Ethical Lawyering: Legal and Professional Responsibility in the Practice of Law
- Hayden
- 2nd Edition
- ISBN: 0314162259
| Page | Case Name | Citation | Court | Audio |
|---|---|---|---|---|
| 2 | Bates v. State Bar of Arizona | 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 | Supreme Court of the United States, 1977 |  Download |
| 6 | Shapero v. Kentucky Bar Association | 486 U.S. 466 | Supreme Court of the United States, 1987 | Download |
| 33 | In re Application of Chapman | 69 Ohio St.3d 17 | Supreme Court of Ohio, 1994 | Download |
| 36 | In re Hamm | 211 Ariz. 458 | Supreme Court of Arizona, 2005 | |
| 43 | The Florida Bar v. Brumbaugh | 355 So.2d 1186 | Supreme Court of Florida, 1978 | |
| 55 | Birbrower, Montalbano, Condon & Frank, P.C. v. The Superior Court of Santa Clara County | 17 Cal.4th 119 | Supreme Court of California, 1998 | |
| 67 | Bailey v. Algonquin Gas Transmission Co. | 788 A.2d 478 | Supreme Court of Rhode Island, 2002 | Download |
| 76 | Togstad v. Vesely, Otto, Miller & Keefe | 291 N.W.2d 686 | Supreme Court of Minnesota, 1980 | |
| 83 | Leak-Gilbert v. Fahle | 55 P.3d 1054 | Supreme Court of Oklahoma, 2002 | Download |
| 88 | Equitania Insurance Co. v. Slone & Garrett, P.S.C. | 191 S.W.3d 552 | Supreme Court of Kentucky, 2006 | Download |
| 93 | TIG Insurance Co. v. Giffin Winning Cohen & Bodewes, P.C. | 444 F.3d 587 | United States Court of Appeals for the Seventh Circuit, 2006 | Download |
| 100 | Jones Motor Co. v. Holtkamp, Liese, Beckmeier & Childress, P.C. | 197 F.3d 1190 | United States Court of Appeals for the Seventh Circuit, 1999 | Download |
| 104 | Vandermay v. Clayton | 328 Or. 646 | Supreme Court of Oregon, En Banc, 1999 | Download |
| 111 | Clark v. Rowe | 428 Mass. 339 | Supreme Judicial Court of Massachusetts, 1998 | Download |
| 115 | Shumsky v. Eisenstein | 96 N.Y.2d 164 | Court of Appeals of New York, 2001 | Download |
| 137 | Burdine v. Johnson | 262 F.3d 336 | United States Court of Appeals for the Fifth Circuit, En Banc, 2001 | Download |
| 145 | Wiley v. County of San Diego | 19 Cal.4th 532 | Supreme Court of California, 1998 | Download |
| 160 | Upjohn Co. v. United States | 449 U.S. 383 | Supreme Court of the United States, 1981 | |
| 164 | Stewart v. Falley's, Inc. | 2001 WL 1318371 | United States District Court for the District of Kansas, 2001 | Download |
| 172 | Stroh v. General Motors Corp. | 213 A.D.2d 267 | New York Supreme Court, Appellate Division, 1995 | Download |
| 180 | In re: Investigating Grand Jury (Stretton) | 887 A.2d 257 | Superior Court of Pennsylvania, 2005 | Download |
| 183 | Swidler & Berlin v. United States | 524 U.S. 399 | Supreme Court of the United States, 1998 | |
| 188 | Securities and Exchange Commission v. Cassano | 189 F.R.D. 83 | United States District Court for the Southern District of New York, 1999 | |
| 198 | Spaulding v. Zimmerman | 263 Minn. 346 | Supreme Court of Minnesota, 1962 | |
| 206 | Purcell v. District Attorney | 424 Mass. 109 | Supreme Judicial Court of Massachusetts, 1997 | |
| 214 | Meyerhofer v. Empire Fire & Marine Insurance Co. | 497 F.2d 1190 | United States Court of Appeals, Second Circuit, 1974 | |
| 220 | State of Ex Re. Counsel for Discipline of Nebraska Supreme Court v. Lopez Wilson | 262 Neb. 653 | Supreme Court of Nebraska, 2001 | |
| 229 | In the Matter of Anonymous | 655 N.E.2d 67 | Supreme Court of Indiana, 1995 | |
| 244 | Patriarca v. Center for Living & Working, Inc. | 438 Mass. 132 | Supreme Judicial Court of Massachusetts, 2002 | |
| 248 | Moores v. Greenberg | 834 F.2d 1105 | United States Court of Appeals, First Circuit, 1987 | |
| 250 | Jones v. Barnes | 463 U.S. 745 | Supreme Court of the United States, 1983 | |
| 258 | Martinez v. Court of Appeal of California | 528 U.S. 152 | Supreme Court of the United States, 2000 | |
| 264 | Nichols v. Keller | 15 Cal.App.4th 1672 | California Court of Appeal, 5th District, 1993 | |
| 272 | Committee on Legal Ethics of the West Virginia State Bar v. Hart | 186 W. Va. 75 | Supreme Court of Appeals of West Virginia, 1991 | |
| 277 | The Florida Bar v. Bailey | 803 So.2d 683 | Supreme Court of Florida, 2001 |
| Case Information | Fact Summary | Rule of Law |
|---|---|---|
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Bates v. State Bar of Arizona Supreme Court of the United States, 1977 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 Pg. 2 |
Appellants, two licensed attorneys and members of the Arizona State Bar, published an advertisement of services and rates in a newspaper. They were charged in a complaint filed by the State Bar's president with violating the State Supreme Court's disciplinary rule, which prohibits attorneys from advertising in newspapers or other media. | Advertising by attorneys may not be subjected to blanket suppression, however advertising that is false, misleading, illegal, or deceptive is subject to restraint. In addition, there may be reasonable restrictions on the time, manner, and place of advertising. |
