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In-Firm Privilege: Lawyers Have Legal Problems Too

For many years in the modern era of law firms, a few federal district court decisions starting in the 1980s set forth the notion that lawyers and law firms could not invoke the attorney-client privilege to shelter communications with their lawyers about their legal problems from the lawyers’ clients. Since that time, law firms have grown tremendously in size, scope, and complexity, making such an approach a thorn in the side of law firms’ in-house counsel.

Fortunately, since 2011, there has been an unbroken string of well-reasoned opinions deciding that the cases holding against the in-firm privilege were in fact mistaken. The supreme courts of Massachusetts, Georgia, Oregon, California, and New York have now upheld the rights of lawyers to get privileged legal advice, as have intermediate appellate courts or federal district courts in Illinois, Ohio, and California. More ›

Online Attorney Referral Networks and Sharing Fees with a Non-Lawyer

It seems everything is moving online these days, including legal services. In a time when more people are apt to send an email or a text than pick up the phone, when people increasingly shop, bank, and even date online, it seems only natural that more people would want to go to the Internet for easy, efficient legal services. Enter the multitude of startup online attorney referral networks, offering a range of features from marketing to communications, document processing, and full-service billing and payment, for a small fee, of course. As tempting as these services may be for lawyers looking to boost their books of businesses, they should be aware that bar regulators may have a few objections. In only the last few months, ethics committees in Ohio, South Carolina, and Pennsylvania have issued opinions regarding the fee structures offered by online attorney referral networks. Although these opinions also considered several other ethics issues implicated by attorney participation in these networks, the common conclusion they share is that attorneys participating in some of these networks may risk running afoul of the Rules of Professional Conduct prohibiting sharing of legal fees with a non-attorney.  More ›

Trial Court's Error In Underlying Case Was Superseding Cause Of Plaintiffs' Claimed Damages

Whether the trial court erred in the underlying litigation is always an important part of the proximate (or "but for") causation analysis. Stanfield v. Neubaum, 2016 WL 3536865 (Tex. June 24, 2016) is yet another case that supports the proposition that an intervening cause, such as the retention of successor counsel when a client's claim is still viable or a trial court's error, relieves the attorney of liability. More ›

A Fool For a Client?

If you think you can fix that mistake, think again. As lawyers, taking matters into our own hands is dangerous and ill-advised. More ›

Have Your Clients Had Their Legal Checkup?

In August 2014, the ABA's Commission on the Future of Legal Services set out to improve the delivery of, and access to, legal services in the United States. (Report on the Future of Legal Service in the United States, p.4)    More ›

Practitioners -- Time to Update Your Client Arbitration Agreements (Pt. III)

          Many attorneys have been using the same engagement agreements for decades designating standard commercial providers such as the American Arbitration Association to resolve client disputes.  In recent years some have learned the hard way that their agreements do not comply with consumer protection rules that have developed in recent years.  The failure to incorporate new standards into fee agreements means not only that non-conforming provisions will be deemed unenforceable.  In some cases attorneys will find that their arbitration agreements are wholly unenforceable.

Ed. Note: The remainder of the post is the continuation of Ed Donohue's discussion of arbitration agreements between clients and lawyers, posted originally on June 20, 2016 and June 28, 2016. We'll pick it up where we left off, in mid-outline... More ›

Practioners -- Time to Update Your Client Arbitration Agreements, Part II

Many attorneys have been using the same engagement agreements for decades designating standard commercial providers such as the American Arbitration Association to resolve client disputes.  In recent years some have learned the hard way that their agreements do not comply with consumer protection rules that have developed in recent years.  The failure to incorporate new standards into fee agreements means not only that non-conforming provisions will be deemed unenforceable.  In some cases attorneys will find that their arbitration agreements are wholly unenforceable.

Ed. Note: The remainder of the post is the continuation of Ed Donohue's discussion of arbitration agreements between clients and lawyers, posted originally on June 20, 2016. We'll pick it up where we left off, in mid-outline... More ›

Supreme Court Rules that Pennsylvania Justice's Previous Involvement in Case Represented an Impermissible Risk of Bias

In a recent opinion, Williams v. Pennsylvania, --- S.Ct. ----,  2016 WL 3189529 (June 9, 2016), a divided United States Supreme Court held that judges must recuse themselves in cases in which they previously played a significant role in prosecuting the person appearing before them.  More ›

Time to Update Your Client Arbitration Agreements (Pt. 1)

Many attorneys have been using the same engagement agreements for decades designating standard commercial providers such as the American Arbitration Association to resolve client disputes.  In recent years some have learned the hard way that their agreements do not comply with consumer protection rules that have developed in recent years.  The failure to incorporate new standards into fee agreements means not only that non-conforming provisions will be deemed unenforceable.  In some cases attorneys will find that their arbitration agreements are wholly unenforceable. More ›

What Century Are We Living In? – The Second Circuit Seems To Think It's the Nineteenth

The United States Court of Appeals for the Second Circuit recently held that members of the New York bar residing out-of-state can be constitutionally required to have a physical office within the state, reversing the U.S. District Court for the Northern District of New York's decision finding otherwise. Given the realities of law practice in 2016, how does this make sense? More ›