Rule 8.3 of the Model Rule of Professional Conduct is the model from which many states have taken their rule for lawyers to report misconduct.

(a) A lawyer having knowledge that another lawyer has committed a violation of these rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall ….(inform the appropriate professional authority; initiate proceedings under the North Dakota Rules of Disciplinary Procedure; etc.]

As an example of how this is interpreted in practice, the New York State Bar says that each of the following four prerequisites must be met before a lawyer needs to report a violation:

1. the lawyer must have a ‘clear belief, or possess actual knowledge, as to the pertinent facts.
2. the lawyer cannot have received his knowledge as a result of a confidence.
3. the conduct must have violated a disciplinary rule.
4. the violation must raise a substantial question as to the lawyer’s honesty, trustworthiness or fitness to practice law in other matters than the one involved in the violation.

Attorney client relationship may be implied. The North Dakota court has weighed in with yet another case holding that an attorney may find him/her self involved as an attorney without knowing it! The Court reprised that “It is not necessary that there be an express contract or payment of fees; an attorney-client relationship may be implied from the conduct of the parties. See Stormon v. Weiss, 65 N.W.2d 475, 520 (N.D. 1954); Robertson, 536 N.E.2d at 348; Keegan, 519 N.W.2d at 611.” That is the majority rule in the United States.

In the case of Moen v. Thomas, 2001 ND 110, 628 N.W.2d 325, the court did it again — found an implied attorney-client relationship.

In the 2003 case of Disciplinary Board v. Giese, 2003 ND 82 the North Dakota court did it again — found an implied attorney-client relationship. This time they laid out a good summary of the law not only for North Dakota, but in words that are good for most states, as follows.

[¶17] In Disciplinary Bd. v. McKechnie, 2003 ND 22, ¶ 19, 656 N.W.2d 661 (quoting ABA/BNA Lawyers’ Manual on Professional Conduct, at 31:101 (2002)), we said, “the lawyer-client relationship begins when the client acknowledges the lawyer’s capacity to act in his behalf and the lawyer agrees to act for the benefit and under the control of the client.” The existence of an attorney-client relationship does not depend on an express contract or the payment of fees, and may be implied from the parties’ conduct. McKechnie, at ¶ 19. An attorney-client relationship is established when a party seeks and receives advice and assistance from an attorney on matters pertinent to the legal profession. Matter of Petrie, 742 P.2d 796, 800 (Ariz. 1987). See 7 Am. Jur. 2d Attorneys at Law § 136 (1997). The existence of an attorney-client relationship turns largely on the client’s subjective belief it exists and looks to the nature of the work performed and to the circumstances under which confidences are divulged. Petrie, at 800-01; Louisiana State Bar Ass’n v. Bosworth, 481 So.2d 567, 571 (La. 1986); Matter of McGlothlen, 663 P.2d 1330, 1334 (Wash. 1983). . . . . The existence of an attorney-client relationship is a question of fact. Moen v. Thomas, 2001 ND 110, ¶ 13, 628 N.W.2d 325.

Here is a similar Texas line of cases. A reasonable attorney knows there are times when a the relationship may be implied or expected by the person to whom the attorney is talking. Cf., Perez v. Kirk & Carrigan, 822 S.W.2d 261, 265-66 (Tex. App.Corpus Christi 1991, writ denied) (“An agreement to form an attorney-client relationship may be implied from the conduct of the parties. . . . the relationship does not depend upon the payment of a fee, but may exist as a result of rendering services gratuitously.”); Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.Texarkana 1989, writ denied); Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.Texarkana 1989, writ denied);(“An attorney-client relationship may be implied from the conduct of the parties.

Privity is not a defense for failure to prevent misunderstanding of existence of lawyer being attorney for the claimed client. When a non-client sues an attorney for the legal malpractice of negligently failing to advise the non-client that the attorney is not representing the non-client, when the circumstances would lead the non-client to believe the attorney has undertaken the representation. A duty to the non-client does exist. See, e.g., Cantu v. Butron, 921 S.W.2d 344, 351 (Tex. App.Corpus Christi 1996, writ denied); Byrd v. Woodruff, 891 S.W.2d 689, 700 (Tex. App.Dallas 1994, writ denied); Kotzur v. Kelly, 791 S.W.2d 254, 257-58 (Tex. App.Corpus Christi 1990, no writ); Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.Texarkana 1989, writ denied);(” . . . further, an attorney may be held negligent when he fails to advise a party that he is not representing them on a case when the circumstances lead the party to believe that the attorney is representing them.”).

