Wednesday, August 26, 2015

Does defense counsel have a duty to provide evidence, originally produced by the prosecutor, to the prosecutor because the prosecutor lost the original?

Last week I read a story in the ABA and I wonder what everyone thinks.  Here are the facts, in a nutshell:

Prosecutor gives defense counsel a copy of a video that supports the prosecution's case.  Because of the video, Prosecutor has a strong case against defendant.  But later, somehow, Prosecutor loses the original of the video and asks the judge to order defense counsel to make a copy available to the prosecution so the prosecution can use it against the defendant.  Defense counsel did not want to provide the video (presumably arguing it was not her job to help the prosecution), and the judge replied counsel's conduct violated "the spirit of" the rule that forbids a lawyer to “unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.”

I am not so sure about this.  I think the spirit of that rule implies the person withholding the information has a duty to disclose it and that the other side does not know it exists.

What do you think?  Should the judge grant the request?  Does defense counsel have an obligation to produce the video, thus helping the prosecution build the case against his or her own client?

Here is the link to the story.

Sunday, August 23, 2015

Is it improper to post bail for a client? Alaska Bar Association says not always.

According to the rules in most jurisdictions (based on Model Rule 1.8), it is improper for attorneys to provide financial assistance to clients in litigation other than providing advances on litigation costs.  Is posting bail the equivalent of financial assistance or the equivalent of litigation costs? 

I think bail should not be considered a "litigation cost" and that, therefore, it would be improper for an attorney to post bail for a client.  As explained in a recent ethics opinion from the Alaska Bar Association, "[p]osting bail for a client imposes on the lawyer both contractual and financial constraints which could give rise to a situation in which the lawyer’s interests are materially adverse to the client’s, particularly if the client fails to comply with his or her conditions of release."  Thus, by posting bail, the attorney would be creating a conflict of interest.

However, the same ethics opinion goes on to state that in rare circumstances, attorneys should be allowed to post bail.  The opinion does not go into what those rare circumstances might be other than stating that "a lawyer may post bail for a client where the amount of bail is insignificant enough to not create a material limitation on the lawyer’s ability to represent the client."

I understand the sentiment, but personally I would prefer a more bright line rule. If you think about it, the question presented was whether posting bail creates an impermissible conflict.  In the end, what the opinion seems to say is that posting bail generally creates a conflict, but if it is not an impermissible conflict then it is okay.  This means that when the question arises someone will still have to determine if the conduct creates an impermissible conflict. 

You can read the full opinion (which is very short) here or in the Legal Profession Blog.

Wednesday, August 19, 2015

Florida Bar rejects an opinion of its Advertising committee and rules that texting is an acceptable form of advertising

Back in May I reported that the Florida Bar Committee on Advertising had found that a law firm’s proposed texting campaign was impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients.

Just a few days ago, however, it was reported that the Bar Board of Governors rejected the opinion and held that, because text messaging is more like targeted mail than in person solicitation, the law firm can send texts to prospective clients as long as the messages comply with the Bar rules on written and email communications.

The report states that the law firm will keep a record of the texts’ content and who received them, and will work with cell phone service providers to ensure that the firm pays for the text if that is something the recipient would pay for under the recipient’s mobile phone plan, but it is not clear whether these practices are now required for any lawyer seeking to use texting as a form of solicitation.

With this decision, Florida joins Ohio in holding that attorneys have the right to use texting to solicit clients, subject to limited regulation by the state.

UPDATE Sept 3, 2015:  The ABA has more here.

Court of Appeals for the 5th Circuit blasts prosecutors and affirms order for new trial

Back in September of 2013, I reported that U.S. District Judge Kurt Engelhardt ordered a new trial for officers accused of deadly shootings at the Danziger Bridge after Hurricane Katrina and the subsequent cover-up describing the conduct of Justice Department lawyers as “grotesque.”  See here.

Now comes news that the Court of Appeals for the Fifth Circuit has affirmed the order, echoing the sentiment about the misconduct by prosecutors.  The opinion states that
The government makes no attempt to justify the prosecutors’ ethical lapses, which the court described as having created an “online 21st century carnival atmosphere.” Not only that, but the government inadequately investigated and substantially delayed the ferreting out of information about its in-house contributors to the anonymous postings. The district court also found that cooperating defendants called to testify by the government lied, an FBI agent overstepped, defense witnesses were intimidated from testifying, and inexplicably gross sentencing disparities resulted from the government’s plea bargains and charging practices.

