Monday, November 2, 2015

Florida Bar adopts opinion on whether an attorney can advise a client to clean up a social media page in advance of litigation

A few days ago, the Florida Bar’s Board of Governors adopted Ethics Opinion 14-1 (which had been circulated earlier this summer) on whether an attorney may advise a client to “clean up” social media pages (Facebook, Twitter, Instagram etc.) in anticipation of litigation to “remove embarrassing information that the lawyer believes is not material to the litigation matter.”  You can read the full opinion, which is very short, here.

The opinion mentions opinions from other jurisdictions on the same question and concludes "that a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence."  However, if the information is removed from the social media page, "the social media information or data must be preserved if the information or data is known by the inquirer or reasonably should be known by the inquirer to be relevant to the reasonably foreseeable proceeding"

In the end, what the opinion seems to be saying is that there is a difference between "removing" the evidence from the social media page and "destroying" the evidence.  Removing it is simply hiding it, but not destroying it.  Also, given the added requirement to preserve the evidence after removal, presumably the evidence will continue to be discoverable. 

In other words, what the opinion seems to say is that the client can take something that was public and hide it, but has to preserve it in case the other party in litigation asks for it in discovery, at which point the client may have to produce it.

It seems to me this is not different than the rules that would apply to any other kind of evidence.

Monday, October 26, 2015

Report on Utah's public defense system for indigent defendants

On October 26, 2015, the Sixth Amendment Center released a report criticizing Utah’s long-standing, deep-rooted indigent defense system's deficiencies.  Among other things, the report criticizes the lack of state oversight, the fact that prosecutors are in charge of some local indigent defense budgets, and the fact that public defenders have excessive caseloads.  According to the report, more than 62% of all people facing a potential jail term for a misdemeanor charge go through proceedings without counsel. You can read the full report here, and two additional stories on it here and here.  This second story is about changes being proposed by Utah policymakers in the wake of the report.

Should non lawyers be allowed to invest in lawsuits?

Interesting article in the New York Times here.

Thanks to Professional Responsibility: A Contemporary Approach for the link.

Illinois Appelate court on whether there is a duty to disclose death of client during settlement negotiations -- UPDATED

Back in February, I posted the story that appears below.  I am reposting it now because of the update that appears at the bottom of the post...

About ten days ago, the Illinois appellate court issued a good opinion that deals with several issues we cover in class. The first one is whether an attorney has a duty to disclose the death of his client when the attorney is negotiating a settlement in litigation. The case is called Robison v. Orthotic & Prosthetic Lab, Inc and it is available here.

In this case, the plaintiff, Randy Robison, filed a product liability action against the defendant, Orthotic & Prosthetic Lab, Inc. in 2008.   In January, 2013, while the case was still ongoing, the plaintiff died but the plaintiff’s lawyers did not alert the court or the attorneys for the defendant.

In September 2013, the attorneys for both sides began settlement negotiations and reached an agreement on September 24. To finalize it, the attorney for the plaintiff sent an e-mail to the attorney for the defendant in which he stated “My client has instructed me to accept . . . in full and final settlement of this matter. Please provide an appropriate release and I will present it to my client for review and approval.”

The plaintiff's lawyer did not notify the defendant's lawyer of the plaintiff's death until after the defendant had submitted the settlement agreement, and he did so when he sent an amended version of the proposed release in which he asked the defendant's lawyer to agree to substituting the plaintiff's son as plaintiff in the case.  The defendant's lawyer refused and asked how come he had not been informed of the plaintiff's death, to which the plaintiff's lawyer replied that he had researched the issue and determined that he had no affirmative duty to disclose the information because it was against his clients' interests and he had a duty to protect his clients' interests within the bounds of the rules of professional responsibility.

The defendant refused to follow through on the settlement agreement claiming it was not valid, and the plaintiff moved to enforce the settlement.  Eventually, the lower court granted the motion and the defendant appealed.

In a short and well written opinion, the Court of Appeals reversed holding that the agreement was not valid and suggesting that the conduct of the attorney for the plaintiff in not disclosing the death of the client was unethical.  Interestingly, it also suggested that the conduct of the defendant's lawyer was unethical in not reporting the conduct of the plaintiff's lawyer.  Here are the most important paragraphs of the opinion:
... The defendant further argued that the settlement was invalid because the death of the plaintiff was a material fact that had been concealed from the defendant prior to and during settlement negotiations. ...


