A Potpourri of Legal Ethics Developments. Dave Wing

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1 A Potpourri of Legal Ethics Developments Dave Wing

2 Attorneys Bookkeeper Steals $4.8M Florida Supreme Court Disbars Two Lawyers Trust account issue surfaces in 2008 Later in year before extent of problem realized Too little, too late Hired accountant & outside counsel Contacted police and Florida Bar s ethics hotline Did not timely notify clients Continued to accept payments into compromised account Failed to keep adequate records and reconcile monthly 2

3 Attorneys Bookkeeper Steals $4.8M Florida Supreme Court Disbars Two Lawyers In effort to repay clients, Commingled attorney funds with trust funds Favored some clients over others All but several hundred thousand repaid Malpractice insurance Family money Client loan but attorneys defaulted and loan violated rules Disbarments effective December 2010 Attorneys must pay $71,000 in disciplinary costs 3

4 Missouri Safekeeping Property Changes effective July 1, 2013 Rule Replaced by Four Rules Rule Definitions Rule Safekeeping Property Duties Rule IOLTA Account Provisions Rule Duties for Retention of Client Files 4

5 Missouri Safekeeping Property Rule Definitions Highlights Client Trust Account Account denominated as such or with similar words in which a lawyer holds funds on behalf of a client or third person and on which withdrawals or transfers may be made on demand IOLTA Account Pooled client trust account held at an approved institution comprised of client and third person funds that cannot otherwise earn income for the client or third person in excess of the costs incurred for such income 5

6 Missouri Safekeeping Property Non-IOLTA Account (a) a separate client trust account for particular client or 3d party funds the net earnings of which will be paid to the client or 3d party (b) a pooled trust account with sub-accounting to compute net interest or dividend to each client or third party 6

7 Missouri Safekeeping Property Rule Safekeeping Property Requirements Hold client or 3d party property separate from lawyer s property Settlements Escrow funds Advance payment of fees or expenses Contingent fees before final statement to client Funds in dispute Other funds belonging to client or 3d party 7

8 Missouri Safekeeping Property Rule Safekeeping Property New Duties Signatory authority for client trust accounts must be Missouri lawyer or direct subordinate Split deposits not permitted Withdrawal only by check or EFT to a named payee, not to cash Lawyer must wait until a reasonable period of time has passed for the funds to be actually collected by the financial institution Test is good funds not cleared funds 8

9 Missouri Safekeeping Property Rule Safekeeping Property New Duties Reconciliation to be performed reasonably promptly when official statement becomes available Receipts and disbursements journals Ledgers Bank statements or similar documents Other reasonably related documentation 9

10 Missouri Safekeeping Property Rule (f) Recordkeeping New Duties Retain CTA records 5 years after later of termination of representation or last disbursement Records may be maintained by electronic, photographic or other media provided printed copies can be produced Reasonable arrangements for maintaining account if law firm dissolves or is sold Substantial minimum record requirements 10

11 Missouri Safekeeping Property Rule IOLTA Accounts Largely Unchanged (a) how to maintain and when funds should be placed in IOLTA account (b) how fees or charges must be allocated (c) revocation or non-approval of financial institution 11

12 Missouri Safekeeping Property Rule File Retention Store securely for 10 years after completion or termination of representation unless lawyer and client agree otherwise After 10 years, lawyer may destroy non-intrinsically valuable file contents in manner that preserves confidentiality unless Legal malpractice claim Criminal investigation Other governmental investigation Disciplinary complaint Other litigation Items of intrinsic value shall never be destroyed 12

13 Reasonable Fees Rule 1.5 A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. Time and labor Novelty and difficulty Requisite skill Precluding other engagements Customary fees in the locality for similar legal services Amount involved and results obtained Time limitations Nature and length of client relationship Experience, reputation and ability of lawyer(s) Fixed or contingent 13

14 Churn that bill, baby! DLA Piper World s Largest Law Firm Represented Adam Victor, energy industry exec, in filing Ch. 11 Bankruptcy for one of his companies DLA Piper sued Victor for nonpayment of $675,000 in legal fees Victor counterclaims for a sweeping practice of overbilling 14

