Volume 24 Issue 17
August 20, 2008

HIGHLIGHTS

Advance Waiver From Corporate Client Wasn't Sufficient to Cure Conflict

A law firm failed to establish that its corporate client gave "truly informed consent" to a concurrent conflict in a patent case even though the company's in-house patent counsel had signed a broad advance waiver of future conflicts, the U.S. District Court for the District of New Jersey rules. Page 427

Disgorgement of Fees Isn't Required for All Breaches of Conduct Standards

An attorney who allegedly violated professional conduct rules involving fiduciary duties need not disgorge fees that were reasonable in light of the work done and results obtained, the U.S. Court of Appeals for the Ninth Circuit holds. Interpreting Washington law, the court states that trial judges may use their discretion in determining whether a return of fees is called for when a lawyer breaches a fiduciary duty to a client. Page 430

Outsourcing Legal Work Is Allowed, but Carries Risks Under Ethics Rules

While it is not inherently improper to outsource legal work to overseas attorneys or paralegals, lawyers who wish to do so must keep in mind a number of potential problems, according to the Florida Bar's ethics committee. Page 437

'Case Within Case' Required for Malpractice Claims Based on Settlement

Clients who claim their lawyers' misfeasance forced them to accept an unfavorable settlement must prove not only that they would have prevailed had the case been litigated but also that they would have won more money than was awarded in the settlement, the Ohio Supreme Court declares. Page 426

Former In-House Lawyer Cannot Use Privileged Materials She Took

The ethics rule that allows lawyers to reveal confidential information in order to assert a claim or defense against a client does not permit a fired in-house counsel who is suing her former employer to keep and use privileged documents that she took with her without the employer's consent, the U.S. District Court for the Western District of Pennsylvania decides. A former in-house counsel who needs privileged materials should seek them through discovery rather than resorting to self-help, the court says. Page 429

Affair With Client's Wife Costs Mississippi Attorney $1.5 Million

The Mississippi Supreme Court upholds a jury's verdict of $1.5 million in damages against a lawyer who entered into a sexual relationship with a client's wife. The client did not need to introduce expert testimony to establish the lawyer's liability, the court concludes. Page 427

Lawyer Suspended From Federal Practice Can't Serve as Paralegal

The U.S. District Court for the Eastern District of Tennessee provides a long list detailing what a lawyer suspended from practicing in federal court must not do while on suspension. Page 441

CONFERENCE REPORT

MODEL RULES:  By a one-vote margin the ABA House of Delegates defers action indefinitely on a controversial proposal that would have allowed law firms to use screening to avoid imputation of conflicts. But a proposed model rule for state registration of in-house counsel sails through on a voice vote. Page 443

ADVERTISING AND SOLICITATION:  At a session called "Advertising: Does Anybody Care?," regulators indicate that the answer is yes. Page 444

REGULATION OF BAR:  Speakers forecast the future of the rules of professional conduct, including whether self-regulation will continue. Page 446

CORPORATE COUNSEL:  Claims that the corporate attorney-client privilege is under assault are not an exaggeration, two panelists assert. Page 448

CONFIDENTIALITY:  A tax practitioner explains why attorneys are increasingly emphasizing the work product doctrine in trying to protect clients' tax workpapers from disclosure. Page 450

REFERENCE MANUAL

Copyright © 2008 by the American Bar Association and The Bureau of National Affairs, Inc., Washington, D.C.