The Law for Lawyers Today

The Law for Lawyers Today

Ethics, Professional Responsibility and More

Category Archives: How Not to Practice

Subscribe to How Not to Practice RSS Feed

Too many objections draws deposition sanctions from district court for frustrating fair exam

Posted in How Not to Practice
We’ve written before about deposition conduct that crosses the line between valid advocacy and sanctionable misconduct.  Here’s the latest example, in which a New York federal magistrate imposed sanctions on a defense lawyer for the City of New York, who interjected over 750 statements on the record, including more than 600 objections across 84 percent of the… Continue Reading

Cautionary tales, ethical woe: don’t let these happen to you

Posted in How Not to Practice
There should be a word that's the opposite of "schadenfreude" -- you know, that evocative German term that means "secret pleasure at another's misfortune." Maybe there is such a word, but the one I'm searching for would convey the sense of "Please, let me not fall into the same error" as some other person did, because under the right (or wrong) circumstances we can all make ethical mistakes. Here are three cautionary tales. You may read them and wonder how the lawyers involved came to such grief -- or you may just be thankful that it wasn't you, or that the demons these lawyers struggled with aren't yours.… Continue Reading

Batting clean-up on 2016: positional conflicts, settlements and your firm letterhead

Posted in Conflicts, How Not to Practice, Law Practice Management
You may have some holiday leftovers lurking in your fridge (potato latkes, Xmas goose, black-eyed peas, New Year’s Eve caviar), and we too have some interesting ethics topics that we didn’t have room for during 2016 — so here’s a potpourri, touching on positional conflicts, coercive settlements and maybe how not to use your firm’s… Continue Reading

Being a technology “dinosaur” leads to license surrender in the Great North

Posted in How Not to Practice, Law Practice Management
Technophobia isn't confined to U.S. lawyers -- no surprise, it affects Canadian members of the bar, too, with the same potentially disastrous results. Last month's cautionary tale: a lawyer who was technologically illiterate failed to supervise his wife, who ran his office and used his bar credentials to misappropriate more than $3000,000 without his knowledge. Canadian disciplinary authorities permitted him to surrender his license voluntarily, instead of revoking it.… Continue Reading

Can you copyright your legal brief? District court says “yes,” and finds infringement

Posted in How Not to Practice, In-house Counsel, Law Practice Management
Under deadline pressure to produce a brief? You've found one online in a public database that fits your case to a T? If you've always thought that you can make free use of another lawyer's brief, think again. You just might get sued for copyright infringement -- successfully. In Newegg Inc. v. Ezra Sutton, P.A., a California U.S. district court made that point earlier this month, when it granted partial summary judgment to plaintiff Newegg on its infringement claim -- but Newegg has come in for some criticism for pushing the case.… Continue Reading

Don’t help your client hide assets: clear case leads to lawyer’s disbarment

Posted in How Not to Practice
The prohibition against aiding clients in carrying out crimes and frauds has been in the news lately, in connection with the quandary that lawyers find themselves in when attempting to help clients in the marijuana industry -- whose conduct may be legal under state law, while remaining illegal under federal law. (We've blogged about it previously, here and here. ) In this environment, it is useful to consider just what constitutes assisting a client's crime or fraud, as the Ohio Supreme Court did last week in disbarring a lawyer who helped a divorce client hide assets from her spouse.… Continue Reading

Lack of vitamin-D didn’t mitigate intentional, habitual non-compliance with discovery requests

Posted in How Not to Practice
Under your jurisdiction's version of Model Rule 3.4(d), you have an ethics duty to make reasonably diligent efforts to comply with legally proper discovery requests. Interpreting a wrinkle in Ohio's version of the rule, the state supreme court held earlier this month that a violation requires "intentionally or habitually" flouting the requirement -- and in an odd twist, the court held that a claimed Vitamin D deficiency did not excuse a Dayton lawyer's failure to obey.… Continue Reading

Lawyer must reveal co-counsel’s error to client if it could raise malpractice claim

Posted in Communication, Conflicts, How Not to Practice, Malpractice
What should you do when you are co-counsel on a case or in a deal, and you become aware that the other lawyer has made an error? A new ethics opinion from the New York State Bar Association says that if you reasonably believe that your co-counsel has committed a significant error or omission that may give rise to a malpractice claim, you must disclose the information to the client.… Continue Reading

Using ill-gotten evidence and threatening opposing counsel draws 6-month suspension

Posted in How Not to Practice
Some ethics violations happen because a lawyer carefully analyzes a debatable situation and draws a good-faith, but incorrect, conclusion. And then there are the lawyers who leave me wondering. Let's say your divorce client hacks into his future-former-wife's e-mail account and hands you her payroll information and the direct examination questions that her lawyer has e-mailed her in preparation for trial. Raise your hand if you think you can use that evidence.… Continue Reading