Privity is Not Always Required for Duty to Arise Not to Negligently Misrepresent. Generally, a person who is not in privity with an attorney cannot sue for the attorney’s negligence. Cf., McCamish, Martin, Brown, & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 792 (Tex. 1999). But there is a duty that runs to non-clients, and thus, an attorney may be subject to a negligent misrepresentation claim even if there is no legal malpractice claim. Therefore, because of the duty that runs to non-clients, it is possible for a non-client to have a claim for negligent misrepresentation against an attorney even if he/she may lack standing to sue otherwise for the attorney’s negligent acts in or out or court.. McCamish, Martin, Brown, & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 792 (Tex. 1999). The Texas Supreme Court limits the duty to non-clients to situations in which the attorney is aware of the non-client and intends for the non-client to rely on the information provided. Id. at 794 (cause of action is available only when information is transferred by an attorney to a known party for a known purpose) This duty to non-clients is similar to the duty of accountants giving financial information to their client which the accountant knows will be given to third party, but is not limited to that situation.

The Moen case also has a concurring opinion that lays out some of this basic sources of law for researchers on when an attorney may be liable for legal malpractice to a non-client. The concurring opinion does not go as far as the Texas McCamish case.

When does the Statute of Limitations Run? Larson v. Norkot Manufacturing, Inc., 002 ND 175 is a good discussion of when the statute of limitations begins to run on a legal malpractice case — when there is both (a) a problem of discovery and a(2) problem of when damages or injury occurs. This is the second time that this case has been before the North Dakota Supreme Court. All the parties were represented by experienced legal malpractice counsel, and the case considers all the aspects involved. The court starts by stating that for a cause of action for an attorney’s legal malpractice, there must be damages to the client proximately caused by the attorney’s breach of a duty to the client; the statute of limitations does not begin to run until the client has incurred some damages from the alleged malpractice; and the statute of limitations is tolled until the client knows, or with reasonable diligence should know, of the injury, its cause, and the defendant attorney’s possible negligence. The court then splits on the question of defining those times that trigger the statute. If you have a problem like this, read this case.

How do you to exclude the adverse expert’s testimony if your adversary did not adequately disclose the expected testimony and its basis?

In some respects, it is a matter of whether the court looks only to Rule 26, or looks only to Rule 37, or instead looks to the inherent power of the court to punish an attorney for bad faith. Whether the trial court can exclude testimony of an expert as a sanction for failure to adequately disclose the expected expert testimony is a question that courts answer by following through three different paths, only one of which may be available to you in your case. Even though you may be an experienced trial attorney, you probably should take another look at your particular jurisdiction’s opinions on the subject. You may be surprised.

In a nutshell: the gut reaction of most trial attorney, and perhaps most trial judges, is to have the expert’s testimony excluded as a Rule 37 sanction for failure to respond adequately to discovery requests. Yet some federal courts and some state courts would disagree that the sanctions route is available. They take the position that the inherent sanctioning power of the court is only available if there is either:

a specific finding by the trial court of “bad faith;” or
if the requesting attorney has previously obtained a court order requiring supplementation of the complained of inadequate discovery response.
A recent North Dakota case shows the different path so well — and with citations by the concurring Justice — that we decided to quote long parts of the opinion below.

Perius v. Nodak Mutual Ins. Co., 2012 ND 54 was a situation where the responding attorney did not provide an adequate statement of the expected testimony of an expert. The majority opinion found that there is an inherent power for the trial court to exclude testimony under Rule 37 for discovery abuse.

Following is the critical part of the majority opinion in Perius.

As highlighted by the case’s procedural history, Perius was aware that his expert disclosures were insufficient, and failed to supplement his responses despite his duty to do so. See N.D.R.Civ.P. 26(e)(2)(B). The district court did not abuse its discretion in excluding Dr. Blowers’s expert testimony as a discovery sanction. See Wolf, 1997 ND 240, ¶ 17, 573 N.W.2d 161.

[¶10] Rule 26(e), N.D.R.Civ.P., requires a party to supplement or correct its response to an interrogatory “in a timely manner if the party learns that in some material respect the response is incomplete or incorrect[.]” N.D.R.Civ.P. 26(e)(1)(A). The rule also requires a party to supplement its response about “the identity of each person expected to be called as an expert witness at trial, the subject matter on which the person is expected to testify, and the substance of the person’s testimony.” N.D.R.Civ.P. 26(e)(2)(B). No sanction is specified under N.D.R.Civ.P. 37 for a party’s failure to sufficiently supplement interrogatories. See N.D.R.Civ.P. 37; Dewitz, 508 N.W.2d at 339. Therefore, the district court has discretion to determine an appropriate sanction for a party’s failure to supplement interrogatories and may exclude expert testimony that is beyond the scope of a party’s responses to interrogatories. Wolf, 1997 ND 240, ¶ 17, 573 N.W.2d 161.

