New York State Bar: Lawyers Offering Professional Services that are Indistinct from Legal Services Remain Subject to Rules of Professional Conduct

The New York State Bar Association (“NYSBA”) Committee on Professional Ethics has issued an advisory opinion stating that all of New York’s Rules of Professional Conduct apply to any non-legal service provided by a New York attorney when those services are indistinct from the attorney’s own legal services.

An attorney, who was also a Certified Public Accountant, inquired as to whether he could offer his accounting services to persons or entities with whom he lacked any prior personal or professional relationship. The services proposed were services that could be offered by either an accountant or a lawyer.

The advisory opinion applied the Rule 5.7(a)(1) factors to determine whether a “substantial congruence” exists between the proposed non-legal and legal services. The factors include:

  • Who the service provider is,
  • The substance of the service to be provided,
  • The proposed recipient of the service, and
  • The manner or means [by] which the lawyer offers the service.

Given that a lawyer or an accountant could offer the proposed non-legal accounting services the Committee concluded that there was a substantial congruence. The advisory opinion concluded that where a substantial congruence exists, all of New York’s Rules of Professional Conduct apply.

To read the full opinion, click 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.

Florida Third DCA Finds No Conflict Where Attorney Sues Former Client

A decision from the Third District Court of Appeals found that two attorneys may continue to oppose each other in litigation even though one once represented the other. The court noted that there was no conflict under Florida Rule of Professional Conduct 4-1.9 because the current litigation involved a completely separate matter, ended years before the current litigation was filed, and the current litigation would not require one of the attorneys to “attack work that he performed for [his former client].”

The opinion gave leave to Miami attorney Andy Hall to pursue a lawsuit against his former client Jeremy Alters. Hall was hired by Gustavo and Alfredo Villoldo to take over Alter’s terrorism litigation against Cuba and Fidel Castro after deficiencies were found in the $1.1 billion judgment Alters won for his clients. Around the same time, Alters hired Hall to represent him in an entirely separate matter – a dispute over fees in a multi-million dollar class action lawsuit against Bank of America.

Despite the fact that Hall was no longer representing Alters in the Bank of America dispute by the time Hall sued Alters on behalf of the Villoldos, Alters moved to recuse Hall, relying on a 1988 Florida Appellate case discussing Florida Rule of Professional Conduct 4-1.9. Alters argued that the 1988 case expanded Rule 4-1.9 to prohibit suing a former client when doing so would violate the principle of client loyalty or create an appearance of impropriety. However, the court denied Alters’ motion, noting  that the 1988 case simply explained why the rule could apply even when a client’s reasonable expectation of confidentiality was not at stake.

Read the full opinion here.

Florida Firm Loses Again in Dispute Over Referral Fee Agreement

In a decision from the U.S. District Court for the District of Maryland, Florida law firm Michael E. Criden P.A. lost for the second time in its long-running effort to recover a share of $10 million in fees that another firm, Joseph Saveri Law Firm Inc., received in an antitrust litigation in California. Judge Richard D. Bennett’s decision held, among other things, that a fee sharing agreement with a lawyer’s former firm is not enforceable against his new firm.

Criden, who had established a fee-sharing arrangement with Saveri’s former firm, argued that Saveri should be bound by the terms of the agreement with that firm. Criden also claimed that Saveri agreed to abide by the fee-sharing arrangement when he left his former firm and founded his new and current firm.

However, the court held that Criden’s claims failed under basic principles of California corporate law and the legal ethics rules of the state of Maryland; specifically, Maryland Rule of Professional Conduct 19-301.5(e), which governs attorney fee-sharing arrangements.

Among other things, the court held that the 12.5 percent referral fee Criden sought to enforce violated the proportionality mandate in rule 19-1.5(e). This rule requires fee-sharing to be proportionate to each lawyer’s services, unless each assumes joint responsibility for the representation. What’s more, the client did not consent in writing to the purported fee-sharing arrangement as required by the rule. The opinion also noted that the rules of California and Florida would likewise prohibit Criden from enforcing the purported referral fee agreement.

Read the full opinion here.

Written Consents Now Required When a Lawyer Subpoenas a Current Client for Another Client’s Lawsuit

According to a formal opinion issued by the New York City bar’s ethics committee, an attorney who must subpoena a current client for another client’s lawsuit typically has a conflict of interest requiring that the attorney secure informed written consent from both clients.

In considering the issue, the committee reasoned that testifying or producing documents in response to a subpoena are inconveniences that entail loss of money and time for the client subpoenaed. Such requests advanced through a coerced discovery may affect a client’s loyalty towards his or her lawyer. As such, subpoenaing a client involves representation of “differing interests” under Rule 1.7(a).

To prevent a violation of Rule 1.7, the committee advised attorneys to implement conflict-checking procedures before preparing and serving subpoenas. If a conflict is discovered, attorneys must obtain informed consents from both parties. The committee further advised attorneys to run a conflict check prior to being retained if it is apparent that current clients will be subject to discovery. If a conflict is preemptively discovered, the attorney must obtain informed consent from both parties, limit the scope of the representation to exclude the attorney from obtaining discovery, or decline the representation altogether.

Read the full opinion here