15 Churn that bill, baby! Discovery 250,000 pages of documents from DLA Piper A month after filing bankruptcy: I hear we are already 200K over our estimate that s Team DLA Piper! Now Vince has random people working full time on random research projects in standard churn that bill, baby! mode. That bill shall know no limits. DLA seems to love to lowball the bills and with the number of bodies being thrown at this thing it s going to stay stupidly high

16 Churn that bill, baby! Victor As the firm got bigger, there were all of these lawyers who I didn t know suddenly showing up on my bills. Victor For the past decade, I have fought with DLA to reduce their legal bills, and now I m going to keep fighting. Mid-March, 2013, Victor amended counterclaim to add fraud and request punitives of $22.5M 16

17 Update ECF Profiles Comm n Network Int l Ltd v. MCI WorldCom Comm n Inc., 708 F.3d 327 (2d Cir. 2013) CNI s counsel used new address on motion for pro hac vice admission CNI s counsel failed to update ECF profile with new address Court clerk sends Rule 77(d) Notice of Order affirming Bankruptcy Court Order of $2.4M Judgment against CNI to ECF listed address CNI s counsel misses deadline for appeal CNI s counsel moves to reopen appeal time 17

18 Update ECF Profiles Comm n Network Int l Ltd v. MCI WorldCom Comm n Inc., 708 F.3d 327 (2d Cir. 2013) District Judge reopens Counsel did not receive notice Counsel timely filed motion to reopen Reopening would not prejudice any party WorldCom appeals 2d Cir. Panel majority agrees FRAP 4(a)(6) elements met Holds District Court abused discretion in reopening appeal Counsel s own conduct created failure of notice 18

19 Update ECF Profiles Comm n Network Int l Ltd v. MCI WorldCom Comm n Inc., 708 F.3d 327 (2d Cir. 2013) Update profile Follow local rules Monitor court dockets apart from and ECF notices 19

20 Prospective Client Confidentiality Disciplinary Counsel v. Cicero, 2012 WL (Nov. 28, 2012) Rule 1.18(b) Prohibits lawyer from using or disclosing information learned in a consultation with a prospective client Rule 1.9(c) Permits disclosure if information becomes generally known Federal law enforcement raided Edward Rife s home Seized $20,000 of Ohio State football memorabilia Rife talks with attorney Chris Cicero about defending criminal case Cicero s Jim Tressel, head football coach at Ohio State Possible association between Rife and team members 20

21 Prospective Client Confidentiality Disciplinary Counsel v. Cicero, 2012 WL (Nov. 28, 2012) Rife retains Stephen Palmer, but becomes dissatisfied Rife again talks with Cicero Cicero advises Rife, but Rife does not retain Cicero Cicero s Coach Tressel again 1 ½ hour meeting with Rife Confidential 15 pairs of cleats and 4-5 jerseys with signatures, 9 Big 10 rings If he retains me, and he may, I will try to get these items back 21

22 Prospective Client Confidentiality Disciplinary Counsel v. Cicero, 2012 WL (Nov. 28, 2012) Ohio Supreme Court finds Rife was a prospective client Disclosed info was not generally known Board of Commissioners recommended six month suspension Ohio Supreme Court imposes one year suspension 22

23 Multiple Indiana Visits Not Unauthorized Practice of Law Indiana Supreme Court Disciplinary Commission v. Farmer, 978 N.E.2d 409 (Ind. 2012) John Ivy convicted of murder in Indiana Ivy s grandparents in Ohio engage Ohio attorney Derek Farmer to represent Ivy on a post-conviction petition Farmer met with Ivy in jail 4 times and made 7 additional trips to review files and interview witnesses Ivy fires Farmer in 2009 and files grievance Indiana Disciplinary Commission charges Farmer with unauthorized practice of law Had not sought admission pro hac vice 23

