Wednesday, January 30, 2013

How not to practice law: represent yourself in a disciplinary hearing when you have faced discipline four times in the past

I found this headline at the Legal Profession blog very interesting:  "Self-Representation In Bar Discipline Case Is Evidence Of Incompetence."  Go here for the full story.

The Wisconsin Supreme Court ended up disbarring the attorney stating that the fact the lawyer has had so many disciplinary problems "indicate[s] a failure to grasp or adhere to the standards that are required of attorneys practicing in this state and a lack of remorse for his prior ethical violations" and that his self-representation knowing his license was at stake was essentially incompetent.

What are the consequences of the amendment to the comment to Model Rule 1.1?

Last August, the ABA amended the comment to Model Rule 1.1 to extend the notion of competence to include knowledge about "technology."  Specifically, the new comment states, in part, that "[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology..." 

The comment does not define or explain the concept of "technology" leaving much to interpretation.  However, the history of the debates within, and the proposals of, the Commission 20/20 which suggested the amendments does provide some guidance. At the very least, the initial concern related to the possibility that attorneys were risking disclosing confidential information by mistake because of their lack of understanding of how computer programs work (particularly how they create and store data and metadata).  (For previous posts on that subject go here and here or search in the internet/social media section of the blog here.)

But "technology" is a much broader concept which means there can be serious implications to the application of the new comment.  For this reason it will be interesting to see how this new duty to be knowledgeable about computer programs and other technology is interpreted and applied.

One question that is now being debated is whether it would be incompetence not to use certain computer programs or social media.  This was the topic in a panel at a recent ABA Professional Responsibility conference and it is now the topic of an article published today in the Student Lawyer.

The article starts by stating:  "Most law students have been thoroughly warned about the dangers of social media, misuse of the Internet, importance of protecting online reputations, and so on. The message is don’t make anything available on the web that you would not want a potential employer to access.  But as a practicing lawyer, you may have an ethical responsibility to use the Internet and social media as tools to actually help you in your practice"  Go here to read the rest of the article.

New York issues opinion on duties to prospective clients

The Ethics Committee of the New York City Bar Association has just issued a very informative new ethics opinion on the duties owed to prospective clients under Rule 1.18. You can read the full opinion here. It is a very good summary of the issues that arise in cases involving prospective clients, especially those that relate to confidentiality and conflicts of interest. Here is a summary of the opinion:
Rule 1.18 codifies the established principle that New York lawyers owe duties to prospective clients even when no lawyer-client relationship ensues. These duties are determined by the nature of the information received from the prospective client and may restrict the lawyer‟s ability to use or reveal the information or to represent adverse parties in the same or a substantially related matter. While these duties may be significant, they are less restrictive than the comparable duties owed to former and current clients and permit the use of ethical screens to take on adverse representations.
Thanks to Nicole Hyland of the Legal Ethics Form for the link.

Tuesday, January 29, 2013

Tips for settlement talks

Injured has a short post with some common sense advice on settlement talks here.

Sunday, January 27, 2013

Tennessee Supreme Court considers new rules on advertising; FTC doesn't like them; I don't either

The Tennessee Supreme Court is considering proposals to amend the rules related to advertising but I find it difficult to believe most would withstand Constitutional scrutiny.  The proposals, among other things, would ban the use of actors playing the role of clients, prohibit ads narrated by well-known spokespeople, forbid certain background sounds and limit the images in ads to gavels, scales of justice, the Statue of Liberty, flags, eagles, courthouses, columns, law books or photos of attorneys.

I don't have a problem with requiring some form of disclaimer that says "actor" (or something like that) on the screen of a tv ad, but I don't think that any of the other proposals can be justified given the Supreme Court's cases on the issue.  As the Court has repeatedly held, the First Amendment prohibits the state from banning communications simply because they may be offensive to some or because they are delivered in a way that may be thought of as in poor taste.  If this ad is protected speech, then a tv ad narrated by well known actor certainly is.

Here is an example of what I mean: according to an article in the Blog of the Legal Times, the attorney who suggested the most restrictive rules has stated the new rules are needed because "some current and past lawyer advertisements rely on outrageous, misleading, and deceptive advertising techniques."

