Thursday, June 18, 2015


Yesterday I reported that the New York State Bar Association was going to discuss whether to adopt new rules on social media later this week.  It turns out that the official agenda for the meeting of the NYSBA states the discussion will be "informational" only.   Apparently there will be no vote on the issue at this point. 

Thanks to Art Garwin, the Director of the ABA Center for Professional Responsibility for letting me know.

New York to consider social media rules

Since the ABA adopted a comment to Model Rule 1.1 on competence as it relates to "technology" there has been a lot of discussion (and literature) on the new meaning of the concept of competence.  See here, here, and here for some podcasts on the subject.

Now, the New York State Bar Association is taking action.  The ABA Journal is reporting today that, later this week, the NYSB house of delegates will discuss whether to adopt new legal ethics rules addressing appropriate social media practices by lawyers. The proposed rules would require lawyers to keep copies of communications with clients on social media, would hold lawyers responsible for correcting inaccurate or misleading information and would allow lawyers to do online research on public portions of social media profiles. 

Applying the gist of the comment added to the Model Rules, the guidelines reportedly state that “[a] lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media.”

Short comment on technology and the practice of law

Here is a short comment on whether using technology can constitute unauthorized practice of law.  It starts "[a]s technology becomes smarter and automation more prevalent, lawyers and bar associations have grappled with the question of whether the use of technology constitutes as the unauthorized practice of law (UPL). Layperson legal advocates and paralegals also are often accused of UPL. So what exactly is UPL? And how do lawyers fight against it?"

Wednesday, June 17, 2015

Prosecutor disbarred for his role in capital murder conviction of innocent man

It is often said, and I have discussed it here many times, that prosecutors rarely face accountability for prosecutorial misconduct.  Yet, every now and then courts do take action.  In 2013, I wrote a number of posts about the ex-prosecutor (later judge) in Texas who was disbarred for having lied during an investigation on whether he withheld exculpatory evidence in a case that resulted in the conviction of an innocent man.  See here for the most recent post on that case, with links to others.

Similarly, another former Texas prosecutor was disbarred this week for withholding evidence and presenting false evidence in a case that resulted in the conviction of an innocent man.   The defendant in that case served 18 years and twice was scheduled for execution before he was exonerated and released four years ago. Go here for an article with more information.

Saturday, June 13, 2015

Florida Supreme Court opinion makes significant revisions to Florida Bar Rules

Lawyer Ethics Alerts Blog has the full story here.

Podcast on the ABA Commission on the Future of Legal Services

The Legal Talk Network has posted a podcast of an interview with Judy Perry Martinez, chair of the ABA Commission on the Future of Legal Services. Martinez discusses specific actions the commission is taking to address the changing landscape of legal services in the US.  You can listen to the podcast by pressing the play button below.  If you don't see the button, you can listen to the podcast by going here.

NY Legal Ethics Reporter

The most recent edition of the New York Legal Ethics Reporter is now available here.  It includes three articles: 

Tinker, Tailor, Lawyer, P.I.: Are Your Workplace Investigations Complying with the Law?

Understanding & Securing the LLP Shield in New York (Part 1)

Summaries of Recent New York Ethics Opinions

Monday, June 8, 2015

DC's strange concept of moral turpitude

In Washington DC, disbarment is mandatory for convictions of crimes that involve moral turpitude, yet I continue to be baffled by Washington DC's concept of moral turpitude.  I have discussed cases that found no moral turpitude when a lawyer was convicted of murdering his wife (here), or of stealing property from a store for personal gain (here), or of felony traveling for the purpose of engaging in sex with a minor in a case in which the attorney had made a 12-year-old boy his sex slave for six years (here). Yet tampering with a witness was considered to involve moral turpitude (here). See here for more.

Adding to the list now we have a case in which an attorney who pleaded guilty to a misdemeanor violation of 22 D.C. Code section 3531(c), which makes it a crime to electronically record, without consent, a person using a bathroom or restroom or who is undressing or changing clothes.

According to the Legal Profession blog, Maryland recently disbarred an attorney who videotaped three tenants in intimate encounters.

In Washington DC, apparently this type of conduct is not considered to involve moral turpitude and resulted in only a three year suspension.

The Legal Profession Blog has more information on the case here.

Monday, May 25, 2015

DQed on the effect of a disqualification order

When a court orders disqualification, the court obviously has authority to enjoin the attorney or law firm from appearing before the court on behalf of a party.  It is also fairly uncontroversial that the court’s authority extends to so-called ancillary proceedings, such as depositions, in the same matter (even if the judge is not physically present).  But does this disqualification authority extend to bar the lawyer from, for example, counseling (but not appearing for) the client?  I would think so, but apparently there are differences of opinion on this.  DQed has a short comment on the issue here.

Sunday, May 24, 2015

Another case on whether the appearance of impropriety can be used as a standard in conflicts cases

A few days ago I wrote about a case in which the Kentucky Supreme Court criticized the use of the notion of "appearance of impropriety" as a standard in conflicts cases.  See here.

In contrast, in a case decided in New York about a month later, the court relied on appearance of impropriety in a routine former client conflict of interest case.  See  Avigdor v. Rosenstock (N.Y. Sup. Ct. May 12, 2015).  The court held that if a party seeking to disqualify a lawyer meets the elements required to support the motion to disqualify, the order to disqualify should be issued in order to "free the former client from any apprehension that matters disclosed to an attorney will subsequently be used against it in related litigation" and to avoid "the appearance of impropriety' on the part of the attorney or the law firm."

Thanks to Bill Freivogel of Freigovel on Conflicts for the update.