Tag Archives: lawyer

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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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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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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Sup. Ct. March Calendar

Next month, the Supreme Court will be hearing high profile cases – including the gay marriage debate (California’s Proposition 8 and DOMA), as well as voter registration laws.  In addition, the Supreme Court will hear a variety of important issues, such as class arbitration waivers, generic pharmaceutical regulations, and reimbursement or payment under the Takings Clause.

The following are the oral arguments scheduled for March.

Monday March 18

Arizona v. Inter Tribal Council of Arizona:

  1. Whether the 9th Circuit erred in creating a new, heightened preemption test under Art. 1, Sec. 4, Cl. 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and
  2. Whether the 9th Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

Bullock v. Bankchampaign

  1. What degree of misconduct by a trustee constitute “defalcation” under Sec. 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge, and whether it includes actions that result in no loss of trust property.

Tuesday March 19

Sebelius v. Cloer

  1. Whether a person whose petition under the National Vaccine Injury Compensation Program is dismissed as untimely may recover from the United States an award of attorney’s fees and costs.

Mutual Pharmaceutical Co. v. Bartlett

  1. Whether the 1st Circuit erred when it created a circuit split and held – in clear conflict with this Court’s decisions in PLIVA v. Mensing, Riegel v. Medtronic, and Cipollone v. Ligget Group – that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products.

Wednesday March 20

Horne v. Dept. of Agriculture

  1. Whether the 9th Circuit erred in holding, contrary to the decisions of 5 other circuit courts of appeals, that a party may not raise the Takings Clause as a defense to a “direct transfer of funds mandated by the Government,” E. Enterp. v. Apfel, but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims; and
  2. Whether the 9th Circuit erred in holding, contrary to the decision of the Federal Circuit, that it lacked jurisdiction over petitioner’s takings defense, even though petitioners, as “handlers” of raisin under the Raisin Marketing Order, as statutory required under 7 USC 608c(15) to exhaust all claims and defenses in administrative proceedings before the United States Department of Agriculture, with exclusive jurisdiction for review in federal district court.

Dan’s City Used Cars v. Pelkey

  1. Whether state statutory, common law negligence, and consumer protection act enforcement actions against two-motor carrier based on state law regulating the sale and disposal of a towed vehicle are related to a transportation service provided by the carrier and thus preempted by 49 USC 14501-c-1.

Monday March 25

Oxford Health Plans v. Sutter

  1. Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the 2nd and 3d Circuits have held) or exceeds those powers (as the 5th Circuit has held) by determining that parties affirmatively “agreed to authorize class arbitration,” Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.

Federal Trade Commission v. Actavis

  1. Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the 3d Circuit has held).

Tuesday March 26

Hollingsworth v. Perry

  1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and
  2. Whether petitioners have standing under Art. III, Sec. 2 of the Constitution in this case.

Wednesday March 27

United States v. Windsor

  1. Whether Section 3 of the Defense Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; 
  2. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and
  3. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

via New March argument calendar : SCOTUSblog.

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Admission to the MN Bar changes

On January 17, 2013, the Minnesota Supreme Court has affirmed changes to the admission to the Bar.  The amendments that changed the Rules of Admission are:

Definitions:  Rule 2A(12) definition of Uniform Bar Examination.  Under the new amendment, UBE is “an examination prepared by the National Conference of Bar Examiners (NCBE), comprised of six Multistate Essay Examination questions, two Multistate Performance Test questions, and the Multistate Bar Examination.  See amendments to Rule 7C (Admission by UBE score).

Requirements for Admission:  Rule 4A(4) was amended to state that an eligible applicant must provide satisfactory evidence of a passing score on the written examination under Rule 6 and is not eligible for admission under Rules 7A (Eligibility by Practice), 7B (Eligibility by MBE), 7C (Eligibility by UBE), 8, 9, or 10.

Requirements for Admission:  Rule4B was stricken.  Rule4B previously stated that the applicant had to be a resident of Minnesota or maintain an office in Minnesota or designate the Clerk of Appellate Courts as agent for service of process for all purposes.

