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Omaha Bar Association andCreighton University School of Law
8th Annual Seminar onEthics and Professionalism
April 11, 2014
J. Scott PaulMcGrath North Mullin & Kratz PC LLO
Omaha, Nebraska
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Habush v. Cannon, 828 N.W.2d 876 (Wis. Ct. App. 2013), appeal denied,
839 N.W.2d 616 (Wis. 2013)
“Do you mind if I use your name?”
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• Habush & Rottier, well known personal injury trial attorneys in Milwaukee, Wisconsin (“Rottier”).
• Cannon & Dunphy, another Wisconsin law firm specializing in personal injury cases (“Cannon”).
• In direct competition with each other.
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• Habush & Rottier filed suit against Cannon & Dunphy alleging that they violated their right to privacy under Wisconsin law.
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• Cannon bid on Rottier’s names as search terms on Google, Yahoo! And Bing.
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• When the Rottier’s names were searched, a link to the Cannon’s website would appear as a “sponsored link” above the link to Rottier’s website.
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• Cannon did not use Rottier’s names in the sponsored links to Cannon’s website or their website itself.
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• Rottier claimed a violation of Wisconsin’s right to privacy statute Wis. Stat. Ann. § 955.50.
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• Trial court ruled in favor of Cannon.
• Appellate court affirmed the district court’s granting of summary judgment in favor of Cannon.
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• The court reasoned the use of “Habush and Rottier” as “key words” was no different than if Cannon located a new branch office next to an established Rottier’s office, to take advantage of the flow of potential customers.
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• This strategy takes advantage of the name of an established business,
• But the strategy does not “use” the name in the same way as putting the name or image of a business in and advertisement or on a product.
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• The court noted that it was permissible to buy billboard space next to competitors’ billboards.
• Another example: car dealerships locating across the street from one another.
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Intellectual Property Lawyers Note!
• The Wisconsin court chose not to look to trademark law cases in which courts have concluded that bidding on key word search terms constitutes a form of use in violation of the Lanham Act.
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• February 7, 2014 – Daniel Rottier was arrested for domestic abuse.
• Charged with hitting his wife with his cane.
Habush & Rottier, a post script:
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A recent Google search of Habush & Rottier shows that the sponsored link for Cannon & Dunphy is now no longer displayed next to Habush & Rottier’s search result.
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State ex rel. Counsel for Discipline of Nebraska Supreme Court v.
Kruger, 286 Neb. 775 (2013)
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• Underlying incident involved a car accident in which Smalley was injured after being struck by a vehicle.
• Smalley was uninsured and incurred over $400,000 in hospital and medical bills arising out of his injuries.
• Smalley filed suit against the driver.
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• After it was determined that Smalley was eligible for Medicaid, a $400,000 medical bill was submitted to Neb. DHHS for payment under Medicaid.
• DHHS could fully resolve the bill for $131,000 but denied the claim on the ground that “third party resources” may be available.
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• After receiving a settlement offer for $800,000, Smalley’s attorney told DHHS that if DHHS paid Smalley’s hospital bill, he would reimburse Medicaid for the full amount of its subrogation interest: $131,000.
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• Immediately after DHHS paid the medical bill, Smalley’s attorney amended the complaint in Smalley’s personal injury lawsuit challenging DHHS’ claim to full repayment.
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Court held in prior case:
• By promising the $131,000 would be reimbursed in full if Medicaid paid his outstanding medical bills, Smalley bound his client to pay $131,000 from his settlement.
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• Smalley’s attorney admitted that he intentionally misled DHHS in order to extinguish the full hospital bill of $400,000 with the intention to thereafter challenge DHHS’ claim.
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• The Counsel for Discipline filed formal charges against Smalley’s attorney alleging that he violated his oath of office as an attorney as provided by § 7-104 and Professional Conduct Rules §§ 3-504.1(a) and 3-508.4(a), (c) and (d).
• Serious charges.
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• In the disciplinary action Smalley’s attorney filed his answer admitting to the formal charges.
• The referee’s report was filed recommending a public reprimand and supervised probation for a period of 18 months.
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• Smalley’s attorney filed a conditional admission, in which he chose not to contest the truth of the matter in the formal charges in exchange for a judgment of public reprimand and no supervised probation.
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• The Nebraska Supreme Court approved the conditional admission and ordered that Smalley’s attorney be publicly reprimanded.
