Category Archives: attorneys

Attorney Client Privilege: Law firms and In-House Counsel

This is a very interesting article.  The attorney-client privilege is an important confidentiality rule that protects certain communications between a client and the lawyer/law-firm.  The attorney-client privilege is an important privilege because it encourages clients to be candid with their attorney.

The ABA adopted Resolution 103, which provides that the attorney-client privilege extends to communications between a law firm and in-house counsel for the purpose of facilitating legal services.  The resolution provides that these communications are protected to the same extent between the lawyer/law-firm and personnel of a corporation or other entity.

The ABA explains,

The measure stems from the increasing complexity of regulation, rules of professional conduct and greater disclosure obligations under legislation such as the Sarbanes-Oxley Act.

via Attorney-client privilege should apply to law firms consults with in-house counsel, ABA House says – ABA Journal.

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Senators’ committee will advise on new U.S. attorney

Minnesota Lawyer Blog brings to our attention that a new advisory committee has been formed to recommend a new U.S. Attorney.

The current U.S. Attorney B. Todd Jones has been nominated to serve as the permanent director of the Bureau of Alcohol, Tobacco, and Firearms (ATF) and his confirmation hearing is expected to be held soon, the release states.

Judge Timothy O’Malley of the Minnesota Office of Administrative Hearings and the former head of Minnesota’s Bureau of Criminal Apprehension will chair the committee, which will also include Annamarie Daley, a Minneapolis attorney in private practice; former U.S. Attorney Thomas Heffelfinger; Stearns County Attorney Janelle Kendall; Donald Lewis, Dean of Hamline Law School; retired St. Louis County Judge Carol Person; and Chief Thomas Smith of the St. Paul Police Department.

The committee will review letters of interest, conduct interviews, and offer guidance to Klobuchar and Franken.  In the press release, Klobuchar stated that the candidate should be a seasoned, respected attorney who is fair-minded, able to work productively with local, state and federal law enforcement agencies, and who is committed to seeing that justice is done under the law and for the people of Minnesota.

Those wishing to be considered for the position of U.S. Attorney should submit letters of interest by June 3, 2013 to: Judge Timothy O’Malley, U.S. Attorney Advisory Committee, c/o Caroline Holland, Office of Senator Amy Klobuchar, 1200 Washington Avenue South, Suite 250, Minneapolis, MN 55415.  Letters may also be e-mailed to caroline_holland@judiciary-dem.senate.gov.

via Senators’ committee will advise on new U.S. attorney – MinnLawyer Blog.

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Major Possible Changes to Federal Discovery Rules

Corporate Counsel reported about a very important and significant change that might occur next year.  Here are the highlights of the proposed amendments (starting on Page 91 of 322).

The e-discovery rules may change once again by next year.  The United States Court’s Advisory Committee on Civil Rules voted last week to send proposed amendments to the Standing Committee on Rules of Practice and Procedure.  The Standing Committee will consider approving or rejecting the proposal in early June.

The most significant proposals would narrow the scope of discovery under Rule 26; impose or reduce numerical limits on written discovery and depositions under Rules 30, 31, 33, and 36; Rule 37 will adopt a uniform set of guidelines regarding sanctions when a party fails to preserve discoverable information; and Rule 34 will tighten the rules governing responses for production of documents.

Rule 26′s proposed amendments are as follows:

  • Rule 26(b)’s proposed amendment restricts the defined scope of discovery to information that is “proportional to the needs of the case.”  The language is as follows:

    “and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

    These proportional considerations are currently listed in Rule(b)(2)(c)(iii).  This amendment would mandate adherence by the parties without court intervention.

  • Rule 26(b)’s proposed amendment would delete the following sentences:

    (1) “For good cause, the court order discovery of any matter relevant to the subject matter involved in the action.  Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

  • Note, that the proposed amendment for Rule 26(b) states that “Information within this scope of discovery need not be admissible in evidence to be discoverable.
  • Rule 26(c) (protective orders) adds “or the allocation of expenses.”

