Rules of Professional Conduct

News & Analysis as of

Service on outside boards has its risks

Attorneys are often eager to serve on boards of directors of outside organizations and with good reason. After all, membership on a board can increase the attorney's visibility, create connections that lead to new business...more

Did You Search Your Jurors’ Social Media? There Are Rules

If you represented a large corporation or a wealthy individual, wouldn’t you want to know if your prospective jurors were campaigning for Bernie Sanders on Facebook? Or how about criminal prosecutors who might want to know if...more

New Model Rules Make It Unethical to Discriminate

As I have for over a decade now, I attended the American Bar Association’s Annual Meeting last week serving on the ABA’s House of Delegates – the organization’s main governing body. My exact position is actually State...more

The Lawyers' Lawyer Newsletter - Recent Developments in Risk Management - August 2016

Joint Clients — Confidentiality — Right to See Clients' File - New York State Bar Association Committee on Professional Ethics Opinion 1070 (10/9/15) - Risk Management Issue: In a joint client representation, if one...more

Your "Limited Appearance" in the Business Court May Not Be As Limited As You Think

The attorney for the Plaintiff in Foster Biodevice, LLC v. Cantrell. 2016 NCBC 51 said that he was only making a limited appearance, but the Business Court (through new Business Court Judge Robinson, in his first Opinion for...more

Soaking up the Ediscovery Sun: Ing3nious NorCal 2016

This past week, I had the opportunity to attend the Ing3nious NorCal Retreat on Ediscovery and Information Governance in the beautiful Pacific coast town of Half Moon Bay, California. This event signified the fifth...more

New York Appellate Division Strongly Supports In-House Law Firm Privilege Claim

In Stock v. Schnader Harrison Segal & Lewis, 2016 WL 3556655 (N.Y. App. Div. 2016), the First Judicial Department of the New York Appellate Division upheld, in a case involving a former law firm client seeking to sue the...more

The Lawyers' Lawyer Newsletter - Recent Developments in Risk Management - June 2016

Disqualification — Substantially Related Matters — Waiver of Conflict by Lack of Diligence in Seeking Disqualification - State of Minnesota, et al v. 3M Company, Hennepin County (Minn.), Court File No. 27-CV-10-28862...more

Be Careful How, And With Whom, You Associate

Attorney associations are valuable means to reduce overhead and expenses, and provide support for sole practitioners. However, casually creating an association can give rise to issues, including increased exposure to...more

Cybersecurity: You can't afford to ignore it anymore

In late March, newspapers confirmed that a Russian hacker named "Oleras" targeted 48 law firms (most of which are Am Law 100 firms). Oleras planned to hack these firms to secure confidential and highly valuable insider...more

Debt Collection Litigation in the Cross Hairs: CFPB's Consent Order Against New Jersey Law Firm Creates More Problems Than...

Lightning can strike twice. With the ink barely dry on the Consent Order against the Hanna Law Firm (Hanna) in Georgia, the Consumer Financial Protection Bureau (CFPB or Bureau) yesterday took action against another debt...more

Appellate Court Notes

Supreme Court Advance Release Opinions: SC19436 - Miller v. Appellate Court - When the appellant’s attorney kept missing deadlines and failed to comply with other Appellate Court rules in four pending appeals, one...more

A few words of caution for partners and associates

Most attorneys are aware that they have duties to act ethically in the practice of law. Sometimes, however, it is difficult to determine where that obligation extends beyond the attorney's own conduct. For partners, some...more

Ethics Opinion Prevents Double Dipping in a Contingency Fee Arrangement

Attorneys cannot double dip on contingency fees to settle third party liens or claims. In Ethics Opinion RO-2015-01, the Disciplinary Commission of the Alabama State Bar addressed whether or not a lawyer representing a...more

Designated Lender’s Counsel

Doug Cornelius at Compliance Building writes today about borrowers paying the legal fees of lender’s counsel...more

Fighting Over Fixed Fees

You have probably seen the Avvo commercials by now: the quick little scenes linked to humorous search terms typed onto the middle of the screen. The little public intoxication dog is adorable and has helped grab a lot of...more

Court of Appeal Says Same Counsel Can’t Represent Corporation And Individual Defendants in Derivative Suit

Derivative suits put the corporation in the odd position of simultaneously occupying the position of a defendant and plaintiff. When the suit is initiated, the corporation is named as a nominal defendant. If, however, the...more

Casual Advice Can Be Binding - Whoops – Legal Malpractice Prevention

Virtually all attorneys know that the Rules of Professional Conduct prohibit certain conflicts of interest. Yet, almost daily, the legal media report large settlements or verdicts involving legal malpractice claims premised...more

Advising Antigone – What Would You Do?

This weekend, I plan to see The Antigone Project, an adaptation of Sophocles’ fifth century B.C.E. play, Antigone. The play is about Antigone who is the daughter and sister of Oedipus (a man, according to Tom Lehrer, with an...more

Proposed Changes to Model Rule 8.4 (or Something Like Them) May Already Be in Effect in Your Jurisdiction

The ABA Standing Committee on Ethics and Professional Responsibility has recently proposed amending the ABA Model Rules of Professional Conduct to add to Rule 8.4 a prohibition against harassment or discrimination based on...more

Advance Conflict Waivers Ineffective Where Subsequent Events Giving Rise To Conflict Not Disclosed, Thus Precluding “Informed...

In Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (January 29, 2016 - No B256314), Division Four of the Second Appellate District rejected an advance waiver of conflicts included in a law firm’s...more

More Changes Ahead to the Rules of Professional Conduct?

Rule 8.4 of the Model Rules of Professional Conduct is a bit of a catch-all. In general terms, it prohibits "lawyer misconduct." Even more ambiguous, Rule 8.4(d) prohibits "conduct prejudicial to the administration of...more

No Per Se Ethical Violation for "Subject Matter Conflicts"

Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP - In a case that was watched by the entire patent law community with some fascination, the Supreme Judicial Court of Massachusetts concluded on December 23,...more

Court Disqualified Attorney Where Attorney Would Testify As Witness

In Matthews v. Stolier, litigation arose regarding several transactions, including a power of attorney document. No. 13-6638, 2015 U.S. Dist. LEXIS 171752 (D.C. La. December 23, 2015). Some of the parties retained an attorney...more

MA Supreme Court Issues Highly Anticipated Patent Ethics Decision

Simultaneous representation by a law firm in the prosecution of patents for two clients for similar inventions is not a per se violation of the Massachusetts Rules of Professional Conduct. On December 23, in Chris E....more

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