How should a lawyer approach decision-making when the Rules of Professional Conduct provide discretion or in situations involving grey areas?My paper Deciding Difficult Questions of Professional Ethics: A Model of Nuanced Decision-Making discusses  the benefits for lawyers to use a nuanced approach...

Criminal defense counsel, like any other attorneys, are subject to civil liability for legal malpractice.  See generally Ronald E. Mallen, Legal Malpractice (2022 ed.). While legal malpractice cases may be difficult to win because of the requirements of proof of breach of duty, proximate causation,...

Putting aside the strategic wisdom and efficacy of a threat, when is a threat unethical? The Indiana Supreme Court’s recent decision in In re Stout, (No. 20S-DI-719 (Ind. Feb. 3, 2022) provides a good starting point for answering the question.  Stout represented the respondent to a petition for a...

In Ramkelawan v. Morgan & Morgan, P.A., (3D21-1143 October 20,2021) the Third District Court of Appeal in Florida upheld a malpractice arbitration clause in the defendant’s retainer agreement.  Under Florida Rule of Professional Conduct 4-1.5(i) an attorney may not make an agreement for mand...

Communication with clients is a fundamental aspect of law practice.  Not only is reasonable communication an ethical requirement, under ABA Model Rule 1.4, but it is also a practical necessity as part of the lawyer’s duty of competency.   A lawyer cannot adequately advise a client or make tacti...

Legal malpractice is a catchall term for a multiple causes of action, the most basic of which is professional negligence.  Like any negligence case, a claim for professional negligence requires the plaintiff to show that the defendant breached a duty to the plaintiff.  The Eleventh Circuit’s rec...

In Formal Opinion 499 issued September 8, the ABA Ethics Committee dealt with the ethical propriety of a lawyer’s passive investment in an alternative business structure (“ABS”), an entity that allows for nonlawyer ownership.  While ABSs are allowed in both the UK and Australia, they have onl...

You represent an unstable client.  Choose your area of practice – It happens regardless of field.  During the course of a meeting, the client makes threatening statements, which you take seriously: Maybe it’s a client who has lost a civil case and is furious with the judge, who the client thin...

           In document-intensive litigation the risk of inadvertent production of material subject to attorney-client privilege or work product protection is a major concern for both plaintiffs and defense counsel.   A complex array of rules — ethical, evidentiary, substantive, and pro...

May a lawyer ethically “ghost write” a sufficient complaint for the plaintiff to file pro se? This might be attractive to a lawyer when the case appears worthwhile on its face, the statute of limitation is about to run, and the lawyer doesn’t have time to fully evaluate the case. Once the comp...

In Fine Housing, Inc. v. Sloan, 2020 S.C. App. LEXIS 89 (S.C. Ct. App. 2020), the court of appeals discussed a number of aspects of the lawyer-witness rule, South Carolina Rule of Professional Conduct 3.7, which is identical to the ABA Model Rule. First, the court recognized that disqualification un...

As it well known, prosecutors are subject to the same ethics rules as lawyers. There some notable differences, however. Prosecutors, unlike lawyers, have an obligation to do justice (see Comment [1] to Model Rule 3.8[i] and case law[ii]), although the exact boundaries of this obligation are unclear....

In Formal Opinion 2019-5, the New York City Bar Ethics Committee was asked the following question: Is a fee agreement requiring the client to pay for legal services in cryptocurrency a business transaction governed by Rule 1.8(a)? (emphasis added) The Committee advised that agreements requiring the ...

On October 9, 2019, Series 1 of Oxford Insurance Company NC, LLC (“Oxford’) filed a complaint in the US District Court for the Western District of North Carolina against Buckley, LLP seeking a judgement on whether or not Oxford has any obligation to indemnify Buckley under an insurance p...

Under the Lobbying Disclosure Act, members of Congress are required to wait a certain period after they leave office before they are allowed to lobby. Former members of the House of Representatives are required to wait one year while former members of the Senate are required to wait two years. Howev...

In Johnson v. Air Liquide Large Industries U.S. L.P., Case No. 2:18-CV-259-WCB, 2019 U.S. Dist. LEXIS 152963, (E.D. Tex. Sept. 9, 2019), a district court in Texas analyzed both attorney client privilege (ACP) and work product (WP) protection for documents created in an investigation. The court compa...

  We live in the age of “disruption.”  …   Can we understand what is happening in the legal services industry, and can we envision where these developments are likely to lead so that we can begin to prepare for the future?  Perhaps surprisingly, some interesting answers come from Utah...

On November 27, 2018, the American Bar Association issued ABA formal opinion 484 addressing attorneys’ ethical obligations when clients use companies or brokers to finance their fees. ABA Formal Opinion 484 considers fee financing arrangements of the types described below as ethically permissible ...

Is that ethical for a lawyer to accept earnest money through PayPal? The SC Ethics Advisory Committee opined that it is with certain caveats. In Opinion 18-05 (“Lawyer accepting earnest money deposits from a client through PayPal” the Committee opined that A lawyer is required to hold pr...

In Ethics Opinion 3474(Ethical Obligations Regarding Prospective Client Information),the D.C. Bar Legal Ethics Committee opined on an interesting issue: whether there is an ethical duty to preserve......