Sunday, February 17, 2019

The Ohio Board of Professional Conduct's recent advisory opinion on conflicts of interest

The Ohio Board of Professional Conduct has issued an advisory opinion which reiterates three basic and uncontroversial principles on conflicts of interest.  The opinion is Advisory Opinion 2019-01 and you can read it in full here

The opinion makes three points:

First, the opinion states that, absent informed consent, a lawyer may not undertake representation of an adverse party in an unrelated matter when the lawyer represents current clients with claims pending against the adverse party.  This conclusion should not be surprising.  It is just the basic principle against concurrent conflicts of interest expressed in Model Rule 1.7.

Second, the opinion states that a lawyer may not withdraw from the representation of a current client in order to undertake representation of an adverse party, even if the matters are unrelated.  This is another way of saying that the Board would apply the so-called "hot potato doctrine" which prevents a lawyer from trying to dump a client in order to "convert" the client from a current client into a former client before taking on a new client in a matter adverse to the interests of the converted former client.  I can't say how many jurisdictions have formally adopted the doctrine, but it is pretty well known so I am not surprised by the opinion's position on this.

Third, the opinion states that absent informed consent, a lawyer may not represent a former adverse party in a new matter against a former client if the new matter is the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.  Again, this is not news since it is simply stating the basic principle regarding successive conflicts of interests expressed in Model Rule 1.9. 

Thursday, February 14, 2019

ABA Ethics Opinion on whether it is a violation of the Code of Judicial Conduct for a judge to refuse to perform same sex marriages

Earlier today, the ABA Standing Committee on Ethics and Professional Responsibility released its latest Formal Opinion (No. 485) which addresses whether it is a violation of the Code of Judicial Conduct for a judge to refuse to perform same sex marriages.  You can download or read the full opinion here

The opinion's digest reads as follows:
A judge for whom performing marriages is a mandatory obligation of judicial office may not decline to perform marriages of same-sex couples. A judge for whom performing marriages is a discretionary judicial function may not decline to perform marriages of same-sex couples if the judge agrees to perform opposite-sex marriages. A judge’s refusal to perform same-sex marriages while performing opposite-sex marriages calls into question the judge’s integrity and impartiality and reflects bias and prejudice in violation of Rules 1.1, 2.2, 2.3(A), and 2.3(B) of the Model Code of Judicial Conduct. In a jurisdiction in which a judge is not obligated to perform marriages but has the discretion to do so, a judge may refuse to perform marriages for members of the public. A judge who declines to perform marriages for members of the public may still perform marriages for family and friends. If a judge chooses to perform marriages for family and friends, however, the judge may not decline to perform same-sex marriages for family and friends.

Monday, February 11, 2019

Why Lawyers May Not Ethically Be Able To Use Whatsapp

Have you ever tried to install an app, only to get a message saying the app wants to access your contacts?  Do you know why the app needs such access?  Are you violating the duty of confidentiality by providing access to your clients contact information?  If the app won't install unless you allow access to the contacts, do you need client consent to install the app?

Here is an interesting article on the subject.  The article also relates to the duty of competence about technology.

Sunday, February 10, 2019

Resolution before ABA House of Delegates regarding companies that offer legal documents online is withdrawn

At a recent meeting of the ABA, the ABA House of Delegates was due to consider a resolution that proposed model rules for companies that offer legal documents online, but the resolution was withdrawn after the ABA Center for Innovation, the Standing Committee on the Delivery of Legal Services, the Business Law Section and the Section of Dispute Resolution argued the proposed guidelines needed more work before going forward.

You can read the proposed resolution here.

According to a story in the ABA Journal, there were concerns regarding warranties, intellectual property and dispute resolution. There was also uncertainty over whether the proposed guidelines would apply to courts offering online forms.  The ABA Journal has more details here.