Settlement negotiations commenced in September 2013, and an agreement was ostensibly reached on September 24, 2013. The defendant, however, had no knowledge about the plaintiff's death or the appointment of a personal representative throughout the period of settlement negotiations. [These facts were not disclosed until] weeks after the settlement was reached and months after the plaintiff's death. [The plaintiff's lawyer acknowledged that] the disclosure of the plaintiff's death would have adversely impacted the settlement value of the case. He stated that he believed that the decision to withhold the information was in his clients' best interest and was in keeping with the rules of professional responsibility. We strongly disagree. We find that the arguments expressed by [the plaintiff's lawyer] are specious and incredible, and we are concerned about his professional judgment in this case. In failing to disclose the fact of the plaintiff's death, [the plaintiffs lawyer] intentionally concealed a material fact that would have reduced the overall value of the claim for damages. In addition, and equally troubling, [he] led the defendant to believe that he had authority to negotiate a settlement of the litigation on behalf of the party plaintiff, when the action was without a plaintiff as the plaintiff had died and a representative had not been substituted. Given [these] intentional misrepresentations and material omissions prior to and during the settlement negotiations, we conclude that the settlement agreement is invalid and unenforceable, and that the trial court erred in granting the motion to enforce it. 
In my opinion, this is the correct approach to the issue, but it needs to be explained a bit further.  Although it is well known that a lawyer does not have a general duty to volunteer adverse facts to an opponent in litigation,  Rule 4.1 has been interpreted to imply an exception which requires the disclosure of a client's death.  The most cited case holding this proposition is Virzi v. Grand Trunk, 571 F. Supp. 507 (E.D. Mich. 1983), which approaches the issue from the perspective of a duty to the court because in that case the attorney did not disclose the death of the client until after the court had entered an order. However, the court does go on to say that just as the lawyer owes a duty to the court, he or she also owes the same duty to opposing counsel.  Based on this view, at least two courts (one in Ohio and one in Kentucky) have imposed sanctions on attorneys for failing to disclose their client's death. In Robison, the court did not discuss rule 4.1 but emphasized the attorney's general duty of honesty under rule 8.4, which is presumably owed to everyone.

Interestingly, the court did not stop there and also took up the fact that counsel for the defendant did not report the misconduct under rule 8.3:
Finally, we believe that we have a profound responsibility to comment on the conduct of the attorneys in this case.  ... Rule 8.4(c) of the RPC states that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. ...   Rule 8.3 requires a lawyer to report unprivileged knowledge of misconduct involving fraud, dishonesty, or deceit, or misrepresentation by another lawyer to the Illinois Attorney Registration and Disciplinary Commission (ARDC). ...

In this case, we believe that the material omissions and misrepresentations ... constitute serious violations of Rule 8.4. We also believe that defense counsel possessed sufficient knowledge to trigger a duty to report [the plaintiff's lawyer's] misconduct to the ARDC, and that the failure to report the misconduct constitutes a potential violation of Rule 8.3.

UPDATE 10/26/15:  About ten days ago, a formal disciplinary complaint was filed against the lawyer who did not report the death of the client.  You can read the complaint here.  (Thanks to the Legal Profession blog for the update.)  It remains to be seen if there will be a complaint against the lawyer who did not report the misconduct.  Given the language in the opinion, it seems to me it would be inconsistent, to say the least, if the administrator did not do so. 

Legal Zoom settles case vs North Carolina Bar

The stories regarding whether LegalZoom is engaged in the unauthorized practice of law (UPL) go back many years.  I have posts on this issue on this blog from the very first year I started it.  The first story I posted on this is from 2010, here and here, when the company was sued in Missouri for allegedly violating the rules regarding UPL.  That claim was eventually settled.  See here.

Then in 2011 it was LegalZoom which took the offensive and sued the North Carolina Bar challenging its application of the rules regarding UPL.  See here

Now comes news that LegalZoom's claim against the North Carolina State Bar has been settled. (Forbes).  According to the story, under the terms of the settlement the state bar has agreed to support  legislation that would clarify the definition of “unauthorized practice of law,” which currently is open to various interpretations and was used by the bar to challenge LegalZoom.

This is becoming one of the most important debates for the profession.  The ABA has announced a partnership with Rocket Lawyer (Legal Zoom's competition), and has created a Commission on the Future of Legal Services to study other innovative approaches to providing legal services.

The ABA has been slow to adopt meaningful change to its rules and views on innovation and it is not clear at this point what the recommendations of the Commission will be.  Also, the recommendations one similar state commission were not entirely well received (here).  But whatever happens, the ongoing and future debate on these issues (usually bundled under the catchphrase (or catch-word, rather)  "innovation") will be interesting. 

Lawyer Ethics Alert Blog has more on the story here.  (10/28/15)

For more on LegalZoom go here, here and here.

