Friday, August 17, 2018

Ethics issues related to "of counsel" lawyers - UPDATED

Ethical Grounds has a short comment on ethics issues related to "of counsel" lawyers here.

UPDATE 8/17/18:  If you want more information on issues related to "of counsel", particularly about conflicts of interest, you should check Bill Frievogel's On Conflicts website.

Friday, August 10, 2018

First group of non lawyer technicians in Utah is expected to be licensed in 2019 -- UPDATED

Since 2015, there has been a lot of discussion on whether non lawyers should be allowed to provide some legal services.  Back then, Washington created a program to certify "Limited Licensed Legal Technicians" (or "LLLTs") who, after completing a course of study, would be allowed to represent clients without the supervision of a lawyer in limited circumstances.  You can read my original posts on this topic here, here, here, here, here, and here.  For many months, there was a debate as to whether this was a good idea, and whether other states would follow Washington's lead.  Some states did appear to be ready to do so, but in the end only Utah followed through.

Now comes news that new rules regulating paralegal practitioners in Utah are set to take effect Nov. 1 and that the first paralegal practitioners are expected to be licensed in 2019.  This will make Utah and Washington the only states that allow non-lawyers to practice law. The new rules will allow the licensed paralegals to provide limited legal services without a lawyer’s supervision in the following areas: cases involving temporary separation, divorce, cohabitant abuse, civil stalking, custody and support, name changes, cases involving forcible entry and debt collection matters in which the dollar amount in issue does not exceed the statutory limit for small claims cases.

Licensed paralegals will not be allowed to appear in court, but they will be permitted to perform the following services:

Interview clients to understand their objectives and obtain facts relevant to achieving that objective.

Handle forms, which includes being able to inform, counsel, advise, and assist in determining which form to use and give advice on how to complete the form; sign, file, and complete service of the form and to obtain, explain, and file any document needed to support the form.

Review and explain documents of another party.

Inform, counsel, assist and advocate for a client in mediated negotiations.

Fill in, sign, file and complete service of a written settlement agreement form in conformity with the negotiated agreement.

Communicate with another party or the party’s representative regarding the relevant form and matters reasonably related thereto.

Explain a court order that affects the client’s rights and obligations.

Although the Supreme Court has approved the program, it has not yet published the final regulations. Those are due to be published by the end of September.

Law Sites has more details.

Ethical Grounds has a comment here.

Wednesday, August 8, 2018

Comments on the amendments to ABA rules on lawyer advertising

As I reported yesterday, the ABA just approved amendments to the Model Rules on advertising and solicitation.  I think the amendments are very good, and will encourage states to revise their own rules which hopefully will lead to more consistency among jurisdictions.

McCabe law offers a good summary of the changes here.  Brian Faughnan on Ethics has a short comment here.

Interestingly, not everyone is happy with the amendments.  The former counsel for Avvo, for example, thinks the amendments don't go far enough.  (He has suggested eliminating rule 7.2 entirely, something I don't agree with.)

Likewise, My Shingle concludes that "The bar needs leadership and action on these questions, not scriveners to reorganize paragraphs (message to ABA: computers can do that now!).  If these tepid rule changes are the best that the ABA can do, then we should just let the organization die on the vine right now, because it simply doesn’t have the ability to lead lawyers into the future."

Here is a video of the presentation to the House of Delegates.  The amendments are summarized quickly starting at the 6:10 minute mark.  If you can't see the video below, you can watch it here.


 

Monday, August 6, 2018

ABA approves amendments to the rules on attorney advertising

Last week, the ABA adopted some amendments to the Model Rules that regulate attorney advertising and solicitation.  You can read the amendments and the reports that goes with them here.

I read the amendments and they do a good job of clarifying and simplifying the rules, although they are not as comprehensive or radical as some expected.  Two rules have been eliminated, but the basic principles in them are preserved as part of the comments of the rules that are retained.  Also, the requirement that advertising material sent by mail be labeled "advertising material" has been removed.

Friday, July 27, 2018

Where Avvo Legal Services left off, Text-a-Lawyer may pick up...