Rules 30′s and 31′s proposed amendments are as follows:

  • The number of depositions (oral and written) would be reduced from 10 to 5.
  • The limit of an oral deposition is reduced to 6 hours.
  • The number of written interrogatories would change from 25 to 15.
  • The number of requests will be 25, except for requests relating to the genuineness of documents.
  • There will be a presumptive limit on the number of Requests for Admissions a party may serve.
  • A court order or a stipulation by the parties may increase the limits on any numerical discovery.

Rule 34′s proposed amendments (which govern the production of documents and electronically stored information) are as follows:

  • The objections to document requests must be stated with specificity.  This requirement has already been applied to interrogatory responses under Rule 33.
  • When the responding party must state that it will produce the requested documents (instead of permitting inspection), the production must be completed by the date for inspection stated in the request or by a later reasonable time stated in the response.
  • A party objecting to a document request must state whether any responsive materials are being withheld on the basis of the objection.

Rule 37(e)’s proposed amendment (which concern sanctions for failure to preserve discoverable information) state:

  • A court may impose sanctions when it finds that a party failed to preserve information that should have been preserved for litigation.  The sanctions includes remedies and curative measures that are not considered “sanctions,” such as allowing additional discovery, requiring a party to recreate or obtain the information that it lost, or ordering a party to pay reasonable expenses resulting from the loss of information.
  • The court may also impose sanctions listed in Rule 37(b)(2)(A) when to address preservation failures.  These sanctions include issue or evidence preclusion, the striking of pleadings, the dismissal of the action in whole or in part, and an adverse inference.
  • The court may impose sanctions or order an adverse jury instruction only if it finds that the failure to preserve caused “substantial prejudice” in the litigation and was “willful or in bad faith.” or that the failure to preserve “irreparably deprived a party of any meaningful opportunity” to litigate the claims in the action.

 

via On the Cusp of Major Changes to E-Discovery Rules.

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Court orders legal representation for immigrants in deportation proceedings

I first came across this decision when I was listening to NPR.  In this case, which is a first of its kind, a federal judge ordered that states have to provide legal representation for immigrants with mental disabilities – when these immigrants are being detained and facing deportation.

This case is really surprising because immigrants generally do not have a right to an attorney.  The Supreme Court in Gideon v. Wainwright, 371 US 335 (1963), decided that the right to counsel is a fundamental right in criminal cases.  In INS v. Lopez-Mendoza, 468 US 1032 (1984), the Supreme Court reaffirmed that a deportation case is not a criminal case, but an administrative one.

Since deportation proceedings are not a criminal crime, there is no right to a lawyer.  The detainees not guaranteed counsel had presumably covered children, the mentally disabled, victims of sex trafficking, refugees, torture survivors and legal permanent residents.

Federal Judge Dolly M. Fee ordered immigration courts in three states to provide legal representation for immigrants with mental disabilities who are in detention and facing deportation, if they cannot represent themselves.  The immigrant in this case had severe mental retardation that prevented him from arguing for himself in court or even understanding his situation.

The NY Times reports that subsequently, “federal immigration officials issued a new policy that would expand the California ruling nationwide, making government-paid legal representation available to people with mental disabilities in courts in every state.”

Edited: To add other Supreme Court cases.

via Legal Aid Ordered for Mentally Disabled Immigrants – NYTimes.com.

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Minnesota Senate passes increased funding for public defenders

Minnesota Lawyer (subscription required) reports on the bill for public defenders’ funding.  The background of the funding for public defenders is as follows.

In 2008, public defenders were funded through attorney’s registration fees.  The Minnesota Supreme Court upheld this type of funding.  Through this funding, the state Board of Public Defense was able to generate around $1.9 million annually.  This request was reapproved in 2011.

However, in December, the state Board of Public Defense withdrew its request to earmark funding from the attorney registration fee.    This decision came in December, when various committees and group sections of the Minnesota State Board Association removed its support for the petition.

On Tuesday, April 16th, 2013, the state Senate passed a judiciary funding bill that increases funding for public defenders.  The bill provides $5 million for increased employee salary and benefits for public defenders.  The bill also provides $5.6 million for new public defenders positions that will reduce caseloads.  The Senate bill was passed by 47-18 votes.

