North Carolina Trial Law Blog

I've recently switched over to using the iPhone as my primary wireless device. I'm posting this directly to the blog from the iPhone. The photo was taken with the iPhone last weekend at the zoo. That is a baby elephant playing and splashing in the background past my daughter and her good buddy.

So far, I think the iPhone was a great decision and change from my Treo 650.

The biggest improvement? Web browsing and anu Google based product. On the Treo, I could access the web, but it really was "emergency only" necessity browsing. It just wasn't fun.

The iPhone is actually pleasurable for net browsing.

Ok, the touch screen typing is a tough adjustment, but the auto correct works very well and that makes up.

I'll continue this post in the morning.

Chris Nichols

Well, it finally happened- I'm officially a published author now (and editor!)

The NC Lien Manual is now on the shelves, the one I edited and wrote chapters for and that was published by the North Carolina Academy of Trial Lawyers and Lexis.  Before you think that I'm pitching my own product, you should know that 100% of proceeds go to NCATL to further the fight for people's rights, not to me!

Here is the link to check it out: NC LIEN MANUAL

Here is what Lexis says:

For any of you that have a Treo Smart phone (I have a Treo 650), Google now has a really great program you can download for Goggle maps.  I have always accessed the Google Maps or MapQuest by going to the internet function on the phone, but that was slow and you could not really pull up the visual map.

The new software has it's own icon on the Home page, and you can use it without the stylus.  You get the visual map, and can even look at the Satellite view if you want.  In many ways it reminds me of the interface for Google Earth, the sytem being used by TV stations and downloadable here: www.earth.google.com

The new features are free and download in a few seconds from your phone. To download Google Maps for the smart phone, simply go to www.google.com/gmm on your Treo web browser.

To read more about the features go to Treo Central.

Chris Nichols
www.NicholsTrialLaw.com


 

Tort Reform is a Great Idea, Until YOU Get Hurt

You don't have to look very far on the Web to find websites devoted to eliminating your right to recover fair and just compensation for the carelessness of another individual.  Websites like Overlawyered try to convince everyone that almost every law suit filed is frivolous, and that every jury verdict is pushing the insurance industry and businesses toward bakruptcy. 

The Tortellini, "Bites of Law and Politics, with sauce"

Finally, a new website, The Tortellini , has been started by Stephanie Mencimer, a contributing editor of the Washington Monthly and a former investigative reporter for the Washington Post.

The Tortellini does a great job of debunking the myths of tort reform, and also highlights some of the personal injury lawsuits filed by the mostly Republican members of Congress who, in their "jobs" are constantly trying to eliminate the rights of other citizens to seek fair compensation.  Looks like these tort-reformers have no problem filing lawsuits when they think they have been injured.  Check out her section on Hypocrites.

Mercimer looks at the false propoganda and quickly and efficiently shreds it, revealing the truth behind the fiction of a "tort crisis" in America.  I encourage every consumer lawyer with a Blog or a Website to link to The Tortellini. 

---Chris Nichols

Link to Nichols Law Firm Website

NC Business Court Decision says Email "Conflicts out" Lawyer

NC Lawyers Weekly is reporting a recent business court decision by Judge Tennille in the matter of Chemcraft Holdings Corporation v. Shayba (North Carolina Lawyers Weekly No. 06-15-1115, 10 pages) where the Judge disqualified counsel for a prty due to a conflict of interest arising out of email messages.

You can read the full story here, at NC Lawyers Weekly.

The Basic Facts
Without getting all caught up in too much detail, here is what happened.  Lawyer A was contacted by a potential client and was faxed some documents.  After reviewing those documents, that lawyer declined the case but tried to refer the potential client to another lawyer, Lawyer B.  Lawyer A emailed Lawyer B a quick email and attached the previously faxed documents to the email.  The attachments contained attorney client privileged material, summaries of contacts between the adverse parties, and documents analyzing litigation strategies.

Lawyer B read the email but did not open the attachments.  Sometime later, Lawyer B was hired by the opposing party.  The first party opposed his appearance in the case and filed a grievance as well as a motion to disqualify.

Judge Tenille say Email = Snail Mail
While the actual facts of the case were disputed, Judge Tenille said that even if Lawyer B did not open the attachments, the lawyer was still disqualified because of conflict of interest under ethics Rule 1.18.

