Tuesday, March 24, 2020

New ABA Formal Opinion on Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts

The ABA Standing Committee on Ethics and Professional Responsibility just released a new formal opinion (Formal Opinion 490) on the ethical obligations of judges in collecting legal financial obligations and other debts.  The summary is as follows:
This opinion addresses the ethical requirement of judges under the Model Code of Judicial Conduct, Rules 1.1 and 2.6, to undertake a meaningful inquiry into a litigant’s ability to pay court fines, fees, restitution, other charges, bail, or civil debt before using incarceration as punishment for failure to pay, as inducement to pay or appear, or as a method of purging a financial obligation whenever state or federal law so provides. Meaningful inquiry is also required by Rules 1.2, 2.2, and 2.5 as a fundamental element of procedural justice necessary to maintain the integrity, impartiality, and fairness of the administration of justice and the public’s faith in it. According to the same Rules, a judge may not set, impose, or collect legal financial obligations under circumstances that give the judge an improper incentive either to multiply legal financial obligations or to fail to inquire into a litigant’s ability to pay. The opinion also discusses innovative guidance on best practices for making ability to pay inquiries, including model bench cards, methods of notice, and techniques for efficiently eliciting relevant financial information from litigants.
You can read the opinion here.

How not to (start the) practice of law -- UPDATED

Original post: March 22, 2020

It has been a while since I posted a story to our running count of "how not to practice law" category, so I here is one.  Unfortunately, this is not the first time I have seen a case with the same or similar facts.

So you say you want to start working as a lawyer in a good firm.  Presumably a great firm, even.  But your resume is not quite up to par.  Here is what not to do:  Lie.  Cheat.  Alter your transcripts.

Yes, folks, once again, we have another winner in our ranks.  This wanna be lawyer altered the law school transcripts 26 times to make it look better. The lawyer falsified the transcript to reflect, among other things, grades that were higher than he had received, high grades in courses that he had never taken, and a cumulative GPA of 3.825, rather than the 3.269 that he had actually achieved.

For that he was charged with multiple violations of rule 8.4, and the Disciplinary Review Board recommended a two year suspension.  The New Jersey Supreme Court, however, lowered the sanction to one year.  Which penalty would you have voted for?

The case is In re Seth Asher Nadler (March 13, 2020).  The Legal Profession blog has more details.

UPDATE March 24, 2020:  Above the Law has a comment on the case here.

Sunday, March 22, 2020

Recent discipline case based on conflicts of interest

I often tell my students that disqualification is a more common consequence to conflicts issues than discipline.  Yet, every now and then we see a discipline case based on conflicts.  And here is a recent one that got some attention among Professional Responsibility blogs.  The case, In the Matter of Foster (3/16/20) involved both concurrent and successive conflicts of interest.

The Legal Profession Blog has more details here; California Legal Ethics also has a story.

Florida opinion on replying to negative online reviews

A few weeks ago I wrote about an opinion from North Carolina on whether attorneys could (or should) reply to negative online reviews.  See here.

Today, I am writing to let you know that the Florida Bar’s Professional Ethics Committee (PEC) recently agreed to publish formal Ethics Advisory Opinion 20-1, which provides guidance to lawyers in responding to negative online reviews for comment by Florida Bar members. 

Lawyer Ethics Alert Blog has a comment on the opinion here

Ethical Grounds has a comment on the issue in general here.  The conclusion is simple:  “You will have many opportunities in life to keep your mouth shut: You should take advantage of every one of them.”

Saturday, March 21, 2020

Technology competence news: civil liability for incompetence involving technology; the need for technology competence during the coronavirus crisis

Long time readers of this blog know I have posted many stories related to the notion of competence related to the use of "technology" in the practice of law.  Go here and scroll down for many stories on the subject.  And, as you probably know also, many jurisdictions have adopted the notion of knowledge or understanding of technology as an element of the duty of competence under rule 1.1.

I am writing about this today because I recently saw two stories of interest related to technology and the practice of law.

The first one relates to the fact that the measures taken to address the health crisis created by the spread of the COVID-19 coronavirus has forced many lawyers to practice remotely. For many, this is a new experience that has forced them to learn how to use new technology.  The story is called Coronavirus Could Be Tipping Point For Tech Competence In Law and you can read it here

The second story discusses a related issue.  Once we recognize that the duty of competence includes competence in using technology we open the door to possible civil liability for a violation of that duty.  The Law For Lawyers Today recently discussed a decision that recognized a cause of action along those lines here.  In the case, the plaintiff alleged that the law firm failed to adequately protect his personal data from hackers.

