Thursday, July 21, 2016

Washington State Supreme Court holds plaintiff has to show actual innocence in malpractice claim against former criminal defense lawyer

Back in February I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  The majority view is that the plaintiff does have to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. Yet cases in Kansas and Iowa recently held otherwise.

Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.  The case is called Piris v Kitching and you can read the opinion here.  The Legal Profession blog has more details here.

One Justice dissented in Piris, making what I think is a persuasive argument.  Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.
Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...
In other words, the plaintiff in the malpractice case (defendant in the original criminal case) endured a longer stay in jail (more than a year) because of the attorney's conduct.  Yet the court says he was not entitled to a remedy because he was "due" some time in jail anyway.  The fact that the attorney's conduct caused him to suffer more than he was legally "due" is irrelevant to the majority.  I agree with the dissent in this case.  This view is not justified.  It allows for an injustice to go unpunished and gives a pass to an attorney whose conduct clearly caused injury to the client.  I don't see why it makes sense to give the attorney such a free pass.

Tuesday, July 12, 2016

What Can Johnny Manziel Teach Lawyers About Ethics?

What Can Johnny Manziel Teach Lawyers About Ethics? Go here for the first installment of this multi-part column at IPethics & INsights.

Monday, July 11, 2016

Florida considers amendments to rules that may make it improper for lawyers to participate in Avvo Legal Services and other similar "matching" sites

I recently posted a note on a recent opinion in Ohio which essentially concludes it is unethical for lawyers to participate in services like Avvo's Legal Services.  (I happen to think that, as presently constituted, participating in Avvo Legal Services is unethical pretty much anywhere (see here, here and here), but not everyone agrees with me.)

Now comes news that the Florida Bar is considering certain amendments to its rules on referral services, which, depending on how they are interpreted, may also make it unethical to participate in Avvo's services. 

Avvo Legal Services can argue it should not be considered a referral service, but the proposed Florida rule is apparently designed to defeat that argument by eliminating the distinction between referral services and "lead generators" - which is what Avvo is.  The new Florida rule holds that any private entities that connect consumers looking for legal services with lawyers are to be called “qualifying providers” regardless of whether they are a “traditional” referral service or a technology-based provider (AVVO, LegalZoom). 

Once all the different services are in the same category, whether they are lead generators or referral services does not make a difference.  And the other important change to the rule is that it says that a lawyer can participate in private, for profit service only if the lawyer receives no fee or charge that is a division or sharing of fees unless the provider is The Florida Bar Lawyer Referral Service or a referral service approved by the Florida Bar. 

As I have discussed elsewhere, Avvo disputes that its payment structure constitutes fee sharing, but I think the argument can easily be made that it is.  In such a case, therefore, unless the Florida Bar has "approved" Avvo as a referral service in Florida - which I doubt - than Florida lawyers would be violating the rules by participating in Avvo's Legal Services. 

You can find the redline version of the proposed rule and its comment here.   Lawyers Ethics Alert Blog has more information here.

Thursday, June 30, 2016

New proposed California rules are now ready for comment

Long time readers of this blog know that I have been following the process of revision of the rules in California.  See here and here, for example.  Here is the latest:  The State Bar of California has authorized public comment on 68 proposed new and amended Rules of Professional Conduct developed by the State Bar’s Commission for the Revision of the Rules of Professional Conduct (“Commission”). The public comment period is 90-days with a deadline of September 27, 2016.

You can access the public comment notice and proposed rule drafts posted at the Bar’s website here

The Board also authorized a public hearing on the proposed rules. The public hearing is scheduled for July 26, 2016.  It will be held at the Los Angeles office of the State Bar with a remote audio/video connection to the San Francisco office. Testimony may be given at either location.

Monday, June 27, 2016

North Carolina legislature amends definition of practice of law as part of agreement with Legal Zoom

Last December I reported that the North Carolina Bar and Legal Zoom reached a consent agreement which suspended the litigation between them for two years or until the legislature approved an amendment to the definition of the practice of law.

The amendment was finally approved about a week ago when the House and the Senate both unanimously passed House Bill 436 after a conference committee spent months negotiating the final language in the bill.

The measure now heads to Gov. Pat McCrory.

The bill redefines the term "practice of law" in the state by exempting services that provide blank legal documents. The services must register with the State Bar every year, and each type of document must be reviewed and approved by a licensed North Carolina attorney before going online. The services also must include a disclaimer that the online documents aren't a substitute for seeking legal advice, and any customer satisfaction disputes must be referred to the State Bar.

Sunday, June 26, 2016

Is there a duty to disclose to client that co-counsel has committed a significant error?

