Monday, January 18, 2021

ABA issues new ethics opinion on replying to online reviews

With the increasing use of websites to contact lawyers and to provide feedback about their work, lawyers need guidance on how to address online criticism and negative reviews without violating duties in the rules of professional conduct.  A number of jurisdictions have issued ethics opinions on the subject already, and now the ABA Standing Committee on Ethics and Professional Responsibility has too.

The Committee's Formal Opinion No. 496 can be found here.  As usual it starts with a short summary of the full opinion.  It reads: 

Lawyers are regularly targets of online criticism and negative reviews. Model Rule of Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another. A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if it did, an online response that discloses information relating to a client’s representation or that would lead to discovery of confidential information would exceed any disclosure permitted under the Rule. As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.

As you can see, the opinion simply explains and expands on a general principle that we knew already: a lawyer can disclose confidential information if allowed by one of the exceptions to the rule and only to the extent reasonably necessary to advance the policy behind the exception.  What the opinion makes clear is that responding to a negative review is not justified by the exception to the rule that allows a lawyer to disclose confidential information in order to defend him/herself in a legal dispute.

For more commentary on the opinion you can visit: The ABA Journal, Law 360, Lex BlogLawyer Ethics Alerts Blog, Louisiana Legal Ethics and Ethical Grounds.

Sunday, January 17, 2021

Florida Bar document on best practices for electronic communications

The Florida Bar’s Henry Latimore Center for Professionalism  has published a document on Best Practices for Professional Electronic Communication.  The 25 page document provides guidance on various topics, including e-mail, texting, social media, telephone/cell phone, laptops, and electronic hearings and proceedings, and it is an important resource for lawyers and non-lawyers.  You can read it here.

Saturday, January 16, 2021

ABA issues new formal opinion on lawyers practicing law remotely -- UPDATED x2

Original post: 12/6/20

The ABA Standing Committee on Ethics and Professional Responsibility announced today a new formal ethics opinion on issues related to practicing law "remotely," by which they mean practicing law in a jurisdiction while being located in a different jurisdiction in which the lawyer is not admitted.  You can read the opinion here.

Here is the summary:  

"Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules."

UPDATES 

(12/17/20):  Given that the ABA's opinion only interprets the Model Rule, as opposed to the law of any one jurisdiction, it is important to consider how the rules of each jurisdiction have been interpreted so far and how the opinion might influence future cases.  Here is a comment on how the opinion might apply to cases in California. Ethical Grounds has a short comment on the opinion here concluding that the opinion "makes sense" and "reflects common sense."

(1/16/21):  Law 360 has analysis of the opinion in an article called ABA Approves Remote Practice, But Questions Remain.

In predictable turn of events Trump is reportedly refusing to pay Giuliani's legal fees

 You can't make this stuff up.  The Washington Post has the story here.  Also see Above the Law and Yahoo news.

And, there is a bit more to the story.  First, there is the fact that some according to some stories, Giuliani asked to be paid $20,000 a day, a fee that would most likely be held to be unreasonable under the rules of professional conduct.  

When asked about that story, Giuliani supposedly said that he had not asked for that amount.  Instead, he told the New York Times, he had not entered into a formal agreement with Trump but that they would "work it out in the end."

Agreeing to provide legal services without an agreement and expecting to work it out in the end with a client notorious for not paying his bills...  well, that's not very smart...  which raises the issue of Giuliani's competence, but that is yet another story for another day.

Trump lawyer Lin Wood disqualified because of his mendacity

A Delaware Superior Court judge ruled Monday that attorney L. Lin Wood, who filed a number of complaints challenging the results of the election, can't represent former Trump campaign adviser Carter Page in a state defamation case, saying it would be inappropriate to let Wood practice before the court because he has recently exhibited a "toxic stew of mendacity, prevarication and surprising incompetence."

In essence the judge is saying that Wood's reputation is so bad, he is either incompetent or unfit to practice law.  The judge's memo cited, among other things, recent social media posts attributed to Wood, including a tweet suggesting that Vice President Mike Pence should be arrested and executed for alleged treason.