Friday, March 20, 2020

Civility and courtesy in times of crisis

Statement by the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee:

In light of the unprecedented risks associated with the novel Coronavirus, we urge all lawyers to liberally exercise every professional courtesy and/or discretional authority vested in them to avoid placing parties, counsel, witnesses, judges or court personnel under undue or avoidable stresses, or health risk.

Accordingly, we remind lawyers that the Guidelines for Civility in Litigation (LASC Local Rules, Appendix 3A) require that lawyers grant reasonable requests for extensions and other accommodations.

Given the current circumstances, attorneys should be prepared to agree to reasonable extensions and continuances as may be necessary or advisable to avoid in-person meetings, hearings or deposition obligations. Consistent with California Rule of Professional Conduct 1.2(a), lawyers should also consult with their clients to seek authorization to extend such extensions or to stipulate to continuances in instances where the clients’ authorization or consent may be required.

While we expect further guidance from the court system will be forthcoming, lawyers must do their best to help mitigate stress and health risk to litigants, counsel and court personnel. Any sharp practices that increase risk or which seek to take advantage of the current health crisis must be avoided in every instance.

Tuesday, March 17, 2020

Most proposals for big changes in California delayed by the Board of Trustees of the California Bar

A few days ago, the Board of Trustees of the California Bar delayed deciding (until May) on most of the proposals put forth by a legal tech dominated taskforce, including one which would have allowed non-lawyers and corporations to provide legal services directly to the public.  Two modest proposals which include a change to the rule on competence and a change to the rule prohibiting fee sharing with non-lawyers (allowing non-profits to share fees not just court-ordered fees) will be forwarded to the Standing Committee on Professional Responsibility and Attorney Competence.

Another proposal that survived relates to a program similar to the Legal Technicians in other jurisdictions which allow non-lawyers to provide certain types of legal services.  On this topic, the Board of Trustees set up a separate working group charged with providing its recommendations by December 2020.

Tuesday, March 10, 2020

Florida proposal to allow paralegals to provide limited legal services

Readers of this blog will remember the current discussion within a number of jurisdictions on whether to allow trained non-lawyers to provide limited types of legal services.  See here, and here for example, I am writing today with an update on the discussion in Florida.

Last year, the Florida Supreme Court Commission on Access to Civil Justice’s approved a proposal to create an “Advanced Florida Registered Paralegal” designation as part of the Florida Registered Paralegal Program.

According to the proposal, Advanced Registered Paralegals would be required to have additional education and work experience than is required to become a Florida Registered Paralegal in order to engage in the limited practice of law under a lawyer’s supervision in family law, landlord tenant law, guardianship law, wills, advance directives, and debt collection defense.

The proposed rule revisions also set forth a licensing and disciplinary process and states that the Advanced Registered Paralegals must be supervised by a lawyer who “maintains a direct relationship with the client and maintains control of all client matters.”

The proposal was sent to the Florida Bar’s Board of Governors for review and Bar President John Stewart announced at the Board’s January 31, 2020 meeting that he had referred the proposed program to the Florida Bar’s Rules Committee to consider objections that were made by the Bar’s Family Law, Real Property, Probate and Trust Law, Elder, and Public Interest Law sections.

Monday, March 9, 2020

Michael Flynn waives privilege

Lawfare is reporting that Donald Trump’s former national security adviser Michael Flynn has waived attorney-client privilege, allowing prosecutors to interview his former attorneys at Covington & Burling LLP. Flynn withdrew his guilty plea on Jan. 14, 2020, claiming that he received ineffective assistance from his lawyers at Covington. The U.S. Attorney’s Office stated that Flynn’s claims would require information from those attorneys.  You can read the filings here.

Sunday, March 8, 2020

Discipline System Changes Proposed In Ohio

The Ohio Supreme Court is asking for public comments on proposed amendments to address the process for investigating and prosecuting allegations of professional misconduct by Ohio judges and attorneys.  The report includes a variety of recommendations to the Court aimed at improving and promoting trust in the disciplinary system.  Proposals include:

- Expanding the role and responsibilities of local bar counsel in certified grievance committee investigations and prosecutions

- Streamlining and improving the process for investigating, prosecuting, and adjudicating grievances against Supreme Court justices

- Creating procedures to address lawyer and judicial fitness questions that arise during a disciplinary investigation

- Expediting disciplinary cases, through measures such as service by electronical mail and the use of disciplinary orders in lieu of full opinions in certain cases

- Increasing the time limit for filing a claim for reimbursement with the Lawyers’ Fund for Client

- Increasing the maximum reimbursement amount to $100,000.

Comments should be submitted in writing by letter or via email by March 26 to ruleamendments@sc.ohio.gov or to John VanNorman, Chief Legal Counsel, Ohio Supreme Court 65 S. Front St., Seventh Floor, Columbus, OH 43215-3431.