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WHERE IS THE DETERRENCE?
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Alternative Billing
Is the hourly rate dead?
Some law firms are trying to get out in front on the issue.
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• Be careful with alternative billing.
• Law as a profession intersects with law as a business.
• “Contingency” element present in all alternative billing.
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Dwyer v. Cappell,
951 F. Supp. 2d 670 (D. N.J. 2013)
“You are a great lawyer, but you can’t tell anyone I said that.”
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• Andrew Dwyer: plaintiffs’ employment law attorney in Newark, New Jersey.
• Dwyer began posting on his website comments by judges who were complimentary of his work.
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• Comments were made in unpublished judicial opinions concerning fee applications.
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“Mr. Dwyer is, I think, an exceptional lawyer, one of the most exceptional lawyers I’ve had the pleasure of appearing before me. He is tenacious, professional in his presentation to the Court, a bit too exuberant at times, certainly passionate about his position, but no one can fault his zeal and his loyalty to his client, and no one can question his intellect.”
Judge No. 133
“The inescapable conclusion is . . . that plaintiffs achieved a spectacular result when the file was in the hands of Mr. Dwyer . . .”
Judge No. 2
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“Based upon my observations of him in court there’s no question in my mind that he is in the upper echelon of employment lawyers in this state . . .”
Judge No. 3
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• In 2008, one of the judges wrote a letter to Dwyer expressing concerns about his quotation on Dwyer’s website and asking that it be removed. Dwyer declined to take the quotation off the website.
• Result: New Jersey prohibited the practice.
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“An Attorney or law firm may not include, on a website . . . A quotation or excerpt from a court opinion (oral or written) about the attorney’s abilities or legal services. An attorney may, however, present the full text of opinions including those that discuss the attorney’s legal abilities, on a website . . .”
Guideline 3:
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The Committee commented: “Such quotations or excerpts, when taken out of the context of the judicial opinion and used by an attorney for the purpose of soliciting clients, are prohibited judicial endorsements or testimonials. As such, these quotations are inherently misleading in violation of RPC 7.1(a).”
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Constitutional Law Analysis:
The core of the parties’ dispute is the legal issue of whether Guideline 3 is most appropriately characterized as a “restriction” on speech, or whether it instead is a regulatory requirement of “additional disclosure”.
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More First Amendment Analysis:
Even if Guideline 3 were to be deemed a restriction on speech, the regulation would still be constitutional. Guideline 3 directly advances a substantial governmental interest in preventing the perception of judicial impropriety that would result from consumers thinking that a judge endorsed an attorney, and it is no more extensive than necessary to serve that interest. 40
Judges Are People Too:
(Part I)
Ethics Complaint Against DistrictCourt Judge Dismissed
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• Judge Michael Coffey was the subject of an ethics complaint – initiated by his ex-wife – over his involvement in a DUI case involving the couple’s adult daughter.
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• Judge Cheuvront, the retired judge who reviewed Coffey’s case, recommended no action be taken on several of the complaints against Coffey – though Cheuvront questioned Coffey’s contact with probation administrators at one point in his daughter’s case.
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• Found no fault on the part of Coffey.• Found that (Coffey’s) conduct “did not
rise to the level of an abuse of the prestige of the judicial office he holds,”
• The Commission noted that no one but Coffey’s ex-wife aired any concerns about this behavior.
The Commission:
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• The 10 member Judicial Qualifications Commission dismissed the ethics complaint.
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Judges Are People Too:(Part II)
Hercules and the Umpire
The Role of the Federal Trial Judge
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THE FASTEST
FIVE MINUTES IN ETHICS
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• There must be a close, regular, and continuous relationship between the law firm and the lawyer that involves more than a business referral, an occasional co-counsel relationship or the relationship of a consultant.
IA Ethics OP 13-01: Of-Counsel
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• The rule prohibiting fee splitting within the meaning of Iowa Rules of Prof. Conduct 32:1.5 does not apply to of-counsel relationships.
• All parties to the of-counsel relationship are in the same firm for all ethical purposes.
IA Ethics OP 13-01: Of-Counsel
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• Lawyers and law firms are free to establish multiple and simultaneous of-counsel relationships.
• In doing so all the lawyers and law firms will be considered as one firm for all ethical purposes including disqualification for conflicts of interest.
