Monday, August 10, 2020

Judge imposes fine on DA for not disclosing documents in case involving use of fake subpoenas

Long time readers of this blog might remember that earlier this year I reported about a series of complaints filed against the Orleans Parish DA's office arguing that the DA's office had been using fake subpoenas (with false threats of fines and imprisonment) to coerce cooperation from witnesses and victims of crimes.  One lawsuit was filed by the MacArthur Justice Center, another one was filed by the ACLU and yet another lawsuit targeted the DA's office and the DA directly for violating the law and citizens' rights. (That one is still pending because the defendants were denied immunity by the Fifth Circuit Court of Appeals, making it far more likely someone will be held personally responsible).  See here.

I am writing about this today because the MacArthur Center lawsuit is back in the news.  TechDirt is reporting that the judge in the case has issued a $51,000 judgment against District Attorney Leon Cannizzaro for his office’s failure to turn over bogus subpoenas under a public-records request filed two years before the practice was exposed.

The judge's ruling stated that Cannizzaro acted “arbitrarily and capriciously” when he failed to disclose the documents requested by an attorney for a nonprofit law firm who was probing the practice in 2015.

According to the MacArthur Center, the $50,000 penalty may end up being applied against Cannizzaro personally rather than to his office.

Sunday, August 9, 2020

ABA adopts amendment to Model Rule 1.8(e) to allow financial assistance to pro bono clients -- UPDATED

Back in May I reported (here) that a proposal was going to be brought up at the annual ABA meeting to amend Model Rule 1.8(e) which would allow lawyers to provide financial assistance to pro bono litigation clients.  

The meeting ended recently and it is now official that the ABA's House of Delegates adopted what is now probably going to be known as the "humanitarian" exception to MR 1.8(e).   The vote,  was 378 to 16. 

UPDATE: You can read (or download) a copy of the approved language here.

A list of (and links to) all the resolutions approved by the ABA at the annual meeting is available here.

Thanks to Karen Rubin for the links!


Wednesday, August 5, 2020

Podcast on the termination of Washington's pioneering LLLTs program

At a time when several states are trying to adopt regulatory reforms to try to provide better access to legal services (see herehere and here), as I reported here, the Supreme Court of Washington decided to terminate its LLLT program.  It was the first in the country to regulate a system to allow non-lawyers to provide some legal services.

As you probably know, not everyone agrees that eliminating the program was a good idea, and yesterday Above the Law published a story reporting that the editorial board of the Seattle Times seems to be trying to put some pressure to get the program restored.  Take a look at the story here.

Also, there is a new podcast discussing the program and its termination in the Legal Talk Network.  You can listen to it by using the play button below or by going here.

Sunday, July 26, 2020

Chicago Bar Association and Chicago Bar Foundation publish report and recommendations on the future of the practice of law

Last week the Chicago Bar Association and Chicago Bar Foundation published a report that provides recommendations for reforming attorney regulations to meet the changing legal market. The recommendations are the result of nine months of work by a Task Force on the Sustainable Practice of Law & Innovation. Public comments will be accepted through August 21.

You can read the full report here.

The task force was created in October 2019 to address failures in the consumer legal market, in which many lawyers are struggling to make ends meet, while many people are also going without legal help.

The task force brought together a diverse group of more than 50 lawyers and legal professionals from across Illinois to develop a series of regulatory reform recommendations to address these challenges. The recommendations seek to meet three main goals: (1) Help lawyers connect to more potential clients and offer more affordable and accessible solutions, (2) Help people to recognize they have a legal problem and identify where they can turn for affordable and reliable legal help and (3) Spur more innovation in the profession and the delivery of services.

The recommendations include:

• Allowing lawyers to provide technology-based products to help meet the demand for legal services through an “approved legal technology provider.” The provider could be owned in whole or in part by nonlawyers.

• Recognizing licensed paralegals who can provide expanded services to legal consumers while working under the supervision of a lawyer.

• Streamlining confusing legal advertising rules to focus on the core principle that lawyers should refrain from making false, misleading, coercive or harassing communications.

• Expanding the rules on limited scope representation to allow lawyers to participate in technology-based legal solutions and to streamline the process for limited-scope court appearances.

• Creating a community justice navigator to help the public identify legitimate sources of legal information and to connect people to lawyers and other appropriate forms of legal help. The web-based information hub would be similar to resources provided to the public by the IRS.

• Giving the Illinois Rules of Professional Conduct a “plain language overhaul” that also rethinks “overly prescriptive or unnecessary regulatory provisions.”

• Evaluating whether broader changes are needed to relax limits on outside ownership of law firms. “a majority of the task force believes that preventing people who are not attorneys from having an ownership stake in law firms is unduly stifling innovation and preventing solo and small firm lawyers from reaching the scale necessary to reach the consumer legal market,” the report says.

I have not had a chance to read the report so I can't comment on anything specifically.  However, I can say that the report is long, detailed and thoughtful.  Some of the suggesting do indeed support some significant changes in the regulation of the profession, and it is refreshing to see that the authors have recommended specific changes to the rules of professional conduct to match the recommendations.

This last point is important.  It always bothers me when I see recommendations that go against the current rules but no suggestion to change the rules.  If you are going to suggest new approaches, we will need new rules to match them.

But, like I said, I don't have the time right now to read the report so I can' comment on the details.  I will eventually get to it and let you know what I think. 

