partner's representation of the hospital in a separate suit involving the medical procedure at issue in the patient's case was insufficient to create a factual predicate that justified disqualification of the patient's attorney under Model Code of Prof'l Responsibility DR 5-108. The former partner faced serious professional consequences if she acted on the financial incentive her family had in the patient's case. There was no fatal danger that the former partner would inadvertently reveal the hospital's confidences in her marital relationship because neither spouse maintained a home office, the spouses could not access each other's files, and they had spent their shared personal lives together without endangering professional confidences. [Related Lawyers, Significant Others, Friends] |
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Term
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Definition
| Defendant and his co-defendants were indicted for first-degree murder. Two lawyers represented all three defendants throughout the trial. Defendant did not object to the multiple representation. Defendant was convicted while his co-defendants were acquitted. The lower appellate court found that both lawyers had represented defendant, and that reversal was required because there was a possibility of a conflict of interest in that representation. The court vacated, holding that state courts were not required to inquire into the sufficiency of multiple representation where no parties objected and no special circumstances were present. Where defendant raised no objection at the trial to the sufficiency of the multiple representation, he was required to show that an actual conflict of interest adversely affected his lawyer's performance. A possible conflict of interest was not enough to establish an ineffective assistance of counsel.[Client-Client Conflicts] |
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Term
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Definition
| Petitioner, seeking habeas relief, contended that his counsel was ineffective because of his alleged conflict of interest and because of his failure to offer mitigating evidence. The Court agreed with the lower court that the overlap of counsel, if any, did not so infect counsel's representation as to constitute an active representation of competing interests. The court of appeals complied with the directives of Strickland, and the Court agreed with its determination that petitioner had not established the identified acts or omissions of his counsel that were outside the wide range of professionally competent assistance. The court applied the Strickland standard and agreed with the courts below that counsel's decision not to mount an all-out investigation into petitioner's background in search of mitigating circumstances was supported by reasonable professional judgment. The court also agreed that petitioner had made no showing that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel's assistance. [Client-Client Conflicts] |
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Term
| Holloway v. Arkansas (Holloway Error) |
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Definition
| Defendants were charged with robbery and rape. One attorney was appointed to represent all three of the defendants in a single trial. Timely motions for appointment of separate counsel based on counsel's representations that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests. The trial court rejected the motions and a jury found defendants guilty of the charges. The state supreme court affirmed, holding that their representation by a single attorney, over their objection, had not violated their right to effective assistance of counsel. On appeal, the Court held that the trial judge's failure to appoint separate counsel or to ascertain whether the risk was too remote to warrant separate counsel, in the face of the representations made by counsel before trial and again before the jury was empaneled, deprived defendants of the guarantee of assistance of counsel because the trial court had a duty to ensure that defendants' rights were protected. Moreover, the error was reversible because whenever a trial court improperly required joint representation over timely objection, reversal was automatic. [Client-Client Conflicts] |
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Term
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Definition
| Petitioner appealed his convictions for conspiracy to possess more than 1,000 pounds of marijuana with intent to distribute and possession of marijuana with intent to distribute, contending the trial court erred in denying his motion for substitution of counsel and his offer to waive his right to conflict-free counsel. The trial court denied petitioner's motion, finding that an irreconcilable conflict of interest existed because it appeared that a co-defendant represented by the same attorney chosen by petitioner might be a witness in petitioner's trial, and petitioner might be called as a witness in the co-defendant's trial. The court of appeals affirmed the convictions and petitioner appealed. The court affirmed the convictions and the denial of petitioner's motion to substitute counsel, concluding that the denial was within the trial court's discretion and did not violate petitioner's rights under the Sixth Amendment. The court found that because the trial court found an actual conflict of interest there was no doubt that it had the right to decline petitioner's proffer of waiver of his right to conflict-free representation.[Disqualification of Defense Counsel] |