Also remember, this is the lawyer who filed a complaint seeking to reverse the election and signed it "under plenty of perjury."

It sounds strange for a judge to disqualify an attorney like this, but Wood's appearance before the court was going to be by admission pro hac vice.  What the judge concluded was that a lawyer from a different jurisdiction should not be allowed to come to the judge's jurisdiction and practice given the attorney's history elsewhere.  In other words, the judge was denying Wood's petition to practice in just this one case, not his ability to practice law in general. 

 "I acknowledge that I preside over a small part of the legal world in a small state. However, we take pride in our bar," the judge said.

You can read more on the story here:  Law360, the Legal Profession Blog, Law & Crime, The ABA Law Journal, and Above the Law.

Over 7,000 Lawyers Sign Petition To Have Josh Hawley And Ted Cruz Disbarred

When Ted Cruz and Josh Hawley supported the effort to object to the electoral college, Yale and Harvard alums started internet petitions to have them disciplined.  Now, after their expressions related to the attack on the capitol have been exposed, a new petition has been published asking for their disbarment.  

The petitions are really an expression of frustration and political statements more than ethics arguments.  Whether the conduct deserves discipline depends, of course, on whether it violated the rules of professional conduct and the answer to that question is more complicated than the petitions make it appear.

First of all, if the argument is based on expressions made during the legislative process, I believe lawmakers are immune from liability and I don't know if there is any case law that explains whether that includes immunity from disciplinary sanctions.

Second, the arguments are based mostly, if not entirely, on speech which raises the question of whether the expressions are protected speech, which depends on the expressions on a case by case basis.

Having said that, let's assume that the expressions are considered not protected because they constitute incitement to violence or, worse incitement to overthrow the government.  If that is the case, do the expressions violate rules like Model Rule 8.4(b) which hold that it is professional misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects?

The petitions also argue that Hawley and Cruz violated rules like 8,4(c) which holds that it is misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation by repeating unsubstantiated statements regarding the election.

You can read one of the petitions against Cruz and Hawley here.  Jurist also has the story here.

New York State Bar Association considers expelling Rudy Giuliani

 The New York State Bar Association is launching an inquiry into expelling Rudy Giuliani from its membership over his comments ahead of the attack on the U.S. Capitol, and his efforts to cast doubt on the results on the presidential election.  The NYSBA is not a regulatory agency, however, so expulsion from the association would not affect Giuliani's ability to practice law in the state.

You can read more about the story here: NPRPolitico, Law & Crime, Above the Law, and the ABA Law Journal.

Article by the plaintiff in the case that declared that Pennsylvania's recently adopted anti discrimination rule (modeled after Model Rule 8.4(g) is unconstitutional

 About a month ago I reported that a Federal Court in Pennsylvania declared the state's recently adopted version of Model Rule 8.4(g) unconstitutional.  See here.

As a follow up to that story, here is a short article by the named plaintiff in that case in which he comments on the case and explains his reasons for bringing the claim.

Monday, January 4, 2021

Federal Judge considers referring lawyer behind Trump election lawsuit to disciplinary agency

A lot has been written and said in the past few weeks about the incompetence and improper conduct of lawyers working for Trump, but none of them have been disciplined for their conduct. 

It is possible that will change soon.  Law & Crime is reporting that "[a] federal judge was so dismayed by a . . . lawsuit that bizarrely attempted to sue the Electoral College and Vice President Mike Pence—among many others—that he wrote in a memorandum opinion . . . that he’s considering referring the attorney behind it for “potential discipline.”  Go here for the full story and more quotes from the opinion.

It will be interesting to see if the judge follows through.  I would not hold my breath.  


Thursday, December 31, 2020

New York Suspends Prosecutor For Discovery Violations

 Discipline for prosecutorial misconduct is relatively rare which is why I am reporting on this story, which you can find in the Legal Profession blog.