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Shapero v. Kentucky Bar Association Supreme Court of the United States, 1987 486 U.S. 466 Pg. 6 |
A member of the Kentucky Bar Association challenged that bar association's rule, based on model rule 7.3, which prohibited lawyers from soliciting business through letters, even though those letters were truthful, on First Amendment grounds. | The Court held that such advertising is constitutionally protected. Commercial speech is subject to intermediate scrutiny. It is subject to restriction only in the service of a substantial governmental interest. |
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In re Application of Chapman Supreme Court of Ohio, 1994 69 Ohio St.3d 17 Pg. 33 |
A bar applicant admitted to unlawful business practices in association with his family's carpet sales business prior to and during his law school education. The state bar association found that the applicant failed to sustain his burden of proving good character and fitness. | A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the bar applicant's fitness or capacity to practice the law. |
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In re Hamm Supreme Court of Arizona, 2005 211 Ariz. 458 Pg. 36 |
A bar applicant was convicted of murder in 1974. He subsequently graduated from college through a prison study program and then graduated from Arizona State University College of Law after he was granted parole in 1992. | When evaluating a bar candidate, the court must determine what past bad acts reveal about an applicant's current character. Past criminal conduct affects the burden the applicant must meet to establish good character. "When an applicant has committed first degree murder, a crime that demonstrates an extreme lack of good moral character, that applicant must make an extraordinary showing of present good moral character to establish that he or she is qualified to be admitted to the practice of law." |
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The Florida Bar v. Brumbaugh Supreme Court of Florida, 1978 355 So.2d 1186 Pg. 43 |
Respondent, Mary Brumbaugh, runs a secretarial service that types documents for divorces, wills, resumes and bankruptcies. The Florida Bar claims that she is engaged in the unauthorized practice of law for charging clients $50, for preparing legal documents, and for issuing advice as to the costs and procedures for obtaining a no-fault divorce. | A person not licensed to practice law may provide and charge for legal forms, but "may not advise clients as to the various remedies available to them, or otherwise assist them in preparing those forms necessary for a dissolution proceeding." |
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Birbrower, Montalbano, Condon & Frank, P.C. v. The Superior Court of Santa Clara County Supreme Court of California, 1998 17 Cal.4th 119 Pg. 55 |
The Birbrower firm is a professional corporation based out of New York city. Over the period of two years, attorneys with the firm were engaged in representation in California. None of the attorneys who were representing the client, ESQ, a coproration in California, were licensed to practice in the state. | "[T]he practice of law 'in California' entails sufficient contact with the California client to render the nature of the legal service a clear legal representation. In addition to a quantitative analysis, we must consider the nature of the unlicensed lawyer's activities in the state. Mere fortuitous or attenuated contacts will not sustain a finding that the unlicensed lawyer practiced law 'in California.' The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations." |
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Bailey v. Algonquin Gas Transmission Co. Supreme Court of Rhode Island, 2002 788 A.2d 478 Pg. 67 |
Defendant brought this motion to vacate a default judgment in favor of the plaintiffs in the amount of $458,533.69. Defendant's attorney failed to respond to a series of requests and orders to compel, which resulted in the default judgment for the plaintiffs. Defendant cites Rule 60(b)(1) which states that a party may be relieved from a final judgment for "mistake, inadvertence, surprise, or inexcusable neglect." The original action concerned plaintiffs who claimed the negligence of defendant, Algonquin Gas Transmission Co., caused their personal injuries as they were laying a gas line and excavating a trench. | "Under Rule 60(b)(1), unexplained neglect, standing alone, whether by counsel or a party, will not excuse a party's noncompliance with orderly procedural requirements, such as compliance with deadlines for responding to discovery requests and the court's compliance orders. . . . But if the neglect is inexcusable, thereby precluding any relief under Rule 60(b)(1), then that same inexcusable neglect cannot constitute the 'other grounds' required to obtain relief under Rule 60(b)(6) unless other extraordinary and unusual factors also are present that would justify granting such relief. . . ." |