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| The court considered on consolidated appeal the denial of plaintiff class residing at state facility's motion to intervene in action between plaintiff inmates and defendant prison officials. The action challenged defendants' failure to establish a facility with programs and facilities equivalent to those provided to male inmates. Defendant's sought review of the denial of their motion to disqualify plaintiff inmates' counsel. The court reversed the denial of defendants' motion to disqualify plaintiff inmates' counsel as they also represented interests of plaintiff class in an ongoing litigation. The court found the district court abused its discretion, as there was an unresolvable conflict between the interests of two clients, which were directly adverse. The court found there was no true necessity to allow counsel to remain and it was contrary to Code of Professional Responsibility. The court reversed the denial of plaintiff class's motion to intervene under Fed. R. Civ. P. 24 as a right upon timely application as they had an interest related to the subject of proceedings, and the disposition of that action could have impaired or impeded their ability to protect interest.[Civil Cases: Client-Client Conflict] |
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Term
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Definition
| On appeal, defendant attorneys contended that the district court erred in awarding plaintiff client damages for their alleged malpractice. The court disagreed and affirmed the district court's order. First, under Fed. R. Civ. P. 8, which governed the pleading requirements in this diversity case, plaintiff pled sufficient facts to put the defense on notice that the discovery rule applied to toll the two year statute of limitations for legal malpractice actions. Second, the evidence was sufficient to uphold the jury's finding that the discovery rule applied because plaintiff had little business experience, defendants reassured her of their loyalty, and plaintiff relief on defendants. Third, the evidence was sufficient for the jury to conclude that an attorney-client relationship existed, as manifested through the parties' conduct. Further, the jury's conclusion that defendants were negligent in representing both plaintiff, as seller, and the buyers in the same transaction, and then subsequently restructuring the buyers' note was not unreasonable. And finally, plaintiff proved that she was damaged by defendants' failure to adequately protect her interests.[Malpractice Based on Conflicts: Client-Client Conflicts] |
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Term
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Definition
| The original law firm and the trial law firm were disqualified by the district court from representing a corporation in an anti-trust suit because the original law firm had represented another corporation in a substantially related matter. The trial law firm, which was brought into the case by the original law firm, was disqualified because of the co-counsel relationship. Both sought review of the disqualification order. The original law firm also sought review of an order directing it to pay the other corporation's attorney fees, and the other corporation contended that it should have received more fees. The trial law firm's appeal was dismissed for lack of jurisdiction where it lacked standing. The order disqualifying the original law firm and assessing fees was affirmed where the original law firm had represented the other corporation in a substantially related matter giving it access to potentially relevant confidential data, where the law firm unreasonably contested disqualification, and where the fee award was reasonable.[Succesive Conflicts of Interest in Private Practice] |
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Term
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Definition
| The reviewing court's analysis under the three-prong substantial relationship test, which led to the conclusion that disqualification was not required, likewise led to the conclusion that the attorney had not breached the Code of Professional Ethics in his representation of plaintiff. The attorney had successfully rebutted the presumption of shared confidences by proving that appropriate screening procedures were timely employed and fully implemented. The complaint alleged that defendants had retaliated against plaintiff because she had complained about the sexual misconduct of another employee, a complaint that she asserted was protected speech. Plaintiff could not, under Fed. R. Civ. P. 12(m), ignore defendants' assertions that her protected speech was not a substantial factor in the decision not to reappoint her, and that, even if such speech had been a factor, defendant's decision would have been the same. Because plaintiff did not present evidence, direct or circumstantial, to refute the stated, legitimate reasons for not reappointing her, reversal of the summary judgment was not warranted. [Imputed disqualification: Coflicts of Interest] |
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Term
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Definition