IA Ethics OP 13-01: Of-Counsel
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• In Iowa there is no such thing as “local counsel”. At best, the relationship is one of “co-counsel” with the Iowa lawyer having certain responsibilities to both the client and the court.
IA Ethics OP 13-02: Pro Hac Vice Counsel
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• The Iowa lawyer must “actively” participate in the matter as counsel of record or co-counsel with the non-Iowa lawyer.
• What does that mean?
– Cannot use Iowa counsel as a mailbox.
IA Ethics OP 13-02: Pro Hac Vice Counsel
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• The Iowa lawyer who is co-counsel or counsel of record for that client in the proceeding remains responsible to the client and responsible for the conduct of the proceeding before the court or agency.
IA Ethics OP 13-02: Pro Hac Vice Counsel
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• The Iowa lawyer may, after exercising due diligence, exercise and discretion, determine the level of participation required.
IA Ethics OP 13-02: Pro Hac Vice Counsel
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The associating attorney or his or her designee shall sign all pleadings . . . as well as personally appear at all proceedings before the Court unless excused by the Court.
Effective August 1, 2013
Neb. S. Ct. Rule 3-122
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• Iowa lawyers who anticipate engaging the services of a contracted lawyer should do so with the consent of their client.
IA Ethics OP 13-03: The Use of Contracted Lawyers
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• The burden rests with the contracted lawyer to recognize direct conflicts and to avoid placement in law firms that represent clients adverse to the contracted lawyer’s current or former clients.
IA Ethics OP 13-03: The Use of Contracted Lawyers
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• The relationship provides the ability to discuss real life situations as needed while maintaining the duty of confidentiality.
IA Ethics OP 13-04: Mentor-Mentee Relationships
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• Because co-counsel owe the same fiduciary duty of loyalty to the client, they have an obligation to cooperate with each other to accomplish the client’s goals.
IA Ethics OP 13-05: Co-Counsel Relationships
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• Lawyers contemplating a co-counsel relationship would be well advised to define the scope, nature and limitations of their duties in writing with the client.
IA Ethics OP 13-05: Co-Counsel Relationships
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• Where a division of fee is contemplated, the fee division must be based either upon services performed or assumption of responsibility and the client must consent in writing to the agreement, including the share each lawyer will receive.
IA Ethics OP 13-05: Co-Counsel Relationships
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• Microsoft Corporation has announced that as of April 8, 2014, it will no longer support the Windows XP operating system with the release of new security patches.
IA Ethics OP 14-01: Computer Security
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• IA Ethics Opinion 11-01 requires lawyers to engage in a due diligence process which assesses the realistic potential for risk, the damage which could be caused thereby and the estimated cost of remediation.
IA Ethics OP 14-01: Computer Security
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• The security status change for this operating system highlights the fact that the duty of due diligence in assessing system security is an ongoing one; programs and procedures which were secure two years ago may not be secure now.
IA Ethics OP 14-01: Computer Security
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• Rule 1.6 and Iowa Ethics Opinion 11-01 require only a due diligence process, not a specific result.
IA Ethics OP 14-01: Computer Security
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A Commentary:
Maintaining Professionalism By Avoiding the Pitfalls and Pratfalls of
Using Social Media
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HERCULES AND THE UMPIRE
The Role of the Federal Trial Judge
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If you want to be a good lawyer that makes good money, gets good clients, and does great work, then dress like a lawyer that makes good money, gets good clients, and does great work.
Consider this:
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March 25, 2014 at 9:50 pm
. . . My esteemed undergraduate law school classmate, I think that your latest blog raises interesting issues of professionalism including that of the young lawyer who you have taken to task, albeit she is unnamed (but the grapevine will take care of that quickly) as well as that of a still sitting judge who puts into the public arena his observations and advice, which frankly would likely be the same as mine, but some things are best kept (in the interest of professionalism) to one’s self, rather than aired on a Federal Judge’s blog. RDS
Richard D. Sievers commented:
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1. Be careful if you purchase a competitor’s name as key word search terms. It might not be a violation of privacy, but it may be a trade name violation.
What Have We Learned?
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2. A lawyer’s word is his or her bond. Breaking that bond for financial gain seems to deserve more than a reprimand.
3. If the ability to post glowing over-the-top judicial compliments about your legal ability seems too good to be true, it probably is.
What Have We Learned?
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4. Judges are people too.
5. When it comes to social media communications, abide by the rule: “When in doubt, leave it out.”
What Have We Learned?
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