Friday, December 15, 2017

Recent case is good reminder of details on advertising regulation, and also on debate on whether we need them

A month ago, the Legal Profession blog reported on a recent case in South Carolina in which the court discussed some of the details that apply to the regulation of advertising.  It serves as a reminder of how courts often use the ban against "misleading" advertising as a catch-all rule to impose discipline.

In this case, the lawyer was reprimanded for, among other things,

1.  using the tagline "attorneys at law" on his law firm letterhead.  This was found to be misleading because the lawyer is a solo practitioner.

2. claiming that he had "28 years experience both as a lawyer and former law enforcement officer."  In fact, the lawyer had 16 years of experience as a lawyer, and 12 years of experience as a law enforcement officer.  The statement was found to be misleading because it suggested the lawyer had 28 years of experience as a lawyer.

3.  using the telephone number (844) FIXTICKET.  This was found to be misleading because it would create unjustified expectations or an implication that the lawyer could achieve a specific result by unethical means.

4.  claiming "unique insight into the South Carolina traffic laws that many other lawyers simply do not have." 

I do agree that the statements are misleading and that, under the current rules, discipline is justified.  But this is the type of case that fuels the debate as to whether the profession needs to be concerned with the type of regulation to begin with.  Do consumers really need to be protected from these types of statements that are not that uncommon in the world of advertising?

Saturday, December 9, 2017

ABA new ethics opinion on whether judges can search the internet for facts related to a case over which they are presiding

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new opinion addressing whether a judge can conduct online research to find out more about the facts of a case being litigated before them.  The opinion explains that

--  judges can conduct legal research online for cases not cited by the parties.

-- judges can can go online for facts that are subject to judicial notice because they are generally known and not subject to reasonable dispute

-- BUT using the internet to look for facts concerning the actual parties in a case is generally banned by the ABA Model Code of Judicial Conduct.  The facts are the facts that will need to be adjudicated in the proceeding, including who did what, where, when, how, and with what motive or intent.

The ABA Journal has more on the story here.  You can read the full opinion here

Wednesday, November 29, 2017

Court of Appeals for the Fourth Circuit comments on repeated misconduct ouf of prosecutors office in Virginia

The ABA/BNA Lawyers' Manual on Professional Responsibility is reporting today on a recent case in which the court wrote “We have repeatedly rebuked the commonwealth's attorney and his deputies and assistants for failing to adhere to their obligations” under the Constitution, and that “We find it troubling that, notwithstanding these rebukes, officials in the Commonwealth's Attorney's office continue to stake out positions plainly contrary” to those obligations, he said.  The case is Juniper v. Zook, 2017 BL 412748, 4th Cir., No. 13-7, 11/16/17.

The court cited other cases in which it "lambasted" Assistant Commonwealth's Attorney for "not produc[ing] evidence to a criminal defendant unless he first deems it to be 'material[]' and credib[le]."

The problem is that this conduct is the result of the development of the Brady progeny.  Brady imposes a duty to disclose "material" evidence.  However, over time, “material” has come to be defined as evidence that would probably would have changed the outcome of the trial if it had been admitted.

For this reason, when determining whether they have a duty to disclose, the prosecutor has to decide -- before the fact -- whether he or she believes that withholding the evidence will change the likely verdict in the case.   Thus, prosecutors can justify withholding evidence by claiming that they in good faith thought the evidence would not have affected the verdict.  If you add to that the fact that prosecutors are rarely punished for misconduct and the fact that, if discovered, the result of the conduct would be a retrial, you can understand why a prosecutor may be willing to take a chance and withhold the evidence.

One way to address the issue is to hold that the duty to disclose exculpatory evidence is broader than the duty required by Brady, as some opinions have held.  Another, suggested by the Court of Appeals in this case, is to hold that the prosecutor should always err on the side of disclosure. 

For more see the article in the ABA/BNA Lawyers' Manual at  33 Law. Man. Prof. Conduct 678.

Saturday, November 25, 2017

ABA files amicus brief arguing that conceding guilt over client's objection constitutes ineffective assistance of counsel

A couple of weeks ago, I posted a comment on McCoy v. Louisiana, a case before the U.S. Supreme Court in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  You can find my comment here.  Today, I learned that the ABA has filed an amicus brief in support of the appellant.  As I argued in my original comment, I agree with this view.  The ABA explained its position in a press release.  You can also read the full brief here.

Tuesday, November 21, 2017

Philadelphia law firms files complaint against out of town firm arguing false advertising and unfair competition

If you watch any TV, you have seen commercials of firms announcing they are available to represent client suffering from any number of injuries.  But if you notice closely on the very small print at the end of the commercial you'd notice a disclaimer saying that the firm is only licensed in certain states which often does not include the state in which the commercial is airing.  When contacted by potential clients from these states, the firms typically will refer the case to a lawyer licensed in that state and share the fee.

Obviously, lawyers are not allowed to represent clients in a state in which the lawyers are not admitted.  Lawyers are also not allowed to get fees for merely referring cases to other lawyers.  But lawyers are allowed to share fees with other lawyers under certain circumstances.

Yet, is the practice of purposely advertising in a jurisdiction one is not admitted to a violation of the rules?  