The Senate Judiciary Finance Division Chairman Ron Latz (DFL-St. Louis Park) stated that the bill helps alleviate a public defender system that is “overworked, overburdened, [and] has some of the biggest caseloads in the country.”

via Minnesota Senate passes increased funding for public defenders | Minnesota Lawyer.

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Cost-Saving Ideas for Lawyers and Law Firms

Lawyers and law firms will always run up to the question of cost-savings and administrative costs.  One of these areas is the overuse of email by employees.  This does not only raise costs of storage in the server/back up, but also raises costs of lawyer billing time lost.  With this said, lawyers and law firms need to be wary of the ways that these cost-savings approaches bring.  This article will discuss one of the cost-savings ideas and discuss the risk of this idea.

The Harvard Business Review had a very interesting article discussing the high prices when “calculating average typing speed, reading speed, response rate, volume of email, average salary, and total employees.”  Tom Cochran, the author of “Email Is Not Free,” revealed that in his case, they were looking at a 7 figure price tag.

If you think about the emails and the paid storage for documents and emails, the price that a lawyer/law firm pays can really start to drain their financial resources.  In fact, the overuse of email comes from a system where there is no perceived cost.  Emails will be sent out regarding lunch invitations, short status updates, confirmations of receipt of the prior email, and so on.

When a typical email contains an average of 140 words, or roughly 3 paragraphs, is there a better way to reduce these costs?  By the use of cloud computing, an organization can significantly reduce these costs.  The article discusses the use of cloud apps, such as Skype, GChat, Dropbox and so on.

So is this the way to go?  I think that in the balance of short emails (with no confidential information), it makes sense.  Instead of sending an email stating that you are ready to go to lunch or that you will have to change a meeting time, it makes sense.  The message has no confidential or attorney privileged information.

However, the law firm and lawyer must be wary of using these services for case-related confidential and privileged information.  These cloud computing applications are not secure.

Keeping in mind that cloud computing often stores messages in a number of systems, which you may not be aware of, there might be a breach of security.

Ask yourself the following questions:

  1. Do you know if the cloud computing app will save the messages in their cloud computing service?
  2. Do you know where is the cloud server located?
  3. Do you know what contract does the company offering cloud computing services (third party) has with the company that provides the server storage in the cloud (another third party)?
  4. Do you know where the company that provides the storage is located?
  5. Will these messages be stored in the computer or mobile/tablet device?
  6. If so, will the mobile/tablet carrier save these messages in their own cloud computing system?
  7. Do you know how safe is the cloud transfer of information?
  8. Do you know how safe is the cloud computing storage?

In other words:  Will it be cost-saving?  Yes.  Can you use it for all communications?  No.

So does using these cloud computing services worth it for information that is not privileged or confidential?  As a lawyer or law firm, you must evaluate the situation.

First of all, you must provide adequate training and warn your employees of any misuse of these apps.

Second, you must think of the risk that employees will breach this policy.  Will adequate and regular training reduce this risk?

Third, you must balance the cost-saving costs with this risk.

via Email Is Not Free – Tom Cochran – Harvard Business Review.

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Attorney Fees and Prevailing Party

This is an interesting case, coming out of the 8th Circuit Court of Appeals, that reinforces the idea that attorney fees should only be granted to the prevailing party.

In S. Wine and Spirits of Nevada v. Mountain Valley Spring Co., No. 12-1857 (8th Cir. 2013), the 8th Circuit Court of Appeals ruled that neither of the parties prevailed in the lawsuit.  Thereby, no attorney fees would be granted.

So why did this case come to the 8th Circuit Court of Appeals?  Southern Wine and Spirits won a judgement for $861,000.  In the same token, Mountain Valley won a judgment of $183,000.  Southern argued that it was entitled to attorney fees because it had prevailed on 3 out of its 4 claims and because its monetary award was more than four times larger than the one obtained by Mountain Valley.

