Tuesday, December 31, 2013

Happy New Year!

I have been gone for weeks for our winter break, but I wanted to take a moment away from all the vacation family fun to wish everyone a great new year!
Thank you for reading and supporting the blog. I will continue to do my best to keep up and bring you news and commentary in the new year.
Happy New Year!!

Monday, December 23, 2013

Florida law firm files suit challenging constitutionality of Florida Bar’s 2013 advertising rules

For some reason, the Florida Bar seems to be intent in imposing the most excessive restrictions on attorney advertising. This is not entirely surprising since this is the same Bar organization that initiated the litigation that resulted in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995), one of the worst attorney regulation decisions of all time, in which the Court validated regulation on speech because some might find it offensive.

Now comes news that a law firm has filed a law suit challenging the Florida Bar’s new effort to interpret a prohibition on “inherently misleading” statements to include a requirement that all communications by a lawyer be “objectively verifiable.” You can find a copy of the complaint here.  (via Legal Ethics Forum).

Max Kennerly has a comment on the lawsuit here. He argues that the Florida Bar's regulation bans lawyers from having opinions, saying "When I saw it, I had to double-check to see if it was a joke....[T]he Florida Bar precluded a law firm from posting on its blog remarks like, “[the days] when we could trust big corporations … are over,” “Government regulation of … consumer safety has been lackadaisical at best,” and “when it comes to ‘tort reform’ there is a single winner: the insurance industry,” because such statements of opinion are not “objectively verifiable.” Lawyer Ethics Alerts Blog also has a comment here.

I agree the regulation in question should be challenged.  As we all know, the state can (and should) regulate statements that are misleading or false.  But the fact that a statement is an opinion does not make it, by itself, misleading.  This is the basis of the Florida Bar's conclusion: that an opinion is, by its very nature, misleading.  And that, I suggest, is not only wrong but also misguided.  Prospective clients looking for an attorney would be better informed if they know the attorney's opinions on matters that concern the prospective client's interests.  I hope the challenge to the rules is successful.

Wednesday, December 11, 2013

Fellowships for study of professional ethics at Auschwitz

FASPE (Fellowships at Auschwitz for the Study of Professional Ethics) is now accepting applications for a fellowship that uses the conduct of lawyers and judges in Nazi Germany as a launching point for an intensive two-week early summer program about contemporary legal ethics. Applications from all law students, regardless of what field of law they are interested in, are sought. Fellowships include an all-expense paid trip from New York to Berlin, Krakow, and Auschwitz where students will work with leading faculty to explore both legal history and the ethical issues facing lawyers today. All program costs, including international and European travel, lodging, and food, are covered. The 2014 program for FASPE Law will run from May 25 to June 5. Completed applications must be received by January 6, 2014. Candidates of all religious, ethnic, and cultural backgrounds are encouraged to apply. To apply or to learn more about FASPE, please go here.  If you have any questions, please contact Thorin R. Tritter, Managing Director of FASPE, at ttritter@FASPE.info.

Friday, December 6, 2013

Please complete this survey, it may help suggest changes to the disciplinary process in Georgia

Clark D. Cunningham, the Director of the National Institute for Teaching Ethics & Professionalism (NIFTEP) and Professor of Law and Ethics at Georgia State University College of Law has asked me to post this message:
A case in Atlanta that has caught the attention of the media this week opens a brief window of opportunity during which it may be possible to get an initiative going to  strengthen Georgia’s attorney discipline procedures. I am thinking of writing a letter to our state bar’s Committee on Disciplinary Rules and Proceedings recommending a number of changes. I would like to have as much comparative information about other states as possible when I write that letter. I have developed a very short on-line survey that would take less than 5 minutes to complete if the person is familiar with their own state’s disciplinary system. As you can see on the form, I offer to share the results.  Here is the link:  www.surveymonkey.com/s/DisciplinarySurvey  

As you will see from the survey it appears that Georgia has some unique rules.  Clark is trying to gather information on whether other jurisdictions have similar rules.  I completed the survey and it really does take less than five minutes to do so. 

