Sunday, August 28, 2016

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Saturday, August 27, 2016

Judge declares mistrial in civil case because defendant's counsel made inappropriate comment in front of the jury

Over the years, I have commented on many cases where courts reverse criminal convictions due to inappropriate comments by overzealous prosecutors; but I don't remember having read about a similar result in a civil case.  For that reason, here is an interesting story out of the ABA Journal Online about a Florida judge who declared a mistrial in a tobacco case and ordered the defendant's lawyer to show cause why he shouldn’t have to pay sanctions for the cost of a retrial.  According to the story, in questioning an expert witness, the lawyer affirmed that a jury in a different case had found how many cigarettes a person had to smoke daily in order to become addicted.  The judge reacted to this for more than one reason, the most important being that the statement was not true. 

In addition to causing the mistrial and, perhaps costing the lawyer the bill for the retrial, if the statement was false, the lawyer could be found to have violated, at least, rules 4.1 and 8.4.

California opinion reaffirms traditional view on the extent of the duty of confidentiality

Back in July, 2015 I reported that the State Bar of California Standing Committee on Professional Responsibility had issued an "interim" opinion on confidentiality and was seeking comments on it before making it official.  The opinion addresses the question of whether an attorney has a duty to keep confidential information that is publicly available.

As I reported back then, the general principle has always been that there is a difference between information that is publicly available and information that is "generally known." If the information is generally known, then you can say there is nothing to protect - because the information is known already. But not all publicly available information is generally known. These principles had always been generally accepted and understood until the Virginia Supreme Court decided Hunter v Virginia in 2013, a heavily criticized outlier case in which the court surprisingly held otherwise.

On that point, California's interim ethics opinion reaffirmed the old principle concluding that "[a] lawyer may not disclose his client’s secrets, which include not only confidential information communicated by the client to the lawyer, but also publicly available information that the lawyer obtained during or related to the professional relationship which the client has requested to be kept secret or the disclosure of which might be embarrassing or detrimental to the client."

More than a year later, the interim opinion has been officially published as Formal Opinion 2016-195 and it is available here.

Professor Lisa Needham has posted a good short comment on the opinion.  [As a bonus, in the process she also criticizes Avvo's chief legal ethics officer, something I have done a number of times too.]

Short comment on new study regarding access to legal representation

Lawyerist has posted a short note on a new study that concludes that in nearly 70% of all civil cases only one of the parties is represented by an attorney. 

Friday, August 26, 2016

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

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.

UPDATE (8-26-16): The ABA Journal online is reporting that various law student groups and some labor groups have signed a letter to the New York Law Journal calling the ethics decision “fundamentally flawed” and asking the ethics committee to reconsider.

The argument in favor of mandatory pro-bono

Verdict has just published a column making a case for mandatory pro-bono.  You can read it here.

Tuesday, August 23, 2016

Harvard Law School professor Laurence Tribe is heavily criticized for tweet that shows he may not understand confidentiality or privilege

I am late to post on this story about something that happened last week and which has received a lot of attention already, so I will keep it short.   Last week, Professor Laurence Tribe, Harvard's well known constitutional law professor, tweeted this message:  "I have notes of when Trump phoned me for legal advice in 1996. I'm now figuring out whether our talk was privileged."

With those "less than 140 characters" Tribe opened the door to an online discussion that resulted in general condemnation of his knowledge of the law and his motives.  I am sure he did not expect that, but he definitely walked right into it.

I will let others explain the many problems with Tribe's comment which include confusing the principles of confidentiality and privilege, and possibly not understanding the duty of confidentiality.

Here are links to some of the comments I have seen on the issue:

Michael Krauss, of George Mason Law School

Scott Greenfield, criminal defense blogger, who then posted a follow up here.

Professor Steve Lubet, at the Faculty Lounge

The ABA Journal online

The Legal Ethics Forum

As usual, by the way, it is worth to read the readers' comments under all these stories.

Thursday, August 18, 2016

Ohio board holds attorneys can't advise clients on marijuana business -- UPDATE: Ohio Supreme Court reacts by asking for an amendment to the rules

The last ABA national conference on professional liability featured a panel on ethical issues related to representing clients involved in the legalized marijuana business.  As reported by the ABA/BNA Lawyers’ Manual on Professional Conduct Conference Report, "[t]he panelists and other authorities ... said the uncertainties facing cannabis industry lawyers stem from the absence of clear guidance, in the ethics rules or case law, on several questions regarding the propriety of representing marijuana businesses in states that have decriminalized the drug for recreational or medicinal purposes."  For this reason, there is a risk for lawyers of facing professional discipline for providing legal services to marijuana businesses.

Now comes news that the Ohio board that oversees attorney conduct decided last week that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.

So, on the positive side, this decision does provide clear guidance for lawyers in Ohio.  But, obviously, on the negative side, it is not what lawyers representing clients in this particular business would want to hear.

I have not read the opinion itself, though, so I can't provide an opinion on it.  I just read the news in the Chicago Daily Law Bulletin, which did not link to the opinion itself.

UPDATE (8-18-16):  Soon after the advisory opinion was published the Ohio Supreme Court ordered its staff to prepare a draft amendment to alter its professional conduct rules for lawyers in order to clarify the legal services they can offer to clients connected to Ohio's upcoming medical marijuana business.  The Columbus Dispatch has more on the story here.

Thanks to Lloyd Snyder (Cleveland-Marshall College of Law) for the update.

UPDATE (8-19-16): The Law for Lawyers Today has an update on the story here.

Wednesday, August 17, 2016

Court of Appeals for the 9th Circuit holds Fedral Government can't prosecute people who comply with state marijuana laws

A few days ago I reported that the Ohio board that oversees attorney conduct decided last week that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.  A few days later I posted a link to a comment on the issues regarding providing legal advice to clients in the legal marijuana business.

In a related story that affects the argument upon which the Ohio opinion is based, the ABA Journal is reporting today that the Court of Appeals for the 9th Circuit has held taht the U.S. Justice Department can’t spend money to prosecute people who are strictly complying with state medical marijuana laws, finding that such spending is banned by Congressional appropriations rider.  The case is United States v. McIntosh.

Tuesday, August 16, 2016

ABA announces plan to create Center for Innovation

A few days ago I reviewed the final report of the ABA Commission on the Future of Legal Services (see here) and pointed out that one of its recommendations was for the ABA to create a Center for Innovation. 

So, not wasting any time, on Monday, the ABA announced the creation of the Center, whose purpose will be "to foster innovative and ground-breaking approaches to bridging the access to justice gap as well as to improve the delivery of legal services."  The Center will also serve as a resource center for ABA members, keep track of the ABA’s innovative efforts and provide fellowships for attorneys to collaborate with professionals in the technological, entrepreneurial and design industries.  It will be located at the ABA’s headquarters in Chicago. The first major project for the Center will be to assist with a court-annexed online dispute resolution pilot project in New York.

The ABA Journal online has more information here.