Wednesday, April 22, 2015

Podcast on competence regarding technology

As I am sure you know by now, the comment to ABA Model Rule 1.1 on the duty of competence states that there is a duty to understand the "technology" that lawyers use in the practice of law.  To summarize what issues arise regarding this subject, the Legal Talk Network has posted a podcast interviewing Prof. Andrew Perlman (Suffolk).  Perlman discusses how the lawyer’s ethical duty of competence is evolving and what level of technological proficiency is reasonably expected today. He covers the most basic knowledge of Adobe Acrobat, Microsoft Word, and Microsoft Excel to automated document assembly and cybersecurity. You can access the podcast by pressing the play button below or by going here.

Monday, April 20, 2015

More on Better Call Saul

A few days ago I posted some links with information and comments about the TV series Better Call Saul (see here).   Now here is a podcast featuring Nicole Hyland, author of the blog The Legal Ethics of Better Call Saul.  Here is the official description of the program:

In this episode of Lawyer 2 Lawyer, host Bob Ambrogi interviews Nicole Hyland author of The Legal Ethics of Better Call Saul blog. Together they discuss the ethical blunders of Saul Goodman, why he’s so likeable, and whether ... he’s a good person. Tune in to hear how Saul’s questionable antics stack up against real life rules of professional conduct and how what’s technically legal isn’t always what’s right.

You can listen to the program by clicking on the play button below.  If you can't see the play, you can go to the Lawyer to Lawyer website here.

On the possibility of allowing legal professionals without JDs to provide limited legal services

A few days ago I posted a note about developments in Washington state's program to allow certified paralegals to provide certain limited legal services without attorney supervision.  However, I don't think I provided enough background on this very interesting issue.  So, here is a longer post with more information (which also incorporates the previous post).

While some jurisdictions are debating issues related on how to practice law, one of the more interesting debates that will likely become a national debate soon relates to who can practice law.

As is well known to anyone interested in professional responsibility issues, a large number of people don’t have access to legal representation even if there are enough lawyers to provide help. Not surprisingly, a number of companies have tapped into this need and created new forms to provide legal services.  This type of legal services help, however, is also limited.  Companies like LegalZoom, for example, can provide legal forms and instructions on how to create legal documents, but can’t provide lawyers to provide legal advice because of rules that ban relationships between lawyers and non lawyers.  And, even if it does not violate those rules, LegalZoom has been accused of practicing law illegally in some states.

In response to the issues, some jurisdictions have started what could be a significant shift in the way legal services are provided in the US by addressing who can provide them.  The leader has been the state of Washington which, in 2012, approved a plan to allow certified legal technicians (referred to as “Limited License Legal Technicians” or “LLLTs”) to provide limited legal services without the need of supervision by attorneys.  The program has attracted the attention of other states and of the ABA, whose commission on legal education has urged states to provide licenses to practitioners without a juris doctor to provide limited legal services. 

According to the rules adopted in Washington, the LLLT program will be supervised by a Board appointed by the Supreme Court of the state and the LLLTs will be required to take (and pass) a specific academic program, at least part of which will be taught by the state’s law schools.  Additionally, LLLTs will have to pass an exam designed to test their competence in the area of law in which they will be providing services.  As of now, that area of law is limited to family law, but it is quite possible the rules will be amended to open the practice to more topics. 

LLLTs will be allowed to help clients review and prepare legal documents and forms, and discuss legal procedure but will not be allowed to represent clients in those procedures or in negotiations with other parties.  You can take a look at the new Washington rules here.

Having, in essence, created a new legal profession, the Washington Supreme Court more recently took its initiative even further by announcing that lawyers can now share fees and even form partnertships with these new non-lawyer legal professionals.  This makes Washington the second jurisdiction, but the first state, to allow fee sharing and joint ownership of law firms.  The other jurisdiction that allows attorneys to share fees with non lawyers in limited cases is the District of Columbia.