| The Securities and Exchange Commission (SEC) obtained a default judgment against defendants. Plaintiffs were acting to recover money and property misappropriated by defendants, after plaintiffs had been appointed a receivership following the default judgment. Seven months after plaintiffs obtained a firm to act as counsel in some of its litigation, a former SEC attorney went to work for the firm. The court affirmed the lower court's denial of defendants' motion to disqualify the firm, and found that plaintiffs' counsel had taken steps to isolate the former SEC attorney from the case, that he could not provide the firm with any inside information as they already had the SEC files, and that automatically disqualifying the firm would not only have serious consequences for the litigation at hand but potentially could affect the willingness of attorneys to work for the government. Although the court reached the merits of this case, it went on to overrule its holding in an earlier case and ruled that orders denying motions to disqualify counsel would no longer be immediately appealable.[Govenrment Service: Conflict of Interest] |
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Term
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Definition
| Law firm represented old corporation on environmental and other matters. Sole shareholder of old corporation sold its assets to new corporation, which continued its business. When a dispute arose concerning environmental misrepresentations by shareholder and out of the acquisition, new corporation sought disqualification. The court held that, applying a three-part test, law firm should be disqualified from representing shareholder. The court held that authority to assert the attorney-client privilege passed to new corporation regarding communications between former corporation and law firm on environmental compliance matters. The court held that law firm should be enjoined from disclosing the environmental-related communications to shareholder, and directed the law firm to give related files to new corporation. New corporation, however, did not control the attorney-client privilege with regard to communications concerning the acquisition. Nor was new corporation entitled to the law firm's confidential communications concerning its representation of old corporation with regard to the acquisition. |
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Term
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Definition
| Defendant corporate client recovered a substantial judgment but the verdict in its favor was reversed on appeal while a judgment against it on a counterclaim was not disturbed. That judgment threatened defendant with bankruptcy so it sought the best available lawyer to prosecute an appeal to the United States Supreme Court. Defendant and plaintiff law firm entered into an agreement under which plaintiff's fee was contingent on certain factors. After plaintiff filed a petition for certiorari, defendant settled its counterclaim liability in a wash settlement in which neither side recovered anything and all claims were released. When defendant refused to pay its bill, plaintiff filed suit. The district court granted summary judgment to plaintiff. Defendant appealed, claiming that the contract was ambiguous, rendering summary judgment improper, and that the fee involved, $ 1 million, was unconscionable. The court affirmed because the fee was not unconscionable where the leverage furnished by the petition for certiorari allowed settlement of defendant's counterclaim liability. Since the contract was unambiguous, its interpretation was a question of law appropriate for summary judgment.[Role of the Marketplace: Ethics of Legal Fees] |
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Term
| Fordham, Matter of Laurence S. |
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Definition
| The bar counsel filed a petition for discipline against the attorney alleging that the attorney charged excessive fees for a drunken driving case. The Board of Bar Overseers (board) dismissed the petition after hearings on the matter. A lower court justice denied the attorney's motion to dismiss bar counsel's appeal to the lower court, and the court affirmed the decision. The court found that the attorney charged a clearly excessive fee pursuant to Mass. Sup. Jud. Ct. R. 3:07, DR 2-106(B), departing substantially from the obligation of professional responsibility owed to his client, and ordered that a judgment be entered in the lower court imposing a public censure. The court found that (1) it had jurisdiction to hear the appeal, (2) expert testimony indicated that the number of hours devoted to the case was substantially in excess of the hours a prudent experienced lawyer would have spent, (3) the attorney's inexperience did not justify the high fee, as the client should not have paid for the education of the attorney, and (4) the disciplinary rule regarding excessive fees did not inquire into the nature of the attorney's good faith or diligence. [Unethical Fees] |
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Term
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Definition