Violating confidentiality order results in lawyer’s DQ and referral to state ethics board

Posted in Confidentiality, Disqualification, How Not to Practice
Courts often analyze motions to disqualify by balancing the need to uphold professional standards against the rights of clients to choose their lawyers freely. The New Jersey court of appeals struck that balance earlier this month in upholding the disqualification of a lawyer who violated a confidentiality order, finding that the lawyer knowingly disobeyed a court order, among other violations.… Continue Reading

Filing administrative appeal without being admitted results in dismissal

Posted in How Not to Practice, Licensing
The client of a Colorado lawyer who filed an administrative appeal in North Dakota without being admitted there got a harsh result — the North Dakota Supreme Court ruled in Blume Construction v. State that the lawyer’s action was the unauthorized practice of law, and therefore that the client’s appeal was void. Admission ticket required Blume Construction had been assigned a… Continue Reading

Panama Papers spotlight danger of failing to screen for problem clients

Posted in How Not to Practice, Law Practice Management
The leak of millions of documents apparently hacked from Panama-based law firm Mossack Fonesca has exposed the tax strategies of some of the world’s elite.  But the Panama Papers also shine a light on some failures of Mossack Fonesca to screen out problematic clients — failures of due diligence that the firm itself recognized. Petropars and the Iranian… Continue Reading

Lawyers can’t necessarily disclose former client info, even if it’s “publicly available”

Posted in Confidentiality, How Not to Practice
You’re chatting with your pals at the bar association cocktail hour, and talk turns to the indictment just handed down against a former city official.  Someone says, “Hey, didn’t your firm used to represent her?”  “Yes,” you reply, “and a couple years ago, I had a really interesting case involving her.  Maybe I shouldn’t discuss it —… Continue Reading

Ticket to hell: Fla. judge resigns after taking Rays tix from law firm with pending case

Posted in How Not to Practice
A Florida judge resigned last week in the wake of a state judicial ethics investigation launched after he accepted baseball tickets from a law firm that was litigating a slip-and-fall case before him. The outcome for the judge seems like a foregone conclusion, but it also is a timely reminder for lawyers about the ethics rules governing their interactions with judges.… Continue Reading

60 Minutes segment shows ethics issues in client representation

Posted in How Not to Practice
The set-up:  Potential client calls you on the phone.  He says he is representing a government minister from a mineral-rich West African nation — he won’t say which one.  But his (unnamed) principal needs legal help in order to move millions of dollars into the U.S. — consisting of what the representative candidly describes as “tainted money” and “gray money;”… Continue Reading

“Good … luck sweetie” letter, unauthorized practice, draw discipline complaint

Posted in How Not to Practice, Licensing, Unauthorized practice
Be aware of your jurisdiction’s limits on what a “retired” lawyer can and cannot do, and obey them — or risk being tagged for the unauthorized practice of law.   And, oh yeah — communicate politely.  That’s a  dual lesson a lawyer in Illinois may be about to learn, according to a disciplinary complaint filed in December. Retired… Continue Reading

Lawyer tries advice-of-counsel defense in disciplinary case; didn’t disclose client’s death

Posted in How Not to Practice
Here’s an update on a case we reported on last year, where a lawyer agreed to a settlement on behalf of his plaintiff client — who happened to already be dead at the time.  The court of appeals in the Illinois case, Robison v. Orthotic & Prosthetic Lab, (predictably) tossed out the settlement based on the lawyer’s failure to… Continue Reading

Dabbling in other practice areas can bring disciplinary, malpractice woes to lawyers

Posted in Competence, How Not to Practice, Law Practice Management, Malpractice
Did you make a New Year’s resolution to shift gears in your law practice?  Maybe start practicing in a new area of the law that is unfamiliar to you?  It’s always fine to add new skills, of course, and marketing yourself in new ways can be a good strategy for bringing in more revenue in 2016.  But… Continue Reading

On-line blab can kill lawyer licenses and lead to other bad stuff — latest cautionary tales

Posted in How Not to Practice, Social Media and Internet
Here are three very recent reminders about what not to do online.  These separate stories involve an Indiana lawyer and two judges:  one state and one federal.  Apparently human nature makes on-line misconduct irresistible to some people, even at the cost of their licenses to practice, and the risk of other professional embarrassment. Don’t Steele — or lie… Continue Reading

Firm should have used internet to find missing “Caveman” client; no withdrawal allowed

Posted in Competence, How Not to Practice
If your client stops communicating with you and seemingly disappears, how hard do you have to search for the client before you can convince a court to allow you to withdraw from the representation? A leading firm found out recently that you at least have to get on the internet and take a look. Where’s the client? In Caveman… Continue Reading