Now, here is the critical parts of the concurring opinion. The concurring opinion takes the position that the trial court cannot do anything unless the discovering attorney has previously made a Rule 37 motion to compel disclosure [or unless there is a finding of bad faith (which cannot be made if the responding attorney is just sloppy and ignorant).]

However, legal scholars have pointed out that “[w]hen an appropriate sanction for a specific abuse exists under the Rules, a court may not resort to its inherent sanctioning power but must use the sanctions available under the Rules.” 6 James Wm. Moore et al., Moore’s Federal Practice ¶ 26.06[2] (3d ed. 2011); 8B Charles Alan Wright et al., Federal Practice and Procedure § 2282, at 422 (3d ed. 2010) (noting that the United States Supreme Court in Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 207 (1958), made it clear that it is ordinarily inappropriate to look beyond the clearly delineated procedures of Rule 37 for the imposition of sanctions in the discovery context).

[Paragraphing supplied by this editor for purposes of making it clear that a second thought is being stated here by the Justice.] ]The Court of Appeals for the Second Circuit requires “a finding of bad faith for the imposition of sanctions under the inherent power doctrine. That bad faith must be shown by (1) ‘clear evidence’ or (2) ‘harassment or delay or . . . other improper purposes.’” DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 136 (2d Cir. 1998) (citations omitted).

[¶30] Rule 37, N.D.R.Civ.P., is patterned after Rule 37 of the Federal Rules of Civil Procedure. Rule 37, Fed.R.Civ.P., “establishes the mechanisms by which Rules 26 to 36 can be made effective.” 8B Charles Alan Wright et al., Federal Practice and Procedure § 2281, at 410 (3d ed. 2010). The general scheme of Rule 37, Fed.R.Civ.P., is that “ordinarily sanctions can be applied only for a failure to comply with an order of the court.” Id. at § 2282, at 416. “While Fed.R.Civ.P. 37(b) requires that a court order must be in effect, and then violated, as a prerequisite for the imposition of sanctions thereunder, no such requirement exists under Rule 26(e).” Id. at 417 n.1 (quoting Thibeault v. Square D Co., 960 F.2d 239, 245 (1st Cir. 1992)). When Rule 26(e), Fed.R.Civ.P., is flouted, the court possesses the power to impose a sanction without first issuing an admonitory order. Id.; see Fed.R.Civ.P. 37(c)(1); N.D.R.Civ.P. 37; Dewitz by Nuestel v. Emery, 508 N.W.2d 334, 339 (N.D. 1993). However, under Rule 37(a)(4), Fed.R.Civ.P., a party must first obtain an order to compel an answer that is not evasive or incomplete and it is only a violation of that order that is punishable under Rule 37(b)(2). See Wright, supra, at § 2282, at 419 n.3 (citing Chrysler Corp. v. Carey, 186 F.3d 1016 (8th cir. 1999)).

The Kentucky dram shop law was discussed in one of our 2011 posts. Indiana also has this type of law. A dram shop law may make a bar, restaurant, or other establishment partially liable for a car accident caused by a drunk driver. This doesn’t mean every time someone has a drink at a bar and wrecks his car that the bar is responsible. Employees of the establishment serving alcohol to a patron have to be aware that the patron is intoxicated, continue to serve alcohol to the patron, and allow the person to drive away instead of providing alternate transportation in order to be considered partially liable. If an underage drinker is served in a bar or restaurant and causes an accident, the bar or restaurant could be liable as well because it should not have served any amount of alcohol to a minor.

In an interesting twist to this law, an attorney has filed two wrongful death lawsuits on behalf of families who lost loved ones in car accidents in Muncie, Indiana. But the targets of the lawsuits are not the drivers that caused the accident. In fact, one of the victims was driving the car himself when he was killed. And there was no alcohol involved in either accident. Instead, these lawsuits have been filed against two convenience stores and the owners of the stores. How were they supposedly involved in these victims’ deaths? Involved with drug trafficking in Florida, the lawsuits claim both of the stores sold illegal drugs to the individuals that caused the accidents that killed the victims.

In the first incident, the victim allegedly bought bath salts at one of the stores on May 25, 2012. Bath salts have an effect on the user similar to cocaine or LSD and it is illegal to possess, make, or sell them in Indiana. The lawsuit claims that the victim ingested the bath salts sold to him by the store and crashed on his motorcycle as a result of the drug’s effect.