Like the district court, we are well aware of our duty normally to affirm convictions that are tainted only by harmless error. In this extraordinary case, however, harmless error cannot even be evaluated because the full consequences of the federal prosecutors’ misconduct remain uncertain after less-than-definitive DOJ internal investigations. The trial, in any event, was permeated by the cumulative effect of the additional irregularities found by the district court. We conclude that the grant of a new trial was not an abuse of the district court’s discretion.
You can read the full opinion is available here.

Thanks to the Legal Ethics Forum for the update.

Monday, August 17, 2015

Judges behaving badly

Prof. Ronald Rotunda's most recent column at Verdict ( discusses instances of judges behaving badly and embarrassing the courts.

If you haven't seen them already, you may also want to look at his recent columns on moral turpitude, lying during negotiations and on "a most unusual disqualification case."

Short article on competence and technology

As you probably know by now, the ABA Model Rules and the rules in many jurisdictions have been amended to include a comment related to competence as it relates to modern technology.  Paragraph 8 of the comment to Model Rule 1.1 states 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 adoption of this language in the comment of the Model Rule, generated a good deal of literature and debate.  I have posted a number of comments and podcasts on the subject (from oldest to the most recent: here, here, here, here, here and here.

Now here is the latest one.  IP Ethics and Insights has a short article on "technical competence" covering e-discovery, social media, and cloud computing. 

Tuesday, August 11, 2015

ABA considers adding anti-bias rule; is it a form of regulating "offensive" speech? Meanwhile, in New York, lawyer gets suspended for expressing offensive speech

Model Rule 8.4(d) (and most, if not all, its state equivalents) considers misconduct to engage in conduct that prejudicial to the administration of justice.  In addition, paragraph 3 of the comment to Model Rule 8.4 states that "[a] lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d)..."

This is an odd comment.  It does not say that expressing bias or prejudice while representing a client is prejudicial to the administration of justice (and thus could subject the lawyer to possible discipline).  It only states that if engaging in that conduct is against the administration of justice then the lawyer violates the ban against conduct that is against the administration of justice.  In other words, the comment really does not add much to the rule.

For this reason, the ABA Standing Committee on Ethics and Professional Responsibility is considering an amendment to the Rule itself.  The proposed amendment (and other materials in support of the proposal) are available here.  The new Rule 8.4(g) would state that it is misconduct to "knowingly harass or discriminate" against persons on the basis of the factors currently listed in the comment.

One concern over adopting "anti-bias" rules is that if the rule is not drafted carefully it may be subject to attack for regulating constitutionally protected speech, even if the state can, and already does, regulate attorneys' speech in other contexts.

Take for example a recent case in New York in which a lawyer was suspended for, among other things, having made “patently offensive racial, ethnic, homophobic, sexist, and other derogatory remarks to attorneys.”   The case is Matter of Teague and it is available here.

The opinion does not really explain the context of the statements other than saying they were uttered "to attorneys." The court suggests that the attorney in question "spewed racist, sexist, homophobic and offensive epithets against other attorneys that any reasonable person, let alone a reasonable attorney, would know are simply unacceptable in public discourse," but it is not clear, when or where, those epithets were uttered.  For example, it is not clear whether the comments were made during a legal proceeding, or during private conversations.

The court concluded that "Respondent’s conduct should not and will not be tolerated."  This conclusion is fine as to the other "conduct" involved in the case (disruptive conduct in hearings) but not necessarily as to the content of the attorney's speech.

Would it be permissible for the state to discipline a lawyer for expressing bias at a social event?  during conversation with a stranger at a bar? during a political rally?  Would it be permissible for a state to discipline an attorney because the attorney is a member of a group that expresses bias against others? or a member of a church that expresses bias against women or other religious groups? 

The broad language used by the court in New York suggests an attorney could be disciplined for offensive language regardless of context.  I am not sure that result would be valid.

