Fifth Circuit issues opinion on constitutionality of advertising rules

The Court of Appeals for the Fifth Circuit has issued an opinon (available here) on the constitutionality of lawyer advertising rules in Louisiana. Here is a list of the rules that were challenged on appeal:

Rule 7.2(c)(1)(D) prohibiting communications that “contain[] a reference or testimonial to past successes or results obtained, except as allowed in the Rule regulating information about a lawyer’s services provided upon request;”

Rule 7.2(c)(1)(E) prohibiting communications that “promise[] results;”

Rule 7.2(c)(1)(I) prohibiting communications that “include[] a portrayal of a client by a non-client without disclaimer of such, as required by Rule 7.2(c)(10), or the depiction of any events or scenes or pictures that are not actual or authentic without disclaimer of such, as required by Rule 7.2(c)(10);”

Rule 7.2(c)(1)(J) prohibiting communications that “include[] the portrayal of a judge or a jury;”

Rule 7.2(c)(1)(L) prohibiting communications that “utilize[] a nickname, moniker, motto or trade name that states or implies an ability to obtain results in a matter;”

Rule 7.2(c)(10) requiring “[a]ny words or statements required by these Rules to appear in an advertisement or unsolicited written communication must be clearly legible if written or intelligible if spoken aloud. All disclosures and disclaimers required by these Rules shall be clear and conspicuous. Written disclosures and disclaimers shall use a print size at least as large as the largest print size used in the advertisement or unsolicited written communication, and, if televised or displayed electronically, shall be displayed for a sufficient time to enable the viewer to easily see and read the disclosure or disclaimer. Spoken disclosures and disclaimers shall be plainly audible and spoken at the same or slower rate of speed as the other spoken content of the advertisement. All disclosures and disclaimers used in advertisements that are televised or displayed electronically shall be both spoken aloud and written legibly.”

Thanks to the Legal Ethics Forum for the update and links.

Supreme Court Update

Prof. Renee Newman Knake has posted an update on the Supreme Court's 2010 term cases on the law of lawyering here. She provides links to the opinions of the the cases that have been decided already and links to more information on those that are pending. For all relevant documents, including briefs and lower court opinion on all the cases you can go to the ScotUS blog here (where you can use the search function or click on "case files").

Article on ethical issues regarding use of "social media"

The most recent edition of the ABA Journal has an article on ethical issues regarding the use of social media. You can read it online by going here.

How not to practice law: pretend to be a doctor

Popular New York blogger Eric Turkewitz brings us an interesting story of a lawyer in a workers' compensation case who tried to play doctor in one of his cases. See here. In this case, a worker suffered an accident and his leg needed to be amputated. In order to defend against a claim, the lawyer for the defendant argued that the amputation was "elective." What is impressive is that the lawyer did this by filing an affidavit in which the lawyer, not a doctor or medical expert, argued under oath the amputation was not necessary. As the court explained, the affidavit "lacked any competent medical evidence and contained only unsupported allegations in an attempt to create issues of fact."

How not to practice law: try to influence a judge

The St Louis Post Dispatch is reporting (here) that a prosecutor has been reprimanded for causing a mistrial in a case he was not involved. He caused the mistrial by sending the judge in the case a note that stated "Judge, you need to convict this guy. I'll explain later." The judge did not appreciate it. He declared a mistrial and reported the prosecutor to the disciplinary authorities.

Can the state disbar an attorney who was not admitted to practice in the first place?

The Legal Profession Blog is reporting today that the Maryland Court of Appeals disbarred an attorney who had never been admitted in that jurisdiction.

This may sound a bit odd -after all, what authority or "jurisdiction" can a state have over someone who was never admitted? - but I don't think it is that uncommon to hear about states imposing discipline on attorneys who are not admitted in the state. This happens, of course, when a person is trying to practice law in a state without a license. But it does raise an interesting question, assuming the state has, in addition, to the rules of conduct, a specific statute that makes it illegal to practice law without a license, why bother imposing sanctions?

In the Maryland case, the court answers the question this way: "It is of no consequence that [the attorney] has never been admitted to the Maryland Bar." The order "operates as an immediate directive that [the attprney] 'promptly notify the disciplinary authority in each jurisdiction in which [she] is admitted to practice of the disciplinary sanction imposed by [this Court].'"

Dept of Justice Creates Professional Misconduct Review Unit

Long time readers of this blog may remember that I argued that the number one professional responsibility story of 2009 (and to a certain extent 2010 also) was prosecutorial misconduct. There seemed to be an unusually high number of important cases and news accounts of prosecutorial misconduct during the past year and a half. As a consequence, early in 2010 the Federal Dept. of Justice issued some guidance memos for all federal prosecutors regarding their obligations when it comes to sharing information with criminal defense lawyers. Go here for my old posts on this and here for all my posts on prosecutorial misconduct.