The District Court and the 8th Circuit Court of Appeals disagreed.  Following Nevada law, a party is not the “prevailing party” when both parties are found to be at fault.  See also Glenbrook Homeowners Ass’n v. Glenbrook Co., 901 P.2d 132, 141 (Nev. 1995) (per curiam).

Thereby, in this case, when both parties won a judgment, it is fair to say that both parties have been found at fault.

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Associate attorney is the unhappiest job in America

ABA Journal reports on a Forbes story, which lists Associate Attorneys as the unhappiest at their job.  Legal Assistants make it to number 7 on the list.  The list was compiled by CareerBliss.

Heidi Golledge, chief executive of CareerBliss, told Forbes why associates are so unhappy. “In many cases, law firms are conducted in a structured environment that is heavily centered on billable hours. It may take several years for an associate attorney to rise to the rank of partner,” Golledge said. “People in this position rated the way they work and the rewards they receive lower than any other industry.”

CareerBliss based its list on reviews completed by more than 65,000 employees last year. The employees rated key factors that affect happiness on the job, including work-life balance, relationships with bosses and co-workers, work environment, job resources, compensation, growth opportunities, company culture, company reputation, daily tasks and control over daily work.

The top unhappiest jobs are:

  1. Associate attorney
  2. Customer service associate
  3. Clerk
  4. Registered nurse
  5. Teacher
  6. Marketing Coordinator
  7. Legal Assistant
  8. Pharmacy Technician
  9. Technical Support Specialist
  10. Case Manager

via Associate attorney is the unhappiest job in America, survey says – ABA Journal.

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Minnesota Lodestar Fees in Consumer Protection cases

On February 13th, the Minnesota Supreme Court held that the lodestar method must be used when determining attorney fees in consumer protection cases.

An unanimous Minnesota Supreme Court in Green v. BMW of N. Am., A11-0581 (Minn. Feb. 13, 2013), ruled that the lodestar method applies for the attorney fee calculation under Minnesota’s lemon law.  In addition, the Minnesota Supreme Court stated that courts must consider, among other factors, the amount involved in the litigation and the results obtained.

In the Green case, the district court issued a verdict in favor of Green and awarded her $25,157 in damages.  The district court also granted attorney fees and costs in the amount of $229,064.  The Minnesota Court of Appeals affirmed.  The Minnesota Supreme Court reversed the decision, and remanded.

When determining the appropriate amount for fees – the court did not consider any other factors, other than the reasonableness of the fees.  The court heavily relied on the policy behind the fee-shifting provisions.  The court explained that the purpose of fee-shifting provisions was to provide incentives for attorneys to take these types of cases.

The district court did not award fees under the Magnuson-Moss Warranty Act because the court did not allow for double recovery.

The Supreme Court reversed the fees decision because the lodestar method should have been applied.  Under Minnesota’s Lemon Law, Minn. Stat. 325F.665, subd. 9, consumers “may bring a civil action to enforce” the lemon law and “recover costs and disbursements, including reasonable attorney’s fees incurred in the civil action.”

The Supreme Court explained that Minnesota courts have consistently used the lodestar method for determining the reasonableness of fees.  In fact, courts have used the lodestar method in numerous settings, including MFLSA, MHRA, Minnesota Securities Act, and in polygraph testing.  Given the broad application of lodestar, the Supreme Court held that applying lodestar in consumer protection cases was appropriate.

When applying the lodestar method, courts must first determine the number of hours reasonably expended and multiply those hours by a reasonable hourly rate.  When determining “the reasonable value of legal services,” the court must consider “all relevant circumstances.”  The Supreme Court explained,

The circumstances that inform a court’s “determine[ation of] reasonableness include ‘the time and labor required; the nature and difficulty of the responsibility assumed; the amount involved and the results obtained; the fees customarily charged for similar legal services; the experience, reputation, and ability of counsel; and the fee arrangement existing between counsel and the client.’”

The Supreme Court rejected the argument that the “amount involved” was confined to a consideration of the amount involved only as it relates to a prevailing party’s percentage of success.  The Supreme Court held that courts look “to both the amount involved and the results obtained.” (emphasis in original).