Smartly, the proposed language for a new Model Rule 8.4(g) attempts to avoid the problem by trying to limit the rule to "conduct" (as opposed to speech).   However, by using the word "harass," the rule leaves open the possibility of its application to speech.

Other jurisdictions have already adopted anti bias rules. As discussed in the Legal Ethics Forum,  Indiana Rule 8.4(g) states that it is misconduct to "engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors..."

Note how this rule applies to pure speech but limits its applicability to a lawyer's professional capacity. 

In contrast, Illinois Rule 8.4(g) holds it is misconduct to violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer.

This rule limits its application to conduct that constitutes a violation of the law and that reflects adversely on the lawyer's fitness to practice law.

Are these good, or valid, ways to compromise?

Thursday, August 6, 2015

Short article on issues related to unauthorized practice of law claims against non lawyer providers of legal services

If I had to pick what is the "hottest" issue in professional responsibility today, I would say it is a collection of issues all related to the notion of unauthorized practice of law, and the "threat" of competition from non lawyers in the provision of legal services.  This includes issues related to DIY legal services, such as those provides by LegalZoom and others, the regulation of non lawyers to provide legal services, artificial intelligence, and so on.  It is no accident that the ABA recently created a commission on the future of the practice of law to study these types of questions.

This is why a recently published comment in the NY Legal Ethics Reporter is so relevant.  It is called Virtually Unclear: Will Legal Tech Companies Bridge Justice Gap or Fall into UPL Abyss? and you can read it here.

Second Circuit on what constitutes "the practice of law" and its implications for issues related to unauthorized practice and more (including artificial intelligence)

The United States Court of Appeals for the Second Circuit recently issued an opinion in an interesting case with important implications for the definition of what it constitutes to practice law, which in turn is important to the broader debates on who can practice law, whether lawyers can practice in jurisdictions where they are not admitted and whether companies that provide legal services by non lawyers are practicing law illegally.

The case involved a lawyer who was hired to conduct document review by a law firm.  The lawyer was licensed in California but not in North Carolina where the document review would take place.  The lawyer, who typically worked 45-55 hours per week, sued because he was not paid overtime as required by the Fair Labor Standards Act.  However, because the FLSA does not apply to the “practice of law,” the court had to determine if he was engaged in the practice of law or was merely performing clerical or other ministerial tasks.

The court held the lawyer was not engaged in the practice of law under the circumstances, which raises the question of whether we can agree on a definition for what constitutes the practice of law.

The best discussion of the case and it implications I have seen is at the Faculty Lounge, here, and it is worth reading (including the comments).  You can read the opinion itself here.

The Legal Profession Blog has a summary here and Above the Law has a short comment here.

What does this have to do with "artificial intelligence," the subject of my two previous posts today?   Two things:  1.  part of the reasoning by the court was based on the argument that what the lawyer was doing could be performed by a machine, implying it did not require any independent professional judgment.  Whether that is true or convincing remains a matter of debate, but that was part of the reasoning.  2.  to the extent that work usually performed by lawyers can be done by a machine, then companies that provide those services either by machines or non lawyers can defend against accusations of violating rules or statutes against the unauthorized practice of law.

Another post on Artificial Intelligence

The Law Technology Today blog has just posted a panel discussion on artificial intelligence (the subject of my most recent post, below).  In it, the panelists discuss five questions about AI and lawyers.  You can read the roundtable discussion here.

Podcast on lawyers and articificial intelligence

Have you seen the newest commercial for LegalZoom in which lawyers say "I am definitely not a robot!"?   This line is a reference to recent debates as to whether lawyers can (or will be) replaced by robots or computers in the future.

Interestingly, some lawyers have been replaced by computers already by a computer program that allows parties to resolve disputes without the need for lawyers, mediators or arbitrators.  But I don't think we need to worry about all lawyers being replaced ....yet, at least.

 In a recent episode of The Kennedy-Mighell Report, the hosts discuss issues related to artificial intelligence and lawyers, try to eparate myth from reality, and ponder whether AI can take over the work of lawyers. They discuss the definition of AI, robotics, Technology Assisted Review, driverless cars, document assembly software, LegalZoom and how lawyers are assisted or threatened by these technologies.

You can access the podcast by clicking on the play button below.  If you don't see the button below, you can go here.