Articles Posted in Legal Ethics

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The United States appealed the district court's order precluding the government from introducing at trial certain testimony by a co-defendant turned government witness on the basis of the common-interest rule of attorney-client privilege. The Second Circuit reversed the judgment of the district court, finding nothing in the circumstances in this case to support the application of the privilege. Here, the excluded statements were not made to, in the presence of, or within the hearing of an attorney for any of the common-interest parties; nor did the excluded statements seek the advice of, or communicate advice previously given by, an attorney for any of the common-interest parties; nor were the excluded statements made for the purpose of communicating with such an attorney. View "United States v. Krug" on Justia Law

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The Supreme Court addressed in Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1183‐84 (2017), a federal court's inherent authority to sanction a litigant for bad‐faith conduct by ordering it to pay the other side's legal fees. The Court held that such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. This appeal stemmed from a suit against T-Mobile for property damage to a building T-Mobile had leased space on the roof of for cell tower equipment. The Second Circuit vacated and remanded the district court's order of sanctions because it was in serious tension with the Court's holding and because the district court was mislead by defendants' submissions in awarding such severe sanctions. View "Virginia Properties, LLC v. T-Mobile Northeast LLC" on Justia Law

Posted in: Legal Ethics

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To vacate an arbitration award on the ground that the award was fraudulently procured, the petitioner must demonstrate the fraud was material to the award. There must be a nexus between the alleged fraud and the decision made by the arbitrators. The petitioner, however, need not demonstrate that the arbitrators would have reached a different result. In this case, Odeon brought a petition to vacate an arbitral award involving claims arising out of the termination of one of its employees. Odeon alleged that the arbitrators engaged in misconduct and acted in manifest disregard of the law, and then sought to amend its petition to assert fraud as an additional ground for vacatur. The Second Circuit held that Odeon failed to establish that the employee's alleged perjury had any impact on the arbitration award. The court also held that the district court applied the wrong legal standard in denying the employee's request for attorneys' fees where New York law provided statutory authority for the fee request. Accordingly, the court affirmed in part, vacated in part, and remanded. View "Odeon Capital Group LLC v. Ackerman" on Justia Law

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The Second Circuit vacated the district court's order denying plaintiffs' motion for attorneys' fees and costs incurred in litigating an appeal and cross-appeal under 42 U.S.C. 1988. After the court affirmed on the merits, the district court awarded a reduced award of attorneys' fees. The court affirmed the award in a summary order, stating that each side was to bear its own costs. The district court then denied plaintiffs' motion for attorneys' fees. The court held that its reference to "costs" in the context of Federal Rule of Appellate Procedure 39 did not include attorneys' fees. Accordingly, the court remanded for further proceedings. View "Hines v. City of Albany" on Justia Law

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Plaintiffs filed suit challenging the constitutionality of a collection of New York regulations and laws that together prevent for‐profit law firms from accepting capital investment from non‐lawyers. The district court dismissed the complaint for failure to allege the infringement of any cognizable constitutional right. On de novo review, the court concluded that neither as a for-profit partnership nor as a professional limited liability company do plaintiffs have the associational or petition rights that they claim. Even if the court were to assume, given the evolving nature of commercial speech protections, that they possess First Amendment interests, the regulations at issue here were adequately supported by state interests and have too little effect on the attorney‐client relationship to be viewed as imposing an unlawful burden on plaintiffs' constitutional interests. Accordingly, the court affirmed the judgment. View "Jacoby & Meyers v. The Presiding Justices of the First, Second, Third, and Fourth Departments" on Justia Law