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Togstad v. Vesely, Otto, Miller & Keefe Supreme Court of Minnesota, 1980 291 N.W.2d 686 Pg. 76 |
Mrs. Togstad visited the law offices of the defendant to discuss a possible medical malpractice case concerning her husband. She described the facts that led up her husband's paralysis and was told by attorney Miller that "he did not think she had a case, but would discuss it with his partner." Mrs. Togstad did not hear back from the attorney and so she decided that they did not have a case against the hospital for medical malpractice. She brought this action against Miller claiming that he was negligent in his advice concerning their possible claims. | ". . . In a legal malpractice action of the type involved here, four elements must be shown: (1) that an attorney-client relationship existed; (2) that defendant acted negligently or in breach of contract; (3) that such acts were the proximate cause of the plaintiffs' damages; (4) that but for defendant's conduct the plaintiffs would have been successful in the prosecution of their medical malpractice claim. . . ." |
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Leak-Gilbert v. Fahle Supreme Court of Oklahoma, 2002 55 P.3d 1054 Pg. 83 |
Decedent updated his will with the assistance of Pauline Fahle, his lawyer. He requested that his daughter-in-law be added as his personal representative and he wanted her to receive his gun collection. Decedent also stated that he wished to disinherit his grandson. After decedent's death, at probate, it was discovered that the will did not mention the four other grandchildren that decedent had, and so the court treated them as unintentionally omitted heirs and divided the estate evenly among them, as if decedent had died intestate. The will's beneficiaries brought suit against Fahle for legal malpractice. | "When an attorney is hired to prepare a will according to the client's directions, unless the client requests such an investigation, the attorney's obligation does not ordinarily include the duty to investigate the existence of a client's heirs independent of, or in addition to, the information provided by the client." |
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Equitania Insurance Co. v. Slone & Garrett, P.S.C. Supreme Court of Kentucky, 2006 191 S.W.3d 552 Pg. 88 |
Two different groups of shareholders, known as the Vimont group, sought control of Equitana Insurance company. Defendant, Laurel Garrett and her law firm, represented the Vimont group during the shareholder dispute. This action was brought against Garrett, claiming that she negligently advised them, was unethical, that she violated a fiduciary duty to shareholders and that she was too expensive. | "Kentucky should not allow lawyers to avoid liability for committing errors in judgment which the average reasonably prudent lawyer would not commit. Any avoidance of liability should only be allowed for errors of judgment made in absolute good faith." |
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TIG Insurance Co. v. Giffin Winning Cohen & Bodewes, P.C. United States Court of Appeals for the Seventh Circuit, 2006 444 F.3d 587 Pg. 93 |
Plaintiff, TIG Insurance brought this professional malpractice action against defendants, a law firm and one of its attorneys. The law firm represented a university in a gender discrimination law suit brought by female professors. TIG insured this university and alleges that the firm committed malpractice when they failed to produce three gender study documents during discovery. | The elements of a legal malpractice action are: "'(1) the existence of an attorney-client relationship that establishes a duty on the part of the attorney; (2) a negligent act or omission constituting a breach of that duty; (3) proximate cause; and (4) damages.' . . . Legal cause, . . . is largely a question of foreseeability. The relevant inquiry is whether 'the injury is of a type that a reasonable person would see as a likely result of his or her conduct.' . . . The occurrence must have been 'reasonably' foreseeable: 'Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.' . . ." |
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Jones Motor Co. v. Holtkamp, Liese, Beckmeier & Childress, P.C. United States Court of Appeals for the Seventh Circuit, 1999 197 F.3d 1190 Pg. 100 |
Jones Motor Co., plaintiff, brings this action for legal malpractice against its attorneys for failure to make a timely effective request for a jury. While the attorneys did make a request, they failed to include the appropriate fee for a jury trial, and as a result a judge heard the complaint. | ". . . [E]ach party is deemed entitled to seek the 'protection' of the jury against being tried by a judge. . . . That entitlement, a real legal entitlement and not just a tactical opportunity to obtain a more favorable tribunal" has value to the party. |
