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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 ›

Practicing Without a Net: Protecting your Firm by Agreement

Attorneys come to us when contemplating the creation or expansion of their firms, when they want to leave their firm, or are dealing with the fallout of another member leaving. While many law firms have taken advantage of the protections of a limited liability entity, attorneys are not always aware of the risks involved when the members of the firm do not enter into an agreement or enter into an incomplete or “boiler plate” agreement in forming those entities, risks that sadly only come to light when embroiled in a dispute between the members More ›

Is the American Rule dead in New Jersey?

Ok, so maybe "dead" is a bit hyperbolic, but the New Jersey Supreme Court's decision in Innes v. Marzano-Lesnevich, No. 074291, ___ N.J. _____ (N.J. Apr. 26, 2016) has raised serious questions about just how far the New Jersey Court may be willing to bend the American Rule that litigants must bear the cost of their own attorneys' fees.   More ›

Be Careful how, and with whom, you Associate

Attorney associations are valuable means to reduce overhead and expenses, and provide support for sole practitioners. However, casually creating an association can give rise to issues, including increased exposure to vicarious liability and State Bar probes. More ›

Sanctions Under FED. R. CIV. P. 37(E)

In December 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of the amended rules, Rule 37(e), was completely rewritten in an attempt to develop a uniform, national standard for the imposition of sanctions involving the loss or spoliation of electronically stored information ("ESI"). This article briefly reviews the district court decisions that have applied Rule 37(e) since it went into effect. One conclusion that can be gleaned from those decisions, even at this early stage of the rule's development, is that the Rule 37(e) is being applied in a way to limit or deny sanctions that in years past would likely have been imposed. To understand why this is the case, we need to first turn to the Rule 37(e) itself, and then highlight several provisions from the rule's 2015 Committee Note. More ›

ABA Clarifies Referral fees Between Lawyers in Formal Ethics Opinion 474

On April 21, 2016, the American Bar Association ("ABA") Standing Committee on Ethics and Professional Responsibility released Formal Opinion 474, addressing referral fees under Model Rule 1.5(e) and the impact of conflicts of interest under Model Rule 1.7. The opinion makes clear that pursuant to Model Rule 1.5(e)(1) a lawyer may only receive a fee from referring a case to another lawyer not in the same firm if the referring attorney performs legal services for the client on that referred matter or assumes joint responsibility for the representation. Rule 1.5(e)(2-3) further mandates that the client must agree to such fee arrangement in writing, including the share each lawyer will receive, and that the total fee must be reasonable. More ›

Statutory Elimination of the Real Estate Broker's Fiduciary Duty

Will the California Supreme Court’s anticipated decision in Hiroshiike v. Coldwell Banker Residential Brokerage Company, significantly impact real estate agency law and the fiduciary duty of real estate agents? 25 states have statutorily eliminated a real estate broker’s ability to serve as a dual agent. While California will not likely follow statutorily, the state’s high court may soon make substantive developments in this area by judicial decision. More ›

Professional Responsibility Abroad: Your Rules Follow You

A California litigation attorney recently asked me if he could represent his American friend living in France. French law can be divided into two main categories, droit privé (private law) and droit public (public law). The matter involved a private contractual dispute with a French corporation. The attorney was not concerned about whether he would be in violation of French law by representing his friend without having the requisite qualifications to practice law in France, but rather he was inquiring as to whether he would be in violation of California law by representing a friend living in a foreign jurisdiction. Both the California Rules of Professional Conduct and the American Bar Association Model Rules provide guidance on this issue. However, this article will focus on the American Bar Association Model Rules. More ›

Settle and Pay? The California Supreme Court says, “Yes.”

A plaintiff who voluntarily dismisses a lawsuit after entering into a monetary settlement may be a “prevailing party” entitled to costs and fees under California law. More ›

What you Need to know about HIPAA Phase II Audit Program

Professionals may be subject to HIPAA due to the nature of their practice. Recently, the Health and Human Services Office of Civil Rights announced that it has implemented its HIPAA Phase II Audit Program, and Hinshaw's Health Care Law Group has issued an alert about what you need to know about this program. Click here for the full alert.