| Petitioner, Grievance Committee for the Tenth Judicial District, initiated a disciplinary proceeding charging respondent attorney with charging nonrefundable retainer fee agreements. Petitioner sought authorization to initiate formal disciplinary proceedings, arguing that the retainer agreements were unethical because, they violated the obligation to refund any part of a fee paid in advance that had not been earned under, N.Y. Jud. App., Code Prof. Resp. DR 2-110 [A] [3], created an impermissible chilling effect upon the client's right upon public policy grounds to discharge the attorney at any time with or without cause, in violation of DR 2-110 (B) (4), the fees charged were excessive in violation of DR 2-106 (A), and that nonrefundability constituted misrepresentation under DR 1-102 [A] [4]. After a hearing, the referee made findings supporting violations. The appellate division confirmed, and suspended him for two years. On appeal, the court affirmed the finding that nonrefundable retainer fee agreements clashed with public policy, essentially because they compromised the client's absolute right to terminate the fiduciary attorney-client relationship. [Non-refundable fees/liquidated damages: Unethical Fees] |
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Term
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Definition
| The client, a large corporation, engaged the law firm on a fixed-fee basis during a four-year term. The firm equipped an office and provided legal counsel in an out-of-state location. The parties' retainer agreements contained liquidated damages clauses stating that the firm had incurred substantial expenses in reliance on the contract and providing that the client would pay a specified amount if it terminated the contract before the term ended. The court determined that under these facts, the contract was not per se unenforceable under either Oklahoma's jurisprudence or the Oklahoma Rules of Professional Conduct. Okla. R. Prof. Conduct 1.5, 1.16(a)(3), Okla. Stat. tit. 5, ch. 1, app. 3-A (Supp. 2008), which prohibited unreasonable fees and preserved a client's right to discharge an attorney, did not prohibit recovery of contractual fees where an attorney had changed positions or incurred expenses. The court further determined that general contractual provisions were applicable to determine whether the liquidated damages provision was a penalty prohibited by Okla. Stat. tit. 15, � 213 (2001) or a valid liquidated damages provision under Okla. Stat. tit. 15, � 215(A) (2001). [Lawyer's Inventory: Unethical Fees] |
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Term
| Bates v. State Bar of Arizona |
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Definition
| Appellant attorneys were licensed to practice law in the State of Arizona. In direct violation of a disciplinary rule prohibiting attorney advertising that had been promulgated by appellee, the State Bar of Arizona, appellants placed an advertisement in an Arizona newspaper, which stated that they were offering legal services at reasonable fees and which listed their fees for certain services. Appellants sought review of the rule after it was recommended that appellants be temporarily suspended from the practice of law. The state supreme court rejected appellants' arguments that the disciplinary rule violated 15 U.S.C.S. �� 1 and 2 of the Sherman Act and that the rule infringed their U.S. Const. amend. I rights. The United States Supreme Court affirmed the lower court's finding that the regulation was shielded from Sherman Act attack because the rule was an activity of the state acting as sovereign. However, that part of the judgment dealing with U.S. Const. amend. I was reversed upon the Court's holding that advertising by attorneys could not be subjected to blanket suppression and because the truthful advertisement at issue was found to be protected by U.S. Const. amend. I. [Marketing Legal Services] |
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Term
| Ohralik v. Ohio State Bar |
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Definition
| Petitioner attorney approached two accident victims, urged his services upon them, induced their affirmative responses to his solicitation while carrying a concealed tape recorder, and emphasized that his fee would come out of their recovery. The state supreme court held that petitioner's conduct was not constitutionally protected, sanctioned him to a public reprimand, and indefinitely suspended him. The Court affirmed, holding that the state's application of disciplinary rules to petitioner's conduct did not offend the U.S. Const. amend. I. The Court found that the facts presented a striking example of the potential for overreaching that was inherent in lawyers' in-person solicitation of professional employment. The facts also demonstrated the need for prophylactic regulation in furtherance of states' interests in protecting the lay public.[Marketing Legal Services] |
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| Zauderer v. Office of Disciplinary Counsel |
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Definition