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Vandermay v. Clayton Supreme Court of Oregon, En Banc, 1999 328 Or. 646 Pg. 104 |
Plaintiff, client, brought this action against defendant, lawyer for failure to draft a sale of property contract that properly limited liability for environmental contamination. After the sale, plaintiff was responsible for cleaning up the site that was sold for approximately $585,000. At trial, the court held that the foundation for the plaintiff's expert witness was inadequate, and defendant moved for a direct verdict arguing that plaintiff failed to present sufficient evidence without an expert. Court of appeals reversed finding that an expert witness was not necessary to determine that defendant did not follow plaintiff's instructions. | While "in most charges of negligence against professional persons, expert testimony is required to establish what the reasonable practice is in the community. . ." . . . "[e]xpert testimony is not required if, without an expert's opinion, the jury is capable of deciding whether the professional's conduct was reasonable." |
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Clark v. Rowe Supreme Judicial Court of Massachusetts, 1998 428 Mass. 339 Pg. 111 |
Plaintiff, who was a client of an attorney and a borrower of a banker, brought both a legal malpractice action against her attorney, and a negligence and breach of fiduciary duty action against her banker, after she suffered losses in real estate investments. The trial judge found that plaintiff was 70% negligent and that attorney was only 30% negligent. Judge then applied the principles of comparative negligence and denied the plaintiff any recovery. Plaintiff appeals and claims that comparative negligence is inapplicable to her legal malpractice claim. | "Comparative fault appropriately applies to a client's claim of malpractice by a lawyer." |
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Shumsky v. Eisenstein Court of Appeals of New York, 2001 96 N.Y.2d 164 Pg. 115 |
Plaintiffs brought this action against defendant, Eisenstein for legal malpractice when he failed to keep them informed and even avoided plaintiff's inquiries. As a result of defendant's actions, the Statute of Limitations for the plaintiff's claims expired. | "The continuous representation doctrine, . . . 'recognizes that a person seeking professional assistance has a right to repose confidence in the professional's ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered' . . . '[C]ontinuous representation%u201D in the context of a legal malpractice action does not automatically come to an end where, as here, pursuant to a retainer agreement, an attorney and client both explicitly anticipate continued representation." |
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Burdine v. Johnson United States Court of Appeals for the Fifth Circuit, En Banc, 2001 262 F.3d 336 Pg. 137 |
Petitioner seeks habeas corpus relief form his capital murder conviction and death penalty sentence, claiming that his conviction was the result of ineffective assistance, when his counsel slept during the trial. | "The purpose of the Sixth Amendment guarantee of the right to effective assistance of counsel at every critical stage of the proceedings is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. . ." and because "the Sixth Amendment serves solely to ensure a fair and reliable trial, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." |
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Wiley v. County of San Diego Supreme Court of California, 1998 19 Cal.4th 532 Pg. 145 |
Wiley brought this action for legal malpractice against his court appointed attorney after his conviction of battery causing serious bodily injury was overturned on a petition for a writ of habeas corpus. Defendants claim that plaintiff's actual innocence of the charged crimes is a necessary element of his legal malpractice claim. | Actual innocence is a necessary element of a former criminal defendant's legal malpractice action, and the plaintiff must prove by a preponderance of the evidence that, but for the negligence of his or her attorney, the jury could not have found him or her guilty beyond a reasonable doubt. |
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Upjohn Co. v. United States Supreme Court of the United States, 1981 449 U.S. 383 Pg. 160 |
After discovering that some of Upjohn Co.'s employees may have made questionable payments to foreign government officials, Upjohn's general counsel conducted an investigation. The IRS then issued a summons to Upjohn requiring it to produce the investigation documents, which Upjohn refused to do asserting that the tax summons violated the attorney-client privilege and work product doctrine. The United States then sought to have the summons enforced. | The "privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." Thus, the "[attorney-client] privilege applies when the client is a corporation. . . ." In addition, "the work-product doctrine does apply to IRS summonses" so that the "disclosure of documents and tangible things constituting attorney work product [is permitted] upon a showing of substantial need and inability to obtain the equivalent without undue hardship. . ." balanced with the court's obligation to "protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney." |
