Stemming from my experience in the BP Oil Spill Litigation, I started to think about the specific duties owed by Lead Counsel to other litigants in an MDL whom they do not formally represent. Which questions, among others, were raised in a series of speeches and papers that have evolved over time, Ethical Questions Raised by the BP Oil Spill …
ABA Issues Formal Opinion re Securing Communication of Protected Client Information over the Internet
In sum, the Standing Committee on Ethics and Professional Responsibility advised as follows: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security …
U.S. Fifth Circuit Finds Attorney’s Promissory Note to Former Client Non-Dischargeable Where Attorney Violated Rule 1.8(h)
Mr. Selenberg, an attorney, filed for Bankruptcy, and sought to discharge, among other things, a promissory note that was provided to a former client whose case Mr. Selenberg allowed to prescribe. He argued that the debt should be discharged, as he did not make any “false representations” to his former client, Mrs. Bates. “For one, he notes that he accurately …
U.S. Supreme Court Reverses $2.7 Million Discovery Sanction Against GM Where Not Causally Related to the Misconduct
Plaintiffs sued Goodyear, alleging that the failure of a G159 tire caused the family’s motorhome to swerve off the road and flip over. After several years of contentious discovery, marked by Goodyear’s slow response to repeated requests for internal G159 test results, the parties settled the case. Some months later, the plaintiffs’ lawyer learned that, in another lawsuit involving the …
U.S. Fifth Circuit Affirms Sanction of Attorneys Who Withheld Material Evidence from Rule 26 Disclosures
The plaintiff in the underlying lawsuit claimed she was sexually assaulted on multiple occasions while incarcerated at the Maverick County Detention Center, operated by the defendant, GEO Group. During the plaintiff’s deposition, she was confronted with recordings of telephone calls which had not be identified or produced as part of the initial disclosures under Rule 26. The plaintiff filed a …
ABA Provides Guidance for Attorneys Seeking to Withdraw from Representation
The ABA Standing Committee on Ethics and Professional Responsibility was called upon to address the potential conflict between Court Orders and/or Rules requiring the bases for withdrawal of representation and the attorney’s obligation to maintain client confidences. While the issue was raised in the context of a desired withdrawal for non-payment of fees in particular, the Committee provided guidance that …
Seventh Circuit Says Wife’s Unauthorized Access to Husband’s E-Mails Could Violate Federal Wiretap Act
A husband embroiled in an acrimonious divorce brought suit against his wife claiming a violation of the Electronic Surveillance Act by surreptitiously placing an auto-forwarding “rule” on his e-mail accounts that automatically forwarded the messages on his e-mail to her. He also alleges that the wife’s divorce attorney violated the Act by “disclosing” the intercepted emails in response to his …
Covington & Burling Admonished for Representing Non-Party Witnesses in Depositions
The defendant, Jacobs, hired Covington & Burling to devlop factual information and defenses relating to Jacobs’ work for the Tennessee Valley Authority. Among other things, Covington helped identify non-party witnesses who might have factual information regarding the TVA-Jacobs contract. Covington worked with the witnesses to prepare and submit declarations in support of Jacobs’ Motion to Dismiss, asserting derivative sovereign immunity …
Alaska Bar Association Prohibits Use of “Web Bugs”
A “web bug” is a technology tool that tracks certain information about the document to which it is attached. They can be used in e-mail newsletters to help track readers, for example, but can also be used in e-mails to “invisibly” track, among other things: when the email was opened; how long the email was reviewed (including whether it was …
Repeatedly Sanctioned Lawyer Sanctioned for Frivolous Pleadings which Contradict Previous Filings by Same Party
Bordelon Marine filed suit against Bibby Subsea in Louisiana State Court, seeking to collect on, among other things, unpaid Invoice No. 15-58. The factual statements in the complaint were verified by Wesley D. Bordelon, the President of Bordelon Marine. The defendant removed the case to Federal Court, and moved to stay the matter pending arbitration. The Federal Court subsequently compelled …