Thursday, October 10, 2019

Supreme Court of Oklahoma imposes a bizarre sanction: barring an attorney from representing, or even meeting with, females

A few days ago, the Oklahoma Supreme Court issued a short opinion in which it imposes the most bizarre sanction I have ever seen in a disciplinary case.  It generated a great exchange in the Professional Responsibility professors' list serv and many of the points I am going to make below are taken from that discussion.  The case is called State ex rel. Okla. Bar Ass’n and the opinion is available here.

But before we get to all that, let's review the facts of the case.  The lawyer in question, one Richard Stout, was charged with three counts of misconduct. In one, it was alleged (and later proven) that he represented a woman in her divorce case. While the representation was ongoing, he sent her sexually suggestive text messages but because she wanted her divorce completed as quickly as possible she didn’t fire him.  In another, it was alleged (and also later proven) that he had sex with a client who said she did it because she was “in a desperate situation” financially.  Finally, in the third one, it was alleged - and proven - that, about a year later, Stout made unwanted sexual advances and sent sexually suggestive messages to another female client who ultimately terminated the representation.

Based on these facts, the court found that Stout’s actions violated several rules of professional conduct, including the prohibition on representing a client when there’s a conflict of interest, the prohibition against having sexual relations with a client (which has exceptions but none of which were applicable in this case), and a rule of the Oklahoma Rules Governing Disciplinary Proceedings which subjects an attorney to discipline for any acts by that attorney that are contrary to prescribed standards of conduct, and "which would reasonably be found to bring discredit upon the legal profession."

However, the court also found that the lawyer expressed “sincere and deep remorse toward his clients,” voluntarily consented to therapy, and offered to not take on female clients in the future.

Based on these "mitigating" circumstances, the court decided to impose only a three-month suspension.

At this point we could stop and discuss whether that sanction is too lenient; but there are more interesting things to talk about.

Here is where it gets interesting.  After stating the three month suspension, the court added that the lawyer had to abide by the following conditions: (1) Mr. Stout shall not accept female clients and will not meet alone with a female at any time associated with his practice of law; (2) he will remain in treatment as recommended by his counselor; (3) he will remain in contact with Lawyers Helping Lawyers; and (4) he will maintain site blocking protection on his electronic devices.

Let's start with number 4...  So the court is telling the lawyer he can't access certain websites [I assume related to pornography].  I have two questions:  how is the state going to monitor, or enforce that?  But more importantly, isn't that a violation of the lawyer's first amendment rights?  Can the state control the content of a lawyer's books, or magazine subscriptions as a condition to practice law?

Then let's talk about what the law professors were talking about today: condition number 1.  The court is telling the lawyer that he can not be alone with females in relation to the practice of law. 

This sanction raises many questions.  For example, is the lawyer now going to be required to post notices in appropriate places (entrance to his office, his website, etc) warning, or at least informing, that females must be accompanied when contacting him in person?  Can the lawyer hire female staff or associates (because there is always a chance he might find himself alone with them in the office)?  How is he going to conduct business with female lawyers?

Then there is the question of whether the sanction becomes state mandated discrimination on the basis of gender.  And if it is, would the Oklahoma Bar ever consider prohibiting a lawyer from accepting African-American clients in response to a lawyers misconduct involving racist conduct?  And if the answer to that is no, how does the court justify saying it is okay to mandate discrimination on the basis of gender but it is not okay to mandate discrimination on the basis of race?

Now this question has several layers.  First, it is a generally accepted proposition that lawyers can discriminate when choosing clients.  Even the recently adopted Model Rule 8.4(g) recognizes this.  However, at the same time, it is possible that lawyers may be subject to penalties for violating state or federal anti discrimination laws.  For example, Illinois Rule 8.4 recognizes this, and makes it misconduct to violate these laws.  In other words, in Illinois is it not misconduct to discriminate unless the discrimination is found to be a violation of the law.  Thus, in many states, lawyers can choose to represent only people of one gender if they want.  There are law firms out there that do so.