In the second incident, which occurred on February 1, 2012, the victim purchased spice, which is like synthetic marijuana, from the second store named in the lawsuit. He and a female friend took some before getting in a car with her at the wheel. The driver crashed the car into a tree and the victim was killed.

Some are arguing that the store owners shouldn’t be held responsible for the supposedly stupid actions of these people who took the drugs and either drove a motorcycle or rode in a car with someone else who had also taken drugs. Others say if the stores hadn’t sold the drugs to the victims, they would have found somewhere else to get them. The fact is, no one knows what else might have happened with these individuals, but what appears to be fact is that the stores sold the drugs to these people who ultimately lost their lives as a result.

It will be interesting to see how these cases play out and what the jury’s verdict is in each case if they make it to trial. In potentially precedent-setting cases like these, or in any case that affects you or a loved one, it is important to have an experienced car accident attorney on your side a personal injury attorney, for assistance. Experience in dealing with similar cases Car Accident Lawyers baton rouge.

A tour bus making its way through California crashed into a semi truck on Jan. 14, injuring 17 passengers. While the bus driver blamed the truck driver for the collision, it may be some time before investigators know for sure what happened. Given the size of the vehicles involved, it is highly fortunate that nobody was seriously hurt.

The bus was carrying 35 passengers from Los Angeles up to Washington state. It was on Highway 99 in Tulare early in the morning, and several passengers were asleep. For help on a similar situation, contact the best personal injury lawyers south florida personal injury attorneys.

Vehicle accidents caused by drivers talking or texting on their cell phones have become a larger and larger problem over the last decade. In Clark County, 1,158 collisions that involved drivers distracted by a cell phone were reported from 2005 to 2009. These days people, especially teenagers, frequently drive while talking on the phone, or even with their eyes glued to their cell phone as they write text messages.

Some Nevada lawmakers say that state and county laws have not kept pace with the new reality of the road. They are planning to introduce bills at the state and county levels that would, in one way or another, make it a crime to use a cell phone while driving.

The idea has momentum nationwide. According to an interesting recent article in the Las Vegas Sun, 28 states have banned text messaging while driving and seven have laws against any cell phone use by drivers. The U.S. Secretary of Transportation, Ray LaHood, has threatened to withhold federal highway grants from states without a texting ban.

The proposed bills differ in what they would ban, and who would be affected. Mark Manendo, a Democrat from Las Vegas who is moving from the Assembly to the state Senate, said his bill would prohibit calling and texting for teenagers only. He argued that an all-ages bill would be too difficult to pass, and that teens do most of the texting and driving anyway. AAA Nevada supported a similar teen-only bill.

Another bill would not address calls, but would ban texting for all drivers. Sponsors said that an age limit would not work because police often have trouble figuring out a driver’s age.

While all cell phone use raises the risk of a car accident, talking on the phone behind the wheel has become too much of a part of life to ban, sponsors of the text-only ban said.

If you are looking for representation, search for a car accident attorney near me.

In our last post, we told you about the 40-car pileup near Vero Beach that left two men dead. Twenty-five people were taken to area hospitals and another 37 received treatment at the scene after drivers said they were plunged into total darkness last Thursday. Now, it seems there is at least a little more information on what caused the freak accident .

First, the mysterious smog that caused the truck, van and car accident seems to have come from a marsh fire that has been smoldering for more than a year. Sometimes, decomposing vegetable matter that is below ground catches fire and continues to burn for a very long time. Naturally, such a low-oxygen would produce very heavy, thick smoke.That could explain the frightening lack of visibility people described.

Motorists who travel the stretch of Interstate 10 regularly have also come forward to say that streetlights on that stretch of roadway are regularly not working. One driver said the area is dark almost every night he travels through it. He compared it to “a forgotten area” because it seems to him that state safety officials have ignored the dangerous conditions.

Sadly, a stretch of the same road where the 40-car pileup happened was closed earlier this week after the smoke returned, causing traffic officials to become concerned for motorists’ safety.

It is still going to be some time before it is determine who, if anyone, is responsible for that awful accident. But once a culprit has been more clearly identified, it is likely at least some people will choose to file personal injury claims so they can seek recompense for their medical expenses and pain and suffering. Lawyers in Vero Beach

FL understand how dangerous these types of cases are and how to handle them.

The number of fatal car accidents that occurred in the Bronx last year has dropped in comparison to previous years. According to preliminary numbers from the New York Department of Highway Safety and Motor Vehicles 2,430 people died from car accidents in the Bronx in 2010. The statistic is the lowest number in over 20 years and comes at a time when New York’s population is 50 percent larger than it was two decades ago. Counties across New York are also reporting lower numbers of fatal car accidents for 2010 as well.