Earlier this month I reported that Avvo Legal Services was shutting down; but I also stated that I was sure ALS' demise would not be the last time we hear about client-lawyer matchmaking services.  Where Avvo left off, someone else will pick up...

And now we have a new participant in the market....  Say hello to Text A Lawyer, ("TaL") a service that will provide a platform for prospective clients to ask lawyers questions via text.  For now, the service is available only in Oregon and Washington but its developer plans to expand the service nationwide if he can find investors to help fund the project.  You can read more about Text a Lawyer here.

Aside from the fact that I have serious doubts that texting is a good way to discuss legal matters with a client a lawyer has not even met, the billing process used by TaL has already been criticized as having some of the same problems that got Avvo in trouble in so many jurisdictions.  You can read about it here.  Of course, if jurisdictions decided to change the applicable rules, then things might be different, but until then, the discussion we were having about Avvo Legal Services will continue.

Here is a video that explains the service (taken from its website).  What do you think?

Thursday, July 26, 2018

Was Michael Cohen’s Secret Taping of his Then-Client Donald Trump Improper?

Bernie Burk (Campbell) offers some thoughts on the question here.

Ghostwriting for clients?

The June edition of the ABA Journal has a short article on whether it is ethical for an attorney to "ghostwrite" a document for a client to be filed in court.  You can read the article here.

As you may know, there are a few ethics opinions available on the subject and they vary on a few details particularly whether the attorney must disclose the fact that the document was prepared with the aid of an attorney.

And just as this article was hitting the press, a Committee of the Mississippi bar issued the latest opinion on the question holding that ghostwriting is OK on “discrete aspects in a matter” without the need to disclose either the name of the attorney who prepared the document or that the document was prepared by a lawyer.   As the opinion states, the Committee was concerned that lawyers would be dissuaded from providing limited representation if required to disclose their involvement. You can read the opinion here.

More on the demise of Avvo Legal Services -- UPDATED

A few days ago I reported that the company that recently bought Avvo has decided to discontinue Avvo Legal Services ("ALS"). 

There have been a couple of comments, but I am a little surprised I have not seem much reaction to the news.  Law Sites has a report with some links, but no opinion one way or another.

The only opinion statement I have seen so far is by Professor Milan Markovic, over at the Legal Profession blog, in which he laments ALS's demise, stating that "My personal view is that the ethical concerns regarding Avvo Legal were overblown because Avvo Legal neither recommended one attorney over another nor interfered with attorneys' professional independence of judgment.  ...[T]o address lack of access to justice, the organized bar should embrace Avvo Legal and other companies that promote awareness of the law and the availability of lawyer assistance.  Instead we continue to ignore the demand side of lack of access to justice while regulators experiment with supply-side solutions such as "navigators", "LLLTs," and alike that I fear will prove ineffectual." 

UPDATE 7-26-18:  Faughnan on Ethics has published a comment on Avvo's demise here.

NY State Bar calls for regulation of online providers of legal documents -- UPDATED

The New York State Bar has filed a resolution with the ABA House of Delegates, to be heard at the Annual Meeting, calling for regulation of online providers of legal documents. The resolution states, in full:

RESOLVED, That the American Bar Association urges states to adopt General Provisions for Regulation of Online Providers of Legal Documents to establish reasonable standards of product reliability and efficacy, provide consumers with information and recourse against abuse, ensure consumers are made aware of the risks of proceeding without attorneys, inform consumers where affordable attorneys can be found, and protect confidential information; and

FURTHER RESOLVED, That until such time as the General Provisions are adopted, online providers of legal documents are encouraged to adopt the Statement of Best Practices to provide a common-sense approach to self-regulation of online providers of legal documents.

The report that accompanies the resolution argues that "there is a need for some form of regulation in order to (i) establish minimum standards of product reliability and efficacy, (ii) provide consumers with information and recourse against abuse, (iii) ensure consumers are made aware of the risks of proceeding without attorneys, (iv) inform consumers how affordable attorneys can be found, and (v) protect consumers’ confidential information."

The ABA annual meeting is in about a week.  Stay tuned.

UPDATE (7/26/18):  I just heard that the sponsors of the resolution are withdrawing it, but also that they anticipate filing it to be considered at the ABA Midyear Meeting next February.  Again, stay tuned...

