$9M Sanctions Against Florida Tobacco Lawyers for Frivolous Claims

On October 18, two Florida lawyers were ordered to pay more than $9 million in sanctions for pursuing over a thousand nonviable claims in tobacco litigation. The four-judge panel for the Middle District of Florida found that Norwood Wilner and Charlie Farah undermined the “integrity and trust” of the judicial process on a “breathtaking scale” by pursuing 1,250 meritless lawsuits.

Of those 1,250 cases, 588 were complaints involving dead plaintiffs, 572 involved plaintiffs who never authorized the attorneys to file lawsuits, 15 were unauthorized, 18 involved plaintiffs who weren’t even smokers, 36 were on behalf of plaintiffs who never lived in Florida, and 28 that were previously adjudicated.

The litigation giving rise to the sanctions arose out of the Engle class action. In 1997, a Florida jury ruled against tobacco companies in Florida state court, finding in favor of the Engle class. The Florida Supreme Court, however, decertified the class and gave the plaintiffs one year to file individual lawsuits. Wilner and Farah filed 3,700 of these individual complaints and eventually reached a $100 million settlement with the tobacco companies. The federal court overseeing the settlement appointed the U.S. Attorney as a special master to investigate the lawyers’ conduct.

The 148-page opinion lambasted the attorneys for violating Fed. R. Civ. P. 11, which authorizes sanctions for filing meritless pleadings, 28 U.S.C. § 1927, which imposes sanctions against lawyers who vexatiously drag out proceedings. Moreover, the attorneys’ conduct appears to have violated numerous rules of the The Florida Bar’s Professional Conduct including, but not limited to the rules that require lawyers to communicate with their clients, file meritorious actions, and conduct themselves with candor toward the tribunal. The court has referred the matter to the The Florida Bar and it remains to be seen how The Florida Bar will proceed.

The immense monetary sanction was the result of the court’s calculation of $6,983.42 per frivolous case, reflecting of the cost of the waste of the court’s resources, plus another  $435,129.12, for the special master’s time. The opinion explains that the sanction was imposed to compensate the public for the waste of public resources resulting from the frivolous lawsuits. Moving forward, the size of the sanction is a warning sign to plaintiffs’ lawyers about filing and maintaining meritless cases.

Read the full opinion here.

Bloomberg Law Trains Machine to Highlight Legal Points

On September 26, 2017, Bloomberg Law unveiled an AI program called “Points of Law,” a service that allows users to quickly identify and analyze language in a judicial opinion. The program uses a machine learning algorithm that indexes its opinions, making it easier for users to find legal points and precedents that strengthen their own legal arguments. When the feature is turned on, language is highlighted in the text, and citations are linked from the margin. The program is one of a wave of automated legal research and analysis engines that are raising significant ethical questions regarding attorney competence and confidentiality.

As reported by the ABA, attorneys are increasingly turning to AI-generated work product to increase their legal research and drafting efficiency. In fact, attorneys participate in training these machine learning algorithms, as each query entered into the system helps to expand and refine the legal analysis the algorithm returns. But, when delegating work to AI programs, attorneys should be wary of their ethical obligations under the competence rules. Significantly, lawyers must understand how AI programs function in order to fulfill their duty of technological competence.

This means that a lawyer using Bloomberg’s Points of Law service must understand how the program’s indexing works and how it selects which language to highlight. For example, though AI programs continuously “learn,” they may not find every supporting precedent for a client’s case. As such, a lawyer entering a query into programs like Points of Law must ensure the accuracy of the research returned in order to satisfy their duty under the ethical rules. AI programs likely pose concerns regarding lawyers ethical duties of confidentiality. Therefore, lawyers must take the appropriate steps to prevent inadvertent disclosure of confidential information by completely understanding the terms of service of the AI programs they are using, and ensuring there is a confidentiality agreement with the AI vendor.

Find the article discussing the unveiling of Bloomberg’s Points of Law here.

No Implied Authorization: Consent is Key to Discuss Intentions of Deceased Client’s Will in Colorado

The Colorado Bar Association Ethics Committee recently published an opinion finding that will-drafting attorneys cannot volunteer information about a deceased client’s intentions to their beneficiaries without the previous consent of the client or their agent. The opinion was published in response to the frequency with which will drafters receive questions about their client’s intentions from relatives who are disappointed in their bequest.

