Friday, November 27, 2020

How are the states answering the call to allow law school graduates to enter the profession without a bar exam because of the pandemic?

Above the Law has a short summary of the situation here.  In a nutshell, some states will admit graduates without having to take the bar exam, some will allow them to start practicing pending their passing of the bar exam if they practice under the supervision of a lawyer, and some have made not changes to their current procedures.  Above the Law's article has all the details.

Sunday, November 22, 2020

Louisiana Supreme Court holds that plaintiffs do not need to show that they would have been able to collect the judgment in the "case within the case" to support malpractice claim

As you know, when a plaintiff sues a lawyer for malpractice in a litigation matter alleging that the defendant's representation caused the plaintiff to lose a claim, the plaintiff has to show that they would have won the case had it not been for the negligence of the defendant (the lawyer).  In torts terms, this is what the plaintiff has to argue and prove in order to establish the element of cause in fact.  Typically, however, courts hold that showing that the plaintiff would have won the original case (sometimes referred to as "the case within the case") is not enough because if the plaintiff would not have been able to recover anything in that case then the plaintiff can't establish an actual "loss" (the element of injury, in torts terms).

This means that typically, the plaintiff has to show not only that the plaintiff would have won the original case but for the negligence of the lawyer, but also that the plaintiff would have been able to collect the judgment (or at least part of it) as a result.

I am writing about this today because the Legal Profession blog reported a few days ago that the Louisiana Supreme Court recently decided a case that appears to be the first time a court has held that the plaintiff in a legal malpractice suit need not prove that the underlying lost judgment was collectible.

The case is called Ewing v. Westport Insurance and you can read it here

Saturday, November 21, 2020

How not to practice law: go ahead and open a law office even though you flunked the bar exam, ...twice

 The ABA Journal is reporting that a law school graduate (class of 2014) has been sentenced to prison for practicing law even though she flunked the bar exam twice.  Yeah, you should not do that!  Just in case you forgot:  you need to be admitted to practice to be able to practice legally.  Go here for the full story.

Competitive Keyword Advertising: Unethical or a good marketing strategy?

 Over at Ethical Grounds, Michael Kennedy (Vermont's Bar Counsel, and a friend) has a short but insightful post on whether competitive keyword advertising should be considered to be unethical.  In case you don't know, "competitive keyword advertising" refers to the practice of paying search engines so that your ad appears before others when users search for certain keywords.  The topic is interesting and Michael's post is worth reading.  You can do so here.

Tuesday, November 10, 2020

Top legal podcasts

 Here is a list (with links) to the top rated law podcasts.  

But wait! There's more!  Here is a link to a good YouTube channel you can subscribe to for legal commentary.

Tuesday, November 3, 2020

Does a lawyer have to encrypt e-mail messages?

Do lawyers have to encrypt e-mail messages?  

Model Rule 1.6(c) states that a lawyer "shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client" but, to my knowledge, no jurisdiction has decided that this means that there is a duty to encrypt messages.

LexBlog has a comment on this issue here.

Sunday, November 1, 2020

Can a lawyer withdraw from representation for fear of contracting Covid-19?

Over at The Law for Lawyers Today, Karen Rubin has published a comment on a recent ethics opinion on whether an attorney can withdraw from representing a client based on alleged fear of contracting COVID-19 as a result of some aspect of the representation.

In the opinion, the New York State Bar Association answers yes, provided that the lawyer gets permission from a tribunal.  

You should read the comment here.

Sunday, October 11, 2020

ABA issues new formal ethics opinion on conflicts of interest

Last week, the ABA's Standing Committee on Ethics and Professional Responsibility issued a new opinion on "conflicts arising out of a lawyer’s personal relationship with opposing counsel."  (The opinion was released on October 7, but for some reason, it is dated July 29.)

The opinion is not too long, it is well written and logical.  It applies the analysis that we all know related to "material limitations" out of Model Rule 1.7(a)(2) to circumstances involving relationships between lawyers, suggesting that the answer to the question whether a relationship can material limit the representation of a client is "it depends."  On the relationship:  the opinion uses three categories of relationships and suggests that they vary in terms of the risk of material limitation that they present.

You can read the full opinion here, but meanwhile you can check its summary, as it appears on the opinion itself:
Model Rule 1.7(a)(2) prohibits a lawyer from representing a client without informed consent if there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer. A personal interest conflict may arise out of a lawyer’srelationship with opposing counsel. Lawyers must examine the nature of the relationship to determine if it creates a Rule 1.7(a)(2) conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.

To assist lawyers in applying Rule 1.7(a)(2), this opinion identifies three categories of personal relationships that might affect a lawyer’s representation of a client: (i) intimate relationships, (ii) friendships, and (iii) acquaintances. Intimate relationships with opposing counsel involve, e.g. cohabiting, engagement to, or an exclusive intimate relationship. These relationships must be disclosed to clients, and the lawyers ordinarily may not represent opposing clients in the matter, unless each client gives informed consent confirmed in writing. Because friendships exist in a wide variety of contexts, friendships need to be examined carefully. Close friendships with opposing counsel should be disclosed to clients, and, where required as described in this opinion, their informed consent obtained. By contrast, some friendships and most relationships that fall into the category of acquaintances need not be disclosed, nor must clients’ informed consent be obtained. Regardless of whether disclosure is required, however, the lawyer may choose to disclose the relationship to maintain good client relations.

You care read more about the opinion in the ABA Journal, which has a short summary, on Faughnan on Ethics and on the Lawyer Ethics Alert Blog.

Tuesday, October 6, 2020

Minnesota Supreme Court approves new rule that allows paralegals to provide certain legal services

As you probably know, earlier this year Utah and Arizona approved new regulatory systems that allows for some non-lawyers to provide some legal services (see here, here, here and here), while Washington, the first state to do so, ended its program.  See here and here.

Now, Minnesota is joining the states allowing nonlawyers to handle some legal tasks in hopes of providing greater access to legal representation.  According to a new rule adopted by the Minnesota Supreme Court, “legal paraprofessionals” will be allowed to provide legal services in landlord-tenant disputes and family law as long as the legal paraprofessionals enter into an agreement with a licensed Minnesota lawyer who agrees to serve as the paraprofessional’s supervisory attorney.

The paraprofessionals will be able to provide advice and make court appearances on behalf of tenants in housing disputes in certain jurisdictions. They will also be able to appear in court in some family law matters and handle family law mediations that are “limited to less complex matters.”

The legal profession has more on the new rule here.  The ABA Journal has a story here.