Wednesday, July 25, 2018

Supreme Court decides McCoy v Louisiana

Last year I posted comments on a case then before the Supreme Court which I thought was important on the issue of client autonomy and allocation of decision making authority within the attorney-client relationship.

The case was decided back in May but I hadn’t had a chance to read the decision yet.  Well, I just finished reading it, and I am happy to report that it was decided just like I suggested it should.  Here are my initial thoughts.

First, a little background.  The case is McCoy v. Louisiana in which a defendant in a capital murder case appealed his conviction arguing ineffective assistance of counsel based on the fact that his lawyer conceded his guilt over the defendant's objection.  You can find all the documents related to, and more information on, the case at the SCOTUSblog here.

The relevant facts of the case are as follows.  Two weeks before trial, the defendant’s lawyer (Larry English) told his client, McCoy, that he thought the evidence against McCoy was overwhelming and that, absent a concession that McCoy was the killer at the guilt stage, a death sentence would be impossible to avoid at the penalty phase.  English, therefore, decided to concede that McCoy committed the murders in an attempt to convince the jury not to impose the death penalty.  McCoy did not agree, and told English not to make that concession. Instead, McCoy wanted English to emphasize his defense based on an alibi - a story that English did not believe was true. Based on their disagreement, McCoy asked to court to terminate English’s representation but the court refused.

At the beginning of his opening statement at the guilt phase of the trial, English told the jury that McCoy killed the victims.  McCoy objected and addressed the judge outside the presence of the jury.  Yet, the judge reminded McCoy that he was being represented by English and told him that “the court would not permit any other outbursts.”  In his closing argument, English again reiterated that McCoy was the killer.

After he was convicted and sentenced to death, McCoy unsuccessfully moved for a new trial, arguing that the trial court violated his constitutional rights by allowing English to concede McCoy committed three murders over McCoy’s objection. Then, on appeal, the Louisiana Supreme Court affirmed the trial court’s ruling because, according to the court, counsel reasonably believed that admitting guilt afforded McCoy the best chance to avoid a death sentence.

The Louisiana Supreme Court also concluded that English’s refusal to maintain McCoy’s innocence was necessitated by Louisiana Rule of Professional Conduct 1.2(d), which provides that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent” because, according to the court, presenting McCoy’s alibi defense would have forced English to violate his duty against presenting false evidence.

In holding the way it did, the Louisiana Supreme Court did not follow the analysis of three other state Supreme Courts that have addressed the same issue.  (See, Cooke v. State, 977 A.2d 803 (Del. 2009), State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000), and People v. Bergerud, 223 P.3d 686 (Colo. 2010), all of which held that although defense counsel is free to develop defense theories based on reasonable assessments of the evidence, counsel cannot usurp the fundamental choices reserved for criminal defendants.

The US Supreme Court granted review to solve the division of opinion among state courts and agreed with the majority of those state courts that counsel may not admit a client’s guilt over the client’s objection.

If you read my previous posts on this case, you know I think this was the right decision.

First, the Louisiana Supreme Court was wrong when it held that English’s conduct was justified because otherwise he would have used false evidence.  As the Court explains, the fact that English did not believe McCoy’s account does not mean that pursuing McCoy’s preferred defense would constitute using false evidence.  Louisiana’s ethical rules might have prevented English from presenting McCoy’s alibi evidence if English knew false evidence or perjury was involved, but English did not have such knowledge.  According to the rules, mere suspicion (or even a reasonable suspicion) that a client might be lying is not enough to trigger the duties in the rules related to the duty of candor.

More importantly, on the main issue before the Court, the Court held that, as stated in rules of professional conduct, it is the client – not the lawyer – who has the right to make decisions related to the objective of the defense:
. . . Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.
. . . When a client expressly asserts that the objective of “his defense” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.  . . . see ABA Model Rule of Professional Conduct 1.2(a) (2016) (a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”). 
For these reasons, it was improper for English to override McCoy’s decision.  McCoy’s decision may have been a bad decision, but it was a decision he had the right to make.