The opinion noted that a lawyer’s duty of confidentiality extends after a client’s death, as specifically reflected in Colorado Rule of Professional Conduct Rule 1.6(b) which does not  include a client’s death among the listed confidentiality. This notion of confidentiality is also upheld in The American College of Trust and Estate Counsel Commentaries on the Model Rules of Professional Conduct.

The opinion also highlights that an attorney may reveal this information without violating Rule 1.6 if a court orders the disclosure. However, an attorney may not reveal information based upon the rationale that the client impliedly authorized the disclosure.

The committee also noted that there is currently a split of authority concerning whether a will-drafting attorney may ethically disclose information without authorization from the client or personal representative. The ultimate position adopted by the committee states that “simply retaining a lawyer to draft estate documents, without more, is not sufficient to constitute implied consent for the lawyer to voluntarily provide information protected by Rule 1.6.”

Learn about the Colorado Bar’s Ethic Opinion here and here.

Read the American College of Trust and Estate Counsel Commentaries on the Model Rules of Professional Conduct here.

Multiple Attorneys Removed from Cases Due to Conflicts of Interest with Guardian Oversight and Attorney-Hospital Relationships

In two recent opinions, Michigan and South Carolina courts have removed attorneys from multiple cases where investigations revealed that they were abusing their powers as clients’ guardians and conservators. Investigations revealed several ethical violations, including an undisclosed agreement in which a hospital would pay the attorney to petition for guardianship of patients. Both attorneys also abused their power by allowing family members to move into the homes of hospitalized clients without their knowledge or consent. In both opinions, the court noted that the attorney’s actions were clear violations of, among other rules, the conflicts of interest rules under 1.7.

These two cases are among hundreds around the country that prompted a recent report in The New Yorker. The article focused on a rash of cases in Clark County, Nevada, in which several elderly individuals were removed from their homes without notice or legal representation. Rather than representing clients who truly needed their help, attorneys were following a routine of temporary guardianship in pursuit of easy payouts. The ethically violative behavior of these attorneys included requests that courts grant them authority to intervene immediately based on vague descriptions of their ward’s medical conditions, minimal physician reports, and reports that wards were too incapacitated to attend a court hearing.

Nevada has begun to address this problem by enacting legislation that entitles all wards of the state to legal representation. For the time being, while these measures are not a cure all for the growing misconduct of certain attorneys, this legislation may provide relief for the people who need it most.

Read more on this issue here.

United States Supreme Court to Decide Whether Defense Attorney Can Concede Defendant’s Guilt Over Defendant’s Claim of Innocence

The United States Supreme Court has granted certiorari in McCoy v. Louisiana to decide whether a criminal defense attorney is constitutionally permitted to concede his or her client’s guilt over the defendant’s objections to such concession.

In 2008, Robert Leroy McCoy was charged with first-degree murder and faced the death penalty for allegedly murdering his ex-wife’s son, mother, and stepfather. Prior to trial, McCoy maintained his innocence to his private defense attorney, Larry English. In addition, McCoy testified that the three murders, for which he alleged he was framed, were committed by police officers involved in a drug trafficking ring. Despite this, in an attempt to spare him the death penalty, English conceded McCoy’s guilt during trial over McCoy’s verbal in-court protest to the concession. English justified such a concession on his belief that the evidence was so overwhelmingly against his client, and that conceding guilt was “the only way to save his life.” McCoy was ultimately convicted of first-degree murder and sentenced to death.

The case was appealed to the Louisiana Supreme Court, where McCoy’s conviction was unanimously upheld. McCoy’s fourth of sixteen assignments of error alleged that his attorney’s concession of guilt violated the principle that the attorney-client relationship “is one of principal and agent wherein the lawyer’s authority derives from and is limited by the authority of the client” (see ABA Model Rules of Professional Conduct, Rule 1.2 for a codification of such principle). The court, citing extensively to supporting precedent, found no merit in McCoy’s assignment of error, stating that “conceding guilt, in the hope of saving a defendant’s life at the penalty phase, is a reasonable course of action in a case in which evidence of guilt is overwhelming . . . Louisiana courts have consistently upheld the defense strategy of acknowledging guilt, against a charge of ineffective assistance of counsel . . . .”

The Supreme Court will hear oral arguments in 2018.

Read McCoy’s petition for writ of certiorari here.

Read SCOTUSblog’s track of the docket here.

Read the Louisiana Supreme Court opinion here.

Read articles on the matter here and here.