Monday, August 25, 2014

New York State Bar Association report on social media ethics guidelines

As you know, the Model Rules were amended recently to recognize that an element of competence is knowledge about "technology" which includes computer programs and the use of social media. In addition, some bar groups have also issued reports or opinions on social media.  For example, I recently reported that the Philadelphia Bar Association’s Professional Guidance Committee issued an opinion on the ethics of advising clients on the use of social media.

But "social media" includes so many different things and its use can have so many implications that more guidelines are needed.  Fortunately (at least for lawyers in New York), earlier this year, the New York State Bar Association issued a report called "Social Media Ethics Guidelines" (available here.)  The guidelines discuss topics ranging from attorney advertising and furnishing legal advice through social media to ethically communicating with clients and researching prospective and sitting jurors.  Needless to say, these and other guidelines will continue to evolve in order to keep pace with technological developments.

Friday, August 22, 2014

Kentucky Supreme Court finds that it is unethical to require a defendant to waive right to claim of ineffective assistance of counsel as part of plea bargaining

As you probably know, it is not uncommon for convicted criminal defendants to challenge their convictions alleging that their lawyers did not provide effective assistance of counsel, and that sometimes the ineffective assistance related to the attorneys' inadequate counseling on whether the defendant should agree to a plea offer.  However, apparently prosecutors in federal court often require defendants to give up that right in order to have a favorable plea bargain.  In other words, it has been reported that often the plea offer is conditioned on the defendant waiving the right to challenge the attorney's performance as ineffective as part of attempts to seek post conviction relief.

Yesterday, the Kentucky Supreme Court issued a very important opinion concluding that the use of ineffective assistance of counsel waivers in plea bargain agreements "(1) creates a non- waivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."

The opinion was the result of a request by the prosecutors of the office of the United States Attorneys for the Eastern and Western Districts of Kentucky to review the merits of an advisory ethics opinion by the Kentucky Bar Association (Ethics Opinion E-435), an ethics advisory which held that the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.  After a very well reasoned discussion of the opinion, the Court concluded that it agrees with the Bar Association and that it is unethical for prosecutors to include a waiver as a condition to a plea agreement and for defense lawyers to advise clients about it.

The case is called US v Kentucky Bar Association and the opinion is available here.  For comments go to The Legal Ethics Forum, Behavioral Legal Ethics, The Legal Profession Blog, and a ;ublic defender.

Thank you very much to Grace Giesel (Univ of Lousville) for sending me the news!

Wednesday, August 13, 2014

Court of Appeals for the Third Circuit finds that NJ rule regarding advertising is unconstitutional

In a case called Dwyer v. Cappell, the Court of Appeals for the Third Circuit has found that a certain rule adopted in New Jersey to ban attorneys from quoting judges (saying good things about the lawyers) in the lawyers' ads violates the First Amendment.  The opinion is available here.

In this case, a lawyer had posted on his website quotes from judicial opinions in which judges praised the lawyer's work. After the lawyer refused a request by a judge to remove a quote from his website, the state adopted a new rule that prohibits quotes from judges, but that allowed posting a full opinion.

As I understand it, the new rules was based on several arguments:  (1) that statements in an opinion discussing a lawyer’s work do not constitute an endorsement; (2) that the use of the quotes could make judges could appear biased in favor of certain attorneys and (3) that quotes taken from opinions could be taken out of context.  For this reason, and to avoid operating as a complete ban on speech, the rule allowed the use of the full opinion.

In sum, the three arguments are just expressions of the most common argument used by states that want to limit attorneys' speech: that the speech is "misleading."  And this is the most common argument because misleading speech is not protected speech.

Yet, the Court was not persuaded.  Because the use of the quotes is at worst "potentially misleading," the validity of the rule should be analyzed under the standard used for commercial speech as developed by the Supreme Court starting in Bates and Zauderer.  And using that analysis, the rule fails.  

On the other hand, the Court did not leave the state empty handed.  It suggested that because the information could be potentially misleading, the state could impose the use of a disclaimer to explain the origin of the quote and to state that the quote does not necessarily constitute an endorsement by a particular judge.

Friday, August 8, 2014

Movies with pivotal lessons for lawyers

As many of you know, I keep a list of recommended movies for lawyers and law students.  It does not includes all the law related movies out there; only ones I have seen and would recommend.   Now for those of you interested in movies, here is a link to an article in the ABA listing twelve movie scenes that offer important lessons for lawyers.  You can click on each movie title for a short description of the relevant scene and the lesson the authors think it helps teach.

Thursday, August 7, 2014

Legal Zoom?

