Monday, May 23, 2016

Puerto Rico adopts statute of limitations for disciplinary proceedings

About two weeks ago, the Governor of Puerto Rico signed into law a bill that creates a 3 year statute of limitations for disciplinary proceedings (subject to a few exceptions).  As you may know, the majority of the states follow the approach suggested by the ABA in Rule 32 of the Model Rules for Disciplinary Enforcement, the comment to which states:
Statutes of limitation are wholly inappropriate in lawyer disciplinary proceedings. Conduct of a lawyer, no matter when it has occurred, is always relevant to the question of fitness to practice. The time between the commission of the alleged misconduct and the filing of a complaint predicated thereon may be pertinent to whether and to what extent discipline should be imposed, but should not limit the agency's power to investigate. . . .

Discipline and disability proceedings serve to protect the public from lawyers who are unfit to practice; they measure the lawyer's qualifications in light of certain conduct, rather than punish for specific transgressions. Misconduct by a lawyer whenever it occurs reflects upon the lawyer's fitness.
If you can read Spanish, you can read my comment on the newly adopted statute in Puerto Rico here.  In that article I argue that adopting the new statute does not make much sense for a number of reasons:

1.  There is no need to adopt a statute of limitations because there is precedent that holds that a disciplinary action should be dismissed if the state has taken too long in filing it placing the attorney in question at a disadvantage.  Under that approach, cases are decided on a case by case basis depending on whether the passage of time has had a detrimental effect on the attorney's ability to defend against the allegations.

2.  There is no logic in placing the statute in the Puerto Rico Civil Code.  The statute of limitations should be in the rules for disciplinary enforcement.  In fact, the Puerto Rico Supreme Court is currently considering a proposal to establish new rules.  The Legislature should have deferred to the Supreme Court at least until it finished its revision of the rules.

3.  The adopted time period of the statute is shorter than the average in the United States.

4.  Although the statute does recognize an exception for conduct that constitutes a crime, it does not recognize an exception for cases of non criminal intentional conduct.  In fact, the statute makes no distinction among different types of conduct.

5.  The Puerto Rico Supreme Court is currently considering new rules for disciplinary procedures and new rules of professional conduct.  The proposal for disciplinary proceedings has two options as to statute of limitations.  The first on is not to adopt a statute; the second one is to adopt a 5 year statute of limitations with a series of exceptions.  The drafters wanted to give the Supreme Court the alternatives and let it decide.  The Legislature has now taking that decision from the Court.  Some have argued this is a violation of the principle of the separation of powers.

Wednesday, May 11, 2016

Two days ago I lamented the lack of action against prosecutors who present false testimony; here is an example of the opposite

A couple of days ago, I commented on a news story about possible perjury by prosecutors’ witnesses and complained about the lack of action against prosecutors who present false testimony.

In response, one of the readers of the blog sent me a copy of Grievance Administrator v. Plants (March 20, 2012) in which the Michigan Attorney Disciplinary Board disbarred a prosecutor for presenting perjured testimony. In its opinion, the Board stated that "knowing submission of false testimony is among the most serious of ethical violations and the presumptive sanction for such misconduct is disbarment."

Thank you very much to Cynthia for the link!

Monday, May 9, 2016

ABA Journal on perjury by prosecutors' witnesses, but no comment on the conduct of the prosecutors -- UPDATED

The ABA Journal has a story today on how courts are not doing much about a little kept secret in Chicago courts:  that police officers sometimes lie on the stand.  I wrote "sometimes" but the tone of the story clearly implies this is a much bigger problem than that.

In any case, the story and the comments are all about how there are little consequences for the officers who lie on the stand, which is likely true.  But what is not discussed in the story is the role of the prosecutors who present the testimony.  How come they get a pass too?  If it is true that "everyone knows" the witnesses are lying, can you really say the prosecutors didn't know?  And if that is the case, shouldn't they be disciplined for it?