What should you do when you are co-counsel on a case or in a deal, and you become aware that the other lawyer has made an error?  A new ethics opinion from the New York State Bar Association says that if you reasonably believe that your co-counsel has committed a significant error or omission that may give rise to a malpractice claim, you must disclose the information to the client.  The Law For Lawyers Today has more information here.

Sunday, June 19, 2016

Attention Ohio Lawyers: PR Board finds participating in programs like Avvo Legal Services is likely unethical

Just a few weeks ago the Professional Responsibility Board of the Supreme Court of Ohio issued an advisory opinion on whether it is ethical to participate in certain internet programs that "match" prospective clients with available lawyers.  The opinion does not mention any such services specifically by name but given the description of the services, it is clear (at least to me) that one of the programs at issue is Avvo Legal Services.  The opinion concludes that the business model of these types of services present many ethical concerns and that because of at least some of them, participating in them might be unethical.

The opinion starts by explaining the question presented as follows:
A lawyer seeks guidance regarding whether a particular business model involving online lawyer referrals is permissible under the Rules of Professional Conduct and the Rules for the Government of the Bar of Ohio. The proposed business model is an online referral service that matches a prospective client with a lawyer for a particular legal service. Although the client chooses the lawyer, the company defines the types of legal services offered, the scope of the representation, the fees charged, and other parameters of the legal representation. Additionally, the model requires a lawyer to pay a “marketing fee,” for each completed client matter. The “marketing fee” is based on the fee generated from the completed individual legal matter.
Based on this description, the opinion concludes that the business model at issue constitutes a “referral service” regardless of how the company running it describes itself.  I am not sure I agree with this conclusion.

I don’t think that the hypothetical business model described in the Ohio Board’s opinion is a referral service because the consensus on whether online matching services constitute “lawyer referral services” turns on whether such services utilize someone exercising discretion, such as an intake worker answering a telephone, when determining which attorneys to recommend to which clients based upon some stated criteria. See ABA Standing Committee on Lawyer Referral and Information Service, The Regulation of Lawyer Referral Services: A Preliminary State by State Review, page 5.

Thus, if the program at issue simply creates and provides a list of potential lawyers from which potential clients can choose who they want to hire, the argument that the program is a referral service is weaker.  In such a case, the program is more akin to a “lead generator,” a type of business model that is mentioned specifically in the Comment to Model Rule of Professional Conduct 7.2 which bans giving anything of value to a person for recommending the lawyer’s services.

In Ohio, however, the key is not a ban on paying a fee, even if that fee is calculated as a percentage of the legal fee earned on the referred matter.  The key is whether the referral service is registered with the Supreme Court of Ohio.  If the service is not registered with the Court or if it does not follow all the requirements imposed by the Court’s regulations, participating in the service is unethical.

The Board then goes on to discuss other concerns including the duty of a lawyer to supervise non lawyers, the possibility of lawyers facilitating the practice of law by non lawyers, the possible interference with a lawyer's independent professional judgment, the sharing of fees with non lawyers and possible violations of the duty to keep client money in a trust account.  This is not surprising to me since these are some of the issues I have argued create problems for lawyers participating in Avvo's Legal Services.

You can read the Ohio Board's Opinion here.

Saturday, June 11, 2016

Judge in trial of police officer charged with murder in the death of Freddie Gray rules that prosecutors withheld exculpatory evidence

According to a story in ABC news, available here, the judge overseeing the trial of a police officer charged with murder in the death of Freddie Gray has determined that prosecutors withheld information that would have been beneficial to the defense.  It seems to me this would be big news, but, oddly, I have not seen this reported anywhere else. 

Thanks to the Legal Ethics Forum for the link.

New York State Bar ethics opinion addresses ethics issues when a lawyer copies a client with communications to opposing counsel

A recent New York State Bar Association Ethics Opinion (available here) addresses whether a lawyer must obtain the consent of opposing counsel before he or she can blind copy the client on correspondence to opposing counsel. The opinion concludes that "[a] lawyer may blind copy a client on e-mail correspondence with opposing counsel, despite the objection of opposing counsel.  Because a lawyer is the agent of the client, sending such a blind copy is not deceptive.  However, there are practical reasons why the lawyer should consider forwarding the e-mail correspondence to the client rather than using “bcc”." 

Lawyer Ethics Alerts Blog has more information here.

New York Times editorial board calls for federal government oversight over DA offices that violate defendants' rights

In a recent Op-ed piece, the NY Times is arguing that because prosecutors are almost never held accountable for misconduct, even when it results in wrongful convictions "it is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights." You can read the full article here.