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Hot Off the Presses- Recent Cases

This webinar is for the lawyer -or anyone else- who wants to brush up on the latest issues and strategies to be aware of regarding legal ethics and best practices. The panelists discuss recent and important case law in the area and explain how those decisions can have real-world impact on the situations you may be involved in. Among others, the panel will address the following Model Rules of Professional Conduct: Rule 1.7-Conflict of Interest: Current Clients; Rule 1.8-Conflict of Interest: Current Clients: Specific Rules; Rule 3.8 - Special Responsibilities of a Prosecutor; and Rule 4.4(a) Respect for Rights of Third Persons.


Part of the webinar series: LEGAL ETHICS – BEST PRACTICES 2022

See more at https://www.financialpoise.com/webinars/

This webinar is for the lawyer -or anyone else- who wants to brush up on the latest issues and strategies to be aware of regarding legal ethics and best practices. The panelists discuss recent and important case law in the area and explain how those decisions can have real-world impact on the situations you may be involved in. Among others, the panel will address the following Model Rules of Professional Conduct: Rule 1.7-Conflict of Interest: Current Clients; Rule 1.8-Conflict of Interest: Current Clients: Specific Rules; Rule 3.8 - Special Responsibilities of a Prosecutor; and Rule 4.4(a) Respect for Rights of Third Persons.


Part of the webinar series: LEGAL ETHICS – BEST PRACTICES 2022

See more at https://www.financialpoise.com/webinars/

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Hot Off the Presses- Recent Cases

  1. 1. Practical and entertaining education for attorneys, accountants, business owners and executives, and investors. 2
  2. 2. Thank you to our Sponsor, Sunburst Digital. 3
  3. 3. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 4
  4. 4. Meet the Faculty MODERATOR: Michelle Gershfeld - Law Offices of Michelle Gershfeld PANELISTS: George Kuney - University of TN College of Law Bernard Burk – Visitor, PennState Law; Visitor, Seattle University School of Law Gerald Meyer - MoloLamken LLP Kathryn Nadro – Sugar Felsenthal Grais & Helsinger LLP 5
  5. 5. About This Webinar Hot Off the Presses - Recent Cases & Decisions This webinar is for the lawyer -or anyone else- who wants to brush up on the latest issues and strategies to be aware of regarding legal ethics and best practices. The panelists discuss recent and important case law in the area and explain how those decisions can have real- world impact on the situations you may be involved in. Time permitting, the panel will address (among others) the following Model Rules of Professional Conduct: Rule 1.1: Competence; Rule 1.5(b)-(c): Fees; Rule 1.6: Confidentiality of Information; Organization as Client; Rule 1.8(e): Conflict of Interest: Current Clients: Specific Rules; Rule 1.13: Organization as Client; Rule 1.15: Safekeeping Property; Rule 4.4(a)-Respect for Rights of Third Persons; Rule 5.5: Unauthorized Practice. Time permitting, the panel will also address issues concerning the attorney-client privilege and the work product doctrine, and an issue regarding judicial ethics and judicial disqualification. 6
  6. 6. About This Series Legal Ethics – Best Practices Corporate scandals make the headlines periodically, but businesses and the lawyers that work with them face ethical challenges every day, even in situations that are legally compliant. This webinar series examines ethical issues confronted by lawyers in a variety of contexts. The panelists consider and recommend different approaches to ethical decision- making and lawyers responsibilities and concerns, especially in light of the impact of the COVID-19 pandemic. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 7
  7. 7. Episodes in this Series #1: Best Practices Regarding Technology Premiere date: 2/16/22 #2: Hot Off the Presses- Recent Cases & Decisions Premiere date: 3/30/22 #3: How to Avoid Malpractice & Disciplinary Actions - General Do's and Don'ts Premiere date: 5/4/22 8
  8. 8. Episode #2: Hot Off the Presses - Recent Cases & Decisions 9
  9. 9. Working Remotely & UPL:ABA Formal Ethics Opinion No. 495 Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if • the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law AND • they ➢ do not hold themselves out as being licensed to practice in the local jurisdiction, ➢ do not advertise or otherwise hold out as having an office in the local jurisdiction, and ➢ do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d) including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules. 10
  10. 10. What Litigation Over the House Select Committee’s Subpoena to John Eastman Can Teach Us About Privileges BACKGROUND: Between the 2020 Presidential election and President Biden’s inauguration, lawyer and then- Chapman University Law School law professor John Eastman communicated with numerous government officials regarding a plan he advocated to stall or overturn the results of the 2020 election, and spoke at the demonstration outside the White House on January 6 that preceded the attack on the Capitol. The House of Representatives’ Select Committee to Investigate the January 6 Attack on the Capitol (“Committee”) subpoenaed Eastman to testify and produce emails in his possession concerning the events leading up to and surrounding the January 6, 2021 attack on the Capitol. Eastman refused to produce any documents and invoked the Fifth Amendment during his deposition 146 times. The Committee then subpoenaed Chapman University for Eastman’s emails stored on Chapman’s email server. Eastman sued the Committee (and others) in the Central District of California (where Eastman lives and Chapman is located) challenging the subpoena to Chapman. Initially, the parties focused on written communications occurring within a limited period (Jan. 4-7). Eastman produced a privilege log listing the communications as to which he claimed privilege. The Committee identified over 100 documents as to which it challenged Eastman’s claims of privilege. The district court reviewed the disputed documents in camera, and then ruled on Eastman’s privilege claims in a 44-page Order dated March 28, 2022. 11
  11. 11. What Litigation Over the House Select Committee’s Subpoena to John Eastman Can Teach Us About Privileges Let’s start by reviewing a common formulation of the elements of the attorney-client privilege: (1) Where legal advice of any kind is sought (2) From a professional legal advisor in his or her capacity as such, (3) The communications relating to that purpose (4) Made in confidence (5) By or on behalf of the client or legal advisor (6) Are at the client’s instance permanently protected (7) From disclosure by the client or the legal advisor (8) Unless the privilege be waived [and there are other exceptions to the privilege as well] Eastman’s disputed claims of attorney-client privilege implicate several of these elements. Let’s take a look at what the parties disagreed about, and how the Court ruled. 12
  12. 12. What Litigation Over the House Select Committee’s Subpoena to John Eastman Can Teach Us About Privileges Existence of an attorney-client relationship Eastman was not entirely consistent about who he claimed his client was, but focused his contentions on President Trump and his Campaign Committee. He had no signed engagement letter, but produced an unsigned retainer agreement between himself and President Trump and his Campaign Committee. The Court found “substantial evidence” of an attorney-client relationship between Eastman and Trump and his Campaign Committee outside the unsigned retainer agreement. Takeaways: This part of the dispute should never have been necessary. Document the existence and scope of your lawyer-client engagements, as well as the identity of your client or clients. • Model Rules 1.5(b)-(c) provide that the existence and scope of the attorney-client relationship (and the terms for fees and expenses) must be communicated to the client, “preferably in writing” (and mandatorily in writing and signed by the client if a contingent fee is involved). Some states require a written fee agreement signed by the client for most engagements. • Precise identification of the client or clients and the scope of the services contemplated is important to avoid future disputes about who is owed duties, and what those duties are. Many insurance carriers require it even when state law does not. 13
  13. 13. What Litigation Over the House Select Committee’s Subpoena to John Eastman Can Teach Us About Privileges Eastman’s use of his Chapman email account for communications with his clients, and the storage of the emails on Chapman’s email server The Committee argued that Eastman’s use of his Chapman email to communicate with his clients, rendered the communications not “in confidence” or otherwise waived attorney-client privilege. The Court found the privilege preserved despite Eastman’s use of nonconfidential means of communication and storage of client communications. Takeaways: Again, this dispute should have been unnecessary. • Use of secure email facilities not subject to third-parties’ rights of access is an essential aspect of compliance with the lawyer’s duty of technological competence (Model Rule 1.1 Comment [8]) and the duty to make reasonable efforts to preserve the confidentiality of information and documents pertaining to an engagement (Model Rule 1.6(c)). • Law professors who are employed by public universities and engage in legal advice or other client work should also take into account the effect of “Sunshine” laws such as open public records acts. • The solution is simple: Use email operated and stored by a secure private provider (that is, a personal email account on a secure service), or by your practice organization. 14
  14. 14. What Litigation Over the House Select Committee’s Subpoena to John Eastman Can Teach Us About Privileges The involvement of nonprivileged parties in the communications at issue The communications over which Eastman claimed privilege were all sent to Eastman by a third party. None of them include President Trump, but two of them are blind-copied (bcc’d) to one of Trump’s advisors. The Committee argued this made the communications not “in confidence” or waived privilege Eastman asserted that the third party was his “co-counsel,” but provided no admissible evidence that this was the case. It is the burden of the party asserting privilege to prove each element. The Court found that Eastman had not met his burden of proving these were privileged attorney-client communications. Takeaways: • It’s part of the lawyer’s duties of competence and care to limit confidential communications to the client and those acting on the lawyer’s or client’s behalf whose inclusion is reasonably necessary for the communication to serve its purpose. Those duties include advising the client and his or its agents and advisors about appropriate means to preserve available privileges. • Courts are becoming increasingly sensitive to and concerned about “overclaiming” privilege to hide relevant materials from discovery. • It’s not clear what happened here, but the privilege claims here were either inadequately substantiated or asserted without proper grounds. Neither is conduct to be emulated. 15
  15. 15. What Litigation Over the House Select Committee’s Subpoena to John Eastman Can Teach Us About Privileges The crime-fraud exception to the attorney-client privilege and work product doctrine The Committee argued that the documents over which Eastman claimed privilege were within the crime- fraud exception to the attorney-client privilege and the work product doctrine, and therefore unprivileged. Attorney-Client communications will not be protected by privilege if: • The client was in the process of committing or intended to commit a crime or fraudulent act (or, in some jurisdictions, a civil tort), and • The attorney-client communication was made in furtherance of the crime or fraud, or to cover it up. The court found it more likely than not that President Trump and his campaign intended to commit two federal crimes. The court engaged in a document-by-document review of the disputed documents, and found that some of them were created by or for President Trump and his campaign “in furtherance of” those intended crimes. 16
  16. 16. What Litigation Over the House Select Committee’s Subpoena to John Eastman Can Teach Us About Privileges EASTMAN’S CLAIMS OF WORK PRODUCT PROTECTION Generally speaking, the work product doctrine protects certain documents and tangible things from disclosure in litigation when they were prepared in anticipation of litigation or for trial by or for another party or its representative. • Fact work product, which consists of documents and tangible things prepared in anticipation of litigation by select individuals • Opinion work product, which consists of documents and tangible things that both: o meet the fact work product criteria, and o include the author’s opinions, conclusions, mental impressions, and legal theories. • Fed. R. Civ. P. 26(b)(3) limits the discoverability of certain items prepared in anticipation of litigation by select individuals. • State law analogues with certain variations 17
  17. 17. What Litigation Over the House Select Committee’s Subpoena to John Eastman Can Teach Us About Privileges Overcoming work product protection: Under Rule 26(b)(3), a party may obtain fact work product if the requesting party demonstrates that it: • has a substantial need for the document or thing to prepare its case; and • cannot, without undue hardship, obtain the substantial equivalent of the document or material by other means. Unlike fact work product, opinion work product may only be obtained in very limited circumstances Work product protection can be waived: • Waiver has been described as “A knowing and voluntary disclosure of the contents of otherwise protected work product to someone with interests adverse to his or those of the client, knowingly increasing the possibility that an opponent will obtain and use the material…” Cont'l Cas. Co. v. Under Armour, Inc., 537 F. Supp. 2d 761, 771 (D. Md. 2008). • “[R]elease of otherwise protected material without an intent to limit its future disposition might forfeit work product protection, regardless of the relationship between the attorney and the recipient of the material.” Id. • The disclosure must be voluntary, even if it was not consensual, to result in a waiver. 18
  18. 18. What Litigation Over the House Select Committee’s Subpoena to John Eastman Can Teach Us About Privileges Background: • U.S. District Court Judge David Carter ordered an expedited schedule to review Eastman’s efforts to shield 568 pages of emails – all sent and received between January 4 and January 7, 2021 – from the January 6 select committee of the House of Representatives • Eastman has also asserted work product protection over an additional 10,000 pages of emails (https://storage.courtlistener.com/recap/gov.uscourts.cacd.841840/gov.uscourts.cacd.841840.325.0_ 1.pdf ) • The Committee argues Eastman had failed to provide evidence of a formal legal relationship with Trump, the White House or the Trump campaign • Judge Carter found it “more likely than not that President Trump corruptly attempted to obstruct” congressional proceedings on January 6. (https://www.cbsnews.com/news/trump-january-6-john- eastman-judge-emails-committee/) • The Committee also argued that there was no actual litigation anticipated and thus the work product doctrine is inapplicable o The court noted that Eastman’s primary goal was to convince Mike Pence to reject electors without getting permission from a court, implying that there was not any court battle planned 19
  19. 19. Another Case; Another Privilege Issue: Elizabeth Holmes’s Claims of Privileged Communications with her Company’s Lawyers in Her Criminal Case Background: Elizabeth Holmes was the founder and a principal of Theranos, which claimed to have developed a revolutionary blood-testing machine called the “Edison,” and raised nearly a billion dollars from investors. The machine never worked, and the company imploded. Homes was prosecuted for wire fraud, and convicted on three counts in January 2022. During pretrial proceedings, Holmes sought to exclude from use against her at trial various communications between herself and Theranos’s lawyers, claiming that the company’s lawyers were also her personal lawyers, and the communications thus were attorney-client privileged. (The company had waived its privilege over these communications.) The federal district court rejected Holmes’s privilege claims, holding that the company’s lawyers did not also represent Holmes personally. 20
  20. 20. Another Case; Another Privilege Issue: Elizabeth Holmes’s Claims of Privileged Communications with her Company’s Lawyers in Her Criminal Case Relevant Model Rules of Professional Conduct, also reflected in the Rules of Evidence: Model Rule 1.13: Organization as Client (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. * * * (f) In dealing with an organization's directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization's interests are adverse to those of the constituents with whom the lawyer is dealing. (g) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. 21
  21. 21. Hack of the California State Bar Attorney Discipline Cases Database May 1, 2022 (Reuters) - The State Bar of California said confidential data on 260,000 attorney discipline cases was exposed last week on a website that compiles court data from across the country. The administrator of Judyrecords.com, who is anonymous, posted a series of responses on the site claiming the attorney discipline records were gathered directly from the state bar’s website. Under California law, attorney discipline cases are confidential until formal charges are filed. Takeaway: Data leaks and hacks are everywhere and it is part of the attorney’s duty of care and technical competence to take reasonable measures to protect client records and confidences. This includes proper due diligence of outside vendors that may be involved in data storage, including “cloud” storage. 22
  22. 22. What Are the Risks If Your Client Trust Account Is Hacked? ABA Formal Ethics Op. 18-483 (2018) discusses lawyers’ and law firms’ ethical duties to clients in managing the risks and results of a data breach, including the obligation to maintain reasonable cybersecurity measures; monitor for breaches; and notify affected clients, stop any breach, and restore its systems if a breach occurs. We’ve discussed that in prior programs. But what if your client trust account is hacked? It happens: A New Jersey firm had $200,000 in unauthorized withdrawals from its client trust account earlier this year, apparently through misuse of a partner’s online credentials. https://www.law.com/2022/03/04/we-clearly-were-hacked-thieves-steal-200000-from-law-firms-trust- account/?utm_source=email&utm_medium=enl&utm_content=20220307&utm_campaign=morningminute&utm_term=law Model Rule 1.15 requires client and third-party funds in a lawyer’s custody to be maintained in a separate account in a depository institution, in most states a financial institution approved by that state’s bar. Handling and accounting for such funds is heavily regulated, with details varying state to state. Model Rule 1.15 Comment [1]: “A lawyer should hold property of others with the care required of a professional fiduciary.” Every state has its own formulation, but that generally means that a lawyer must safeguard others’ property with at least as much care as a prudent person would safeguard her own. And that is generally held to translate into a standard for civil liability. The New Jersey firm blamed its bank for allowing the unauthorized withdrawals. The bank insisted that the leak of the law-firm partner’s online credentials that were necessary for the withdrawals originated elsewhere. We’re not aware of any further reports on how the facts developed or how the dispute resolved. 23
  23. 23. What Are the Risks If Your Client Trust Account Is Hacked? Takeaway: • Be scrupulously careful to prevent unauthorized access to all of your financial accounts and records, at least as careful as a prudent person would be with data usable to access his or her own bank accounts; • Hacking and identity theft are increasingly pervasive, and can affect even the most careful and prudent people and organizations; • Some of the most prestigious and careful law firms and financial institutions have had data breaches at the hands of highly skillful hackers; attorney trust accounts are a logical target; • To date, cases of funds disappearing from attorney trust accounts without either the bank’s or the lawyer’s being found at fault are rare. A factfinder will typically blame someone in the chain of custody (besides the thief) who has insurance or deep pockets. But your state might ultimately conclude that, even in a case without fault, and despite the fact that the fiduciary standard commonly articulated is not one of strict liability, lawyers are ultimately responsible for funds in their care! 24
  24. 24. When Do Lawyers’ Settlement Demands Become Criminal, Tortious, or a Disciplinary Violation? Michael Avenatti (pictured) has been convicted of felony attempted extortion by multi- million-dollar “settlement demands” made on Nike. There are multiple other examples in recent years of lawyers found to have cloaked extortion attempts in what they referred to as “settlement demands.” Let’s start with the elements of criminal extortion: • A wrongful threat of force, of criminal accusation, or of exposing a secret • With the intent to obtain the other person’s money or property, or to cause them to take an action Importantly, threatening to do something one has a legal right to do is not a criminally wrongful threat. However, in some jurisdictions some such threats may be a tort or a lawyer disciplinary violation. One common confusion: Fed. R. Evid. 408 and similar evidentiary rules make an offer in compromise inadmissible “to prove or disprove the validity or amount of a disputed claim.” This evidentiary exclusion in no way immunizes (or makes inadmissible) threats that are criminal, tortious, or disciplinary violations and used for the purpose of proving the crime, tort, or disciplinary violation. 25
  25. 25. When Do Lawyers’ Settlement Demands Become Criminal, Tortious, or a Disciplinary Violation? The rules regarding what kinds of threats comprise a lawyer disciplinary violation are surprisingly complicated and variable between states. The easy part: You can always “threaten” to bring a civil claim to seek resolution of that claim, so long as the claim is colorable and you don’t threaten more than to enforce your client’s legal rights What about asserting criminal or disciplinary charges? Some states still adhere to Model Code of Professional Responsibility DR 7-105(A), which stated: “A lawyer shall not present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter.” “Criminal charges” here includes quasi-criminal charges such as charges of disciplinary violations. The Model Rules are more permissive, allowing threats of (or negotiation of agreements not to assert) criminal or quasi-criminal charges when three criteria are met: 1. The criminal charge is “related to the civil claim”; 2. The lawyer has a “well-founded belief that both the civil claim and the possible criminal charges are warranted by the law and the facts”; and 3. The lawyer does not “attempt to exert or suggest improper influence over the criminal process.” (ABA Formal Ethics Op. No. 92-363 (1992)). 26
  26. 26. When Do Lawyers’ Settlement Demands Become Criminal, Tortious, or a Disciplinary Violation? Beware: There are still lots of threats that are never okay: • Threats to make criminal or quasi-criminal charges unrelated to, or to disclose embarrassing or otherwise prejudicial facts not genuinely relevant to, a civil dispute under discussion; • Threats to make criminal or quasi-criminal charges that have no substantial basis in fact or law (see also Model Rule 3.1, prohibiting “frivolous” claims; Model Rule 8.4(d), prohibiting conduct “prejudicial to the administration of justice”); • Threats to engage in otherwise lawful conduct without any actual intention to do so (see Model Rule 4.1(a) (prohibiting misrepresentation); ABA Formal Ethics Op. No. 92-363 (1992) at 4); • Threats based on an effort to improperly influence, or suggesting an ability to improperly influence, government officials (see Model Rule 8.4(e), prohibiting such conduct); and • Threats to inflict violence or to engage in any other illegal conduct in order to secure any advantage of any kind. 27
  27. 27. When Do Lawyers’ Settlement Demands Become Criminal, Tortious, or a Disciplinary Violation? And it’s not just about threats! In jurisdictions that have abandoned DR 7-105(A), it is a disciplinary violation to do without threatening any of the things that you can’t threaten to do (including lodging criminal or quasi- criminal charges that don’t meet the three criteria listed on the prior slide to gain an advantage in a civil matter). ABA Formal Ethics Op. No. 92-363 at 2 n.3 (1992) And in at some of those states that follow DR 7-105(A), lawyers must not “present, participate in presenting or threaten to present criminal charges solely to obtain an advantage in a civil matter” (emphasis added), which is even broader. Basically accurate simplification: In most states, if you can’t threaten to do it, you can’t just go ahead and do it without threatening either. 28
  28. 28. Effects on Lawyers of the Russia Trade Sanctions Sanctions are imposed through the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), operating through the International Emergency Economic Powers Act, which gives the president authority to regulate commerce when there is a national emergency or when the U.S. is threatened by a foreign power • Sanctions are against Russia itself, Russian oligarchs, Russian President Vladimir Putin and others in his inner circle, who are on a Specially Designated National and Blocked Persons list • There are civil and criminal enforcement actions and penalties for non-compliance Law firms and lawyers have taken steps to comply with Russian sanctions, both in limiting and in terminating client relationships when necessary and in dealing with their own offices in Russia and Ukraine • Clients and law firms will have to work out whether they use Russian contractors and subcontractors, either directly or indirectly, and how they can legally pay them for their services if they bank with a sanctioned financial institution • Lawyers also have to advise their own clients on how to comply with the sanctions, which can span from manufacturing, banking, tech, transportation, and energy Sources: https://www.reuters.com/legal/legalindustry/law-firms-cut-ties-with-russian-clients-sanctions-bite- 2022-03-01/ ; https://www.americanbar.org/groups/journal/articles/2022/law-firms-scramble-to-keep-pace- with-unprecedented-russian-sanct/ 29
  29. 29. Judicial Disqualification Based on the Judge’s Financial Interests September 28, 2021, WSJ Reports: 131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest. The judges failed to recuse themselves from 685 lawsuits from 2010 to 2019. December 31, 2021, Supreme Court Chief Justice John Roberts chided federal judges for not recusing themselves from cases posing a financial conflict of interest. "Let me be crystal clear: the Judiciary takes this matter seriously," Roberts wrote. "We expect judges to adhere to the highest standards, and those judges violated an ethics rule.” Lesson: It may be appropriate to request a financial disclosure report via US Courts Form AO 10A or the analogous state judicial resource center and take appropriate action based on the information received. 30
  30. 30. Can a Lawyer Advance Payment of Sanctions Imposed on a Client as an “Expense of Litigation”? Background: • A federal district court in Pittsburgh sanctioned parties for failure to cooperate in discovery • The lawyer representing the clients sought an opinion from the Pennsylvania Bar on whether the lawyer could advance payment of the sanctions as a “cost of litigation” • The Pennsylvania Bar gave an opinion that such an advance was permissible under Rule 1.8(e) • The district court forbade the lawyer from doing so despite the bar opinion Model Rule 1.8(e): A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; [and] (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client . . . . Both Fed. R. Civ. P. 11 and Fed. R. Civ. P. 37 give the district court discretion to award sanctions against a party, that party’s counsel, or both. 31
  31. 31. About the Faculty 32
  32. 32. About The Faculty Michelle Gershfeld - MGershfeldlaw@gmail.com Michelle Gershfeld is a bankruptcy attorney, debt negotiator and personal financial life coach who advises people who are in debt, or building wealth, by identifying and overcoming obstacles that lie in their path to securing worry-free, financial wellness. Michelle’s private practice, Law Offices of Michelle Gershfeld, provides services to clients in financial distress to create a strategic, customized plan for each unique financial situation. Michelle defends foreclosures and evictions when necessary, and will assist clients to move forward with dignity, despite current hardships. Michelle also works with commercial clients to reorganize outside of a formal bankruptcy filing, which effectively serves businesses at reduced costs. 33
  33. 33. About The Faculty George Kuney - gkuney@utk.edu George W. Kuney is a Lindsay Young Distinguished Professor of Law and Director of the Clayton Center for Entrepreneurial Law at The University of Tennessee College of Law in Knoxville, Tennessee. He holds a J.D. from the University of California, Hastings College of the Law, an M.B.A. from The University of San Diego, and a B.A. in Economics from the University of California, Santa Cruz. Before joining the UT faculty in 2000, he was a partner in the Allen Matkins firm’s San Diego office. Previously he practiced with the Howard Rice and Morrison & Foerster firms in his hometown of San Francisco, doing litigation and transactional work largely in the context of business restructuring and insolvency. He teaches business law courses including Business Associations, Contracts, Contract Drafting, Commercial Law, Consumer Bankruptcy, Debtor-Creditor, Mergers and Acquisitions, Representing Enterprises, and Workouts and Reorganizations. Kuney has written a number of books and articles and given presentations about business, contracts, and commercial law and insolvency- related topics. He advises clients nationwide regarding bankruptcy, restructuring, reorganization, and related subjects. He is admitted to the bar in California and Tennessee. 34
  34. 34. About The Faculty Bernie Burk - bernie.burk@bernieburk.com Professor Bernard Burk is currently visiting at Penn State Law in University Park, PA. Starting in July 2022, he’ll be visiting at Seattle University School of Law. Aspen Publishing recently published his new textbook on legal ethics, entitled Ethical Lawyering: A Guide for the Well- Intentioned (with Nancy Rapoport of the University of Nevada, Las Vegas School of Law, and Veronica Finkelstein, Asst. U.S. Attorney for the E.D. Pa. and adjunct at Drexel University School of Law and Rutgers-Camden). His scholarship concerns the legal profession, legal ethics and professional conduct, and legal education. In addition to his teaching and publishing, Prof. Burk engages in consulting and expert witness work in the areas of legal ethics and professional conduct. 35
  35. 35. About The Faculty Gerald Meyer - gmeyer@mololamken.com Gerald Meyer’s practice focuses on complex business litigation, white collar criminal matters and investigations, and appellate litigation. He has represented businesses, senior corporate officials, and individuals in a broad array of subject matters, including securities litigation, class actions, antitrust law, and constitutional law. He has tried cases to verdict and drafted and argued dispositive, discovery, and evidentiary motions in trial courts across the country. He has argued appeals before the Seventh Circuit, and has briefed appeals in the Supreme Court of the United States and numerous courts of appeals. Before joining MoloLamken, Mr. Meyer was an associate with Skadden, Arps, Slate, Meagher & Flom LLP in Chicago. He has represented companies and individuals in a wide range of tax planning matters, including mergers and acquisitions, restructurings, securities offerings, and issues involving tax-exempt organizations. Mr. Meyer also served as a law clerk to Judge Robert R. Beezer of the United States Court of Appeals for the Ninth Circuit and to Judge G. Steven Agee of the United States Court of Appeals for the Fourth Circuit. 36
  36. 36. About The Faculty Kathryn Nadro - knadro@sfgh.com Kathryn (“Katie”) Nadro leads Sugar Felsenthal Grais & Helsinger’s Data Security and Privacy practice. Katie advises clients on a diverse array of business matters, including data security and privacy compliance, commercial and business disputes, and employment issues. Katie works with individuals and businesses of all sizes to craft successful resolutions tailored to each individual matter. Katie is a Certified Information Privacy Professional (CIPP/US) and counsels clients on a variety of data security and privacy issues, including breach response, policy drafting, program management, data collection, vendor management, and compliance with ever-changing state, federal, and international privacy law. Katie also has broad litigation experience representing companies and individuals in contract, non-compete, discrimination, harassment, fiduciary duty, and trade secret litigation in state and federal court. With a background as both in-house and outside counsel, Katie understands that business objectives, time, and resources play an important role in reaching a favorable outcome for each client. 37
  37. 37. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 38
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  39. 39. About Financial Poise DailyDAC LLC, d/b/a Financial Poise™ provides continuing education to attorneys, accountants, business owners and executives, and investors. It’s websites, webinars, and books provide Plain English, entertaining, explanations about legal, financial, and other subjects of interest to these audiences. Visit us at www.financialpoise.com Our free weekly newsletter, Financial Poise Weekly, updates you on new articles published on our website and Upcoming Webinars you may be interested in. To join our email list, please visit: https://www.financialpoise.com/subscribe/ 40

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