| In a disciplinary proceeding, the Supreme Court of Ohio held that violations of certain disciplinary rules of Ohio warranted public reprimand, 10 Ohio St.3d 44, 461 N.E.2d 883. On appeal, the Supreme Court, Justice White, held that: (1) discipline for advertising geared to persons with specific legal problem could not be justified; (2) substantial interest justifying ban on in-person solicitation could not justify discipline for content of newspaper advertisement; (3) attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding legal rights of potential clients; (4) illustration in the advertisement which was accurate representation of intrauterine device and had no feature likely to deceive, mislead or confuse reader, could not provide basis for discipline; but (5) application of requirement that an attorney advertising his availability on contingent-fee basis disclose that clients will have to pay costs even if their lawsuits are unsuccessful was proper where advertisement made no mention or distinction between “legal fees” and “costs.” Affirmed in part and reversed in part. [Marketing Legal Services] *Compare w/ Shapero* |
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Term
| Shapero v. Kentucky Bar Assn. |
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Definition
| Petitioner applied to the Kentucky Attorneys Advertising Commission for approval of a letter that he proposed to send to potential clients who had a foreclosure suit filed against them. The Commission did not find the letter false or misleading. Nevertheless, it declined to approve petitioner's proposal on the ground that a then-existing Kentucky Supreme Court rule prohibited the mailing or delivery of written advertisements precipitated by a specific event or occurrence involving or relating to the addressee as distinct from the general public. Pursuing the Commission's suggestion, petitioner sought from the ethics committee of respondent Kentucky Bar Association an advisory opinion as to the rule's validity. The ethics committee upheld the rule. The Kentucky Supreme Court replaced the rule with ABA Model Code of Prof'l Responsibility 7.3, which prohibited targeted, direct-mail solicitation by lawyers for pecuniary gain, without a particularized finding that the solicitation is false or misleading. The court reversed, finding that the Bar Association failed to show that the rule advanced a substantial interest. [Marketing Legal Services] *Compare with Zauderer* |
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| Florida Bar v. Went for it |
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Definition
| Petitioner, a state Bar, proposed an amendment to its rules governing attorney advertisement that sought to impose a 30-day restriction on targeted direct-mail solicitation of accident victims and their relatives. Respondents, an attorney referral service and an attorney, sued petitioner, alleging the proposed rules were violative of the First and Fourteenth Amendments, U.S. Const. amends. I and XIV. Both parties moved for summary judgment and a magistrate recommended petitioner's motion be granted. The district court rejected this recommendation and entered summary judgment in favor of respondents, which the circuit court affirmed. On appeal, the Court reversed because it determined petitioner's rules withstood the three-pronged scrutiny test for restrictions on commercial speech protected under the First Amendment, as petitioners had a substantial interest in protecting citizens from invasive conduct and the remedy for such invasiveness was narrow in scope and duration. [Marketing Legal Services] *Response to Shapero* |
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Term
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Definition
| Petitioner, an attorney affiliated with the American Civil Liberties Union (ACLU), sent a letter to a woman who had been sterilized as a condition of continued receipt of medical assistance. Petitioner informed the woman of the ACLU's offer of free legal representation, in the event that she ever wished to institute suit against the doctor who performed the sterilization procedure. The state supreme court affirmed an order finding that petitioner violated its disciplinary rules by attempting to solicit a client for a non-profit organization which, as its primary purpose, rendered legal services. The court reversed, holding that the lower court's application of its state disciplinary rules violated the First and Fourteenth Amendments. The court found that petitioner's actions were undertaken to express personal political beliefs and to advance the civil liberties objectives of the ACLU, rather than to derive financial gain. The state's action in punishing petitioner for soliciting a prospective litigant by mail, on behalf of the ACLU, did not withstand the exacting scrutiny applicable to limitations on core First Amendment rights. [Solicitation by Pub Int & Class Act lawyers] |
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Term
| Gentile v. State Bar of Nevada |
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Definition
| Petitioner, an attorney, held a press conference six months before client's criminal trial; petitioner asserted client's innocence and that police corruption defense would be used. After client's acquittal - in a trial at which neither side sought a change of venue or venire - state bar brought disciplinary charges against petitioner, alleging a violation of Nev. Sup. Crt. R. 177's prohibition on pretrial extrajudicial statements by attorneys. Petitioner was disciplined, and appealed, arguing violation of his U.S. Const. amend. I rights. Supreme Court reversed disciplinary action, holding - in a pair of splintered opinions - that although states are permitted to restrict attorney speech which has a substantial likelihood of prejudicing pending legal proceedings, Rule 177 was void for vagueness inasmuch as it tended to mislead attorneys into believing that a general discussion of the criminal defense, without elaboration, will not subject them to discipline.[Public Comment about pending cases: Freee Speech] |