The program is already considered the example to follow and it has been reported that California might be the next state to adopt a similar approach.  Likewise, a commission in Oregon has already submitted a proposal and the idea is being considered by commissions or other groups in Connecticut, Massachusetts Vermont and New York.
Although there are certain types of legal services that are probably better left for attorneys, I have no doubt that programs like the LLLT program in Washington are a good idea.  It may provide access to legal services to a large section of the population that may not have access to them now; and it may do so at a lower cost.  Some have compared the program to the now common practice of providing access to medical care by nurse practitioners in drug store walk-in clinics, which provides access to basic medical care at a lower cost.  Presumably, if we can rely on nurse practitioners to provide basic medical care, we can rely on certified legal professionals to provide limited legal services.

That is not to say, however, that there aren’t uncertainties.  It is not clear, for example, whether the required course of study will be enough to prepare the LLLTs to handle the client’s problems.  After all, it is not unusual for family law issues to be complicated with matters related to other areas of the law.  Also, given economic factors, and the fact that many lawyers are underemployed, it is not clear that the services will be provided at a significant discount.  These are all things that remain to be seen, and that, I am sure will be addressed as needed in the future. 

What should be clear at this point, though, is that in the near future there will be many changes that will affect both how the law is practiced and who can provide legal services.

Saturday, April 18, 2015

Puerto Rico considers adopting new Code of Ethics

Puerto Rico adopted its current Code of Ethics in 1970, but its content is essentially a copy of the  ABA Canons of 1908, with a few changes derived from the ABA Model Code and one amendment regarding advertising adopted in 1980.  For some reason, there has been very little interest in updating the Code since then.  Back in 1996, the Puerto Rico Bar Association created a commission to prepare a new code, which, in 2000, recommended that adoption of the ABA Model Rules.  Inexplicably, it wasn’t until 2005 that the Bar Association submitted the project and recommendation to the Puerto Rico Supreme Court and, even worse, it was not until 2013 that the Supreme Court considered the proposal.  Then, abruptly and without any explanation, the Court issued an order in December 2013 rejecting the proposal in full.

Surprisingly, however, in the same order, the Court announced that it would consider another proposal that had already been prepared by the Commonwealth’s Judicial Conference.  This was a surprise because there had been no announcement about this project until it was announced in the order.  In fact, to this day, it is not known who participated in the project or when it was prepared.  Yet, this new proposal is now being considered and may get approved by the Supreme Court this year.

The fact that there is a project on the table is a step in the right direction since the Code is long overdue for a complete revision.  Unfortunately, in my opinion, it is more of a misstep than anything else.  Instead of looking at the more modern sources of information about the regulation of the profession, the proposal copies material from a very strange combination of sources that includes, among many, the ABA Model Code and the Canons of 1908.  In the end, it is a very mixed result, with some sections that are up to date with new approaches to the subject matter and others that are already outdated.  Most surprising is the fact that the project has both canons (which are all aspirational) and rules (some of which are mandatory and some of which are permissive), which results in confusion over which sections are meant to be the basis of discipline.

In evaluating the structure and content of the project it would be helpful if we knew more about the deliberative process that resulted in the approval of the project, but the project does not include a legislative record or history with documentation that explains how any decisions about its content were reached.  Also, the project itself does not have any substantive comments that explain or help interpret the text. 

In sum, the Puerto Rico Supreme Court is considering a project with questionable content, that was prepared in secret and which does not provide background information, legislative history or comments that explain the reasoning behind the views and approaches it takes.  Given these deficiencies it is debatable if the project is better than the old Code that currently applies in the island.

Tuesday, April 14, 2015

Discussion of California proposed ethics opinion on e-discovery and the duty of competence

As you know by now, I am sure, the comment to Model Rule 1.1 on competence has been amended to state that the duty of competence includes the duty to be knowledgeable about "technology."   And that probably includes "e-discovery."

Enter California’s Proposed Formal Opinion 11-0004, a proposed opinion, not yet adopted by the rules committee, that discusses the issues that arise when an attorney who doesn’t know anything about e-discovery suddenly finds himself facing e-discovery problems that have crept into his case. It suggests that litigators should have minimal competence in e-discovery and may be violating their duty of competence if they do not either become competent or bring in someone who is competent.  Go here for a discussion of this important Opinion.

