Tennessee Formal Ethics Opinion Precludes Settlements That Require Attorney to Return His or Her Work Product

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The Tennessee Board of Professional Responsibility issued a formal Ethics Opinion concluding that a settlement provisions requiring attorneys to turn over documents protected by attorney work product may be prohibited by Rule 5.6(b). Specifically, a lawyer may not propose or agree to a settlement agreement that requires a lawyer to turn over any work product materials as part of the …

U.S. Fifth Circuit Sanctions Defendant Who Contests Liability and Presents Purported Experts in Bad Faith

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“The general rule in federal court, the so-called ‘American Rule,’ is that litigants are responsible for their own fees. Federal courts, however, possess ‘inherent power’ to assess fees as sanctions when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Under this test, sanctions are warranted when a party knowingly or recklessly raises an objectively …

Attorney Can Be Sued for Copyright Infringement When Using Substantial Portions of Another’s Brief

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A lawyer copied “substantial portions” of a brief drafted by a co-defendant in a patent case, who was “the owner of a valid and registered copyright” for its brief.  Judge Hatter, sitting in the Central District of California, rejected the defendant’s claim of “fair use”. First, the defendant “did not add new expression, meaning or message to Newegg’s draft brief. …

Gibson Dunn Disqualified by California Superior Court for Using Privileged E-Mail that Had Been Inadvertently Disclosed

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According to the formal Court Order: “An email from attorney to client shows attorney/client privilege; Counsel’s review and use of the email at deposition goes beyond ‘mere exposure’ and raises the likelihood that this could affect the outcome of these proceedings both in terms of Plaintiff’s rights against use of his privileged communications against him and in terms of the …

Judge in W.D. Arkansas Sanctions Attorneys who Dismiss Putative Class Action to Effectuate Settlement in State Court

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A putative class action was filed in the Circuit Court of Polk County, Arkansas, and properly removed under the Class Action Fairness Act of 2005 (CAFA). An answer was filed, followed by a motion for partial judgment on the pleadings.  Then the court stayed the action on joint motion of the parties. At the initial mediation session, the possibility of …

New Jersey Committee on Lawyer Advertising Issues a Notice to the Bar re “Superlawyers” “Best Lawyers” etc

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Lawyer advertising that mentions awards such as “Super Lawyers,” “Rising Stars” and “Best Lawyers” has spurred the filing of many complaints with the New Jersey Supreme Court Committee on Lawyer Advertising, which recently issued a reminder: Lawyers may refer to such honors in their advertising “only when the basis for comparison can be verified” and the group bestowing the accolade …

U.S. Fifth Circuit Affirms En Banc Suspension of Attorney Who Hired Co-Counsel in Order to Prompt District Court Judge’s Recusal

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The U.S. Fifth Circuit Court of Appeals affirmed a one-year suspension (six months deferred) of an attorney who was found to have hired a close friend of the presiding judge as co-counsel in order to obtain judge’s recusal. Rule 2 of the Eastern District’s Rules for Lawyer Disciplinary Enforcement states that “the court en banc may impose discipline upon a …

U.S. Ninth Circuit Declines to Mechanically Apply Traditional Conflict Rules to Class Actions

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The articulated bases for the State of California’s automatic disqualification rule for simultaneous conflicts “fits the circumstances of the lawyer who represents a class of plaintiffs whose interests may in some ways be adverse to each other, but all of whose interests are adverse to the defendant. In a class action, conflicts often arise not because an attorney simultaneously represents litigation adversaries but …

Louisiana Supreme Court Issues Rule for the Disposition of Unidentified Funds in Trust Account

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On March 23, 2016, Rules 1.15(g)(7) and 1.15(h) of the Louisiana Rules of Professional Conduct were added to provide the following: “Unidentified Funds” are funds on deposit in an IOLTA account for at least one year that after reasonable due diligence cannot be documented as belonging to a client, a third person, or the lawyer or law firm. A lawyer …

ABA Provides Guidance to Attorneys Who Receive Subpoenas Seeking Client File Materials

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The ABA Standing Committee on Ethics and Professional Responsibility issued a formal opinion addressing a lawyer’s “Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information,” which offers the following guidance and advice: “The lawyer’s obligations of notice and consultation upon receiving a demand for client files and information are essentially the same for current and …