To the Rules Committee: Please Give Our Clients their Day in Court

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View Full Document September 30, 2013 Committee on Rules of Practice and Procedure Thurgood Marshall Building Administrative Office of the United States Courts One Columbus Circle, NE Washington, DC 20544 E-Mail: rules_comments@ao.uscourts.gov Re: Proposed Amendments to Rule 26 To the Members of the Committee: I am the Managing Partner of Litigation at Herman Herman Katz in New Orleans, Louisiana, where …

Professionalism

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View Full Document Several years ago, the Louisiana Supreme Court added an hour of professionalism to the annual requirements for continuing legal education. Every December, lawyers would pack into these last-minute seminars during lunchtime where the majority of the hour seemed to be a discussion of the difference between ethics and professionalism: Professionalism is aspirational. Ethics are required.1 I personally look …

Ninth Circuit Creates Split with Third Circuit, finding that the “Fiduciary Exception” to Attorney-Client Privilege Should be Extended to Insurers Administrating Benefit Plans, as ERISA Fiduciaries.

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“The obligation that an ERISA fiduciary act in the interest of the plan beneficiary does not differ depending on whether that fiduciary is a trustee or an insurer. There is therefore no principled basis for excluding insurers from the fiduciary exception.”  At the same time, “by agreeing to serve as a fiduciary, an ERISA trustee is not completely debilitated from …

Amended Federal Rule of Evidence 502 Expands Non-Waiver due to Inadvertent Disclosure related to any Federal Officer and/or Federal Proceedings.

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“The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection: (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or …

ABA Issues Opinion Regarding the Duty to Protect the Confidentiality of E-Mail Communications with One’s Client.

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A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. Clients may not be afforded a “reasonable expectation …

ABA Issues Opinion that No Duty is Owed under Rule 4.4(b) when an Employer’s Lawyer Receives Copies of an Employee’s E-Mail Communications with the Employee’s Counsel on the Employer’s Computer System.

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When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. (Rule 4.4(b) does not expressly address this …

Alleged Attorney-Client Privilege and Work Product Protections vitiated by Crime-Fraud Exception where Law Firm Assisted Client in Concealing Relevant Documents from Opposing Party and the Court.

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Plaintiffs demonstrated that defendant took steps to deceive plaintiffs and the court regarding its use, storage, and disposal of TCE and PCE, and used its attorneys to do so; therefore, defendant waived any attorney-client privilege under crime-fraud exception with respect to the non-disclosure of newly discovered relevant documents. The fact that corporation’s law firm obtained an EPA file, had an …

Magistrate Rejects “Claw Back” of Privileged Documents Previously Turned Over to the SEC.

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Rhino Advisors, who was not a party to the lawsuit, attempted to assert a privilege over 260 out of approximately 67,000 documents which had been produced to the SEC in August of 2003, claiming inadvertent disclosure. Magistrate Eaton, sitting in the Southern District of New York, rejected the “claw back” under the Lois factors. Because the former counsel did not …

Court Prohibits Defendant from Making Potentially “Coercive” Settlement Offers to Putative Classmembers.

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“A defendant has a right to communicate settlement offers directly to putative class members. However, a defendant may not abuse that right. Cases in which courts have conditioned the transmission of settlement offers involve class members in an inherently coercive dependent relationship with the defendant and/or settlement offers for less than that sought in the lawsuit. Here, the relationship between …