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Stewart v. Falley's, Inc. United States District Court for the District of Kansas, 2001 2001 WL 1318371 Pg. 164 |
After discovering that plaintiff made a report of sexual harassment, Beverly Broxterman, Falley's Human Resources Director, contacted plaintiff to ask about the report, to which plaintiff responded by saying "talk to [my] lawyer." Broxterman proceeded to investigate the claims and draft a memorandum summarizing her investigation and opinion of plaintiff's claims. Plaintiff then filed a motion to compel disclosure of the memorandum. | "The party opposing discovery must show (1) that the material is a document or tangible thing, (2) that the material was prepared in anticipation of litigation, and (3) that the material was prepared by or for a party or by or for the party's attorney." After the necessary showing has been made, "the burden shifts to the party seeking discovery to show (1) a substantial need for the materials and (2) that the party is unable, without undue hardship, to obtain the substantial equivalent of the material by other means." |
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Stroh v. General Motors Corp. New York Supreme Court, Appellate Division, 1995 213 A.D.2d 267 Pg. 172 |
An action was brought against Mrs. Maychick by the 12 people she injured when she lost control of her car. During a deposition, co-defendant, GMC, questioned Mrs. Maychick regarding discussions between her and her attorney, which she refused to answer claiming attorney-client privilege. GMC filed a motion to compel Mrs. Maychick to answer its questions, asserting that the attorney-client privilege did not apply in this situation because Mrs. Maychick's daughter was present during the discussions. | "[C]ommunications made to counsel through ... one serving as an agent of ... [the] client to facilitate communication, generally will be privileged." Furthermore, the "scope of the privilege is not to be defined by a third party's employment or function; it rather depends upon whether the client had "a reasonable expectation of confidentiality under the circumstances"." |
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In re: Investigating Grand Jury (Stretton) Superior Court of Pennsylvania, 2005 887 A.2d 257 Pg. 180 |
Attorney Samuel C. Stretton was held in contempt of court for calling upon the attorney-client privilege regarding statements his former client made to him after the representation had been formally terminated. The task of determining whether the attorney-client privilege applied in this situation made this a case of first impression for the Pennsylvania court. | "[D]ue to public policy considerations, all confidential communications and disclosures made by a client to his lawyer in the course of obtaining professional aid or advice is strictly privileged." |
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Swidler & Berlin v. United States Supreme Court of the United States, 1998 524 U.S. 399 Pg. 183 |
Petitioner, an attorney, took notes during an interview with his client nine days before the client committed suicide. The Government then issued subpoenas for those notes to use in a criminal investigation. Petitioners then filed a motion to quash, asserting that the notes were protected under the attorney-client privilege and work-product doctrine. | ". . . the general rule is that the attorney-client privilege continues after death" and "the case law[] implicitl[y] accept[s] . . . the treatment of testamentary disclosure as an "exception" or an implied "waiver."" |
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Securities and Exchange Commission v. Cassano United States District Court for the Southern District of New York, 1999 189 F.R.D. 83 Pg. 188 |
During discovery, the SEC inadvertently allowed a privileged document to be copied and produced to opposing counsel, only to discover the mistake 12 days later. Opposing counsel shared the privileged document with attorneys, clients, and others and, therefore, the SEC applied for an order to require opposing counsel to return the privileged document and to cease sharing the document. | The "inadvertent production of a privileged document does not waive the privilege unless the producing party's conduct" was so "careless as to surrender any claim that it has taken reasonable steps to ensure confidentiality." Moreover, "[i]n determining whether the production was inadvertent, courts consider (1) the reasonableness of the precautions taken to prevent inadvertent disclosure, (2) the time taken to rectify the error, (3) the scope of the discovery and extent of the disclosure, and (4) overarching issues of fairness." |
