Wednesday, September 21, 2016

NYC Bar Ethics Committee issues opinion holding that prosecutors’ dutyto disclose is broader than the duty imposed by Brady v Maryland

As you probably know, there are differences of opinion as to whether the duty to disclose information imposed on prosecutors by ABA Model Rule 3.8 is broader than the duty imposed by the constitutional standards in Brady v. Maryland.  The ABA Standing Committee on Professional Responsibility held that it does in Formal Opinion 09-454, but a few jurisdictions have held otherwise.  I have written about this in the past here.  (And for all my posts on prosecutors' duty to disclose evidence go here.)

Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia.  Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana and Wisconsin.

Now comes news that the New York City bar's ethics committee has issued an opinion holding that a prosecutor's ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland.  See N.Y.C. Bar Ass'n Comm. on Prof'l Ethics, Op. 2016-3, 7/22/15.

Thanks to the ABA/BNA Lawyers' Manual on Professional Conduct for all the links. 

UPDATE 10-29-16:  Legal Ethics in Motion has a comment here.

Tuesday, September 20, 2016

Ohio Supreme Court adopts amendment to allow lawyers to advise clients in legal marijuana business

Just about a month ago, I reported that the Ohio board that oversees attorney conduct decided that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.  A few days later, I updated the story when it was reported that the Ohio Supreme Court would consider a draft amendment to the Ohio Rules of Professional Conduct to address the issue.

The Court not only prepared the draft, it just formally adopted the amendment. The amendment modifies Prof. Cond. R. 1.2(d)(2) by adding a new subsection, which reads:  “A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub.H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise the client regarding related federal law.”

Thanks to the Legal Profession blog for the update.

Saturday, September 17, 2016

Ohio Supreme Court issues divided opinion on whether disciplinary counsel can bring charges against an attorney after another disciplinary agency had already decided not to do so -- UPDATED

Ohio has two parallel disciplinary mechanisms:  the certified grievance committees of local bar associations and the state disciplinary counsel.  If the local disciplinary counsel decides not to prosecute a case, can disciplinary counsel prosecute anyway? 

Last week, the Ohio Supreme Court addressed that question for the first time in a case called In Disciplinary Counsel v. Kramer.  The Court split 4 to 3 and held that the state's disciplinary counsel can pursue a case against a lawyer even though another agency had already decided not to do so.  

In Kramer, a prosecutor was investigated by the Cleveland Metro Bar Association (CMBA) because of discrepancies in his time sheets.  The CMBA determined that, because Kramer had resigned, no further disciplinary action was warranted.  However, before the CMBA formally sent a letter dismissing the matter, Ohio disciplinary counsel received an anonymous complaint based on the same misconduct.  Kramer argued that the CMBA dismissal should be final, and that its decision should be given full faith and credit, but the Supreme Court closely split on whether the rules governing Ohio attorneys allowed the disciplinary counsel to pursue charges against Kramer under those circumstances.

The Legal Profession Blog has a good summary of the decision here.

Thanks to Patrick B. Cavanaugh, of Kitch Drutchas Wagner Valitutti & Sherbrook for sending me information on the case.

UPDATE 9-18-16: Mike Frisch of the Legal Profession blog has a comment on the case here.  His conclusion:  "I agree with the majority on policy grounds. If the Ohio rules of discipline accord quasi-double jeopardy status to grievance panel dismissals, the rules defeat the purpose of bar discipline - protection of the public from unethical lawyers."

Illinois decision provides good test for discussion of Constitutionality of new ABA Rule 8.4(g)

As I am sure you know by now, the ABA recently approved an amendment to Model Rule 8.4 to make it misconduct to use discriminatory or biased speech.  The amendment is now Model Rule 8.4(g) which you can find here.  Back in January I wrote a long comment on the original proposal, which was changed before it was approved last month.  The approved version improved some of the issues I had originally objected to, but I still have reservations about the approved language. My main concern is that the language seems to punish protected, even if offensive speech.  You can read my most recent comments on it here and here

In one of my comments I posed asked rhetorically whether the new rule could survive a Constitutional attack.  So to pursue the question with some real facts, here is a good example.

The Legal Profession blog is reporting that a recent Illinois Hearing Board report recommended sanctions on an attorney who, among other things, “used demeaning and insulting language” toward the father of a client.  The father, by the way, was supposed to pay for the client’s representation which courts in Illinois have found makes him a client too.  The report lists some of the statements in question as follows: 
You are a piece of garbage. All black people are alike. You're slovenly, ignorant. [...]

I'm sick of you, you piece of shit.

I don't know who's the biggest bitch. You or [___]. I'm going to lock you up.

Low class n#!*s. I'm going to have you all locked up. [...]

You are such a pussy. ...

You're ugly, low class, ignorant. I'll finish with you when he gets off. You're demeaning your son.

Help your son. Pay. Stop delaying case.
Given those statements, the attorney was charged with a violation of Illinois Rule 4.4, which states that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”

Personally, I don’t think that Rule 4.4 was meant to address this type of conduct; it is not meant to address the use of offensive speech directed at client.  It seems to me a better rule to use in a case like this would be the section of Illinois Rule 8.4(d) that talks about engaging in conduct that is prejudicial to the administration of justice. 

However, since 8.4 is also not squarely on point, it can be argued that the fact that the lawyer was charged under 4.4 rather than under another rule that may be more “on point” shows the need to adopt a new rule that would address this type of conduct. 

But what if that rule is adopted?  What if Illinois had adopted the new Model Rule 8.4(g)?  It seems to me this would be a good case to have a court decide the issue I have been writing about all along.  The conduct is deplorable and the speech is offensive; but the First Amendment protects against the state imposing sanctions on speech merely because some might find it offensive.