Obviously, part of the problem is proving the allegations of "knowledge" but the rules clearly hold that knowledge "can be inferred from the circumstances."   I have said it a million times and will continue to say it.  If you want to do something about prosecutorial misconduct, judges have to start taking it seriously.

For more comments on prosecutorial misconduct go here and scroll down.

UPDATE 10:30pm:  So, a few hours after I posted this comment and my complaint about judges not taking prosecutorial misconduct seriously, I came across this story in Simple Justice about what appears to be the very first ever attempt to impose sanctions on a prosecutor in Utah.

Saturday, May 7, 2016

Ohio's Board on Professional Conduct issues opinion on duty to report misconduct, which is different under Ohio rules

Back in February I wrote a comment on the first ethics opinion of the year by the Ohio Board on Professional Conduct in which I argued the opinion was based on faulty analysis.  As I looked more into the issue, I realized the problem was not with the opinion but with the text of the Ohio rules which is different than that of the Model Rules.  I later wrote an article about it.

Just about a month ago, the Board issued its second opinion of the year and it again illustrates that another of Ohio's rules is different from the text adopted in most jurisdictions.  The opinion (available here) attempts to clarify an attorney's duty to report misconduct under rule 8.3.

Ohio's version of Rule 8.3 states (in relevant part) that "A lawyer who possesses unprivileged knowledge of a violation of the Ohio Rules of Professional Conduct that raises a question as to any lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform a disciplinary authority empowered to investigate or act upon such a violation."

So here is my first question:  what is "unprivileged knowledge"?  Knowledge can't be privileged or unprivileged.  What is privileged is the information about which one has knowledge.  But that's just a matter of language.  It seems to me it is clear that what the rule means to say is "a lawyer who has knowledge of privileged information.."

The Board appears to read the text this way too since it states in the opinion that in order to determine if there is a duty to disclose lawyers should consult rule 1.6 to determine whether information is privileged or unprivileged.

Yet, this statement does not make much sense since Rule 1.6 does not address that question.  Rule 1.6 defines the duty of confidentiality, not the extent of the privilege, which is a matter of the law of evidence.  The Board seems to confuse the important distinction between confidentiality and privilege.

For this reason, it is not entirely clear that the Board realizes that, as it is drafted, Ohio's Rule 8.3 (on reporting misconduct) requires attorneys to disclose misconduct even if the misconduct is discovered as a result of a confidential communication as long as the information is not privileged.

Model Rule 8.3 states that a lawyer is not obligated to disclose misconduct if it would require disclosure of confidential information (protected under MR 1.6).  In contrast, in Ohio a lawyer is obligated to disclose the misconduct even if doing so would require disclosure of information protected by the duty of confidentiality under Rule 1.6, as long as the information is not privileged.

In addition, the Rule in Ohio applies if the information raises a question as to a lawyer's honesty, trustworthiness or fitness to practice, while according to the Model Rules, the duty to report only applies if the information raises a substantial question as to those same elements.

In other words, for these reasons, the duty to disclose misconduct is much broader in Ohio than in other jurisdictions that have adopted the language of the Model Rules.

Thursday, April 28, 2016

Podcast: interview with Legal Zoom

Last year I posted a link to a podcast on LegalZoom with its CEO, John Suh (see here).  The Legal Talk Network has a new one here.  You can listen to is by clicking the play button below or by going to the link.

ABA issues new ethics opinion on splitting fees under Model Rule 1.5(e)

EThe Standing Committee on Ethics and Professional Responsibility of the ABA recently issued a new ethics opinion reviewing the details on splitting fees under Model Rule 1.5(e).  You can read and download the opinion here.  (Remember the the opinions are available free for a limited time.)