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Spaulding v. Zimmerman Supreme Court of Minnesota, 1962 263 Minn. 346 Pg. 198 |
Plaintiff requested that a settlement from a previous case, during which plaintiff was a minor, be vacated due to the fact that defendants had information, prior to the settlement, that was unknown by the plaintiff and the court. Due to the character of the concealment, the court vacated the settlement. Defendants then appealed the order to vacate the settlement. | "The court may vacate . . . a settlement [made on behalf of a minor] for mistake even though the mistake was not mutual . . . but where it is shown that one of the parties had additional knowledge with respect thereto and was aware that neither the court nor the adversary party possessed such knowledge when the settlement was approved." |
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Purcell v. District Attorney Supreme Judicial Court of Massachusetts, 1997 424 Mass. 109 Pg. 206 |
During an interview with Joseph Tyree regarding Tyree's eviction from his apartment, Jeffrey Purcell, an attorney, learned of Tyree's intention to set the apartment building on fire. Purcell then notified the authorities in order to prevent the crime from happening. During a trial of Tyree for attempted arson, the District Attorney subpoenaed Purcell to testify regarding his conversation with Tyree. Invoking the attorney-client privilege, Purcell filed a motion to quash the subpoena, which was denied, and then brought this action. | "A statement of an intention to commit a crime made in the course of seeking legal advice is protected by the [attorney-client] privilege, unless the crime-fraud exception applies. That exception applies only if the client or prospective client seeks advice or assistance in furtherance of criminal conduct." |
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Meyerhofer v. Empire Fire & Marine Insurance Co. United States Court of Appeals, Second Circuit, 1974 497 F.2d 1190 Pg. 214 |
Plaintiffs sued defendants for violations of, among other things, the Securities Exchange Act. One named defendant, Charles Goldberg, was an attorney formerly employed with defendant's attorneys. When Goldberg later learned that he was named as a defendant he met with plaintiff's counsel and revealed confidential information regarding the case in order to defend himself. | ". . . a lawyer may reveal confidences or secrets necessary to defend himself against 'an accusation of wrongful conduct.'" |
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State of Ex Re. Counsel for Discipline of Nebraska Supreme Court v. Lopez Wilson Supreme Court of Nebraska, 2001 262 Neb. 653 Pg. 220 |
An attorney, Joseph Lopez Wilson, represented Carlos Moreno in two matters. Subsequently, Wilson and Moreno became friends and Wilson represented Moreno in a few other matters, for which he did not charge because of their friendship. There was then a falling out between the two friends and Wilson, therefore, began threatening Moreno with disclosure of his confidential information if Moreno did not pay him for his previous representation. | ". . . [the] disciplinary rule prohibiting disclosure of client confidences except in certain limited circumstances, including when an attorney reasonably believes disclosure is necessary for resolution of a fee dispute, does not permit an attorney to threaten a former client with disclosure of client confidences in order to resolve a fee dispute." |
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In the Matter of Anonymous Supreme Court of Indiana, 1995 655 N.E.2d 67 Pg. 229 |
The court issued an opinion for two separate cases, both of which revolved around similar violations of the rules of professional conduct. In the first case, the attorney defended a company against labor union grievances, for which the key witness was the labor union trustee since he negotiated the collective bargaining agreement between the company and the union. Despite the attorney's assertion that he did not expressly agree to be the trustee's attorney, the attorney met with, and received letters from, the trustee regarding the trustee's wrongful discharge allegation against the union. After this, the attorney brought an action for fraud on behalf of the company against the trustee based on his actions during the negotiation of the collective bargaining agreement. | "An attorney-client relationship need not be express, but may be implied by the conduct of the parties. . . . Such a relationship exists "only after both attorney and client have consented to its formation."" |
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Patriarca v. Center for Living & Working, Inc. Supreme Judicial Court of Massachusetts, 2002 438 Mass. 132 Pg. 244 |