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Hermitage challenges the district court's denial of its motion to disqualify counsel for Prevezon. The underlying litigation arises out of a 2013 civil forfeiture action brought by the United States alleging that Prevezon received the proceeds of a complex, sweeping scheme that defrauded the Russian treasury of roughly $230 million. The government alleges Prevezon laundered portions of the fraud proceeds in New York by buying various real estate holdings in Manhattan. Hermitage, an investment advisory firm, is a victim of the Russian Treasury Fraud. The court concluded that this case presents the “extraordinary circumstances” necessary to grant a writ of mandamus, as Hermitage is without other viable avenues for relief and the district court misapplied well‐settled law. The court explained that it is rare that a nonparty, nonwitness will face the risk of prosecution by a foreign government based on the potential disclosure of confidential information obtained during a prior representation. That real risk, however, coupled with the misapplication of the law by the district court, outweighs the delay and inconvenience to Prevezon of obtaining new counsel. The court found the remaining arguments raised by the parties to be without merit. Accordingly, the court granted the petition for a writ of mandamus and instructed the district court to enter an order disqualifying Moscow and BakerHostetler from representing Prevezon in this litigation. Prevezon’s motion for clarification is denied as moot. View "United States v. Prevezon Holdings, Ltd." on Justia Law

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FBK moved to dismiss for lack of appellate jurisdiction SHW's appeal from the district court's ruling on motions by SHW relating to its entitlement to attorneys' fees as former counsel to certain plaintiffs in the underlying action. FBK contends that because SHW did not consent, pursuant to 28 U.S.C. 636(c), for all proceedings to be conducted before a magistrate judge, the magistrate judge's orders must be treated merely as recommendations to be reviewed by the district court, and that appeal directly to this court from the orders of the magistrate judge is unauthorized. The court denied the motion, concluding that the consent of SHW as counsel or former counsel was not required because section 636(c)'s consent requirement applies to parties (and to persons who move to become parties, see New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 996 F.2d 21 (2d Cir. 1993)), and the parties in this case had given the requisite consent. View "In re McCray, Richardson, Santana, Wise, and Salaam Litigation" on Justia Law

Posted in: Legal Ethics

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Binder, a law firm representing claimants before the SSA, appealed from summary judgment in two related cases where Binder seeks past attorney's fees. When Binder sought to hold the SSA liable for the fees, the district courts granted summary judgment to the SSA on the basis of sovereign immunity. The court affirmed the judgments and held that, regardless of the SSA’s statutory duties to withhold attorney’s fees from payments to successful claimants, there is no waiver of sovereign immunity in 42 U.S.C. 406(a) that would permit Binder’s lawsuits for money damages. View "Binder & Binder v. Colvin" on Justia Law

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Flanagan appealed the district court's denial of the law firm's request for attorneys' fees drawn from a settlement fund in a consolidated securities class action. The court held that the standard set forth in In re Cendant Corp. Litig. (Cendant II) applies to fee applications from non‐lead counsel for work completed after the appointment of lead plaintiff and lead counsel where the fee to non‐lead counsel is one part of a capped percentage of a common fund. In this case, the district court should have afforded a rebuttable presumption of correctness to Lead Plaintiffs’ proposed allocation of fees to Flanagan. Because the district court analyzed Flanagan's request under an incorrect standard, the court vacated the order and remanded for further proceedings. View "In Re: Bank of America Corp." on Justia Law

Posted in: Legal Ethics

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This appeal stemmed from a dispute regarding a contract the parties entered into, which gave Lewmar the exclusive right to manufacture and sell Steinerʹs patented sailboat winch handle, a device used to control the lines and sails of a sailboat. The parties resolved the dispute when Lewmar made, and Steiner accepted, an offer of judgment under Rule 68 of the Federal Rules of Civil Procedure. After judgment was entered, Steiner moved for attorneysʹ fees of $383,804 and costs of $41,470. The district court denied attorneysʹ fees but awarded costs of $2,926. The court concluded that Steiner was precluded from seeking fees pursuant to the Agreement in addition to the $175,000 settlement amount because claims under the Agreement were unambiguously included in the Offer; Steiner was not precluded from seeking attorneysʹ fees under the Connecticut Unfair Trade Practices Act (CUTPA), Conn. Gen. Stat. 42‐110g(d), because the Offer did not unambiguously encompass claims for attorneysʹ fees under CUTPA; and the court remanded for the district court to clarify whether it considered the claim for attorneys' fees under CUTPA on the merits and if not, to do so. Finally, the court concluded that the district court correctly added costs under the ʺcosts then accruedʺ provision of Rule 68. View "Steiner v. Lewmar, Inc." on Justia Law