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Term
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Definition
| The charge of misconduct was based on the public release by petitioner, then District Attorney of Kings County, of a letter charging a judge with judicial misconduct in relation to an incident that allegedly occurred in the course of a trial on criminal charges of sexual misconduct. The court affirmed, agreeing with both the Grievance Committee and the Appellate Division that petitioner's conduct violated DR 1-102(A)(6). Petitioner made false accusations against a judge. This charge was sustained by the Committee and upheld by the Appellate Division, and the factual finding of falsity which was supported by the record was therefore binding. Petitioner, as District Attorney, made public accusations of misconduct without first determining the merits of the accusations in violation of DR 1-102(A)(7), which provided that a lawyer should not engage in any other conduct that adversely reflected on the lawyer's fitness to practice law. Petitioner's course of wrongful conduct satisfied any standard other than constitutional malice, which applied to defamation and was not the appropriate standard. [Public Comment about Judges/Courts: Free speech] |
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Term
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Definition
| Plaintiff client, who was injured in an industrial accident, brought legal malpractice action against defendant attorney who originally accepted his workers' compensation case and defendant attorney who was hired to assist, claiming that defendants failed to properly advise him of the possibility of third party claims. The trial court entered summary judgment in favor of defendants, and plaintiff appealed. The court held that defendants owed plaintiff a duty of care to advise him on available remedies, including third party actions. The court concluded that there were factual issues as to the viability of a third party action based on the peculiar risk doctrine which precluded summary judgment. The court reversed the trial court's orders granting summary judgment to defendants. [The Duty to Inform/Advise:Defining Att-Cl Relationship] |
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Term
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Definition
| In granting the prisoner's petition for a writ of habeas corpus, the court of appeals determined that the decision of defense counsel to not argue a nonfrivolous issue on appeal resulted both in ineffective assistance of counsel and denied the prisoner's right of equal access to the appellate process. In challenging the judgment, the government argued that precedent did not mandate defense counsel to raise each and every nonfrivolous claim during an appeal, and indeed that often such a rule would impair the effectiveness of an appeal by placing too many claims before the appellate tribunal and watering down the strongest among them. The Court found that there was no requirement that each nonfrivolous claim be raised on appeal. The decision regarding what issues to present was left in the discretion of counsel, who was required to represent his client to the best of his ability. The Court found that appellate counsel met this standard in his representation of defendant. [Autonomy if Att's and Cl's: Defining Att-Cl relationship] |
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Term
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Definition
| The client argued that expert testimony was not required to establish the attorney's standard of care and that the record contained sufficient credible evidence to warrant sending the case to the jury. The court held that expert testimony was not required to show that the attorney, as agent for the client, violated his duty to her. The duty of care he owed the client was established not by the legal profession's standards but by the law of agency. The client sought recovery based on the attorney's failure to effectuate her intent even though the documents he prepared were not legally invalid. Proof of negligence in failing to follow specific instructions concerning the nature and purpose of the documents desired did not require expert testimony to establish the applicable standard of care and the departure from that standard. The client's evidence presented questions for the jury as to the existence and apportionment of causal negligence. The jurors could view the attorney's actions as misinforming or insufficiently informing the client and she was not barred from recovery merely because she concluded that the attorney had properly performed the services for which he was employed. [Autonomy of Att's and Cl's: Defining Att-Cl relationship] |
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| Appellant attorneys challenged sanctions imposed for discovery misconduct by them and their client, a male defendant in an action by a female plaintiff alleging he spread the herpes virus to her. In the midst of a deposition, one of the appellants made a derogatory remark about the plaintiff when she left the room to retrieve a document, and the remark led to various gender-biased insults directed at appellee, plaintiff's attorney. Appellee moved for protective orders based on the incident as well the defendant's alleged attempts to intimidate plaintiff's expert witness. The plaintiff was ultimately found contributorily negligent, and a judgment was entered for defendant. Appellants contended the sanctions were invalidly imposed after final judgment, their conduct did not warrant a protective order, and that a procedural irregularity invalidated the award. Because of the procedural irregularity, the appellate court remanded without affirming or reversing the award, holding the award would have been properly imposed based solely on appellants' insults. On remand, the lower court was ordered to consider whether the sanction was justified based only on the deposition conduct. [Ethics in Advocacy] |
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| Stating that a disciplinary rule did not have the force of law, the court wrote that in interpreting it, it was entitled to make its own decision in the interests of justice. Writing that the issue was which corporate employees should be deemed to be parties under the rule, which prohibited communications with represented parties, the court stated that the blanket rule against any contact with corporate employees adopted by the lower court was too broad, while the "control group" test, defining "party" to include only the most senior management exercising substantial control over the corporation, was too narrow. It concluded that the test that best balanced the competing interests was one that defined "party" to include corporate employees whose acts or omissions in the matter under inquiry were binding on the corporation or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel. Such a test, it stated, was consistent with the purpose of the rule, was rooted in developed concepts of the law of evidence and the law of agency, and was similar to that adopted by courts and bar associations throughout the country. [Comm w/ another's client: Protecting Att-Cl Relationship] |
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| Defendant was charged with murder of an acquaintance in a botched drug deal. Defendant initially told his attorney that he stabbed the victim in self defense because he saw a gun in the victim's hand. Defendant later admitted that he did not see a gun, but would testify that he did to bolster his defense. Counsel advised defendant that he could not suborn perjury, and would advise the court of defendant's plan and seek to withdraw, if he insisted on presenting perjured testimony. Defendant followed counsel's advice and testified at trial that he did not see a gun. Defendant was convicted of second-degree murder. Defendant's conviction was affirmed by the appeals court. Petitioner appealed the issuance of writ of habeas corpus to the court. The court reversed because the right to assistance of counsel was not violated when the attorney refused to assist in presenting perjured testimony. [Truth & Confidences: Ethics in Advocacy] |
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| After committing an armed robbery, the client of respondent attorney put stolen money and a shotgun into a bank safety deposit box. Realizing that the evidence might be discovered and used at his client's trial, respondent took possession of the money and the gun and put them into his own safety deposit box. The items were found by FBI agents after they had obtained a search warrant. Respondent was charged with violating the Canons of Professional Ethics of the Virginia State Bar. The court held that respondent's action was not protected by the attorney-client privilege. Additionally, respondent violated the Canons of Professional Ethics because the Canons required attorneys to observe the law, and did not permit attorneys to violate the law for the benefit of their clients. Because of mitigating circumstances, respondent was suspended from practice for eighteen months rather than disbarred. [Real/Electronic Evidence: Special Issues in Lit.] |
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| Appellants were convicted of first-degree murder and first-degree robbery. One appellant's convictions depended on the theory that he conspired with the other appellant to bring about the killing and robbery. The prosecution rested this theory on the location where the victim's wallet was found. A defense investigator made the discovery of the wallet's location after appellant had divulged it to his counsel. The principal issue on appeal was whether observation of the wallet's location, which was the product of a privileged communication, finds protection under the attorney-client privilege, specified in Cal. Evid. Code � 954. The court, in light of policy considerations, held that whenever defense counsel removes or alters evidence, the privilege does not bar revelation of the original location or condition of the evidence in question. The court modified appellant's sentencing. [Real/Electronic Evidence: Special Issues in Lit.] |