The plaintiff brought suit against the defendant for wrongful termination. During discovery, plaintiff admitted to communicating with some former employees of the defendant regarding events that happened during their employment. Defendant filed a motion for a protective order to bar plaintiff and plaintiff's attorney from having ex parte communication with defendant's former employees regarding the pending litigation. | An attorney is prohibited from having "ex parte contact . . . with certain employees of an organization, namely, those "who exercise managerial responsibility in the matter, who are alleged to have committed the wrongful acts at issue in the litigation, or who have authority on behalf of the corporation to make decisions about the course of the litigation."" |
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Moores v. Greenberg United States Court of Appeals, First Circuit, 1987 834 F.2d 1105 Pg. 248 |
The plaintiff hired defendant, an attorney, to sue the owners of a ship that plaintiff was injured on. The plaintiff lost his case and then sued his attorney for malpractice because the attorney did not advise the plaintiff about a settlement offer. | ". . . a lawyer must keep his client seasonably apprised of relevant developments, including opportunities for settlement. . . ." |
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Jones v. Barnes Supreme Court of the United States, 1983 463 U.S. 745 Pg. 250 |
The respondent was convicted of robbery and assault. Respondent was then assigned an attorney to represent him during his appeal, however, respondent's conviction was affirmed. Respondent then filed a petition for habeas corpus based on his claim of ineffective assistance by his appellate attorney because the attorney did not raise all of the issues that respondent requested be raised during the appeal. | "With the exception of . . . specified fundamental decisions, an attorney's duty is to take professional responsibility for the conduct of the case, after consulting with his client." |
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Martinez v. Court of Appeal of California Supreme Court of the United States, 2000 528 U.S. 152 Pg. 258 |
Martinez was convicted of embezzlement. He then filed a notice of appeal, a motion to represent himself and a waiver of counsel. His motion to represent himself was denied. | ""There is no constitutional right to self-representation on the initial appeal as of right. . . . The denial of self-representation at this level does not violate due process or equal protection guarantees."" |
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Nichols v. Keller California Court of Appeal, 5th District, 1993 15 Cal.App.4th 1672 Pg. 264 |
Plaintiff, while working as a boilermaker, was injured by falling debris. Plaintiff hired defendant attorney Fulfer to file a worker's compensation claim and Fulfer then associated co-defendant attorney Keller to prosecute the claim. Neither Fulfer nor Keller advised Plaintiff of other legal remedies available to him. Later, while consulting another attorney, Plaintiff discovered that the statute of limitations had run out for the other remedies previously available to him. | "An attorney, by accepting employment to give legal advice or render legal services, impliedly agrees to use ordinary judgment, care, skill, and diligence in the performance of the tasks he or she undertakes. . . ." |
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Committee on Legal Ethics of the West Virginia State Bar v. Hart Supreme Court of Appeals of West Virginia, 1991 186 W. Va. 75 Pg. 272 |
In an attorney disciplinary hearing, the Committee on Legal Ethics of the West Virginia State Bar recommended that attorney Hart's license to practice law be annulled because he had been convicted of assisting a client in filing a fraudulent tax return. Attorney Hart then claimed a right to an evidentiary mitigation hearing maintaining that he had a bona fide defense to the Committee's complaint. | " . . . an attorney's license shall be annulled upon proof that he has been convicted of any crime involving moral turpitude or professional unfitness. . . ." |
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The Florida Bar v. Bailey Supreme Court of Florida, 2001 803 So.2d 683 Pg. 277 |
The Florida Bar filed a complaint against attorney F. Lee Bailey for alleged misconduct in violation of the Rules Regulating the Florida Bar. One of the most egregious violations that Mr. Bailey was accused of was commingling his own funds with the funds of his client. The referee's findings concluded that Mr. Bailey should be found guilty of all of the alleged violations and, subsequently, Mr. Bailey sought a review of the referee's report. | A lawyer shall hold in trust, separate from the lawyer's own property, funds and property of clients or third persons that are in a lawyer's possession in connection with a representation. In no event may the lawyer commingle the client's funds with those of the lawyer or those of the lawyer's law firm. |
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