Friday, February 1, 2019

Report on alternative legal services providers

A recent report by Thomson Reuters concludes that the "alternative legal services provider" market grew approximately 25 percent from $8.4 billion in 2015 to $10.7 billion in 2017 amid growing demand from both corporations and law firms.

The report found that the five most common types of alternative legal service providers are litigation and investigation support, legal research, document review, e-discovery, and regulatory risk and compliance.

The ABA Journal has details, and a link to the report, here

Thoughts on the regulation of the profession

A recent column in Above the Law reflects on the regulation of the profession.  It concludes that "the legal profession is one of the best-regulated professions out there, and we can all kind of be happy that we have more safeguards against bad actors than other professions."

I generally agree with the underlying sentiment but the conclusion needs to be more nuanced than that.  It is true that the legal profession is highly regulated and that much of that regulation is in place for good reasons, but it is debatable whether all regulation is needed.  For example, I think there are good arguments to suggest that it is time to revise the limits to multijurisdictional practice, for example.  Also, whether we can be "happy" depends on how the regulation is implemented, which varies a lot from jurisdiction to jurisdiction.

Ohio Supreme Court continues trend of suspending lawyers for violation of rule against having sex with clients

The Law for Lawyers Today is reporting that "[t]he Ohio Supreme Court is continuing its trend of suspending lawyers who violate the disciplinary rule on sex with clients, and has again rejected arguments that pointed to the consensual nature of the relationship.  In a recent opinion involving sex between criminal defense counsel and his client, the court characterized the lower disciplinary Board’s analysis as “blaming the victim,” and increased the penalty above what the Board recommended."  Go here for details and analysis.

Can a paralegal (or other non-lawyer employee) cause a conflict that disqualifies a law firm when the paralegal joins the firm?

This is a question that is addressed in the comments to Model Rule 1.10, but it is not a bad idea to review it once more.  Michael Kennedy, of Ethical Grounds, did so earlier this week here.

Sunday, January 27, 2019

DC Ethics Committee new opinion on crowdfunding -- UPDATED

The District of Columbia Bar Legal Ethics Committee has issued a new Ethics Opinion (Number 375) on whether an attorney can finance the representation of a client through "crowdfunding."

The opinion is short and straightforward and essentially follows the reasoning of other jurisdictions that have issued opinions on the subject.  You can read the full opinion here. Its summary describes its conclusions as follows:
Lawyers are generally free to represent clients who pay for legal services through crowdfunding. The ethical implications of crowdfunding a legal representation vary depending on the lawyer's level of involvement in the crowdfunding. When the client directs the crowdfunding and the lawyer is merely aware of it, the lawyer incurs no specific ethical obligations although the lawyer should consider potential risks associated with receipt of such funds and may counsel the client on the wisdom of publicly sharing confidential information. When the lawyer directs the crowdfunding, the lawyer must comply with the Rules governing a lawyer's receipt of money from third parties. Further, a lawyer who directs the crowdfunding should be cognizant of ethical obligations regarding fee agreements, communications with donors, and the management of the funds raised. 
Again, this is equivalent to what has been decided elsewhere, but there is one point the opinion does not address, and that is that under certain circumstance crowdfunding can lead to sharing fees with a non-lawyer.  Now, if my memory is correct, DC allows sharing fees with non lawyers under certain circumstances but I don't think its rule applies to crowdfunding.

I published a short article on the subject in which I discuss the issues and the few opinions available back then.  You can read it here.

UPDATE (1/27/19):  Karen Rubin, of The Law For Lawyers Today, has posted a comment on the opinion here.

Thursday, January 17, 2019

Texas Committee proposes new rules on advertising

As you probably remember, the ABA recently amended the rules related to advertising and solicitation.  Some states are now following its lead.

The Texas Committee on Disciplinary Rules has proposed revisions to Texas’s ethics rules on advertising that are open for public comment until March 1, 2019.  You can read the proposal here.  Brian Faughnan has a short comment on what he sees as the pros and cons here.