Sunday, April 12, 2015

DC Court finds that prosecutor's duty to disclose exculpatory evidence under Rules of Professional Conduct is broader than duty under Brady v Maryland

Back in 2012, I reported on a case from Washington DC called In re Kline in which the U.S. Justice Department and the D.C. Office of Bar Counsel argued for different interpretations of the District of Columbia's version of Rule 3.8 on "special responsibilities of prosecutors."  The rule states that prosecutors have a duty to timely disclose to the defense "all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."  This language originated in the ABA Model Rule which has been interpreted to mean that the duty under the rules of professional conduct is broader than the duty imposed by the constitutional standards in Brady v. Maryland.  (This was explained in ABA Formal Opinion 09-454).

However, not all jurisdictions agree with this interpretation.  I posted a note about this here, when the Wisconsin Supreme Court held in a disciplinary proceeding that prosecutors' ethical obligation to disclose exculpatory evidence is not broader than the constitutional standards that apply under Brady v. Maryland

The proper interpretation of the rule in Washington DC was unclear because, although the text of the rule followed the language of the ABA Model Rule, the comment to the DC rule says that the rule  "is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes and court rules of procedure."

Almost a year after my first post on the case, in August 2013, I reported that the District of Columbia Board on Professional Responsibility recommended a 30 day suspension for the prosecutor in In re Kline.  You can see that post here.

The case is now back in the news because the DC Court of Appeals has reversed the sanctions while clarifying the extent of the duty to disclose exculpatory evidence under the Rules of Professional Conduct.

The court held that the prosecutor violated ethical obligations of disclosure under Rule 3.8, but that it was not unreasonable for the prosecutor to believe that he did not have a duty to disclose because of the confusion created by the discrepancy in the rule and its comment.  For that reason, the court reversed the sanction, but then proceeded to clarify the extent of the duty.  In doing so, the court joined what appears to be the prevalent interpretation of the duty. You can read the opinion here.

For more on this case, you can check out The Legal Profession blog, the White Collar Crime Prof blog, and The Legal Ethics Forum.

Iowa Supreme Court rejects recommendation to disbar lawyer because of insufficient notice in the complaint; correct result?

The Legal Profession blog is reporting on a case from Iowa in which the Supreme Court refused to adopt a recommended sanction because according to the court, the attorney did not have sufficient notice of the possibility that he faced disbarment.  The court held that

The complaint only alleged he obtained retainers and did not deposit them into his trust account, even though the retainers had not been earned. [The lawyer] admitted, as required by the commission’s sanction, all the allegations in the complaint, but the possibility that he faced a revocation of his license to practice law was not raised until the conclusion of the hearing. . . .Under the circumstances, [the lawyer] did not have a fair opportunity to know the issue of theft was in play and to produce evidence to show he had a future colorable claim to the retainer.
I am with the Disciplinary Board that recommended disbarment on this one.  An allegation that the attorney "obtained retainers and did not deposit them into his trust account, even though the retainers had not been earned" is, by definition, an allegation of misappropriation and anyone who went to law school knows that misappropriation, if proven, is more than likely going to result in disbarment.  In short, if the accusation is for misappropriation, any lawyer knows that they are facing disbarment.  I would say that not knowing this is, in and of itself, incompetence.

So, I am willing to be convinced that I am wrong, but for now, I stand with the Board.  Granted, the complaint may have been drafted better, but I don't find the court's conclusion convincing.

Nevada Supreme Court sets out very specific rules for conduct during depositions

There are many cases out there discussing what constitutes improper conduct during depositions.  Many of them discuss conduct that any litigator will tell you is not uncommon, like running objections, personal attacks, frequent interruptions during questioning and so on.  Unfortunately, because the conduct is most often away from the court and not under the direct supervision of judges, the problems continue.  In a recent case, however, the Supreme Court of Nevada has set very specific rules of conduct for one common occurrence during depositions, holding that:
We hold that attorneys may confer with witnesses during requested recesses in depositions only to determine whether to assert a privilege. For the attorney-client privilege to apply to these conferences, however, counsel must state on the deposition record (1) the fact that a conference took place, (2) the subject of the conference, and (3) the result of the conference. In the instant case, we conclude that the communications between the witness and plaintiffs counsel during the break in the witness's deposition are discoverable because plaintiffs counsel requested the recess in the deposition and failed to make a sufficient, contemporaneous record of the privileged communications.
The case is called Coyote Springs Inv. v. Eighth Judicial District Court and you can find it here.