Continuing the U.S. Justice Department's efforts, Attorney General Eric Holder announced today the creation of a team of lawyers that will review cases of attorney misconduct. The Professional Misconduct Review Unit will examine misconduct findings made by the department's Office of Professional Responsibility. Holder said the new unit will be responsible for all disciplinary and state bar referral actions tied to OPR findings of professional misconduct.

Go here for the full story.

Not everyone agrees this development is good news, though. Over at the Legal Ethics Forum, Professor Stephen Gillers argues: "I see the change as making discipline harder by introducing an additional layer of (veto power) review above OPR. The change does centralize reporting of serious misconduct, which is good, but the rest of it is not good. Why not just strengthen OPR and give it the same referral authority to state disciplinary bodies? Indeed, why not bring an independent voice into OPR, perhaps removing the AG's authority? Further, the new unit cannot review an OPR finding of no intentional or reckless misconduct, only findings that there was such misconduct. So a weak OPR can block state reporting. And when OPR find intentional wrongdoing, the new unit can override that decision."

Go here to see the full discussion at the Legal Ethics Forum.

Why are lawyers who are convicted of tax evasion treated more leniently than lawyers who steal?

I have often discussed my concerns regarding inconsistencies in sanctions imposed for different types of conduct and for the same conduct among different jurisdictions (go here and scroll down for examples). When I discuss this issue during the first week of classes, I sometimes assign a case of a lawyer who was convicted of tax evasion and a case of a lawyer who was found to have misappropriated client funds. The lawyer convicted of tax evasion was treated much more leniently.

Over at the Legal Ethics Forum, Prof. Stephen Gillers is asking why this is the case. Go here to read his comment and the responses to it.

New NY Times article on litigation lending

As I reported a couple of days ago, last November the New York Times published an article (available here) on entities that lend money to litigants in exchange for an assignment of an amount of the potential proceeds of the litigants' legal action. The article generated an interesting discussion. Go here for links.

Today, the New York Times published a new article on the issue (available here). It states, in part,

The business of lending to plaintiffs arose over the last decade, part of a trend in which banks, hedge funds and private investors are putting money into other people’s lawsuits. But the industry, which now lends plaintiffs more than $100 million a year, remains unregulated in most states, free to ignore laws that protect people who borrow from most other kinds of lenders. Unrestrained by laws that cap interest rates, the rates charged by lawsuit lenders often exceed 100 percent a year, according to a review by The New York Times and the Center for Public Integrity. Furthermore, companies are not required to provide clear and complete pricing information — and the details they do give are often misleading. A growing number of lawyers, judges and regulators say that the regulatory vacuum is allowing lawsuit lenders to siphon away too much of the money won by plaintiffs.

Unfortunately, as I reported a couple of days ago, the Illinois legislature defeated a proposal to regulate the industry. See here.

For a comment on today's NYT article go to Legal Ethics Forum, where Prof. Stephen Gillers argues that "[m]issing from the article is recognition that that today, without LFCs, we still have an unregulated market in which the needy plaintiff can sell her claim at a discount. It is called settlement and the claim can only be sold to one buyer, the defendant, who will also want a big discount, bigger if the plaintiff is especially in need." For his full comment and replies by others go here.

Conflicts of interest in handling of the Gulf Coast Claims Fund?

There is a debate brewing related to the Gulf Coast Claims Facility, administered by Ken Feinberg. Mr. Feinberg’s firm, Feinberg Rozen, is being paid $850,000 a month by BP to settle claims against BP and then release BP from liability BP. Several blogs, organizations and articles have argued that Feinberg is acting under a conflict of interest.

For example, here is a letter by the Center for Justice and Democracy to the Attorney Generals of Alabama, Louisiana, Florida, Mississippi and Texas arguing that "these conflicts of interest raise urgent concerns about the integrity of the GCCF process and require a thorough and immediate investigation before individuals and businesses are pressured into accepting final settlements and permanently signing away their rights."

For more on the issue go here, here, and here. Finally, for some comments on the subject by professional reposonsibility scholars go to the Legal Ethics Forum.

Illinois legislature rejects proposal to regulate litigation financing companies

Last November, I reported that the Illinois legislature was set to discuss Senate Bill 3322 which attempted to regulate entities that lend money to litigants in exchange for an assignment of an amount of the potential proceeds of the litigants' legal action. This coinicided with an article on the subject in the New York Times (See here.) and an interesting discussion of the legal and ethical issues that relate to the litigation loan industry in Room for Debate, the Legal Ethics Forum and The Wall Street Journal Law Blog.