There are firms who represent only men in divorces cases. (See here, for example.)  What is different in this case is that the lawyers in those firms have chosen to represent only men; in the Stout case, the court is forcing the lawyer to do so. As a penalty.  Because he presumably can't handle it.  And that, to me, makes a difference.

I don't like that this opinion, when published, will set a precedent that allows a court to micro manage the practice of a disciplined attorney.  Can the court now tell lawyers that they can't get involved in certain types of cases, or represent certain types of clients?

And what if a woman wants Stout to represent her?  Why does the court prevent her from choosing her lawyer?  To protect her?

If this man is so out of control that he can't even be trusted to be in a room alone with a female in a professional setting, is he really fit to practice law at all?

If the lawyer is competent to practice law, he should be competent to represent the clients who want to hire him.  If he is incompetent to represent women, he should be considered incompetent to represent anyone.  He should have been suspended indefinitely until he was able to show he could be trusted to practice again.

Arizona task force proposes change to rules to allow firms to have non lawyer co-owners

Long time readers of this blog will remember that there has been a lot of debate in recent years about whether it is a good idea to continue to prevent law firms from generating capital by allowing non-lawyer investors. 

I am writing about this today because I just read that the Arizona Task Force on the Delivery of Legal Services has recommended that the state’s supreme court end the restrictions on non-lawyer co-ownership of law firms.  The task force's (very long) report is here.

And, Arizona is not alone.  As reported in an article in Bloomberg Law, the "Arizona panel’s actions are part of a growing movement of state and national bar groups currently acting to loosen or repeal law firm ownership and related regulations."

Not everyone is happy with the trend, though.  As the article continues, "Big Law leaders have expressed concern about the trend, which could allow the Big Four—EY, Deloitte, KPMG, and PwC—and other alternative legal service providers to take a more direct competitive stance against U.S. law firms, especially if several larger states adopt such changes."

Likewise, one member of the Arizona task force (the chief judge of one of the divisions of the Arizona Court of Appeals) argued that allowing non lawyers to share ownership of law firms would pose “a serious threat to the long-term health of the justice system" and "would not benefit the public"

To become final, the proposal has to be approved by the Arizona Judicial Council, the policy-making body that oversees the state’s justice system, after which the public will have a chance to comment on it.  Finally, the proposal would have to be adopted by the seven-member Arizona Supreme Court.  If approved, the changes are not likely to be effective before January of 2021.

Sunday, October 6, 2019

Michigan becomes 37th state to adopt notion that competence includes knowledge and understanding of "technology"

Last month Michigan adopted the standard of "technology competence" illustrated in the ABA's Model Rule Comment [8] to Rule 1.1.  The Michigan amendment will take effect on January 1, 2020. Now there are 37 states that have adopted some version of the notion that to be competent, lawyers must know and understand modern "technology."

The amendment in Michigan is more detailed, and in my opinion, better than the comment in the Model Rules.  You can get more information here.

Article by lawyers for whistleblowers on whether Rudy Giuliani can claim the protection of the attorney client privilege

A few days ago I posted a short comment on Rudy Giuliani and the practice of law.  In it, I questioned whether he understands the notion of the attorney-client privilege. 

Now, here is a new article by several lawyers who represent whistleblowers on how they (the authors) have used the crime-fraud exception to the privilege in the past to deny the use of the privilege and on why they think that Giuliani will not be able to claim the privilege successfully.

Oregon State Bar approves proposals to create program of non lawyer legal professionals and another to create a path to the bar exam that does not require going to law school

Long time readers of this blog will remember that over the past few years there has been a debate on whether jurisdictions should allow non-lawyers to provide certain types of legal services in order to provide better access to representation.  I have posted many comments, links to articles and podcasts, most recently here.

For all that discussion on the topic, however, only two jurisdictions (Washington and Utah) have actually created programs to do something about it by recognizing and regulating "legal technicians" (or LLLTs for "limited license legal techinicians"). 

That is about to change.  Last week I read that the Oregon State Bar’s Board of Governors has voted to approve a recommendation to create a paraprofessional licensing program and a proposal to enable individuals to become licensed lawyers without attending law school, by completing a four-year tutelage program.