In the end, I think the issue comes down to deciding whether the state can support the argument that regulating offensive speech by lawyers outweighs the lawyer’s constitutional right to utter offensive statements.  If the answer is yes, the facts of this case are a good example to use in support of the adopting the new rule.  If the answer is no, then the facts of the case can be used as an example of the consequences of the Constitutional protection of what some might believe to be offensive speech. 

Friday, September 16, 2016

Comment on whether attorneys should be forced to provide pro bono services

Last July, Professor Ron Rotunda wrote a column in Verdict arguing that the government should not force lawyers to perform pro bono services.  In response, Joseph A. Sullivan, Special Counsel and Director of Pro Bono Services at Pepper Hamilton, LLP, wrote a rebuttal.  Prof. Rotunda now has published his response.  You can read it here.

Zeekbeek: a new way to find a lawyer online

There is a new way to find a lawyer online in Michigan (and soon in other midwest states).  Using data from the State Bar of Michigan, is an online marketplace where consumers can connect with lawyers. Unlike Avvo, LegalZoom and Rocket Lawyer, Zeekbeek works with the state bar association to create a searchable database of lawyers. Michigan was the first state to have an operational agreement with Zeekbeek, but Indiana, Ohio and Illinois recently signed on with Zeekbeek also.

Saturday, September 10, 2016

Can an attorney disclose very old confidential information because of its historical value? -- UPDATED

September 10, 2016

If you used the textbook by Prof. Stephen Gillers in your Professional Responsibility course (as a student or professor), you may remember the hypothetical question involving a firm that finds among its old files certain client files involving John Wilkes Booth.  Could the firm turn those files over to the Smithsonian or another institution?  Should the interests of history create an exception to a lawyer’s duty of confidentiality?

It is an interesting question on whether we should recognize yet another exception to the duty of confidentiality to which we did not have a definitive answer...  Until now.  Earlier this year, the Maine Professional Ethics Committee issued an opinion on this very question.

Here is the question, as explained in the opinion,  
Bar Counsel has inquired whether, and under what circumstances, a law firm may consider donating old, inactive legal files that may have historical significance to a library or educational institution. As a matter of background, the attorney holds a variety of client files, many of which were generated by a single family, dealing with a public undertaking of significant historical interest in the attorney’s area. The files range back as early as the mid- to late 1800s, and run through the early to mid-1900s. The single family referenced above has indicated their consent, but for many of the other files, both the clients as well as the attorneys who were involved in the legal work generating the files are long since deceased, and it may be difficult to find a representative of either the attorneys or the families. Given the passage of time, and the historical import of the files, may the firm turn over these client files to a library or educational institution?
And here is the conclusion:
In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client “confidences” or “secrets,” the attorney may not divulge the confidential materials in that attorney’s possession despite the passage of time and the potential historical significance of the materials.
You can read the full opinion here.

Thanks to the Legal Profession blog for the information.

UPDATE 9-16-16:   Faughnan on Ethics has a comment on the story here.

Tuesday, September 6, 2016

California Governor vetoes bill that would have imposed mandatory pro bono for newly admitted lawyers

Citing the fact that many law graduates are facing high debt, California Gov. Jerry Brown has vetoed a bill that would have required recently admitted lawyers to complete at least 50 hours of supervised pro bono work within their first year in practice.  The Governor stated that “Law students in California are now contending with skyrocketing costs—often more than $200,000 for tuition and room and board —and many struggle to find employment once they are admitted to the bar.  In this context, I believe it would be unfair to burden students with the requirements set forth in this bill.”  Opponents of the proposal had argued that the duty to perform mandatory pro bono work should not be imposed on brand new lawyers because they are the least able to handle the imposition of working for free.

Over at Above the Law, Jeff Bennon sees the issue differently.  Commenting on the Governor's basis to veto the bill, he says that "[it] is, of course, ridiculous, because if you can withstand 100-plus weeks of legal education, adding five more 10-hour days is not going to push anyone over the edge."  But then he adds that the Governor "was right to veto the bill though, because it was stupid, not because it would burden students."  He argues the proposal is "stupid" because the supervising lawyers do not want to supervise newly admitted lawyers for the mandatory 50 hours and that the newly admitted lawyers would not get much out of the experience either.  In other words, the proposal does not really benefit anyone.  You can read his comment here.

Saturday, September 3, 2016

Florida Bar appears to be going forward with proposal to amend the Rules of Professional Conduct in spite of finding that the proposal is most likely unconstitutional

Back in 2015, in a case called Searcy v Florida Bar, a Federal District Court Judge enjoined the Florida Bar from enforcing a rule prohibiting truthful claims of expertise. The Bar had argued that potential clients would be misled into assuming that lawyers who advertise that they “specialize in" or that they have “expertise” in a certain area of the law are board certified.  However, the Court found no evidence to support this argument and held that, because the rule essentially banned attorneys from making true statements that describe their areas of practice, it concluded the rule was unconstitutional under the First Amendment.  Accordingly, the court enjoined the bar from prohibiting the plaintiffs from making truthful statements on websites, blogs or social media about their specialty and expertise.  Go here for more information.

Notwithstanding this decision, the Florida Bar has expressed its view in a proposed amendment to the state's Rules of Professional Conduct and will ask the Florida Supreme Court to approve it.  You can read the proposed new language and get more information here.

As I have argued many times over the years, I think states' attempts to ban lawyers from saying they "specialize" in a certain area of the law are ridiculous.  I made my case against this view back in 2011 in reaction to a case from Indiana (here) and then again to the news about the case in Louisiana (here) and was happy to see a court reaching what I believe to be the correct result here

For that reason, I think the decision in Searcy was correct and that this new attempt by the Florida Bar to regulate speech should be defeated.