Having decided that the lawyer’s admission of the client’s guilt over the client’s express objection the conduct of the attorney was improper, the Court then decided that it was a violation of the client’s Constitutional rights and that, therefore, McCoy must be granted a new trial. 

In terms of the professional responsibility issue, this decision is correct, and consistent with precedent and logic.   The rules reserve the right to decide to the client.  The lawyer took away the right when he acted against the client’s instructions.  Thus, the lawyer acted improperly.

Yet, as you may recall, I was also interested in this case because I wanted the court to confront its decision in Florida v. Nixon, in which the court held that a lawyer can make a decision for the client if the client does not object.

Interestingly, Justice Ginsburg wrote the opinion in both cases, although  I guess that should not be surprising.  I assume that knowing the McCoy case would force the Court to address what it decided in Florida v Nixon, she would want to keep control of the discussion to protect her opinion in that case.

I was hoping the Court would use McCoy to admit its decision in Florida v. Nixon was wrong, but that did not happen.  Justice Ginsburg was very careful to distinguish the two cases:
Florida v. Nixon . . . is not to the contrary. Nixon’s attorney did not negate Nixon’s autonomy by overriding Nixon’s desired defense objective, for Nixon never asserted any such objective. Nixon “was generally unresponsive” during discussions of trial strategy, and “never verbally approved or protested” counsel’s proposed approach.  . . . Nixon complained about the admission of his guilt only after trial. . . . McCoy, in contrast, opposed English’s assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. . . . If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way. 
I understand how the facts in the two cases are different, but I still think that the lawyer in Florida v. Nixon negated the client’s autonomy just as much as the lawyer in McCoy.  The fact that the client did not object, to me, does not justify a different result.

The decision in Florida v. Nixon is not as clear as Justice Ginsburg makes it sound today.  It is not clear whether the Court found that the lawyer had provided ineffective assistance of counsel (a) because, although the decision was for the client to make, the lawyer could make it because the client was incapable of communicating with the lawyer or (b) because the decision was for the lawyer to make because it was "tactical" in nature.

The first option goes against the rules of professional conduct.  The second is based on the position that conceding guilt to avoid the death penalty relates to “means” rather than objectives of the representation and therefore falls under the authority of the attorney.

Do you see the problem?  If the decision in Florida v. Nixon was based on the second argument (and that is what it seems to be the case), how can Justice Ginsburg now be saying in McCoy that the same decision is exclusively for the client to make? 

Once we get to that point, the only way to justify the decision in Nixon is to say that the fact that the client was unresponsive changed the character of the decision, making it possible for the attorney to make the decision for the client.  Yet, this is not what the rules of professional conduct say because the client had diminished capacity and the lawyer is not supposed to make decisions for the client.

The bottom line for me is this.  If we are going to accept that, as the Court concludes in McCoy, “the decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense–a right that personally belongs to the accused,” then we should conclude that the decision in Florida v. Nixon was wrong and should be overturned.

Thus, for me, McCoy is an incomplete victory.  It is the correct result for McCoy; but it did not correct the result in Nixon.

Finally, it should be noted that the three justices considered to be the most conservative (can you guess who they are?) dissented in McCoy, arguing that the Court should not have granted review in the case because the issue presented was so rare that it did not merit discussion by the court.

On the merits of the question, however, they argued, among other things that attorney English did not admit that McCoy was guilty of murder. Instead, they argued, he admitted that McCoy killed the victims.  Based on this distinction, they argued that English did not concede guilt of the crime, but rather, conceded just one of its elements, and they questioned what would be the decision if a lawyer concedes guilt of a lesser included offense.

Finally, they wondered what will happen if petitioner is retried, stating that “it will be interesting to see what petitioner’s . . . counsel . . . will do. It is a safe bet that no attorney will put on petitioner’s conspiracy defense.”

These last two questions might be interesting, but they are irrelevant.  The fact of the matter is that the attorney acted improperly in making a decision that is reserved for the client to make.  The real issue in the case was whether that conduct amounted to ineffective assistance of counsel.  The majority opinion found that it did; the dissenters did not rebut that conclusion.

You can read the full opinion here.