Daily Archives: January 18, 2013

Lawyer’s misconduct did not prevent class action certification

In a class action, lawyers’ conduct when contacting (or trying to contact) possible putative class members, is regulated by the court or federal statute.

In this case, the 7th Circuit Court of Appeals determined  that class counsel’s faxing of unsolicited advertisement was misconduct.  The decision rested on the question of whether the law firm bribed a third-party in order to obtain a list of the possible putative class members.  Due to a lack of evidence that the payment of $5,000 was a bribe, the court allowed the class to be certified.

I raise this case because it raises the issue of attorney misconduct.  First of all, there are across-the-states ethics rules that govern attorneys’ conduct.  You can access ethics rules governing attorneys by going to the state court’s website and looking for the Board of Professional Responsibility or ethics rules.

As the 7th Circuit Court of Appeals highlighted multiple times, the law firm’s misconduct could possibly warrant disciplinary action.  The Court of Appeals commented that litigants and attorneys should report to the relevant bar authority (the Board of Professional Responsibility) instances of attorney misconduct.  Otherwise, the court warned, unpunished and inappropriate attorney conduct will continue.

In fact, there are ethical rules that discuss the reporting of misconduct.  In Minnesota, Rule 8.3 discusses the reporting of professional misconduct.  Rule 8.3 states, in relevant part,

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Secondly, in a class action, the class representatives through their class counsel must show that the class counsel can appropriately represent the class.  In other words, the court must decide that the law firm can properly represent the entire class (which may in the hundredths).

So, if a law firm possibly engaged in misconduct, i.e. shows a lack of integrity – is the law firm’s representation proper?  The court did state that unethical conduct (regardless of whether it is prejudicial) raises “serious doubt” as to counsel’s ability to adequately represent the class.

via Courthouse News Service.

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Filed under Appellate, attorneys, courts, legal decision, Minnesota, rules, sanctions, Supreme Court

Gun regulation: pinning States against Federal Government

I came across this very interesting piece of news.  Mississippi and Texas proposed and called for bills to make it illegal to enforce any of the new federal gun control measures.

Mississippi Governor Bryant called for a bill that would make it illegal for state and local enforcement to enforce any executive order from the President.  Similarly, in Texas, State Representative Toth introduced the “Firearms Protection Act.”  The bill would make “any federal law banning semi-automatic firearms or limiting the size of gun magazines unenforceable within the state’s boundaries” and “anyone trying to enforce a federal gun ban could face felony charges under the proposal.”

The question is, of course, how would a federal statute or executive decision interact with the Second Amendment to the Constitution.  The second amendment provides,

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

The Supreme Court’s most indicative decisions call for an interesting debate.  The Supreme Court has ruled that the government can enforce several restrictions on the right to bear arms.  Presser v. Illinois, 116 US 252 (1886) (upholding the state’s or Congress’s regulation of militias); Miller v. Texas, 135 US 535 (1894) (upholding the state’s ability to press criminal charges for owning an unlicensed gun);  Robertson v. Baldwin, 165 US 275 (1897) (upholding state’s regulation of concealed weapons); and United States v. Miller, 307 US 174 (1939) (upholding the National Firearms Act which banned the interstate transportation of unregistered Title II weapons).

This, however, does not mean that we would know to what extent a regulation would be constitutional.

via State Lawmakers Say No to President Obamas Gun Control Proposal – ABC News.

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Filed under civil rights, Pending Legislation