24 Multiple Indiana Visits Not Unauthorized Practice of Law Indiana Supreme Court Disciplinary Commission v. Farmer, 978 N.E.2d 409 (Ind. 2012) Rule 5.5(c) Lawyer admitted in another US jurisdiction and not disbarred or suspended from practice in any jurisdiction may provide legal services on a temporary basis in this jurisdiction that... (2) are in or reasonably related to a pending or potential proceeding in this or another jurisdiction if the lawyer reasonably expects to be authorized to appear in such proceeding Court rejects claim that Farmer s repeated trips were more that temporary provision of legal services Occasional visits for a single client in a single matter did not rise above temporary Check the jurisdiction s rules 24

25 Firm Disqualified 17 Years After Representing Adverse Party s Parent EON Corp IP Holdings LLC v. FloTV Inc., 2012 WL (D. Del. Sept. 24, 2012) EON Holdings sues multiple defendants for patent infringement including MobiTV Firm defending MobiTV had represented EON, parent of EON Holdings, in transactional and regulatory matters from

26 Firm Disqualified 17 Years After Representing Adverse Party s Parent EON Corp IP Holdings LLC v. Flo TV Inc., 2012 WL (D. Del. Sept. 24, 2012) Was patent infringement action substantially related to earlier work for EON? No No patent work done for EON Attorneys representing MobiTV had never worked on EON matters and were not even with the firm in that time period MobiTV attorneys work in California and EON work done in DC Ethical wall promptly established 26

27 Firm Disqualified 17 Years After Representing Adverse Party s Parent EON Corp IP Holdings LLC v. FloTV Inc., 2012 WL (D. Del. Sept. 24, 2012) Was patent infringement action substantially related to earlier work for EON? Yes Scope of prior representation was broad and involved 34 attorneys. Prior representation involved some of same technology as the patent currently at issue Co-defendant of MobiTV identified two lawyers formerly at the firm as potential witnesses Harsh decision many courts would go the other way Analyze former client conflicts carefully 27

28 Florida Defamation Trial Shock Jock Todd MJ Schnitt Sues Shock Jock Bubba the Love Sponge Clem for defamation Clem represented by Joseph Diaco Jr. Schnitt represented by Philip Campbell Jr. Wednesday, Jan. 23, Campbell at Malio s Prime Steakhouse in downtown Tampa at about 7:00 Drinking and chatting with other attorneys and Melissa 28

29 Florida Defamation Trial Melissa orders drinks for the table 7:30 p.m. attorney at Diaco s firm tips police about man at Malio s who gets drunk and drives Police wait near Malio s 9:50 p.m. police stop Campbell driving Melissa s car Campbell refuses breath test Police arrest Campbell for DUI and take him to jail Melissa is free to go 29

30 Florida Defamation Trial Melissa leaves with Campbell s trial briefcase in back of her car Melissa works for Diaco s firm as a paralegal Melissa calls her boss about Campbell s briefcase Campbell s briefcase bounces among Melissa and Diaco firm attorneys for about 20 hours Melissa takes briefcase to Campbell s office in taxi and has driver drop it off 30

31 Florida Defamation Trial Trial postponed on Thursday because of Campbell s arrest On Friday, Campbell moves for mistrial Rule 4.4(b) A lawyer who receives a document relating to the representation of the lawyer s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. Three hour hearing Now the lawyers have lawyers 31

32 Florida Defamation Trial Examination of Melissa Did your boss tell you to get Campbell drunk? Did your boss tell you to ask Campbell to drive your car? Judge defers ruling on mistrial motion Defamation trial proceeds No liability for Bubba the Love Sponge Clem on defamation claim 32

33 Florida Defamation Trial Judge reconvenes counsel and opens discovery on mistrial motion Depositions Cell phone records s Police records 33

34 NonLawyer Assistants Rule 5.3 (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person s conduct is compatible with the professional obligations of the lawyer 34

35 2013 Legal Ethics Nick Badgerow-- Kelly Campbell Leslie Greathouse Dave Wing

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