Wednesday, July 15, 2020

ABA issues opinion on Model Rule 8.4(g)

Long time readers of this blog know that I have written many times about Model Rule 8.4(g) and that I have expressed concerns about its breadth and vulnerability to attack under First Amendment grounds.  I wrote most of those comments when the rule was in the process of being enacted and adopted.  Since then seven states have adopted some version of the rule and a few others are currently considering doing so.  I have also had the chance to teach the rule and discuss the debate about it with my students every semester since it was proposed.

So I am glad to report that the ABA Standing Committee on Ethics and Professional Responsibility has published a formal opinion offering some guidance on how the rule should be interpreted and applied. 

I will comment more in detail when I have a chance to read it, but I wanted to let you know that the opinion is now available so you can read it too.  You can read it or download a copy of the opinion here.

Here is a copy of its summary:
This opinion offers guidance on the purpose, scope, and application of Model Rule 8.4(g). The Rule prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of various categories, including race, sex, religion, national origin, and sexual orientation. Whether conduct violates the Rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline.
Rule 8.4(g) covers conduct related to the practice of law that occurs outside the representation of a client or beyond the confines of a courtroom. In addition, it is not restricted to conduct that is severe or pervasive, a standard utilized in the employment context. However, and as this opinion explains, conduct that violates paragraph (g) will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.
The Rule does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation. The Model Rules are rules of reason, and whether conduct violates Rule 8.4(g) must necessarily be judged, in context, from an objectively reasonable perspective.
Besides being advocates and counselors, lawyers also serve a broader public role. Lawyers “should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Discriminatory and harassing conduct, when engaged in by lawyers in connection with the practice of law, engenders skepticism and distrust of those charged with ensuring justice and fairness. Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.

Sunday, July 12, 2020

Missouri Supreme Court finds that public defenders have immunity for discretionary functions

In a case called Laughlin v. Perry, decided on June 30, 2020, the Missouri Supreme Court found that public defenders are immune for legal malpractice liability under the doctrine of discretionary functions.   You can read the opinion here.   The court summarized its conclusion as follows:
As public defenders, Perry and Flottman are entitled to official immunity because they are public employees whose official statutory duties concern the performance of discretionary acts. . . . One need not be a public official engaged in the essence of governing to be entitled to official immunity; such immunity extends to protect public employees from liability for alleged acts of negligence committed during the course of performing discretionary acts requiring exercise of a degree of reason and judgment. There is no dispute Perry and Flottman were acting pursuant to their constitutionally and statutorily mandated duties in representing Laughlin, and . . .  choosing which defenses to raise and which arguments to pursue on appeal on behalf of indigent clients constitutes a discretionary act entitled to official immunity.

Saturday, July 4, 2020

NY may soon require training in "cyber security" as part of CLE

As you probably know already, many jurisdictions have adopted the ABA Model Rule's view that knowledge or understanding of technology should be an element of the duty of competence under rule 1.1.

Also Florida and North Carolina currently require mandatory CLE on issues of technology.  Florida was the first state to do so (in 2016) (see here). 

I am writing about this today to let you know that the New York State Bar Association has approved a committee report that recommends amending the mandatory continuing legal education rule to require one credit in cybersecurity.

LawSites has the story here.

Thursday, July 2, 2020

What is the proper sanction?

In class, we often discuss whether the cases we read resulted in a proper sanction and we also discuss how inconsistent courts often are when imposing sanctions.  A new case reported by the Legal Profession Blog caught my eye that illustrates the issue.

In this case, the court imposed a suspension of no less than three years for numerous and varied acts of misconduct that included "engaging in a pattern of incompetent representation, neglect, failure to communicate with clients, and failure to return unearned fees; failing to properly supervise a non-lawyer assistant and take reasonable steps to prevent the known misconduct of this assistant that resulted in the theft of client funds; failing to safeguard client funds and maintain all trust-account related records; representing a client with a conflict of interest; and failing to cooperate in multiple disciplinary investigations."  In addition, there were multiple aggravating factors and no mitigating factors.  The overwhelming majority of the 24 clients harmed by the lawyer's misconduct were immigrants facing immigration proceedings who made significant sacrifices to save the necessary funds to retain him and for most of whom the lawyer performed nominal or no work.

A dissenting judge argued the conduct deserved disbarment.


Pennsylvania adopts a modified version of Model Rule 8.4(g)

About a month ago, the Pennsylvania Supreme Court issued an Order adopting a modified version of ABA Model Rule 8.4(g). The new rule makes it professional misconduct for a lawyer to “by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination” against anyone.

Pennsylvania had been trying to figure out what to do about this rule since 2016.  First it rejected it entirely, opting for a different approach.  I wrote about that decision here. But then they changed their minds, I guess, and considered other proposals.  One proposal expressed some concerns about the rule's possible violation of the First Amendment, but evidently that concern was abandoned at some point before the recent adoption of the new rule.  In fact, it is remarkable that the text of the rule would say "by words" where the most important debate about the Model Rule is whether it regulates speech in violation of the First Amendment. 

You can read the new rule here; and for a comment tracing the trajectory of the issue in Pennsylvania and a critique of the adopted rule, go here.  The conclusion:  "In many regards, the April 2019 proposal is worse than the May 2018 proposal. The earlier version showed some concerns about the First Amendment. The adopted version threw those cautions to this wind.  This rule can be used to censor protected speech, and worse, will chill attorneys who seek to engage in protected speech."