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 …

Louisiana Attorney Sanctioned for Reckless Criticism of Trial Court Judge

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An attorney seeking writs from the Louisiana Supreme Court regarding the refusal of a district court to recuse itself in a family law matter accused the trial court judge of manipulating the transcript and the court of appeal of a cover up.  Sanctioning the attorney for a year and a day (with all but six months suspended), a divided Louisiana Supreme Court found …

GM Multi-District Litigation Raises Interesting Ethical Issues Regarding Lead Counsel’s Duties to Other Plaintiffs in the Litigation

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In the General Motors Ignition Switch Litigation, MDL No. 2543, a motion was made to remove Lead Counsel based on a confidential “inventory settlement” of Lead Counsel’s cases, and alleged improprieties regarding the selection (and alleged de-selection) of potential “bellwether” trial cases (in which Lead Counsel allegedly demanded a personal share of the fee).  While the Court’s Order, denying the …

District Court in Virgin Islands Calls Into Question the Efficacy of Stipulated Confidentiality Orders

In For Trial Lawyers, Legal Ethics & Professionalism, What's New in E-Discovery and Spoliation?, What's New in the Courts by gravierhouseLeave a Comment

“In the Stipulated Confidentiality Order, the parties agree that certain categories of documents will be designated as confidential. If documents are so designated, the Stipulated Confidentiality Order requires that ‘if filed, the documents shall be filed under seal and shall remain sealed while in the Office of the Clerk as long as they retain their status as stamped “Confidential” documents.’  …

A Client May be Advised to Hide or Remove Social Media, as Long as the Materials Are Preserved

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Both the Florida State Bar Association and the North Carolina State Bar Association have issued advisory opinions indicating that a lawyer may advise a client to “clean up” his or her Facebook or other social media pages by changing the privacy settings so that they are not publicly accessible and/or by removing photos, posts or other information. However, where potentially …

Judge in Northern District of Illinois Strikes Portions of Answer, Affirmative Defenses Not Made in Good Faith

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A number of recent decisions call into question a defense lawyer’s obligations under Rule 11 in responding to allegations in the plaintiff’s complaint, as well as the substantive question of whether the Iqbal/Twombly pleading standard applies to affirmative defenses. Judge Milton Shadur, sitting in the Northern District of Illinois, recently struck repeated aversions that a document “speaks for itself” and …

Massachusetts Court of Appeal Affirms Sanctions for Discovery Abuses and Spoliation

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In 2000, the plaintiffs retained Haese as litigation counsel. In 2005, Andrew Tine, then an associate with Haese, noticed that billing and time entries had been altered without his knowledge. Tine informed the plaintiff of the billing discrepancies and resigned from the firm. In 2006, the plaintiff filed suit against Haese for overbilling. The computer that stored the billing data …

Louisiana Second Circuit Holds that Former Employees are Not under Defendant’s Control for Adverse Presumption Purposes

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In a medical malpractice case, where former employees of the hospital were subpoenaed but not called by the defendant, the Louisiana Second Circuit Court of Appeal affirmed the trial court’s refusal to allow the jury to apply an adverse presumption:  “As former employees, Dr. Walton and Ms. Smith were no longer under defendant’s control for purposes of the uncalled witness rule. Furthermore, …

The Ethicist(s)

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I am glad to see that there is, again, one Ethicist. The Ethicist, for those who don’t know, is a weekly column that appears in the Sunday New York Times Magazine. As with other advice columns, readers submit various fact situations with questions and conundrums, to which the author responds, analyzing the problem from an ethical perspective. When I first …

Louisiana Supreme Court Excludes Negotiated Discounts from Collateral Source Rule

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In a case where the plaintiff attempted to recover the full customary charge for medical services from the tortfeasor, the Louisiana Supreme Court agreed with the lower courts that the plaintiff was only allowed to recover the discounted cost that had been negotiated between the plaintiff’s attorney and the medical provider. Rejecting the argument that such negotiated advantages fell within …