Doubling Down

I’m not much of a gambler.  Sure, I enjoy a game or two at the blackjack table, but beyond hitting or sticking, I don’t really know when I should split or when I should double down.

I do know that doubling down can be a risky move for lawyers.  Although we are obligated to zealously advocate for our clients, the ethics rules don’t allow us to assert claims or arguments without a good faith basis in fact or law.  Lawyers can sometimes lose sight of this, particularly if they learn after the fact that a position they have asserted lacks a good faith basis.

A number of firms recently learned the hard way that doubling down can have serious consequences.   An appellate court reinstated a $39 million malicious prosecution case against Latham & Watkins stemming from a trade secrets case it brought against two former employees of its client.  After the employees purportedly  demonstrated that they had created the business plan at issue prior to joining Latham’s client, instead of withdrawing the claims, Latham double downed and created new claims against the former employees.  The case was dismissed, with the court finding that the new claims lacked a good faith basis, setting the stage for the malicious prosecution claim.

Sure, we all want to win; but where the facts or law provide no good faith basis for asserting (or continuing to assert) a claim, don’t double down.   Otherwise, you may lose a lot more than your case.

When should you double down?  I’m tellin’ you, baby, you always double down on eleven.



Clink, Klink

On a recent trip to London, I stumbled across the original Clink Prison.  According to its website, “The Clink” — which bills itself as “the prison that gave its name to all others” — dates back to the 12th century and continued to operate as a prison until 1780 (it is now a museum).  The origins of the name are uncertain, but possibly comes from the clinking sound of the prisoners’ chains. 

Curiously, nowhere does the Clink’s website reference another famous namesake — Colonel Wilhelm Klink, prison commandant of Stalag 13.  And who is Colonel Klink without the bumbling Sergeant Hans Schultz, who famously disclaimed knowledge of any shenanigans by the Allied prisoners.

Which brings us to the subject of this week’s Tip.  Unlike the affable Sgt. Schultz, lawyers don’t always have the option of turning a blind eye to the misconduct of others.  Model Rule 8.3(a) provides that a lawyer “who knows that another lawyer has committed a violation of the Rules . . . that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.”  Among the most cited case is Illinois’s In re Himmel, 533 NE2d 790 (Ill. 1998), in which an attorney was disciplined for failing to report that his client’s prior attorney absconded with settlement funds. 

But it’s not only conduct as egregious as theft that implicates Rule 8.3.  Lawyers also need to be mindful that what they say in court papers (or social media) about other attorneys might inadvertently trigger a reporting obligation or, at the very least, undermine legal arguments.  In Jackson v. Deen, a federal court in Georgia recently took lawyers to task for accusing each other of ethics violations:  “[B]oth sides, having now flown the ethics-code flag . . . are free to file a bar complaint. See Ga. R. Bar Rule 4–102, RPC Rule 8.3(a) (“A lawyer having knowledge that another lawyer has committed a violation of the Georgia Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, should inform the appropriate professional authority.”).  And if they do not then that says something, as ethics accusations should never be used as a litigation tactic.”

If you have reason to believe that another lawyer is engaging in conduct that might trigger a reporting obligation, don’t think you can get away with the Sgt. Shultz defense.  And certainly, don’t think you can publicly attack the trustworthiness or integrity of another lawyer.  Instead, contact an ethics profession; he or she can help you do the right thing so you can stay out of the Clink.

Social Media is Hard

When asked how he felt on his death bed, the English actor Edmund Kean (1787-1833) supposedly remarked:  “Dying is easy; comedy is hard.”  Kean wasn’t alone.  Comedy also is tough for lawyers.  Take the lawyer below, for example.  Sure, he won the case, but his comedy stylings didn’t have ’em rolling in the aisles:

Comedy isn’t the only thing lawyers have trouble with; lawyers also trip up on social media.  First, there are the ethical minimums.  Lawyers can stumble on these in multiple ways:

Indeed, the topic appears so perilous that the ABA is selling a book devoted entirely to how to do “Linked In” right.

Beyond ethical minimums, a thoughtful lawyer should give some care to what a client might think about his remarks, posted for all the world to see.  Calling a firm client a perjurer, for example, via Twitter, might not be the best business development tool.  We won’t name names here; but trust us, we’ve seen it happen (happily, at another firm).  After all, while some of us are fortunate enough to have an expense account for “business development,” we’ve never heard of a firm willingly financing partners for their “business prevention” activities.

Come to think of it, maybe this blog wasn’t the best idea ever . . . .

Playing By The Rules

Before this particular Tip, let us just re-emphasize the substance of the important “Disclaimer” at the bottom of this page:  NO LEGAL ADVICE GIVEN HERE.  That said:  Did you know there’s a 50-square mile patch of land in Idaho in which you might be able to get away with murder? 


Quoting from the wonderful Futility Closet blog: 

Yellowstone National Park doesn’t quite fit in Wyoming — small portions extend into Montana and Idaho. But Congress has placed the legal jurisdiction for the entire park in the District of Wyoming. At the same time, the Sixth Amendment to the U.S. Constitution requires that a jury be “of the State and district wherein the crime shall have been committed.”  Suppose you lure me into the 50 square miles of Yellowstone that lie within Idaho, and suppose you kill me there. The Sixth Amendment requires that the jury be drawn from the state (Idaho) and the district (Wyoming) in which the crime occurred. But the only way to fulfill both those requirements is to draw the jury from the tiny part of Yellowstone that lies in Idaho — and its census population is zero.

Speaking of multijurisdictional shennanigans, a politician once told us that the first thing he learned upon arrival in Washington D.C. was that, if he was ever invited to a meeting at the Ritz-Carlton in Pentagon City, he should presume that it was a trap and that there was a U.S. Attorney trying to venue some prosecution in Virginia to get it out of the District. 

The lesson here?  Knowing the applicable rules can make all the difference.  

What about the ethics rules?  Suppose you’re an Illinois licensed lawyer, trying a case in New York, and you want to travel to California to interview a witness, who used to be a senior manager for your opponent’s company, headquarted in Missouri.  You know that different jurisdictions have different versions of Rule 4.2 regarding contacts with former employees, where the company is represented by counsel.  Which state’s ethics rules apply?     

Happily, the ethics rules have their own choice of law provisions.  The Model Rules, followed in large part by many states, say that, in exercising discipline, the rules to be applied should, for conduct before a tribunal, be the rules of the tribunal.  For other conduct, the rules to be applied will likely be the rules of the the jurisdiction in which the conduct occurred.   

Getting back to killing people in parts of Idaho . . . a final thought.  While Michigan State law professor Brian Kalt makes a compelling legal case, we’re certainly not advising a crime spree in this section of the Gem State.  Nor would we wish to handicap the chances of an acquital.  All we are saying is:  If you invite us camping in Yellowstone, we’re on to you!