Thursday, April 19, 2018

Confidentiality and privilege review - the Hannity and Trump edition

Over at Faughnan on Ethics, Brian Faughnan has published a short but very accurate review of the basics regarding confidentiality and privilege.  You should read it here.

The only thing I would add to what he says is that one way to remember the distinction between confidentiality and privilege is to understand that privilege is a right (of the holder of the privilege) while confidentiality is a duty (of the lawyer.)  Privilege gives the right to prevent disclosure of information; confidentiality imposes an obligation to keep the information secret.

Sunday, April 15, 2018

Iowa Supreme Court finds that proof of exoneration is not necessarily required for a convicted defendant to sue for legal malpractice -- UPDATED

In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. This view has been criticized but still appears to be the majority view. Yet, a number of jurisdictions have recently decided otherwise.

Back in 2016, I reported that the Iowa Supreme Court decided actual innocence is no longer required as an element of the cause of action; and I just saw that it recently reaffirmed this new approach in a case decided this year.  Here is the story which includes a link to the opinion.

Other jurisdictions that have held innocence is not a requirement include Washington, Kansas (also here) and Idaho.

UPDATE (4/15/2018):  Thanks to Patrick J. Olmstead, Jr. who wrote to me to let me know that the Indiana Court of Appeals also abandoned the actual innocence requirement in a case called Beal v. Blinn, 9 N.E.3d 694 (2014).

Saturday, April 14, 2018

Article on the lack of accountability of prosecutors for misconduct and what can be done about it

I have written often about prosecutorial misconduct and how rare it is to see accountability on the part of prosecutors who engage in it.  (Go here and scroll down for my posts on this.)  For this reason I recommend you go read an article by United States District Judge Frederic Block of the Eastern District of New York in which he argues it’s time to end the notion of absolute immunity for prosecutors.  You should read the full article here

Simple Justice has a comment on the article here.

Monday, April 9, 2018

Indiana Supreme Court Disciplinary Commission announces it will begin to publish advisory opinions; and uses first opinion to find that participating in Avvo creates the risk of violating the rules

The Indiana Supreme Court announced today that it will begin offering ethical guidance to Indiana lawyers and judges via the Supreme Court’s Disciplinary Commission.  The opinions, which will be available online at the Indiana Courts Portal (here), will be non-binding and will be issued in response to prospective or hypothetical questions regarding the application of the ethics rules applicable to Indiana judges and lawyers. (By saying "prospective" there, the court means that it will not offer advice on past conduct.)

The commission made the announcement at the same time it release its first opinion which is on a topic I have written about extensively: whether participating in Avvo Legal Services (and other similar services) would constitute a violation of the rules of professional conduct. 

In the opinion, which is only three pages long, the Commission does not answer the question definitively, but concludes that participating in such programs raises the risk of violation of certain rules, including Rules 1.2(c), 5.4(a), 5.4(c), 7.2(b), 7.3(d) and 7.3(e).

The opinion essentially expresses the conclusions of the Commission rather than explain the analysis it used to reach those conclusions.  However, the conclusions are in accord with opinions published so far in other jurisdictions, all of which so far have reached essentially the same conclusions.  North Carolina is considering a proposed opinion that would conclude the opposite but it has not been adopted yet.  If adopted, it would be the first one to find that participating in Avvo Legal Services would not violate the rules, although it has been reported that North Carolina is also considering amending the rules, which suggests that it would violate the current rules. 

For all my posts on Avvo, go here, scroll down and then read up in chronological order... (ie, the most recent posts will appear at the top of the page.)

Wednesday, April 4, 2018

The ethics of switching firms

This is an important topic since the vast majority of lawyers will not end their careers in the same firm they start it.  Here is a recent summary of some of the issues involved...

Saturday, March 31, 2018

Alaska warns about using "cc" an "bcc" when using e-mail.

A recent ethics opinion issued in Alaska concludes that it is not necessarily unethical for attorneys to carbon-copy or blind-copy clients in e-mails exchanged with opposing counsel.  However, the ethics opinion warns that the practice of using “cc” or “bcc” could cause lawyers to face disciplinary action—as well as be adverse to their clients’ interests—if the client inadvertently clicks “reply all” and responds with a message that reveals case strategy, negotiation tactics, or other confidential information that should not be disclosed.

It is interesting that the attorney would face disciplinary action for the conduct of the client, but I guess it is the conduct of the lawyer which put the client in the position to make the mistake.  There are opinions in other two states that have held the same thing.

For more details on this story, go here.  You can read the opinion here.

Podcast: Ethical misadventures in E-discovery

The Legal Talk Network has posted a new podcast on ethical issues related to e-discovery.  You can listen to it by clicking on the play button below or by going here.

Illinois State Bar Association issues opinion holding it is unethical to use email tracking software.

A recent Professional Conduct Advisory Opinion from the Illinois State Bar Association (Opinion No. 18-01, January 2018) joined at least three other jurisdictions in concluding that the practice of using hidden email tracking software would be unethical for a variety of reasons. (See Alaska Bar Association Ethics Opinion No. 2016-01; New York State Bar Association Ethics Opinion 749; and Pennsylvania Bar Association Formal Opinion 2017-300.)

For more on this story go here, and here. Michael Kennedy, of Ethical Grounds, offers good analysis here.

Tuesday, March 27, 2018

Prosecutors investigate firms that offer to pay cash to plaintiffs

According to a story in the New York Times, published March 19, federal prosecutors are investigating finance companies that provide cash advances to plaintiffs in personal injury and other lawsuits. 

Because lawyers are banned from providing financial assistance to clients involved in litigation, it is not uncommon for plaintiffs who need money quickly to either settle their claims for less than their value or to seek help from these companies which offer cash in exchange for repayment out of a future judgment plus interest.  And it is that interest that raises concerns because it is often extremely high. 

Again, due to the fact that lawyers can't help clients financially, it is also not uncommon for lawyers to suggest to their clients to go to the financing companies for help.  In fact, many of the cash-advance firms rely on lawyers to send them financially unsophisticated clients who are waiting to collect on legal settlements. And this is also under investigation. 

According to the story, federal prosecutors in Manhattan are seeking information about the business relationships between the cash-advance firms and the trial lawyers who sometimes refer their clients to the firms, apparently looking into whether there were formal financial arrangements between the parties, which could be construed as illegal kickbacks.

Those who defend the financing industry argue that it provides a crucial service, allowing customers to afford basic expenses and to hold out for potentially more attractive settlements instead of automatically accepting defendants’ initial offers. 

This is true but it does not necessarily justify the high interests which appear to be abusive.  But the industry responds to this argument by saying that the high interests charged are justified because the recovery of the financial advances are not guaranteed.  If the plaintiff does not recover a judgment in their favor, or if it is too low, the company does not recover its investment.

In response, a few states have imposed ceilings on the interest rates on settlement advances, which might be a good way to achieve an acceptable compromise.  State legislators in New York have introduced similar legislation.

Monday, March 26, 2018

Omnibus spending bill includes increase in funding for the Legal Services Corp.

Last month, I reported that Trump's budget proposal would eliminate all funding for the Legal Services Corp, the largest single funder of civil legal aid for low-income people.

However, somehow the omnibus spending bill he signed included a funding increase for the LSC which will get an additional $25 million, for a total of $410 million in fiscal 2018.

Read more about it here.