Rosenbaum & Associates, a Philadelphia personal injury law firm, thinks so.  It  recently filed a complaint against Morgan & Morgan, a Florida-based personal injury law firm, alleging that Morgan & Morgan falsely advertises that it represents clients in the Philadelphia area, when in fact Morgan allegedly employs only one attorney in Philadelphia with “little or no experience in handling personal injury matters.”  According to Rosenbaum, Morgan & Morgan refers nearly all of its cases to another law firm in violation of a rule that prohibits advertising that is “a pretext to refer cases obtained from advertising to other lawyers.”

For more on the story go here.  To read the complaint go here.

Not surprisingly, Rosenbaum's complaint is based on the fact that has experienced a decline in influx of new clients, which it attributes to Morgan & Morgan’s misleading advertisements.  The question is whether the decline is the result of unethical or illegal conduct or just the result of economic competition.  Is the Morgan law firm just better at marketing its services?  Is it just smarter at taking advantage of what the rules allow it to do? 

It will be interesting to see how the court addresses these questions.

How not to practice law: when representing one of the most high profile people in the nation, write incoherent letters with grammatical mistakes, go on TV and make dumb comments, hold bad press conferences and more

Unless you have been hiding in a cave for the last few weeks, you are now familiar with Roy Moore: the twice removed from the bench former judge, Senate candidate from Alabama.  You would think that having been a judge he would know some good lawyers who would be willing to represent him.  Yet, the lawyer doing most of the talking on his behalf has become a laughingstock for his inability to write coherently, his poor knowledge of the law and his TV appearances.  It has also been reported that he was disciplined in the past.

There are many stories on this, and you can Google more, but here are a few:

On his poorly written (that's being generous) demand letter to a news outlet (here, here, here and here).  For the news outlet's reply go to this story (called "Roy Moore’s Lawyer Gets Called A Moron In The Most Professional Way Possible").

On his disastrous appearance on TV in which he expressed his ignorance, at best, about how cultural differences might be an issue related to the accusations against Roy Moore (here and here).

Podcast: On being a Limited License Legal Technician in Washington State

In an effort to provide better access to legal services, back in 2012 Washington became the first state to adopt rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians (or LLLTs).   Go here for some background.

Once Washington approved its program at least seven other states—California, Colorado, Connecticut, Minnesota, Oregon, Vermont and Virginia— created task forces to study the possibility of limited licensing as a partial solution to the so-called “access to justice gap.”  However, the development of programs in those, or other, states has not been as successful as once expected.

A few days ago, Lawyerist posted a podcast with Laura Genoves about being one of the first Limited Licensed Legal Technicians in Washington State and the differences between a legal technician and a practicing attorney, including everything from education costs to how each can practice.   If you can't see the controls below, you can listen to the podcast by going here.

Sunday, November 19, 2017

In case you missed it: reminder that a lawyer's conduct outside the practice of law can have consequences

We all learned in law school that the regulation of  the profession is not really limited to practice of the profession.  And we all know that there are many many cases out there of lawyers getting in trouble for conduct in their personal lives.  But every now and then it is not bad to get a little reminder.   The latest example involves a Dallas prosecutor who got into what some have called a "drunken tirade" with an Uber driver.  The driver recorded the encounter, it went viral and the prosecutor got fired.  The fact you are a lawyer does not give you the right to claim you are more important than other people, to threaten them or to be abusive.  This should be common sense.  There are many stories and videos on the incident out there. Here is one of them:

New York Times article on whether defense lawyers should be allowed to contribute to the campaigns of District Attorneys

You may have heard recent accounts of negotiations between lawyer Marc E. Kasowitz, a lawyer for the Trump family and the Manhattan District Attorney regarding the possibility of charging Ivanka Trump and Donald Trump Jr. for allegedly misleading investors in a condo-hotel project. The stories highlighted that Mr. Vance had received a $25,000 contribution from Mr. Kasowitz (which was returned prior to the meeting) and that a year later Mr. Vance’s campaign accepted a $32,000 gift from Mr. Kasowitz, only to end up returning it seven weeks ago after reporters highlighted it.

Should there be some limits to, or regulation of, defense lawyers' contributions to District Attorney's campaigns?  The New York Times discusses the issue in a recent article you can access here.

Court of Appeals rejects appeal by lawyer who had been ordered to pay $4.2 million as sanction for sending unsolicited faxes to potential clients

In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Supreme Court held that a state can not ban a lawyer from sending targeted letters to potential clients in part because the invasion of privacy involved in receiving the unsolicited letter was minimal.  As someone later put it, the trip from the mailbox to the trash can is a short one. 

You would think the same could be said about a fax (technology that is not as common these days), but in a 2013 opinion, the 7th Circuit found that unsolicited faxes sent by a Chicago lawyer to potential clients were advertisements covered by the Federal Telephone Consumer Protection Act, which imposes penalties for sending faxes without an opt-out provision.  As a result, the lawyer was ordered to pay $500 for each of his 8,430 faxes, amounting to $4.2 million.

The case has been going up and down to and from the Court of Appeals since then and just recently it was reported that the Court has denied the most recent appeal.  Go here for more details