TIDBITS OF ETHICS
South Carolina abolishes the “butt-in-the-seat rule,” the development is welcome but some questions remain
Under the “butt-in-the-seat” rule, lawyers physically present in a jurisdiction must be authorized to practice in that jurisdiction even if...
Read MoreCHOICE OF LAW AND RISK MANAGEMENT FOR CONFLICTS OF INTEREST
BLOG CATEGORIES Bridging Common Law & Civil Law - Tidbits of ethics - International litigation and enforcement of Foreign Judgements...
Read MoreMalpractice Action against Criminal Defense Counsel – the “actual innocence rule” and its exceptions
Criminal defense counsel, like any other attorneys, are subject to civil liability for legal malpractice. See generally Ronald E. Mallen,...
Read MoreImproper Threats
Putting aside the strategic wisdom and efficacy of a threat, when is a threat unethical? The Indiana Supreme Court’s recent...
Read MoreArbitration of legal malpractice claim upheld by Florida Appellate Court
In Ramkelawan v. Morgan & Morgan, P.A., (3D21-1143 October 20,2021) the Third District Court of Appeal in Florida upheld a malpractice...
Read MoreDealing with Language and Disability Barriers to Communication with Clients
Communication with clients is a fundamental aspect of law practice. Not only is reasonable communication an ethical requirement, under ABA...
Read MoreLegal Malpractice case fails for lack of duty when the law is unclear
Legal malpractice is a catchall term for a multiple causes of action, the most basic of which is professional negligence. ...
Read MoreABA Opinion Allows Passive Investment by Lawyers in Alternative Business Structure Firms
In Formal Opinion 499 issued September 8, the ABA Ethics Committee dealt with the ethical propriety of a lawyer’s passive...
Read MoreLong-Lasting Covid Changes – Virtual Practice is Here to Stay
This article has been published in the PLI Chronicle: Insights and Perspectives for the Legal Community, https://plus.pli.edu. While the “new...
Read MoreClient Threats and the Attorney-Client Privilege
You represent an unstable client. Choose your area of practice – It happens regardless of field. During the course of...
Read MoreRed Flags for Departing Lawyers and their Former Firms
Lateral hiring, like many other business activities, declined in 2020, but the Spring of 2021 has shown a strong rebound....
Read MoreInadvertent Production and Waiver of Privilege/Work Product Protection
In document-intensive litigation the risk of inadvertent production of material subject to attorney-client privilege or...
Read MoreGhostwriting a complaint: ethical issues
May a lawyer ethically “ghost write” a sufficient complaint for the plaintiff to file pro se? This might be attractive...
Read MoreThe Lawyer-Witness Rule Explained
In Fine Housing, Inc. v. Sloan, 2020 S.C. App. LEXIS 89 (S.C. Ct. App. 2020), the court of appeals discussed...
Read MoreUnauthorized practice of law and Covid19 – change is in the air
Consider the situation of a lawyer who works at home from a jurisdiction different from the jurisdiction in which the...
Read MoreCOVID-19 – Temporary Practice in DC
In OPINION 24-20 (“Teleworking from Home and the COVID-19 Pandemic”),the D.C. Court of Appeals Committee on Unauthorized Practice of Law...
Read MoreSome ethical, malpractice and professional implications of Covid19 crisis for lawyers. Part IV: financial instability during or after the pandemic
This is the fourth of a series of blogs dealing with possible ethics and malpractice implications of Covid19 (see here,...
Read MoreSome ethical (and malpractice) implications of Covid19 crisis for lawyers. Part III: Family obligations during the pandemic
It is common knowledge that the practice of law is not the profession that you choose if you want to...
Read MoreSome ethical (and malpractice) implications of the Covid19 crisis for lawyers. Part II: physical and/or mental illness during the pandemic
This is the second blog a series dedicated to the ethical and malpractice implications of the covid19 crisis for lawyers....
Read MoreSome ethical (and malpractice) implications of Covid19 crisis for lawyers. Part I: Working from home: confidentiality, competence, and supervision
The implications of the covid19 crisis are already imposing. It is expected that the situation will get worst before getting...
Read MoreEvolving scrutiny of prosecutorial misconduct
As it well known, prosecutors are subject to the same ethics rules as lawyers. There some notable differences, however. Prosecutors,...
Read MoreAccepting lawyers’ fees in cryptocurrency – Formal Opinion 2019-5
In Formal Opinion 2019-5, the New York City Bar Ethics Committee was asked the following question: Is a fee agreement...
Read MoreA “key employee insurance policy” can be voided by failure to disclose material information
On October 9, 2019, Series 1 of Oxford Insurance Company NC, LLC (“Oxford’) filed a complaint in the US District...