Wednesday, December 4, 2013

The worst lawyer commercial I have ever seen!

There is a controversy brewing over a commercial for a law firm that was posted on YouTube recently.  The company that produced it says it was contacted by someone claiming to work for the firm and that this person approved the commercial.  The firm argues its Facebook account was hacked and that it has asked the advertising company to take it off the web.  The ad company has refused.  For now, the ad is still available here.  It speaks for itself.

Soon after the ad was discovered, Above the Law criticized what it called “racist imagery.” The ad company protested and PopeHat then responded in very strong terms (calling the ad company person "a racist asshole").  Raw Story, Lowering the Bar, FindLaw and the ABA Journal also have stories on the controversy.

Tuesday, December 3, 2013

DC's strange concept of moral turpitude

In Washington DC if an attorney's conduct is found to involve "moral turpitude" disbarment is automatic.  The problem is that there is no clear definition of the concept of moral turpitude and the boards and courts continue to make very strange rulings on it.  For example, a few years ago the Board on Professional Responsibility concluded that a lawyer's conviction for murdering his wife did not establish moral turpitude (here), but this was later reversed.  Then there is the case of a lawyer who lied, cheated and stole property from a store for personal gain.  He was convicted for it, yet the DC Court of Appeals found that the conduct did not involve moral turpitude - even if it could be considered to be a "serious crime."  I wrote a long comment on that case here.  And finally, there is the case in which an attorney who was convicted of felony traveling for the purpose of engaging in sex with a minor was found not to have engaged in conduct involving moral turpitude. According to an account of the case, the attorney had made a 12-year-old boy his sex slave for six years and was convicted and sentenced to 15 years behind bars.  My comment on that one is here.

But not all is hope is lost.  While holding a child as a sex slave is not moral turpitude, it has been decided that tampering with a witness constitutes moral turpitude (here). And today comes news that a new opinion of the DC Court of Appeals has found that a conviction for obstruction of justice constitutes moral turpitude per se.  The Legal Profession blog has more on the case, including a comment on it from the Huffington Post here.

I guess I just don't understand the concept of moral turpitude.  It would seem to me that it has to mean something broader than interference with the judicial process, which seems to be what the DC decisions are limiting it to.

Is the title "the King of Torts" unethical, or illegal?

Over the years, a number of lawyers have been known as "the King of Torts."  Dickie Scruggs, Melvin Belli, Joe Jamail, among others have been awarded the title (whether by themselves, other lawyers or the media), but noone took it too seriously.

Obviously, the title is just a nickname... but, just for fun, consider this:  Over at the Abnormal Use blog I found a story that mentions something called the Titles of Nobility Act of 1810 (“TONA”), which reads, in part, as follows: "If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, ... such person shall cease to be a citizen of the United States ...."

According to the story, TONA was proposed as the 13th Amendment to the Constitution and approved by by both the Senate and the House in 1810 but was never ratified by three-fourths of the states.  However, some have argued that the amendment became law upon the discovery of Virginia’s apparent ratification in 1819.  For more on this, go here.

Sunday, December 1, 2013

New York starts program to provide public defenders for immigration proceedings

NPR is reporting that a new pilot program in New York City was launched earlier this month to provide public defenders to defendants facing deportation in immigration court (where the Constitution does not extend the right to court-appointed attorneys).  Go here for the story.

Thanks to the Legal Ethics Forum for the story.

New York City Bar issues report on the ethics of "cloud computing"

The question of whether it is ethical to use "the cloud" to store documents has generated a few ethics opinions.  I reported on the opinions from New Hampshire (here) and Florida (here).  Now, the NY City Bar Association has issued a new opinion.  Go here for the story and here for a copy of the report.

Thanks to the Legal Ethics Forum for the link.