Sunday, October 18, 2015

D.C. Adopts Screening To Avoid Imputed Disqualification

The Legal Profession blog is reporting that the District of Columbia Court of Appeals has amended its Rules of Professional Conduct to permit screening to avoid imputed disqualification under Rule 1.10.  You can find the language of the new rule in the Legal Profession blog here. I never been a fan of the concept of screening, but that is a lost battle these days since the ABA adopted it for its Model Rules.

ABA and Rocket Lawyer launch on-demand legal advice pilot program

About three weeks ago, the American Bar Association and Rocket Lawyer announced the creation of a pilot program that provides on-demand legal advice for small businesses called ABA Law Connect.  It is currently being tested in Illinois, Pennsylvania and California.  Program users can access Rocket Lawyer’s system to post a legal question online which will be answered by an ABA member-lawyer for a flat rate of $4.95 (a rate that will also include a "follow up question").  According to the press release,  "[t]hose interested in additional legal advice can discuss legal matters further in a lawyer-client relationship."

This initiative is part of the ABA's efforts to improve access to legal services.  The goal is great, but I have a number of concerns about it.  I am, for example, not sure that the statement quoted above about the lawyer-client relationship reflects the basic principles about how an attorney client relationship can be formed.  It seems that it assumes that the $4.95 questions merely creates (or an only create) a prospective client type relationship (regulated under Rule 1.18), but that is not necessarily the case, as anyone who has read Togstad v Vesely or Perez v Kirk & Carrigan knows.  And, as those cases show, the consequences of not understanding this can be significant.  I am also not encouraged by the fact that Rocket Lawyer's website provides its consumers information that is not entirely accurate on the distinction between the attorney-client privilege and the duty of confidentiality. The blog IPethics and INsights was the first one to pick up on the concerns in a post listing some of the issues raised by the pilot program.

The new buzzword in Legal Ethics these days seems to be "innovation" and the ABA is trying to find ways to encourage innovation.  Yet we shouldn't rush to try to be innovative at the risk of creating other problems.  It reminds me of the Direct TV commercial that ends with "... not the way I would have gone, but it is innovative.  And that's what we want around here..."

I have no problem with innovation, or change or new initiatives and I most certainly don't have a problem in trying to find ways to provide access to legal services for people who can't afford them, but whatever is done should be done with a full understanding of the professional responsibility principles involved and of the possible consequences for possible mistakes. 

Podcast on new technology

My most recent post was about technical competence.  To continue along that topic, here is a podcast (from the Legal Talk Network) on the 2015 ILTA/InsideLegal Technology Purchasing Survey and the 2015 ABA Legal Technology Survey.  In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss key results from these important legal tech surveys, highlight the most interesting trends, and discuss ways that lawyers can use these results to inform and tailor their technology plans for the coming year. Although both Tom and Dennis agree that lawyers are behind the curve of technological adoption, they see an increased interest in security, big data, information governance, cloud computing, and overall proficiency. In most of these areas, however, they mention that lawyers are not as far progressed as they should be, and both hosts believe that those in the legal profession have become technologically complacent.

Wednesday, October 14, 2015

Article on Technological Incompetence

A couple of days ago I posted a comment on a new study that shows a vast majority of lawyers may be incompetent when it comes to protecting confidential information sent over the internet.  Today, Lawyerist has a good short article on some of the most important or common issues related to competence related to technology.  It discusses using Google, being efficient, data security, e-discovery and the use of social media as evidence in trials, among others.  Take a look at the article here.

Florida ready to ban attorneys from accepting referrals from for profit non lawyer owned referral services

In 2011, the president of the Florida Bar appointed a special committee to review “whether and to what extent [the bar] can or should directly regulate” for-profit lawyer referral services. The study was prompted by what the bar described as the “dramatic growth” of such entities in recent years, and by “numerous complaints” about the allegedly “misleading nature of their activities.” The committee's final report recommended that the bar's board of governors petition the supreme court for rule changes that would prohibit lawyers from accepting referrals from certain types of referral services. The board eventually adopted less restrictive proposals that wouldn't forbid lawyers to accept referrals. However, at the end of last month, the Florida supreme court rejected the bar's proposals as insufficient. “The dangers that non-lawyer-owned, for-profit referral services pose to members of the public—who may be especially vulnerable after they suffer an injury, or when they face a legal matter that they never anticipated—leads us to conclude that much stricter regulations upon lawyer referral services are required than those proposed by the Bar,” it said.

The ABA/BNA Lawyers Manual on Professional Conduct has the full story at 31 Law. Man. Prof. Conduct 584.  The Legal Profession blog has more here.  Lawyer Ethics Alert Blog has more here.