Read MoreThe rise of the shadow lobbyists
Under the Lobbying Disclosure Act, members of Congress are required to wait a certain period after they leave office before...
Read MoreInternal on-line wage-hour compliance training can be privileged
On February 5, 2019, the United States District Court for the District of Rhode Island found that an on-line wage-hour...
Read MoreWP doctrine: a recent case
In Johnson v. Air Liquide Large Industries U.S. L.P., Case No. 2:18-CV-259-WCB, 2019 U.S. Dist. LEXIS 152963, (E.D. Tex. Sept....
Read MoreThe Vast Unmet Need for Legal Services
We live in the age of “disruption.” … Can we understand what is happening in the legal services industry,...
Read MoreLawyers may direct clients to fee financing
On November 27, 2018, the American Bar Association issued ABA formal opinion 484 addressing attorneys’ ethical obligations when clients use...
Read MoreIs that ethical for a lawyer to accept earnest money through PayPal?
Is that ethical for a lawyer to accept earnest money through PayPal? The SC Ethics Advisory Committee opined that it...
Read MoreDoes a lawyer need to preserve or turn over information if after an initial consultation the lawyer is not retained?
In Ethics Opinion 3474(Ethical Obligations Regarding Prospective Client Information),the D.C. Bar Legal Ethics Committee opined on an interesting issue: whether there is an ethical...
Read MoreLawyers may direct clients to fee financing
American Bar Association Standing Committee on Ethics and Professional Responsibility Lawyers may direct clients to fee financing On...
Read MoreUnethical Provisions in Sexual Harassment Settlement Agreements
The media are filled with news about sexual harassment claims, the most recent being actor Bill Cosby’s conviction for sexual...
Read MoreThe duty to inform clients when lawyers make mistakes
The ABA Committee on Ethics recently provided concrete advice to lawyers on when they must inform they clients when they...
Read MoreUse of a file-sharing site without password was found to constitute a waiver of attorney-client privilege and work product protection
On February 9, 2017, a Virginia District Court deemed that the posting of privileged information on the web without protection...
Read MoreThe NY Court Appeals revisits the champerty doctrine
Last year the New York Court of Appeals held that a purchase by an off-shore shell company of notes that...
Read MoreUnauthorized practice of law – A recent decision of the SC Supreme Court
The SC Supreme Court, on February 22, 2017, found that a group managing HOAs (Community Management Group, “CMG”) committed unauthorized...
Read MoreSelf-Assessment Checklists May Help Lawyers in Risk Management
The practice of law is laden with risk. Ok … yes … we all know that. The difficult problem that...
Read MoreWhen does blogging constitute advertising?
In Formal Opinion 2016-196, the California State Bar Ethics Committee dealt with the question of when a blog by a...
Read MoreIs a certificate of merit always necessary when you sue a law firm?
As it well know, in the vast majority jurisdictions, when you sue a professional (lawyers, doctors and others) in negligence,...
Read MoreHow ethical is participating in fixed-fee referral services like Avvo in light of SC, Ohio, and Pennsylvania ethics opinions
In Ethics Advisory Opinion 16-06, the SC Ethics Advisory Committee opined that lawyers cannot ethically participate into fixed-fee legal referral...
Read MoreAvvo model rejected in three jurisdictions
PA joins SC and OH in finding that lawyer participation in Avvo fixed fee referral program is unethical. Links to...
Read MoreThe non adversity of the Anders Brief …
If counsel on appeal on criminal cases consider the appeal frivolous, they must file a brief indicating anything in the...
Read MoreThe privilege waiver effect of voluntary disclosures to the Government after CISA
The Cybersecurity Information Sharing Act of 2015 (CISA) in broad terms allows companies to monitor and cyberthreats. In particular, under...
Read MoreA rose by any other name is . . . a partner? Non-equity partners formally approved by North Carolina Bar
It used to be the case that lawyers practiced either as solo practitioners or in partnership. Over the years the...
Read MoreAttorney-client privilege for mixed business, lobbying, and legal communication
Connecticut Supreme Court has recently ruled that the attorney-client privilege applies when a communication between an attorney and a client...
Read MoreNJ Supreme Court Comm on Attorney Advertising issues notice on how lawyers may advertise “Best Lawyers” award and similar
On May 4, 2016, the New Jersey Supreme Court Committee on Attorney Advertising issued a notice to the Bar on...
Read MoreCCBE’s recommendations to protect confidentiality from government’s surveillance
On April 28, 2016, the CCBE issued a paper about the standards necessary “to ensure that the essential principles of professional secrecy...
Read MoreAssociation of attorneys can be found vicariously liable for the malpractice of members even if not a firm
In Wildasin v. Mathes, 2016 U.S. Dist. LEXIS 31672 (M.D. Tenn. Mar. 11, 2016), a federal court was called to...
Read MoreNew edition of Annotated South Carolina Rules of Professional Conduct presented on May 17, 2016 in Columbia
On May 17, 2016, Professor Nathan Crystal, at the SC Bar Conference Center in Columbia, will deliver a continuing legal education program...
Read MorePhysical presence in the practice of law still matters in an age of technology
Even in an era in which technology is enveloping the practice of law physical presence still matters, as shown by...
Read MoreSecond Circuit holds it is not unconstitutional to require non-resident attorneys to maintain a physical office in NY to practice law in NY
On April 22, 2016 the Second Circuit ruled that it is not unconstitutional to require non-resident attorneys to maintain a...
Read MoreHeads up: Copyright attorneys should look closely at fee-shifting case pending before Supreme Court
In Kirtsaeng v. John Wiley and Sons the Court is called to resolve a split among Circuits on the appropriate...
Read MoreNathan Crystal at ABA SIL program “Affiliation Agreements Between Law Firms: Across the Borders”
April 15, 2016 at 9.00 Grand Hyatt in NYC Discussion of current developments regarding affiliation among law firms from different countries...
Read MoreNathan Crystal speaking at the ABA SIL program “Affiliation Agreements Between Law Firms: Across the Borders”
This Friday April 15, 2016 at 9.00 in NYC I will be speaking at the program “Affiliation Agreements Between Law...
Read MoreWhen a prospective client becomes a risk to a lawyer (read: disqualification risk)
Quick reaction – Is having a prospective client a good thing? Answer: It depends. A prospective client may become an...
Read MoreChoice of Law in Legal Malpractice
We will deal here with choice of law issues in malpractice actions and not with choice of law issues...
Read MoreDealing with foreign counsel and foreign privilege: Don’t forget that foreign in-house counsel generally do not enjoy the privilege
Documents and other data containing client information are transferred daily across international borders. In-house counsel and outside counsel based in...
Read MoreIn-house counsel’s possible trap: Be aware of the “business advice” risk to the privilege
A fundamental difference between in-house counsel and outside counsel is that a central part of the role of in-house counsel...
Read More“Predictive coding” and other TAR as well-accepted methods of document review in federal courts
Four years after Da Silva Moorev. Publicis Groupe., 287 F.R.D. 182 (S.D.N.Y. 2012), laid the foundation for use of predictive...
Read MoreAmendments to Federal Rules of Civil Procedure, effective December 1, 2015 – scope of discovery and sanctions
I will discuss the most important changes concerning scope of discovery and relevant sanctions. Rule 26 previously defined the scope...
Read MoreAttorney suspended for breach of confidentiality in responding to clients’ online criticism
A Colorado attorney was suspended from the practice of law for 18 months on several grounds, including answering to clients’ criticism online by disclosing...
Read MoreLateral movements – providing notice to clients
If a lawyer is changing firms, how should the lawyer and the old firm handle notification to existing clients...
Read MoreCommon interest doctrine enlarged by the Second Circuit to include lenders
On November 10, 2015, the Second Circuit, reversed the lower court’s denial of a petition to quash a IRS summon....
Read MoreTemporary multi-jurisdictional practice in transactional matters
The terms “limited admission” or “temporary practice” are often used interchangeably used to refer to situations in which an out-of-state...
Read MoreTemporary practice (of US and foreign attorneys) now possible in New York under certain conditions
On December 10, 2015 the Court of Appeals approved Part 522 (Foreign In-House Lawyers) and Part 523 (Temporary Practice). The...
Read MoreLateral movement: When should departing lawyers inform their firms of their plans to leave?
Lawyers have fiduciary obligations to their firms. A fiduciary has a duty to disclose material information to the principal. However,...
Read MoreLateral movements and conflicts of interest
If a lawyer is changing firms, when does a conflict of interest exist and what can be done about...
Read MoreLateral movements: When should departing lawyers inform their firms of their plans to leave?
Lawyers have fiduciary obligations to their firms. A fiduciary has a duty to disclose material information to the principal. However,...
Read MoreConfidentiality issues in lateral movement and firm’s breakup
This is the first of a series of blogs dealing with issues arising from lawyers’ lateral movement and firm’s breakup...
Read MoreCan I Assign my Legal Malpractice Claim?
The short answer as it is often in law is: it depends. There are two recent cases that can help...