The opinion is fine.  I don't think there is really anything in it that we didn't know already.  Here is the summary:  "Rule 1.5(e) allows lawyers who are not in the same firm to divide a fee under certain circumstances. A lawyer who refers a matter to another lawyer outside of the first lawyer’s firm and divides a fee from the matter with the lawyer to whom the matter has been referred, has undertaken representation of the client. Fee arrangements under Model Rule 1.5(e) are subject to Rule 1.7. Unless a client gives informed consent confirmed in writing, a lawyer may not accept a fee when the lawyer has a conflict of interest that prohibits the lawyer from either performing legal services in connection with or assuming joint responsibility for the matter. When one lawyer refers a matter to a second lawyer outside of the firm and the first lawyer either performs legal services in connection with or assumes joint responsibility for the matter and accepts a referral fee, the agreement regarding the division of fees, including client consent confirmed in writing, must be completed before or within a reasonable time after the commencement of the representation."

You can read more on the Opinion at Lawyer Ethics Alerts Blog, Professional Liability Matters, The ABA Journal, and Lawyers for the Profession.

Interestingly, the Court of Appeals in Illinois recently issued an opinion on the splitting fees that illustrates how the ABA's opinion could be applied.  In Naughton v. Pfaff,  a referring attorney sought to recover under an oral fee-sharing agreement with another attorney, alleging that the receiving attorney breached his fiduciary duty by failing to obtain the client's signed consent. The Court held that both attorneys have a non-delegable ethical obligation to ensure that the client agrees in writing to a fee division. Absent the client's signed consent, the attorneys' agreement violated the Rules of Professional Conduct and thereby precluded recovery.  These are the consequences of not getting client consent, which the ABA Opinion explains should be done before the beginning of the representation.  Go here for a discussion of the case.

Wednesday, April 27, 2016

I just posted a short article on SSRN on Indiana's opinion regarding confidentiality and reporting child abuse

Last year, the Ethics Committee of the Indiana Bar Association issued an opinion on whether an attorney has to comply with the state's mandatory child abuse disclosure statute.  I did not like the opinion and wrote about it here and here.  I looked further into it and wrote a short article.  If you are interested, you can read it on SSRN.  Feel free to send me your comments.

Tuesday, April 12, 2016

Alcoholics and the Profession of Law

Professor Ronald Rotunda's most recent column is available here.

Saturday, April 9, 2016

Is it ethical for a firm to pay Uber to provide transportation for clients

Over at My Shingle (a blog I recommend, by the way), Carolyn Elefant discusses whether it is ethical for a law firm to pay a client's transportation costs via Uber.  Does paying for a taxi (or a rental car) for a client constitute a violation of the rule that bars attorneys from providing financial assistance to clients?  (This is assuming the client is involved in litigation because the rule does not apply if the attorney-client relationship relates to transactional matters.)  If so, why would using Uber be different?   Carolyn argues Uber is different.  You can read her comment here.

Should a law firm be allowed to bill a client for work performed by an unpaid intern?

Suppose a law firm hires a student as a law clerk and the student does some work for one of the lawyers.  The lawyer would be allowed to bill the client for the "cost" of the law clerk's time, right?  But what is the client paying for?  Is it an amount that reflects a portion of the firm's overhead costs or is the client paying the firm for the value of the time of one of its employees (the law clerk)?  Is there a difference?

Now, what if the firm is not paying the law clerk at all.  It would seem odd that the firm could claim the client has to pay certain value for "overhead" when in reality there is no overhead.  On the other hand, since the law clerk is not a lawyer, can the firm charge the client for the value of the time of the law clerk?

My guess is these questions have probably been addressed by ethics opinions, but I have not done the research.

What I can tell you is that there is a new opinion (available here) out of the New York State Bar Association that holds that a "law firm may bill a client for work performed by a student-intern despite the fact that the law firm does not pay the intern, because the intern receives academic credit for the work, as long as (i) the internship program complies with applicable law, (ii) the educational institution does not object to the client charges, and (iii) the charge is not excessive."

Not everyone agrees this is the correct decision.  See this article in Above the Law for a negative review of the opinion.