The paraprofessional licensing proposal seems to be similar to the LLLT programs in Washington and Utah.  The other proposal, referred to as a Writing for the Bar Program, would allow individuals to sit for the bar exam and be licensed to practice without having to attend law school.  Its goal is to reduce law school debt and to enable more people — and a greater diversity of people — to enter the practice of law.  Instead of going to law school, the program would require applicants to work under a tutor, at least 32 hours a week, in a law office, legal department or court for four years. The tutor would be required to provide instruction on certain specified subjects.

Both proposals require further actions to develop more-detailed plans and regulations for implementing them and, both programs will require approval by the Oregon Supreme Court before becoming final.

Law Sites has more details and links to the proposals.

Thursday, October 3, 2019

How not to practice law: tell the disciplinary agency it would be an honor to be disbarred -- UPDATED

So you want to get disbarred?  Ask and you shall receive.  According to a story in Above the Law, here is the text of an email message sent by a practicing lawyer to the D.C. Office of Disciplinary Counsel asking to be disbarred rather than respond to or participate in any of the four disciplinary matters that had been brought against him:
Please don’t kill trees, waste taxpayer resources and ODC personnel on me. ODC has no credibility or legitimacy to me. Or the drivel you generate. You are simply dishonest lawyers who do nothing to regulate dishonest lawyers. And racists to boot. Rather than wasting time, money, and paper on your sophistries, please disbar me. Disbarment by ODC would be an honor. To date, aside from competing in the triathlon world championships, my greatest honors are my PhD from UCLA and my law degree from Boalt. But a disbarment letter from ODC will be framed and go up right alongside those diplomas. Please do me the honor of disbarring me. I will be so very very proud.
The D.C. Court of Appeals Board on Professional Responsibility obliged and recommended that the attorney be “disbarred without an analysis of the merits of his case.”

The ABA Journal has a post, with some links, on the case here.

UPDATE (10/3/19):  Michael Kennedy of Ethical Grounds commented on the case here.

Rudy Giuliani and the practice of law

Unless you have been living under a rock for the past few weeks, you know that Rudy Giuliani who is often labeled to be "a personal counsel to Donald Trump" has been in the news a lot lately and that his appearances on TV have generated a lot of commentary, and jokes.  From the Professional Responsibility perspective, here are a few interesting questions Giuliani's practice has generated:  

Is Giuliani practicing law to begin with?

There has been much discussion on whether Giuliani is acting as a lawyer or as a public relations spokesperson.  It is difficult to say because we don't know what is the content of the communications with Trump or Trump's team and what tasks he has been asked to perform specifically.  But I think it can be said that he is doing both. I don't think that making personal appearances and operating as a spokesperson for a client means one is not practicing law at the same time.  I am willing to give him the benefit of the doubt on this one.  Yet, I am not so sure when it comes to taking a trip to Ukraine to meddle in an investigation, which he admitted to with those words!

Is Giuliani violating the rule regarding competence?  Is he incompetent as a lawyer?

Uf!  That's a tough one.  It is pretty clear he has committed some serious mistakes, during appearances on TV by contradicting himself, admitting to misconduct etc.  So, on the one hand, he had made mistakes, but whether those mistakes rise to the level of misconduct because of incompetence, I guess would depend on the quantity, frequency and severity of the mistakes.  I have not been keeping count, so I can't really offer an informed opinion.  I would be interested to hear if anyone has been keeping a record and what they have to say.

Is Giuliani threatening frivolous actions?

