Chicago Legal Malpractice Lawyer BlogOne issue that arises frequently is whether an agreement between two lawyers to share fees on a case is enforceable.
Rule 1.5(e) provides that:
(e) A division of a fee between lawyers who are not in the same firm may be made only if:
Articles Posted in Legal Ethics
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Can you sue disciplinary counsel? Connecticut says “No.”
Disciplinary investigations can be frustrating and time-consuming. Responding poorly to one can have serious consequences in that the punishment is often increased for those who do not acknowledge that they made an error. In Debra Cohen v. Patricia King, AC 40834 Connecticut Court of Appeals, Debra Cohen attempted to bring a defamation complaint against the disciplinary counsel who signed a disciplinary complaint against her. Ms. King moved to dismiss on the basis of the litigation privilege – which generally provides immunity for in-court statements and testimony. The trial court granted the motion to dismiss and the Court of Appeals affirmed. It noted that “statements made in a grievance proceeding were shielded by absolute immunity” and that the act of filing a grievance was also protected. This is an excellent and well-considered opinion. Witnesses have to be able to speak freely in disciplinary proceedings. Lawyers should not be able to use the threat of litigation to silence their critics or former clients.
Ed Clinton, Jr.
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Yes – There Was A Conflict of Interest – But No Legal Malpractice Case
The case is GB v. Christine Rossi, A-240-17T3. The case was decided in New Jersey and is an unpublished opinion. The case illustrates one problem with legal malpractice cases – there may be wrongful conduct, but the plaintiff must tie the wrongful conduct to her damages.
Plaintiff was getting divorced. She met with Rossi for about an hour and made numerous disclosures. Rossi declined representation.
Later, plaintiff’s husband filed for a temporary restraining order against plaintiff alleging that she had committed domestic violence. At trial, Rossi represented husband. Husband won the trial and GB was evicted from the marital home. Please note that Rossi did not file an appearance in the divorce case. She only appeared in the domestic violence case.
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New Jersey Court Shoots Down Legal Malpractice Claim Asserted As A Defense to A Fee Claim
One question which comes up frequently is whether a client can sue his former lawyer for legal malpractice based on what the client believes is an inflated legal bill.
A legal fee dispute is essentially a breach of contract case filed by the lawyer against the former client. Here the specific complaint was that the lawyer did not explain that, under the fee agreement, the lawyer was not required to refund any portion of the client’s deposit.
“Plaintiff next argues defendants breached a fiduciary duty to plaintiff by failing to properly advise him as to the non-refundable aspect of the retainer agreement. “In entering a contract at the outset of a representation, the lawyer must explain the basis and rate of the fee . . . and advise the client of such matters as conflicts of interest, the scope of the representation, and the contract’s implications for the client. . . .” Restatement (Third) of the Law Governing Lawyers § 18 cmt. d (Am. Law Inst. 2000). RPC 1.4(c) states, “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
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Repeat Post – Witness Who Testified Against Lawyer in Disciplinary Hearing Immune From Defamation Claim
The case is Bar Counsel v. Peter Farber, SJC 11171 (Massachusetts Supreme Judicial Court). This post is a repeat from a few years ago. I regard the opinion highly and think every lawyer should read it before taking any action adverse to an unhappy client.
Farber was the subject of an attorney disciplinary complaint. The complaining party, G. Russell Damon, testified against Farber. Damon accused Farber of wrongful conduct in connection with a real estate transaction. The disciplinary proceeding resulted in a reprimand against Farber.
Farber then brought a defamation case against Damon. Damon argued that he was immune because he testified under oath in a public proceeding. Damon took no other action to publicize his testimony.
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Think Carefully Before Writing a book about a case you prosecuted.
The Board of Professional Responsibility of the Tennessee Supreme Court has censured a prosecutor who obtained the conviction of three defendants in a murder case. While appeals were pending, the prosecutor wrote a book about the prosecution. Two of the Defendants filed motions for a new trial, alleging that the book demonstrated that there was exculpatory evidence that was not turned over to them before trial. The Board concluded that the lawyer violated Rule 1.8 (conflict of interest) by obtaining a personal benefit from writing the book and Rule 8.4(d) prejudice to the administration of justice.