Read MoreAvoiding loss of your malpractice coverage
Nathan M. Crystal Most legal malpractice insurance applications and renewals include a general question similar to the following one asking...
Read MoreABA Opinion 471 (Ethical Obligations of Lawyer to Surrender Papers and Property to which Former Client is Entitled) released
On July 1, 2015 the Standing Committee on Ethics and Professional Responsibility released Formal Opinion 471 -“Ethical Obligations of Lawyer to Surrender...
Read MoreCalifornia issues Opinion 2015-193 on lawyers’ ethical duties in handling e-discovery
In Formal Opinion 2015-193 the State Bar of California Standing Committee on Professional Responsibility and Conduct (“California Ethics Committee” or...
Read MoreWP Protection varies depending on whether court adopts “assist” in litigation or “because of” litigation standard
WP Protection varies depending on whether court adopts “assist” in litigation or “because of” litigation standard Some recent court decisions...
Read MoreBroadrock Gas Services v. AIG – internal legal memo may not be protected by attorney client privilege in NY
The federal court for the Southern District of New York recently held that internal legal memo may not be protected by...
Read MoreLitigation hold triggered for foreign companies when litigation in the U.S. can reasonably be anticipated
On February 12, 2015, the United States District Court for the Southern District of Ohio issued a decision in an...
Read MoreWhat is an “aggregate settlement”? The Oregon Supreme Court held that interdependence between claims is required.
The Oregon Supreme Court has held that the aggregate settlement rule, ABA Model Rule 1.8(g), applies when interdependence between client...
Read MoreinShare Share Copying general counsel does not in itself make a document privileged
Kleen Products LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill.), holding that...
Read MoreWhat effect does a client’s failure to pursue an appeal in an underlying action have on his or her ability to maintain a legal malpractice lawsuit?
In Grace v. Law, 2014 WL 5325363 (N.Y. Oct. 21, 2014) the New York Court of Appeals decided an important...
Read MoreMultijurisdictional practice – Some variations under Rule 5.5
ABA Model Rule 5.5 ABA Model Rule 5.5 lists among the exceptions to unauthorized practice that a lawyer does not...
Read MoreNY Ethics opinion outlines factors for choice of ethics rules when lawyers are admitted in several jurisdictions. Opinion 1027 (10/16/2014)
An attorney admitted in New York and the District of Columbia with offices in both the jurisdictions, dealing with transactional...
Read MoreThird party beneficiaries named in a will or estate planning can sue in malpractice the decedent’s attorney
South Carolina S Ct. recognizes claim for legal malpractice by third party beneficiary named in an existing will or estate...
Read MoreSpecial litigation committee’s report may enjoy ACP or WP protection
In derivative action a special litigation committee’s report may be entitled to attorney-client privilege or work product protection. So the...
Read MoreWork Product Protection for Expert Witness’ work – court held that allowing opponent to see Expert’s Drafts to Evaluate Counsel’s Involvement in the Expert’s Report, Frustrates Foundation of revisions to F.R.Civ.P. 26
On August 25, 2014, In U.S. Commodity Futures Trading Commission v. Newell, Case No. 12 C 6763, 2014 U.S. Dist....
Read MoreHow wide is the common interest privilege?
A recent NY decision restricts the common interest privilege to a common legal interest. Schaeffler v U.S., No 13 Civ....
Read MoreDelaware Supreme Court recognizes “good cause” exception to attorney-client privilege in derivative litigation
In a derivative action a shareholder of a corporation or member of an LLC or other entity beings suit claiming...
Read MoreJudge turns down as inequitable disqualification motion filed on the verge of trial for facts known long time before – Reeves v. The Town of Cottageville, 2:12-cv-02765-DCN (D.S.C.)
Motions to disqualify opposing counsel for conflicts of interest occur often in litigation. Responses to such motion usually focus on...
Read MoreTuten v. Joel (S.C. Ct.App. August 27, 2014) – terminating a practice does not take a lawyer off the hook.
In this malpractice action, client sued both the new lawyer (Glover) and the old lawyer (Joel). Both are held responsible...
Read MoreDo you offer to represent current/former employees of your corporate client? You might be soliciting
A lawyer for an entity in litigation, engages in solicitation when the lawyer contacts current or former employees to offer...
Read MoreA sensible approach to the “fiduciary duty” and “current client” exceptions to the attorney-client privilege
Imagine that an attorney receives notice from client that a malpractice suit is being considered and that attorney consults with...
Read MoreAggregate settlements (Nonclass)
Aggregate settlements (Nonclass) are agreements involving multiple clients in which the terms of the settlement are interdependent. They involve complex ethical...
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