Volume 25 Issue 23
November 11, 2009

HIGHLIGHTS

Judge Orders FTC Not to Apply 'Red Flag' Regulations to Lawyers

The Federal Trade Commission is barred from enforcing new identity theft prevention rules against lawyers and law firms by the U.S. District Court for the District of Columbia. The court grants a motion for summary judgment filed by the ABA in its lawsuit challenging the FTC's broad application of the so-called "red flag" rules. Page 627

Departed Lawyer Can Shed Imputed Conflict by Proving Noninvolvement

An attorney may represent a party adverse to a client of the lawyer's former firm in a substantially related matter if the lawyer establishes that he did not personally represent or pick up confidential information about the firm's client, the U.S. Court of Appeals for the Fifth Circuit concludes. Page 612

ABA Ethics Opinion Approves Limited Disclosure to Spot Conflicts

According to the ABA's ethics committee, a lawyer and a firm that are discussing a possible new association ordinarily may exchange basic information needed to detect and resolve conflicts of interest, even though Rule 1.6 on confidentiality otherwise protects this information and has no explicit exception for conflicts checks. Page 621

Court Sets Two-Part Test to Defeat Privilege Claim in Misconduct Probe

Requirements that the First Circuit has specified for using the crime-fraud exception to overcome the attorney-client privilege apply when Maine's bar counsel demands to see information that a lawyer or firm under investigation insists is privileged, the Maine Supreme Judicial Court declares. Page 610

Iowa Rejects 'Control Group' Test for Corporate Attorney-Client Privilege

In Iowa, the supreme court announces, the corporate attorney-client privilege extends beyond counsel's communications with those in the company's "control group" and covers discussions with employees about their own actions relating to potential liability of the corporation but not with employees describing the actions of others. Page 611

Ratings and Comparisons

ADVERTISING AND SOLICITATION:  Lawyers who ask clients and colleagues to post comments about them on an online commercial rating service are responsible for what is said about them and must ensure that the content comports with professional conduct rules, the South Carolina bar's ethics committee concludes. Page 622

>The New Jersey Supreme Court approves a rule amendment that permits lawyers to advertise their selection by commercial attorney rating organizations if certain conditions are satisfied. Page 628

ALSO IN THE NEWS

FEES:  An attorney who acted as an intermediary in a monetary transaction between an accused drug kingpin and his lawyers did not violate a federal money laundering statute where his purpose was to determine if the money could legally be accepted by the other lawyers as payment of their legal fees, the U.S. Court of Appeals for the Eleventh Circuit holds. Page 616

MALPRACTICE:  A malpractice plaintiff seeking as damages the amount it would have been awarded in underlying litigation but for its attorneys' negligence is required to prove only that some portion of the lost judgment was collectible from the defendant's net assets, not that the defendant was "solvent," the Texas Supreme Court decides. In addition, the court indicates that at least some of the attorneys' fees the client incurred in trying to undo the malpractice may be recoverable as damages. Page 617

FEES:  A referral of a client has intrinsic worth that should be considered when calculating the quantum meruit value of a discharged referring lawyer's services, according to the U.S. Court of Appeals for the Ninth Circuit. Page 618

DISCIPLINE:  The U.S. Court of Appeals for the Second Circuit removes a lawyer from its bar instead of allowing her to resign. Page 625

Copyright © 2009 by the American Bar Association and The Bureau of National Affairs, Inc., Washington, D.C.