The proposed legislation in Illinois was defeated today, though. The Chicago Daily Bulletin is reporting that Senate Bill 3322 failed to get the support it needed to make it out of this year's veto session. Rep. Louis I. Lang is quoted as saying that the funding entities now "will be able to charge 1,000 percent interest. They can do anything they want. No consumer protections at all."

The civil litigation funding industry has been providing its services in Illinois for more than a decade without regulation. Here are the highlights of the failed proposed legislation

-- legal funding companies would be required to be licensed by, and to give annual reports to, the Illinois Department of Financial and Professional Regulation

-- lenders would be required to provide plaintiffs with a detailed contract and a five-day window to cancel their contract

-- there would be criminal and civil penalties for individuals who engage in the business of legal funding without a license.

-- the interest rate on loans would be capped. Illinois would have been the first state to enact such a cap.

According to the article, it is unlikely the proposal will be presented again.

ABA Supports Right to Counsel for Civil Contempt Defendants

Back in November I reported that the Supreme Court had granted cert on a case called Turner v. Price which asks whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that can result in his incarceration.

Today, the ABA Journal.com is reporting that the ABA has filed an amicus brief in the case in which it argues that poor people should have the right to a lawyer in civil contempt proceedings carrying a threat of jail time. Go here for the full story. Go to SCOTUS blog for links to the brief and all other documents related to the case, including the lower court's opinion.

"E-discovery" has resulted in unprecedented number of sanctions

The Wall Street Journal law blog is reporting today that according to a new study done by King & Spalding and reported in the Duke Law Journal, lawyers are getting sanctioned for electronic-discovery violations at an unprecedented rate. Click here for the study; here for the ABA Journal article report; here for a report from the Catalyst E-Discovery Blog.

Top Ten stories of 2010

The Legal Ethics Forum has posted its "top ten stories of 2010" list here, with links to the lists from past years also. Here are the headlines, but go to their post for the details and links to more information.

1. Congress, the Supreme Court, the First Amendment, and Lawyering.

2. Padilla v. Kentucky.

3. Resolution of the Torture Memos Discpline.

4. The Internet and Lawyering.

5. Advertising and Free Speech.

6. The Clinics Strike Back.

7. New Rules for the Golden State?

8. The Continuing Battle Over Funding of Public Defenders.

9. Litigation Funding.

10. The BP Oil Spill.

Information given to someone thought to be an attorney not in good standing is still privileged

Back in June of last year, I wrote about a case in which a federal court magistrate in New York has decided that information shared with someone the client mistakenly thought was a licensed lawyer was not protected by the attorney/client privilege. See here and here.

I criticized the decision arguing that if the client really did not know of the attorney's inactive status, the client should be given the benefit of the privilege.

Yesterday, the Legal Ethics Forum reported that the decision has been overturned. See here.

The text of the opinion is available here.

The Supreme Court grants two cases on ineffective assistance of counsel

The Supreme Court announced today it has granted review in two cases, which involve issues related to the notion of ineffective assistance of counsel. Interestingly, though, the cases will be heard separately. The Court will be deciding whether an individual who rejects a plea offer from prosecutors because of his or her lawyer's advice has a claim for ineffective legal assistance if that advice was either flawed or produced a less favorable outcome than if the individual had gone to trial. Moreover, the Court told counsel in both cases to brief and argue an additional question: “What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?” The cases are called Leflar v. Cooper (10-209) and Missouri v. Frye (10-444). (The links over the names of the cases will take you to the SCOTUSblog page with all the case documents, briefs and opinions.)

New lawyer TV show: Harry's Law

Back in June of last year I posted a preview of three new law related TV shows that were announced for the fall season. One of them (Outlaw) was cancelled after three or four episodes. Thankfully, I may add! It was absolutely terrible. Another one (The Defenders) became my favorite. I have blogged comments on several episodes.

The third one (Harry's Law) did not make it into the fall TV season at all. I was wondering if, having seen the failure of Outlaw, the network had decided to can it even before it got started. But, no, it was only postponed.

I just heard Harry's Law will premiere on January 17. Here is the program's official website. Here is a link to some video previews of the show.

Podcast on e-discovery

Here is a link to a podcast in which the panelists discuss ethical issues in e-discovery including what they believe to be the most common ethical violations in e-discovery and ways to ensure that attorneys comply with their ethical duties with respect to e-discovery. You can also access the program here and here:

Story regarding insurance companies

In class we spend a good deal of time talking about the so-called "insurance triangle," which refers to the issues that arise when a lawyer is paid by an insurance company to represent the insured. Although not really on this topic precisely, here is a link to an interesting story in the product liability defendants oriented blog Drug and Device law blog on how an insurance company's tactics can threaten to turn discovery into a road map for the underlying tort claimants. It concludes that "it is unfortunate – and even more unfortunate that it is hardly unexpected – that some insurance companies engage in tactics that can prejudice their insureds to avoid covering claims."