The Examination:  Rule 6E(1) Essay Questions was amended to delete the following subjects:

  1. Civil Procedure (but note that the amendment added a Federal Civil Procedure subject);
  2. Ethics and Professional Responsibility;
  3. Federal Individual Income Taxation;
  4. Uniform Commercial Code Art. 1 &2 (but note that under the Contracts subject, the amendments include the UCC; as well as the new subject of Negotiable Instruments); and
  5. Wills, Estates and Trusts (but note that there is a new subject of Trusts and Estates).

The Examination:  Rule 6E(1) Essay Questions added the following subjects:

  1. Conflict of Laws;
  2. Federal Civil Procedure;
  3. Negotiable Instruments (Commercial Paper) under the UCC;
  4. Secured Transactions under the UCC; and
  5. Trusts and Estates.

The Examination:  Rule 6E(1) Essay Questions further stated what topics where covered under the following subjects:

  1. Business Associations – the subject no longer includes proprietorships;
  2. Contracts – the amendment stated the subject includes contracts under the UCC; and
  3. Trusts and Estates – the subject includes Decedents’ Estates, and Trusts and Future Interests

The Examination: Rule 6E(2) Multistate Performance Test stated there will be two 90-minute questions.  The prior rule stated one or two.

Admission Without Examination:  Rule 7A(C) Eligibility by UBE score was added to the ways an applicant may be admitted.  Rule 7A(C) states that the applicant might have received a certified scaled score of 260 or higher.  Rule 7A(C) also states the application must be completed within 36 months of the date of the examination.

Admission Without Examination:  Rule 7A(D) Transfer of MBE or UBE score was amended to add UBE.

Confidentiality and Release of Information:  Rule 14C(4) Examination of Data now includes the disclosure of the UBE.  In addition Rule 14C(5) specifies that the director may release copies of unsuccessful examinee’s answers to MEE and MPT questions.

via STATE OF MINNESOTA. (published by Minnesota Lawyer – subscription required).

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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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Contingency fees in Personal Injury

The ABA Journal reported on an interesting case; where the attorney was unable to get all of its full contingency fees.  The reason?  Because the client replaced the attorney with himself prior to the $1 million settlement.

New York’s Appellate Division, First Department, ruled in an unsigned opinion that the settlement wasn’t yet final when lawyer Jeffrey Aronsky handled the case because the settlement offer hadn’t been formally communicated to the defendant, Rivlab Transportation. However, the court held that Aronsky will be allowed to place a lien on Gyabaah’s recovery and receive a pro rata fee based on his contributed work, Reuters reports.

Reuters notes that in a dissent, Justice Richard Andrias considered the settlement binding because a general release was signed and defense counsel confirmed in writing that the $1 million settlement offer was accepted.

via Lawyer Replaced by Client Can’t Collect Full Contingency on $1M Settlement, Court Rules – News – ABA Journal.

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Continued Dip in Number of Female Associates

The ABA Journal has this troubling trend to report:  a decline of female associate lawyers.

The percentage of female associates in law firms has fallen slightly for the third year in a row, even as women made small gains in partnership ranks, according to NALP, the Association for Legal Career Professionals.

Women made up 45.05 percent of associates in an “incremental but steady slide from 45.66 percent in 2009,” according to a NALP press release.

Women account for 19.91 percent of law firm partners, compared to 19.54 percent last year. Overall, women represent 32.67 percent of lawyers in law firms in 2012, compared with 32.61 percent in 2011 and 32.69 percent in 2010. The high water mark, reached in 2009, was 32.97 percent.

Minorities make up 20.32 percent of the associate ranks, up from 19.9 percent last year.Minority women are “the most dramatically underrepresented group” at the partnership level, comprising 2.16 percent of partners in 2012, the press release says.

via Continued Dip in Number of Female Associates Is Significant and Troubling Trend – News – ABA Journal.

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