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| Plaintiff was expected to be a good witness in his personal injury action. Plaintiff's attorney was unaware of his death at the time that a mediation panel recommended a settlement. Several days later plaintiff's attorney was informed of the death, and did not inform the court or opposing counsel. Later, the parties settled for the recommended amount, the court placed the settlement on the record, but plaintiff's counsel did not inform anyone of his client's death when the settlement was confirmed and made part of the record. The court ordered that the settlement be set aside, holding that plaintiff's attorney had an affirmative duty of candor and frankness to the court and to opposing counsel when such a major event as the death of plaintiff had taken place. Even though plaintiff's attorney was never asked whether his client was still living, he owed a duty of candor and frankness to the court which transcended his private employment. [Negotiation and Transactional Matters] |
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| Respondent attorney was retained as counsel for buyer. Although buyer and seller had negotiated only for the sale of an apartment building, respondent drafted documents to sell seller's apartment building and residence. It was unclear whether respondent knowingly participated in his client's activities or merely followed buyer's instructions without question. The documents overwhelmingly favored buyer. Respondent was charged with ethical violations. The referee recommended no discipline on a conclusion that respondent attorney owed no attorney-client obligation to seller. Complainant Florida Bar sought review. Based on the facts, the court could not accept the referee's recommendation concerning guilt and punishment. The court held that respondent was under an ethical obligation to explain to seller that respondent was representing an adverse interest. The court further held that when the transaction was as one-sided as that in the present case, respondent was under an ethical duty to make sure that seller understood the possible detrimental effect of the transaction. The court held that respondent be suspended from the practice of law for a period of 30 days. [Negotiations & Transactional Matters] |
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| After the Disciplinary Review Board recommended that respondent be publicly reprimanded for invading trust account funds, after concluding that he had engaged in unethical conduct, but that knowing misappropriation had not been established by clear and convincing evidence, petitioner ethics committed requested an order to show cause why respondent should not be disbarred or otherwise disciplined. The court declined to adopt the recommendation of a public reprimanded and ordered that he be disbarred, holding that respondent's conduct clearly constituted knowing misappropriation of client trust account funds and that the existence of mitigating factors were to be given little weight. Respondent's subjective intent to borrow rather than to steal the funds was irrelevant to the determination of the appropriate discipline. Also, being a member of the bar in good standing, the fact that he discontinued the misconduct in the three years since the audit occurred, his candor in admitting his wrongful conduct, and the fact that the misappropriation was the product of severe personal and financial hardship, could not reduce the application of the strictest discipline for misappropriation. [Discipline: Quality Control] |
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| An attorney assisted a client in closing a real estate transaction, even though he knew the client's escrow account had insufficient funds. The board determined that the attorney violated DR 1-102(A)(4) and 7-102(A)(7) because he assisted the client in conduct that he knew was fraudulent. The court adopted the board's conclusions and ordered that the attorney be publicly censured. By agreeing to act as an escrow agent in the sham transaction, the attorney actively assisted the client in completing a fraud. The attorney was under an affirmative duty to withdraw from his representation once he knew that the escrow was funded with a worthless check. As co-escrow agent, the attorney owed a fiduciary duty to the client's purchasers to protect their investment. Considering the gravity of the misconduct, the recommended sanction of public censure was appropriate. [Discipline: Quality Control] |
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| Respondents brought a class action lawsuit on behalf of handicapped children in the care of petitioners, state officials. Petitioners offered a settlement that equaled or exceeded what respondents reasonably expected to obtain through trial, but conditioned the settlement on a waiver of attorney's fees. While the district court approved the settlement, the court of appeals granted an emergency stay that invalidated the fee waiver and left standing the remainder of the settlement. On review, the court addressed whether the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.S. � 1988, required the district court to disapprove the settlement because it was expressly conditioned on waiver of statutory eligibility for attorney fees. The court concluded that Congress did not command that all such settlements must be rejected, but left the decision to the discretion of the district courts to appraise the reasonableness of particular class-action settlements on a case-by-case basis. On the facts of record in this case, the court was satisfied that the district court did not abuse its discretion by approving the fee waiver, and as a result, the decision below was reversed. [Court Awarded Fees: Ethics of Legal Fees] |
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