As you probably know, there are a number of decisions out there addressing the issue of whether Legal Zoom engages in "unauthorized practice of law."  (For previous posts on this go here, here, here, here, here, here, and here.)  I think this is an important debate because it relates to broader questions of lack of access to legal representation and whether non lawyers should be allowed to provide some legal services.   Here is a recent short article in the ABA on the subject and some comments in The Legal Ethics Forum (with links to more).

Sunday, August 3, 2014

Philadelphia Bar Association Committee opinion on attorney's advice on client's use of social media

The Philadelphia Bar Association’s Professional Guidance Committee recently addressed the following questions: (1) Whether a lawyer may advise a client to change the privacy settings on a social medial page from public access to a private setting; (2) Whether a lawyer may instruct a client to remove a photo or other content that may be damaging to the client’s case; (3) Whether a lawyer responding to document requests must produce copies of photographs posted by the client, which the lawyer previously viewed, but did not print or download; and (4) Whether a lawyer responding to document requests must produce a copy of a photograph posted by someone other than the client to the client’s social media page, which the lawyer previously viewed, but did not print or download.

The Committee concluded that that an attorney may advise a client to change privacy settings and may also advise the client to remove content, as long as the content is preserved so that it may be produced during litigation. The Committee also concluded that it is not an ethical violation to advise the client to take action that renders the content more difficult to locate if the content is readily available to be produced in the event that the information is relevant and responsive to a discovery request.

You can read the opinion here.

For comments you can go to Legal Ethics in Motion and Professional Liability Matters.

Friday, August 1, 2014

Webimar on ethical issues related to cloud computing

Here is a webimar by the ABA's Legal Technology Resource Center on ethical issues related to cloud computing.


Tuesday, July 22, 2014

Will you vote for this blog?

The voting for the ABA top 100 legal blogs is now open.  If you like this blog, I would appreciate your vote! To vote go to this link and fill our the form.

Monday, July 21, 2014

What do you have to do to get disbarred in Wisconsin?! Court rejects request to disbar attorney who misappropriated money from a client with diminished capacity while serving as guardian

Misappropriation of clients' funds is often considered to be one of the worst types of misconduct and usually results in disbarment.  In fact, it should result in disbarment.  If you steal money from your client, you should be disbarred.  Period; end of story.  That's always been my position and, typically, courts agree with it.  But every now and then there are exceptions.  Recently I wrote about an Illinois Review Board decision that suggested an attorney should not be disbarred for stealing client's money because the client did not know the lawyer had stolen the money and because the attorney had a good reason to steal the money.  As I said in my original post, that's absurd.

Not to be outdone, now comes an opinion by the Wisconsin Supreme Court rejecting the Office of Lawyer Regulation's recommendation to disbar an attorney who misappropriated almost $50,000 from a client with diminished capacity while serving as a guardian.  

One big problem in this case was that the attorney did not set a separate account to manage the money in guardianship.  He simply deposited the money in his trust account, which is a problem in and of itself.  Then, on top of that, as in many of these cases, the attorney claimed he had poor accounting or record keeping, and thus that he did not keep good records of the money going in and coming out of his trust account.

The attorney's claims are designed to suggest that he was merely negligent and that the fact he ended up misappropriating client money was not intentional.  Making the distinction between negligence and intent can be critical to avoid disbarment, of course; and here the court apparently bought the lawyer's argument.

I guess I understand there can be a distinction between negligence and intent, but at some point we have to decide how serious we are about misappropriation.  For me, the distinction is irrelevant.  If an attorney is so negligent that he or she can't figure out they are stealing client money, they should not be allowed to represent clients.  

The Wisconsin case is even worse because the attorney had been disciplined in the past for trust account violations.  So here we are dealing with an attorney who claims he was negligent when, in fact, he had been disciplined in the past.  I don't buy it.  Although I tend to be a hard-liner on this issue, I will not discard the possibility that I can be convinced to not disbar an attorney for a first offense if I am convinced the problem was caused by pure negligence.  But here we are dealing with an attorney who knew, or should have known, what he was supposed to do and decided not to change his practices.  I agree with the OLR's recommendation.  The attorney should have been disbarred.

Investigation based on complaint about anonymous criticism closed

Back in January I commented on a complaint filed by a law professor against a blogger for what the professor called cyber-bullying or harassment.  The ProfsBlawg and Legal Ethics Forum are now reporting (here and here) that the state disciplinary authorities have decided not to pursue an action against the blogger.  Even though, I found many of the comments by the blogger to be offensive, I think the decision is correct (for the reasons I explained in my original post) as long as the basis of the complaint was merely speech that expressed opinions.  If the complaint was based on conduct, or on speech that could be construed as actual threats, the story would be different.  However, it seems like the issue is now closed.