Earlier today Pro. Jonathan Turley posted, in part, that Giuliani suggested he was considering suing members of Congress over their impeachment efforts.  In response, Turley states:
Such a lawsuit would be frivolous and it is unsettling that Giuliani would put any credence into such fringe advice.
Calling the impeachment effort as “worse than McCarthy,” Giuliani revealed that he had sought legal advice on the issue: “I had a couple of talks with civil rights lawyers and a constitutional lawyer today and here’s what they’re recommending: that we should bring a lawsuit on behalf of the president and several of the people in the administration, maybe even myself as a lawyer, against the members of Congress individually for violating constitutional rights, violating civil rights.” 
In a long parade of uniquely bad ideas, this would be the final climax. First, the allegation of self-dealing in the Ukrainian call would be a valid basis for an article of impeachment. It would still have to be proven and there are defenses for any such trial that I have previously discussed. This would be viewed by a court as a facially legitimate inquiry. Second, courts do not second guess the House on such efforts. While there continues to be a debate over what might be reviewable in an impeachment proceeding, it is exceptionally unlikely that a court would seriously question this effort. 
The claim is that the impeachment interferes with a president’s inherent authority over foreign relations under Article II. That is facially frivolous.

Can Giuliani rely on attorney-client privilege to avoid Congressional testimony?

Giuliani has suggested that he is protected by attorney-client privilege in the impeachment inquiry by Democrats in the U.S. House of Representatives.  There are a number of problems with this suggestion.

First of all, Giuliani can't be "protected" by the privilege.  The privilege protects information, not an individual, and the privilege belongs to the client who is the one who has the right to claim it.  Second, the privilege only covers communications between the attorney and the client which were shared for the purpose of obtaining legal advice, and if Giuliani is not practicing law (see above) or if the communications were related to tasks other than legal services, the privilege does not apply.  Third, the information provided to an attorney by people outside the attorney-client relationship (such as foreign leaders) may not be protected.

Often Giuliani sounds like he thinks that anything told to him is protected merely because he has a law degree.  If that's what he thinks, he does not understand the law (which may point to incompetence (see above)).

Fourth, it is not clear what information Congress has requested of Giuliani and, therefore, whether it is protected by the privilege.  It is possible, for example, that the information can be considered not privileged because of the crime-fraud exception.

For more on whether Giuliani claims of privilege are valid, go to the ABA Journal, and Above the Law.

Comments on California proposals on the future of the practice of law

As you probably know, I have been posting updates on changes proposed (and some already adopted) in California.  First, there was the adoption of new rules, and most recently on a task force's report and recommendations on the future of the practice of law (see here, here, here, and here.) 

Now, here is a link to a short post at MyShingle with comments on the California proposals.  The two comments I find more interesting are these:

-MyShingle does not oppose permitting nonlawyers to provide legal advice without running afoul of UPL.  MyShingle recommends that any regulations governing licensing for legal technicians or advisors not be overly complicated or onerous.  

-As a broad matter, MyShingle does not oppose outside ownership. In this regard, MyShingle recommends that the Task Force gain a greater understanding of the various business models for outside ownership and formulate rules regarding use of client data even in anonymized format and even, in some circumstances, with client consent.  But as the Task Force works towards rules that would allow outside ownership on an entity-level, MyShingle strongly supports relaxing rules to allow lawyers to joint-venture and partner with non-lawyers on a project, product or service basis to develop innovative packaged services. In addition, MyShingle urges the Task Force to eliminate regulations that prohibit payment or sharing of referral fees to non-lawyers and to state clearly that lawyer-matching platforms are a payment mechanism and not fee-sharing arrangements with non-lawyers.

Tuesday, October 1, 2019

More on the issue of facebook friendships with judges

About three weeks ago I posted a comment on the ABA Committee on Ethics and Professional Responsibility's recent Ethics Opinion on Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure, and pointed out that the opinion did not address an issue that had been in the news not too long ago regarding "facebook friendships."

Thankfully, Karen Rubin of The Law For Lawyers Today, did a bit more research on the issue than I and posted this short comment.  In it, she links several state ethics opinions on social media friendships.  Go read it!

Monday, September 30, 2019

How not to practice law: steal files from your firm when departing

The ABA Journal is reporting that a St. Louis lawyer was held in contempt, jailed for two days and ordered to pay more than $775,000 to her law firm for expenses incurred in its lawsuit to gain return of electronic files that the attorney was accused of taking before her resignation.  For more details go here.