Insurance Defense Blog

DC Bar's Virtual Law Library - Law of Lawyering

The DC Bar's website is sporting a "Virtual Library" these days.  Most significantly, it includes a lengthy treatise on the Law of Lawyering, courtesy of the law firm of Covington & Burling, described as follows:

This publication, written by D.C. Bar member David B. Isbell, is a comprehensive analysis of the D.C. Rules of Professional Conduct, which governs the ethical practice of law in the District of Columbia, as well as the attorney discipline system upholding those rules. Published 2004. Updated in part, March 2007, following amendments to the Model Rules in 2002 and 2003 and the D.C. Rules of Professional Conduct effective February 1, 2007.

This reference should be among those consulted by any D.C. lawyer researching an ethical issue.

Avoiding Legal Malpractice Claims

A few words of wisdom from Chris Hoge, Esq., printed in the Solicitor, a newsletter published by Legal Mutual Insurance of Maryland.

"[T]he litigatory equivalent of road rage."

In Campbell v. Lake Hallowell Homeowner's Association, an owner of a townhouse got to feuding with his homeowners' association.

It's easy to understand how this can happen, as in this area a townhouse can be quite expensive, and the bundle of property rights that comes with a townhouse is missing a few sticks. It's hard to accept that some faceless committee of the Homeowners' Association can dictate where you park, what sort of play equipment your kids can have, or even what color you can paint your front door. But they can, and townhouse owners should be aware that if they fight the Homeowners' Association on some trivial issue, the Association might well recover its attorneys fees, and that can be real money. So don't do what the plaintiff in this case did.

Here, the Homeowners' Association told the plaintiff that because he was a resident, he could not park his car in the visitors' overflow lot. (After much litigation, this turned out not to be quite true -- in fact, he could park there, as long as he moved his vehicle once a week. So it is fair to say that the Association's erroneous application of its own rules was partly to blame for poisoning the relationship.)

So the plaintiff began parking his car in front of his townhouse. But this was a fire lane, and the Association ordered him in writing to "park your car on your property." The plaintiff then began to park his car on his townhouse lawn. At around that time the plaintiff also put up a portable basketball hoop for his kids, again on his front lawn. The Association told the plaintiff to remove both his car and the basketball hoop from his front lawn. When the plaintiff did not do so, a variety of administrative and legal actions were commenced by both sides. The Association got an injunction, after which the plaintiff began parking his vehicle in his backyard.

The Court of Special Appeals aptly summed up the ensuing legal proceedings like this:

"Their quarrel, which began over a basketball hoop and a parking space, has resulted in at least four separate actions, with an intimation of more to come. At a loss as to why so little has generated so much conflict, we can only surmise that we are in the middle of what may be the litigatory equivalent of road rage. The number of actions, the sheer ferocity with which they have been pursued, and the inconsequential nature of what has been sought offer us little hope that we are wrong in this assessment."

Ethical Considerations For Lawyer Moves

A good article in the Washington Lawyer about the issues that come up when a lawyer jumps firms.

Fourth Circuit Rejects Absolute Immunity of PTO Investigators, Including A Staff Attorney, Involved In Attorney Disciplinary Investigation

Richard W. Goldstein, a patent lawyer, appeals an award of absolute immunity accorded certain officials of the Patent and Trademark Office for their conduct in an attorney disciplinary investigation. Goldstein also appeals the denial of his challenge to a certification on the scope of defendant David Purol’s employment and the denial of discovery on the certification. Because defendants Harry Moatz, Lawrence Anderson, and James Toupin are not absolutely immune from Goldstein’s Bivens claim for damages,1 and because the district court did not separately consider whether the defendants are immune from suit for declaratory relief, we vacate and remand on those aspects of this appeal. . . .

Goldstein v. Moatz, et al.

Judge Motz dissented, stating in part that:

But the OED’s "issuance of the RFIs" to Goldstein simply does not provide the basis for any cause of action against OED. In fact, almost half a century ago, the Supreme Court considered and expressly rejected a contention very similar to Goldstein’s. See Hannah v. Larche, 363 U.S. 420, 424 (1960). In Hannah, the plaintiffs complained, inter alia, of the "315 written interrogatories" sent to them by a commission in the course of an investigation. The Court upheld the constitutionality of all of the commission’s procedures, including its issuance of the assertedly burdensome and irrelevant interrogatories and its refusal to furnish the targets of the investigation with the names of the complainants and contents of the complaints. Id. at 424, 451. The Court explained that the commission had engaged in "purely investigatory and factfinding" activities, which might "subsequently be used as the basis for legislative or executive action," but which did not in themselves "affect an individual’s legal rights." Id. at 441. To impose in this context the constitutional procedures appropriate when "governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals" would, the Court concluded, "make a shambles of the investigation and stifle the agency in its gathering of facts." Id. at 442-44. So it is here. . . .

Man Bites Dog story -- D.C. Law Firm's Default Judgment Against Former Client for Unpaid Legal Fees Is Upheld

Even in D.C., sometimes (but rarely) default judgments are upheld. In a recent case, a law firm's default judgment against a former client for roughly $55,000 in legal fees was upheld.

Generally, law firms are well advised not to bring suit to collect unpaid fees, because more often than not, there follows a counterclaim for legal malpractice. On the other hand, sometimes law firms decide that if the word on the street is that they will not sue to collect their fee, the problem of uncollected receivables will get out of hand. It probably is an issue that is debated from time to time in most firms.

Attorney Disqualified In Dispute Over Eva Cassidy Recordings

U.S. Judge Benson Legg has issued an opinion disqualifying an attorney under Maryland Rule of Professional Conduct 1.9 due to a conflict that has arisen between two parties the attorney had jointly represented -- Blix Street Records and Eva Cassidy's parents.

ABA Links To State Ethics Rules Governing Lawyer Advertising

Jerry Lawson's Internet Tools for Lawyers site has a nice collection of links concerning the legal ethics rules involved in lawyer websites, and among them he has a link to an ABA sponsored page collecting links to state ethics rules governing lawyer advertising. The latter even has an interactive map of the US that shows which States still follow the Model Code, which States follow the Model Rules, and which States have unique rules.

ABA Section on Litigation Has Article on Tripartite Relationship and Insurance Coverage

The ABA Section on Litigation has posted links to full text articles on insurance coverage, and one is on the coverage implications of the tripartite relationship, by Danny M. Howell, of McLean, Virginia.

Virginia UPL Opinions

The Virginia Unauthorized Practice of Law (UPL) Opinions are available here.