Judge Tenille found that:

• Lawyer B had a duty to read the email and the attachments
• Lawyer B had NOT violated any ethics rules
• Lawyer B has a duty to not reveal information learned in a "consultation"
• The action gave an "appearance of impropriety"
• Lawyer B should be disqualified under the "significant harm" standard

Nothing New Here
I think Judge Tenille made the correct decision, probably.  I agree that email and snail mail are basically the same thing.  There is no real difference between Lawyer B receiving a cover letter that says "This client may contact you and I've enclosed three sensitive documents for your review" and receiving the email. 

Taken a step further, this is no different than receiving a phone call, listening to the potential client describe the facts of the case, and then declining representation.  This happens to family law lawyers all of the time, and so they use their staff to carefully screen calls to avoid "pre-emptory" disqualification.

I think the ruling might have been different if the email had come directly from the client and had been unsolicited by Attorney B.  There are clients out there that "mass email"  questions to lawyers.  If this happens, the best thing is to ignore the email and delete it.  Also, if Attorney B had sent an email back to the client, saying, "I have not opened the attachments and I can not represent you" then I think Attorney B might have been allowed to stay in the case.

Chris Nichols
Nichols Law Firm Website

I'm in the process of having one of my friends from RTP design and build me a custom computer to handle my office needs. (That's Research Triangle Park for those of you out of state.  Also known as the place that has driven housing prices "inside the beltline" through the roof over the last decade as more and more international companies make a nice little home for themselves smack dab in the middle of Raleigh, Durham, and Chapel Hill and Forbes and others keep calling us a "Top Ten" place to live.)

My current computer tends to bog down a bit when I have 15 windows open on my two separate 21 inch monitors and I'm editing a video to burn to DVD for a mediation, using VOIP with video camera,  answering emails, composing text, running a spread sheet in the background, and having my customized case management software accepting scanned documents.  Whew...

I'm one of those people that always researches things to the point of driving myself insane (when it is something like cars and computers, not law!).  So my buddy is doing the tough work and I'm nodding my head a lot.  He designs microcips or something even more complicated than that, so I have full faith in his understanding.

Anyhow, when we started pricing components and talking about the price "breaks" he sent me a link to a $10,000 computer system.  For that kind of money, I'd want it to drive me to work and give me a massage, but hey, that's me.

Check out the Tom's $10,000 computer system.  If you want to order one, I'd be happy to be the middle man for my normal commission...

Chris Nichols
www.NicholsTrailLaw.com

As lawyers, we have to always worry about "conflict checks" so that we are not allowing an adverse party to disclose their "secrets" when we may represent the "other side."

The Pre-Emptive Conflict Strike

This is a most common problem for family law lawyers, especially in smaller towns.  What usually happens is that a couple breaks up, and one spouse knows there are only a handful of lawyers in town that practice family law.  That one (vindictive) spouse then tries to contact and discuss his/her case with every lawyer in town, intending, of course, to hire only one of them.  If he/she actually gets in touch with the other lawyers and tells them confidential matters, chances are that those lawyers can no longer represent the other spouse due to a conflict of interest.

Email Complicates Things

In the "good old days" before email and the internet, lawyers protected themselves and their clients from "conflicts" by either not answering the phone, or by screening callers through staff.  Another method was to actually talk with the person, but carefully control the flow of information so as to not receive any "confidential" information until such time as the lawyer actually wants to represent the client.

If a lawyer has an internet site, along with an email address, the mode of communication has changed.  A potential client could send a very long email containing confidential matters to the "target" lawyer, and when the lawyer opens the email, voila, instant conflict.

Great Article on the Subject

I found a great article on the subject by a law professor at Mercer named Professor David Hricik.  Professor Hrick analyzes ethics opinions and offers good suggestions for law firms to protect themselves and their clients form problems arising from email conflicts.

You can read his article here.

Chris Nichols www.NicholsTrialLaw..com

I found an interesting website that acts as an aggregator of links that pertain to law and technology.  This website is more about actual Intellectual Property Law and Technology Law, and not so much about the use of technology in law.  The sub-catagories provide a pretty simple way to browse article to get the "gist" of a topic.

Link: The Cyberlaw Encyclopedia version 2.0.

Welcome to Alan Gahtan's Cyberlaw Encyclopedia (tm) The I.T., I.P. and Electronic Commerce Legal Portal(tm)

-Chris Nichols

www.NicholsTrialLaw.com