There are several problems with this "logic."  First, if the problem is that an ad is misleading, false or deceptive, there is no need for any new rules since, according to established Constitutional principles, misleading ads are not protected speech and the state can regulate them.  Second, if the problem is that an ad is "outrageous" - whatever that means - to have the state regulate the speaker for what this lawyer finds outrageous or offensive is contrary to established principles.

In other words, the argument simply has no basis in law or logic.

Interestingly, in response to the debate about the proposals, the Federal Trade Commission has issued a press release urging the Supreme Court of Tennessee to reject the new restrictions on attorney advertising, calling the proposed new rules unnecessarily broad and not in the best interest of consumers.

You can read the full report sent by the FTC to the Tennessee Supreme Court here, which concludes that the "FTC staff believes consumers receive the greatest benefit when reasonable restrictions on advertising are specifically and narrowly tailored to prevent unfair or deceptive claims while preserving competition and ensuring consumer access to truthful and non-misleading information. Ru1es that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services in Tennessee."

Tuesday, January 22, 2013

What is the most ridiculous case someone has asked you to file?

The ABA Journal has asked its readers about the most ridiculous cases they have encountered, and the readers have responded with pages worth of stories. You can read them here. It is an entertaining read and there are some good examples to discuss the issues related to the duty not to file frivolous claims.

Saturday, January 19, 2013

Friday, January 18, 2013

How not to practice law: help your boyfriend escape from prison and then post a photo of the two of you together on facebook just hours later

Continuing our long running list of really dumb things to do, this one could be one of my favorites:   The Legal Profession Blog is reporting today that an Oklahoma attorney has been allowed to resign her license after it was determined that she helped her boyfriend escape from prison.  As if that was not dumb enough, incredibly, she then proceeded to post a photo of the two of them together a few hours later on Facebook.  Go here, here and here.

Wednesday, January 16, 2013

What to keep in mind when using "social media"

Over at the Legal Ethics Forum, Nicole Hyland has posted a summary of remarks she is preparing to deliver at a conference on ethical issues related to the use of social media.  Her main theme is that
"there are four general ways that lawyers can get into trouble using social media.  First, they make a false distinction between their personal on-line interactions and their professional social media use.  Second, even when they have their lawyer "hats" on, they can run afoul of ethics rules, employment policies, or other rules.  Third, they misuse social media as an investigative or discovery tool.  Fourth, they fail to advise their clients adequately regarding their own use of social media"
Go here to read the article.

I would add a fifth possible problem, although it may be implied in all the ones mentioned above:  the most recent amendments to the model rules (and more than likely soon to be adopted by most states) added that knowledge about "technology" is part of the notion of competence under rule 1.1.  This means that lawyers are now expected to know about these things.  If they "get in trouble" because they did not really understand the possible risks involved in using social media, they could be held to be "incompetent" under the rule, which at least in theory could also be used as evidence of a breach of duty in tort.

Sunday, January 6, 2013

Famous lawyer F. Lee Bailey denied admission in Maine

As readers of the blog probably know by now, it was recently reported that F. Lee Bailey has been denied admission in Maine, where he now resides.  He passed the bar exam, but a divided (5 to 4) State of Maine Board of Bar Examiners held that he did not meet his burden of demonstrating by clear and convincing evidence that he possesses the requisite good character and fitness necessary for admission to the Maine Bar.  For more go to Otherwise and the Legal Profession Blog.

Missouri Supreme Court to review case of judge who had her clerks handle cases while she was on vacation

Back in June I posted a note about a report that a Judge in Missouri was under investigation for allegedly allowing her clerks to handle litigation matters as she vacationed in China last year. Go here for the story.  Since then, the State's Commission on Retirement, Removal and Discipline recommended the judge be removed from office and now the Missouri Supreme Court will review the case.  The ABA Journal has the latest here.

Friday, January 4, 2013

Top Stories of 2012 - Canada edition

Here is a list to the top stories in Legal Ethics in Canada for 2012, as compiled by friend of the blog Prof. Alice Wolley.

Thanks to John Steele and the Legal Ethics Forum for the link.