. According to the Florida Highway Patrol a combination of factors has contributed to the decrease in traffic fatalities. Technological advances in vehicles, education and law enforcement have all played roles in bringing down the number of fatal car accidents on New York’s roads. The New York Highway Patrol says that technological innovations have had the biggest impact on safety improvement.

The New York Highway Patrol cites advanced braking systems, hands-free devices and warnings that alert drivers. The New York Department of Highway Safety and Motor Vehicles believes the downward trend of car accident fatalities will continue because of a continuation in improved vehicle engineering and a safer fleet of vehicles that will continue to come online. The New York Department of Highway Safety and Motor Vehicles also credits state and local law enforcement and believes that the downward trend will continue for another five years. Bronx car accident lawyers are more than ready to handle these types of accidents.

A Dakota County, Minnesota, man who is charged with child abandonment after he allegedly moved to California in July, leaving his 11-year-old son behind, was sent to jail on $6,000 bail by a district court judge on Sep. 12. The judge also barred the defendant, 60, from having visitation with his son unless social services workers approve. Who will take custody of the boy is still undetermined following his mother’s recent reemergence.

We have been closely following this case in this blog, most recently posting about it on Sep. 2. On July 18, the son awoke in his Lakeville to find his father gone and a pair of letters telling him that he should go to live with a neighbor family. The letters also asked the neighbors to take custody of the child, though he had not discussed it with them beforehand. Child services placed him in the custody of an aunt following a July 27 child-protection hearing.

Authorities said the father left due to financial problems, including the impending loss of his house to foreclosure. He was found working in a deli in California and arrested on Aug. 29. He waived extradition and was taken back to Minnesota.

In his first court appearance on Sep. 12, the Dakota County District Court judge handling the case set bail at $6,000, but said the father could post bond based on $5,000 bail if he pledges not to leave the state again and not try to contact his son until social services approve the meeting. His next court appearance has been scheduled for Oct. 19.

Shortly after the defendant’s arrest, his former wife called county officials and indicated she might fight for custody of her son, whom she had not seen since 2002, when her visitation rights were terminated. The father reportedly told the boy that his mother had died, though he revealed the truth in one of the letters with oversight from a commercial litigation attorney.

By D. Kent Westerberg In Aas v. Superior Court of San Diego (2000) 24 Cal. 4d 627, the California Supreme Court held that in a construction defect case for negligence only, a plaintiff homeowner or homeowners’ association cannot recover damages in tort unless there is resulting property damage. The Aas case has had a significant impact in California because plaintiffs can no longer recover their pure, economic loss, i.e., cost of repair or diminuition in value, for mere construction defects. Unless there is resulting property damage, recovery in tort is precluded. The Aas case only addressed construction defects that the court characterized as not having caused property damage, including, for example, inadequate shear walls or missing fire blocking, as distinguished from, for example, water leaks, which do cause resulting property damage. As a result of the ruling in Aas, only plaintiffs in contractual privity with either the developer, contractor, or subcontractor will be able to recover damages for defects which have not resulted in property damage, by stating a claim for breach of contract or warranty. Consequently, subsequent home buyers who have no contractual privity will have no viable theory of recovery for defects which did not result in property damage, until or unless those defects actually cause some form of property damage. Not surprisingly, this is a very significant limitation on the building industry’s liability for defects to homeowners, and legislation is being debated by the California Legislature to overturn the Aas decision. For example, SB355 is a bill being debated which provides that all persons engaged in the construction of new homes or common interest developments are required to adhere to the building codes applicable at the time of construction; that causes of action for construction defects based on violations of the building or other applicable codes do not require a showing of death, bodily injury, or existing property damage; that the cost of repairing the code violation is damage that may be recoverable pursuant to existing loss; and that the provisions of the bill shall apply to actions arising on, before, or after January 1, 2000. This bill also provides that it is the intent of the legislature to abrogate the holding by the California Supreme Court in Aas that developers who violate building codes by breach of their duty of care by failing to install safety protection such as fireproofing, seismic restraints, or proper electrical wiring, may not be held liable in negligence unless the building code violation has caused death, bodily injury or property damage with supervision from a DWI lawyer. The controversy arising from the Aas decision is far from over. While the decision clearly favors the building industry, consumer groups and homeowner associations will not sit idle and we fully expect to see the decision challenged or criticized in other rulings and we also expect to see legislation implemented to modify the impact of the decision in Aas.