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Zubulake revisited: Shifting standards in e-discovery

InsideCounsel has a very insightful article regarding the changes in Zubulake.  As previously addressed, the Zubulake cases are the leading guide posts of electronic discovery.  Nevertheless, recent case law signals potential departures from Zubulake.

InsideCounsel’s article states as follows:

 

Litigation holds 101

While the American concept of the litigation hold (also known as legal hold) received a passing reference in the advisory notes to the 2006 Federal Rule of Civil Procedure (FRCP) amendments, it was not until Zubulake, and later, Pension Committee, that courts connected the legal hold to the spoliation sanction framework.

Generally, sanctions are warranted when a party with control over discoverable information and under a duty to preserve acted with a culpable state of mind when destroying or losing relevant information. Once a party has established spoliation, a court must assess which sanction (ranging from further discovery to dismissal) aligns with the culpability of the spoliating party and the prejudice caused.

In Pension Committee, the court held that failing to issue a litigation hold is gross negligence per se. The court found that not only can relevance and prejudice be presumed when a spoliating party is grossly negligent, but that an adverse inference instruction was the appropriate sanction in that case.

Departures from Zubulake

In 2012, in Chin v. Port Auth. of New York & New Jersey, 11 plaintiff employees sued the defendant employer for alleged civil rights violations. In discovery, the plaintiffs learned that the defendant failed to implement a document retention policy, which resulted in the spoliation of at least 32 folders used to make promotion decisions from August 1999 to August 2002. The plaintiffs also learned that the defendant failed to issue a litigation hold regarding the promotion folders at any point between 2001 and 2007, and thus argued that this inaction amounted to gross negligence. However, the court rejected the argument that a failure to institute a litigation hold automatically constitutes gross negligence per se, contrary to the rule of Zubulake.

Instead, the court ruled in favor of a case-by-case approach, in which failure to preserve documents is one of multiple factors in the determination of whether to issue sanctions. In the end, the court upheld the district court’s conclusion that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process, as well as the plaintiffs’ ample evidence regarding their relative qualifications when compared with the officers who were actually promoted.

What does it all mean?

Chin established that, depending on the facts, if a party acts reasonably and in good faith to preserve documents, it may be off the hook for severe sanctions. However, many commentators have argued that this does not change best practices—that parties should still issue a written litigation hold in accordance with Pension Committee.

For large organizations that touch many jurisdictions (many of which still follow Zubulake), corporate counsel should not disband their litigation hold systems just yet—in fact, they probably do not want ever to disband them. The litigation hold is an incredible powerful and defensible means to preservation. Large organizations often must track many custodians storing potentially relevant information on complicated IT systems. Corporations derive substantial benefits from being able to maintain holds, as well as being able to internally track multiple simultaneous preservation obligations.

It is worth noting, however, that not every case, or company, is the same. Should a tight-knit company of a few employees in a non-complex litigation have to issue a written legal hold in order to be safe from sanctions? As case law in 2013 develops, perhaps litigants in these types of cases will take a second look at the role of the litigation hold.

A breath of “reasonable” fresh air

On the topic of preservation, case law developments are not the only item on the horizon for 2013. The discovery subcommittee tasked with developing potential FRCP rule changes has been scrutinizing the preservation topic. In one possible version amending FRCP 37, the drafters adopted a factor-based approach to determining culpability. While one factor looks at the reasonableness of a party’s efforts to preserve the information, “including the use of a litigation hold,” another factor includes “the proportionality of the preservation efforts to any anticipated or ongoing litigation.” On Nov. 2, 2012, when the Advisory Committee voted to adopt the subcommittee’s proposal, a common opinion was that even this minor reference to the litigation hold should be omitted or reverted to the commentary to underscore the factor-based nature of draft Rule 37. As we continue down the road to Federal Rule amendments, it is becoming clear that the gold standard of Zubulake may be shifting in the coming year.

via Zubulake revisited: Shifting standards in e-discovery.

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