When Does Advice to a Client Violate an Attorney’s Ethical Obligations?

"Many attorneys have experienced situations in which a client has sought advice about proposed actions which “push the legal limit” or are even clearly illegal. How far—if at all—may attorneys go in assisting a client to engage in questionable activity?"

This is the introduction to an excellent short comment published in the most recent New York Legal Ethics Reporter.  Go here to read the full article.

Friday, April 10, 2015

Does an attorney violate Rule 4.4 by reading a document the attorney knows should not have been sent to the attorney, if the document was not sent inadvertently and if the attorney does not know who sent it?

The ABA Journal is reporting today that a New Jersey appeals court has ruled that a lawyer can’t continue to represent a medical malpractice plaintiff after reading hospital documents sent by an anonymous source.  The court held that the attorney's conduct violated Rule 4.4, which I don't find very convincing.

Here is the story in a nutshell:   New Jersey has something called the Patient Safety Act, which requires hospitals to report adverse events.  In order to "encourage health care workers to candidly disclose their observations and concerns, and promote self-critical evaluation by professional and administrative staff," the Act states that any documents generated as part of the process regulated by the Act will not be subject to discovery or be admissible as evidence or otherwise disclosed in any civil, criminal, or administrative action or proceeding.

As he was preparing his case on behalf of a medical malpractice plaintiff, the attorney for the plaintiff received an envelope that contained documents that appeared to have been prepared as part of the process regulated by the Act.  The envelope did not have any information about who sent the documents.  He read and kept the documents and did not disclose the fact that he had them to the defendant's lawyers until he disclosed he had them as part of discovery.  When the defendant found out the lawyer had the documents, it requested that the attorney for the plaintiff be disqualified (among other things). The court held that the attorney should be disqualified and the appeals court affirmed.

I understand that the lawyer was not supposed to have access to the document, and that the document would not be admissible in court.  But I am bothered by the court's interpretation that the lawyer's conduct was a violation of rule 4.4, which states that "[a] lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, properly notify the sender, and return the document to the sender."

This rule imposes more duties than the current Model Rule 4.4, which only requires that the attorney notify the sender, but I think both rules are based on the same underlying circumstances.  As the comment to Model Rule 4.4 makes clear, the rule is meant to apply when the document in question is sent by one of the parties in a case or one of their attorneys. 

In this case, however, the document was not sent by the defendant nor its attorney, and it is pretty clear it was not sent "inadvertently" either. Also, the duties imposed by the rule are to notify the sender and to return the document to the sender.  How is the lawyer to comply with these duties if the lawyer does not know who the sender is? 

My worry is that the rule could be interpreted too broadly to impose a duty (enforceable by disqualification) that is not what the rule is about.  What if the lawyer receives a smoking gun document from an unknown source, a whistleblower, as in Fisons?  Would the lawyer have a duty to not read the document and contact the other side, etc?  Should lawyers be disqualified any time they get anonymous information of this sort?

The case is Jablow v Wagner and you can read the opinion here.

Comments on withdrawal of attorney for police officer accused of murder in South Carolina

As I am sure you know by now, a few days ago a police officer shot and killed an unarmed man who ran away from the officer after being stopped for a broken tail light.  The officer has since been arrested and charged with murder.  At first, his lawyer declared that he believed that the officer had followed proper procedure. But he quickly withdrew his representation after the now widely broadcast video of the incident was made public. Eric Turkewitz, of the New York Personal Injury blog and several participants in the Legal Ethics Forum have comments on the attorney's withdrawal.  The general consensus seems to be that the lawyer's comments in "explaining" why he withdrew (something he did not have to do at all) comes close to disclosing confidential information.

Better Call Saul

For those of you who enjoyed (or just watched) the TV series Better Call Saul, here are a few links.

The Legal Ethics of Better Call Saul.
In this blog New York lawyer and Legal Ethics Forum contributor Nicole Hyland has been posting excellent comments on the ethical issues raised in every episode of the series.