The lawyer may have avoided some of the ethical problems had he waited ten years after the last appeal was decided.
Edward X. Clinton, Jr.
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Attorney Sues Maryland Grievance Commission Because It Closed Investigation into Hillary Clinton
The polarization of politics in our country has caused an attorney to try to compel the Maryland Grievance Commission to investigate attorneys who represented Hillary Clinton. An attorney, Ty Clevenger, believed that three Maryland attorneys who represented Hillary Clinton had violated the Rules of Professional Conduct. He wrote to the Grievance Commission but the Commission closed the investigation because Mr. Clevenger had no personal knowledge of the alleged unethical conduct. Undeterred by that decision, Clevenger then filed a Mandamus Action in the trial court to require the Grievance Commission to investigate the attorneys. The trial court ordered the Grievance Commission to investigate the complaint. As the court explains:
This case began when the Appellee, Ty Clevenger, submitted to the Attorney Grievance Commission of Maryland a complaint alleging professional misconduct by three Maryland-barred attorneys while they were representing former Secretary of State Hillary Clinton. The Office of Bar Counsel thereafter informed Mr. Clevenger that it would not undertake an investigation of the allegations in his complaint because he had no personal knowledge of the allegations presented and was not an aggrieved party or client…….
On December 20, 2016, Mr. Clevenger, proceeding without the assistance of a Maryland-barred attorney, filed in the Circuit Court for Anne Arundel County a Petition for Writ of Mandamus (“Petition”). He sought to have the circuit court compel Bar Counsel to conduct an investigation, arguing that then-effective Maryland Rule 19-711 required Bar Counsel to investigate every complaint that was not facially frivolous or unfounded. The Commission moved to dismiss the Petition for lack of jurisdiction, among other grounds. It asserted that the Court of Appeals retains original and complete jurisdiction over all attorney disciplinary matters.
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Ten Month Delay Defeats Recusal Motion
The case is Fulton Market Retail Fish, Inc. v. Todtman, Nachamie, Spizz and Johns, 2018 NY Slip Op o1o38 (Appellate Division First Department).
Plaintiffs, who sued their lawyers for legal malpractice, were concerned that the same judge who heard the underlying case was going to hear the legal malpractice case. They waited ten months after bringing the case to move for recusal. The court explained:
Plaintiffs’ claims are undermined by the fact that, while they argue that the court made biased rulings in the underlying landlord-tenant litigation, they never moved for recusal in that lawsuit, which lasted over a decade (see Glatzer v Bear, Stearns & Co., Inc., 95 AD3d 707 [1st Dept 2012]). Even after the same justice was assigned to the instant action, plaintiffs did not move for recusal until 10 months after the case commenced, and then only after the court, at oral argument on a motion to dismiss, questioned the viability of plaintiffs’ legal malpractice claim on collateral estoppel grounds.
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If a lawyer supports a judge’s campaign, must the judge recuse himself from that lawyer’s cases?
In this matter, a typical drug prosecution, the record reflected that county prosecutors supported the reelection campaign of a judge. Did that support create an obligation, on the part of the judge, to recuse himself from cases in which those lawyers appeared?
The trial court and the Indiana Court of Appeals held that there was no duty to recuse.
The lawyer for the defendant argued that the prosecutor’s support for the judge’s reelection campaign created an appearance of impropriety. The Indiana Court of Appeals disagreed. The court distinguished a prior case in which it had held that a judge was required to recuse himself because of an unusually close relationship to one of the lawyers.
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ARDC Charges Lawyer With Wrongfully Accessing Opponent’s Email Account
Disclaimer: This is a charge and it has not been proven. These are mere allegations by the ARDC.
The case is worth reading because it is relatively rare for the ARDC to allege that a lawyer wrongfully accessed an email account. The underlying case involved a former employee. The lawyer was employed as the CFO of the former employer. According to the allegations, the lawyer used a work email address of the former employee to reset the password on the employee’s personal email account. The lawyer then read the personal emails and used them in the litigation. The allegations of wrongdoing are as follows:
21 t all times alleged in this complaint, there was in full force and effect Chapter 720, Section 5/17-51 of the Illinois Compiled Statutes, which provided, in part: