Thursday, January 21, 2016

Risk News and Notes (or When Dentists Cause Pain for Lawyers)

Joseph A. Corsmeier flags fascinating news: "Washington State Bar suspends some ethics opinions because of antitrust concerns arising from 2015 U.S. Supreme Court opinion" --
  • "...the Washington State Bar Association has advised its ethics committee to stop issuing ethics opinions which could be interpreted as having the effect of restraining trade in the legal services market. The bar stated that it suspended the opinions so it could 'proceed very deliberately' in the wake of the U.S. Supreme Court’s February 2015 opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission."
  • "That U.S. Supreme Court decision permitted an antitrust action against the North Carolina state dentistry board for its decision prohibiting non-dentists from whitening teeth to proceed. The opinion stated that when a state board is controlled by active market participants in the market it regulates, state-action antitrust immunity cannot be applied unless the restraint of trade is affirmatively expressed by state policy and the policy is actively supervised by the state."
Karen Rubin at Thompson Hine reminds:"Dabbling in other practice areas can bring disciplinary, malpractice woes to lawyers"--
  • "Many lawyers begin to dabble when business slows down or dries up in an area they have become familiar with.  That was common during the last economic downturn.  It’s hard to measure the impact of dabbling on the incidence of malpractice complaints, but it seems to be responsible in a measurable way for disciplinary complaints against lawyers who do not prepare themselves adequately to face the challenge of doing a new kind of work."\
  • "Richard A. Dove, director of the Ohio Supreme Court’s Board of Professional Conduct (the adjudicatory arm of the state’s lawyer discipline system), said 'We see several disciplinary cases each year in which lawyers, often due to economic pressures, extend their practice beyond their areas of competence. This includes not only legal competence but competence in the use of technology prevalent in the practice of law.'"
Bloomberg BNA discussions how market trends and frim structure affects the conflicts landscape: "So Many Conflicts, So Many Contexts" --
  • "Large law firms offer many benefits, but avoiding conflict issues is not one of them. First, there is the internal politics emanating from conflicts involving existing and prospective clients. Each partner wants to have their client win the conflict battle — and the firm can generally represent just one. The winner is usually the partner with seniority (read larger book of business) or the client with larger fee potential. It’s a Darwinian struggle — and that’s just the internal side of it."
  • "Then there’s the problem of multiple offices and the structure of the firm. If the firm is “unified” in more than just the brand sense, then conflict rules can be an impediment to client development. This issue affects who comes to the firm, who stays, and who goes."
  • "Until recently, many thought the Swiss verein — a structure favored by some of the world’s largest law firms (as well as the Big Four) — provided shelter from the harshness of conflict rules. After all, each “member” firm in the verein had its own P&L and juridical independence. But that was shattered in a recent conflict case involving Dentons. Ruling on a disqualification motion brought against Dentons by Gap (a client of one firm verein member and adverse party to another)..."

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