KafkaEsq and Above the Law offer some thoughts on the series.

Washington State Supreme Court approves rules to allow lawyers to share fees with non lawyer legal technicians

While some jurisdictions are debating issues related on how to practice law, one of the more interesting debates that will likely become a national debate soon relates to who can practice law.

Washington state became the leader in this discussion when it approved rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians, or LLLTs) in 2012. 

Having, in essence, created a new legal profession, the Washington Supreme Court has now taken its initiative even further by announcing that lawyers can now share fees and even form partnertships with these new non-lawyer legal professionals.  This makes Washington the second jurisdiction, but the first state, to allow fee sharing and joint ownership of law firms.  The other jurisdiction that allows attorneys to share fees with non lawyers in limited cases is the District of Columbia.

You can take a look at the new Washington rules here.  For comments on the new rule allowing lawyers to share fees with non lawyers go to LawSites and Bloomberg law.

This is a major development for the future of legal services and it will surely not be the last.  I think more states will follow suit (several other states, including New York and California are working on similar proposals) and soon we will have a broader market for legal services that will include both lawyers and non lawyers.  For a comment on the future of the legal services profession you can read a good paper by Prof. Andrew Perlman (Suffolk) here

Sunday, April 5, 2015

Massachusetts Adopts Changes to Rules of Professional Conduct

The Legal Ethics Forum is reporting that Massachusetts has adopted a number of changes to the state's Rules of Professional Conduct most of which are designed to align the rules more closely with the ABA Model Rules.  Go here for the story and a link to the rules' changes.

Review of the anti-contact rules and doctrine

When can you contact people who are or were represented by counsel? The New York Legal Ethics Reporter has a good review of the doctrine here.

Texas lawyers protest suspension of prominent death row inmates' lawyer

I just read a recent story about about the suspension of a prominent capital defense attorneys by Texas’ Court of Criminal Appeals for filing a late petition in a death penalty case.  The author of the article argues that
"the sanction was doubly bonkers . . . because other death penalty lawyers never seem to be sanctioned for sleeping, drinking, or otherwise rendering themselves incompetent at trial. In any event, Dow was barred from appearing before the CCA for 12 months. Which means that his death row clients—whom he represents pro bono, and who may not find other lawyers to do so—literally have their lives on the line because a motion may or may not have been filed a few hours late. Or, as one lawyer quipped after the piece was posted: “Apparently Texas finally found one lawyer to be incompetent: the one who is actually good at his job.”
In response to the sanction, some 300 lawyers have filed a petition in the Texas Supreme Court seeking a declaratory judgment or, in the alternative, a writ of mandamus, overturning Dow's suspension.

Again, quoting from the article I just read,
The gist of the petition has to do with the case Dow was handling on appeal. His supporters say that if the original trial counsel had done the things he was supposed to do at the original trial (like, say, put on mitigating evidence; explain to the jury that his client was mentally ill; call even a single witness at punishment phase), Dow would not have needed to step in at the last minute to try to stay the execution. In our topsy-turvy capital defense universe, Dow is being sanctioned for trying to (quickly and with an execution date looming) do what defense counsel should have done in the first place.
I really don't know anything about this case or its background, so will let you read the full story and make up your own mind.  You can find the story here.

This is not the only story about a state going after successful capital punishment defense lawyers.  The Legal Profession blog has a similar recent story from North Carolina here.

Lawyer suspended for being drunk at a CLE program

The Legal Profession blog is reporting that a Virginia lawyer has been been suspended for six months and ordered to enroll in a two-year treatment and monitoring program for being intoxicated and disruptive at a Continuing Legal Education program last year. You can read more details on the story here.
I have seen cases of discipline for not complying with CLE requirements but I don't remember another case involving conduct during a CLE program.
Prof. Jonathan Turley has a comment on the case here.

Can lawyers lie during negotiations?

Can a lawyer lie during negotiations? 

The Comment to Model Rule 4.1 (Truthfulness in statements to others) states that the duty not to make false statements of material facts refers only to "statements of fact" and that under "generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact."  But what does that really mean?

To help us understand, Professor Ron Rotunda has published a short review of the issues here.