Friday, December 15, 2017

Recent case is good reminder of details on advertising regulation, and also on debate on whether we need them

A month ago, the Legal Profession blog reported on a recent case in South Carolina in which the court discussed some of the details that apply to the regulation of advertising.  It serves as a reminder of how courts often use the ban against "misleading" advertising as a catch-all rule to impose discipline.

In this case, the lawyer was reprimanded for, among other things,

1.  using the tagline "attorneys at law" on his law firm letterhead.  This was found to be misleading because the lawyer is a solo practitioner.

2. claiming that he had "28 years experience both as a lawyer and former law enforcement officer."  In fact, the lawyer had 16 years of experience as a lawyer, and 12 years of experience as a law enforcement officer.  The statement was found to be misleading because it suggested the lawyer had 28 years of experience as a lawyer.

3.  using the telephone number (844) FIXTICKET.  This was found to be misleading because it would create unjustified expectations or an implication that the lawyer could achieve a specific result by unethical means.

4.  claiming "unique insight into the South Carolina traffic laws that many other lawyers simply do not have." 

I do agree that the statements are misleading and that, under the current rules, discipline is justified.  But this is the type of case that fuels the debate as to whether the profession needs to be concerned with the type of regulation to begin with.  Do consumers really need to be protected from these types of statements that are not that uncommon in the world of advertising?

Saturday, December 9, 2017

ABA new ethics opinion on whether judges can search the internet for facts related to a case over which they are presiding

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new opinion addressing whether a judge can conduct online research to find out more about the facts of a case being litigated before them.  The opinion explains that

--  judges can conduct legal research online for cases not cited by the parties.

-- judges can can go online for facts that are subject to judicial notice because they are generally known and not subject to reasonable dispute

-- BUT using the internet to look for facts concerning the actual parties in a case is generally banned by the ABA Model Code of Judicial Conduct.  The facts are the facts that will need to be adjudicated in the proceeding, including who did what, where, when, how, and with what motive or intent.

The ABA Journal has more on the story here.  You can read the full opinion here

Wednesday, November 29, 2017

Court of Appeals for the Fourth Circuit comments on repeated misconduct ouf of prosecutors office in Virginia

The ABA/BNA Lawyers' Manual on Professional Responsibility is reporting today on a recent case in which the court wrote “We have repeatedly rebuked the commonwealth's attorney and his deputies and assistants for failing to adhere to their obligations” under the Constitution, and that “We find it troubling that, notwithstanding these rebukes, officials in the Commonwealth's Attorney's office continue to stake out positions plainly contrary” to those obligations, he said.  The case is Juniper v. Zook, 2017 BL 412748, 4th Cir., No. 13-7, 11/16/17.

The court cited other cases in which it "lambasted" Assistant Commonwealth's Attorney for "not produc[ing] evidence to a criminal defendant unless he first deems it to be 'material[]' and credib[le]."

The problem is that this conduct is the result of the development of the Brady progeny.  Brady imposes a duty to disclose "material" evidence.  However, over time, “material” has come to be defined as evidence that would probably would have changed the outcome of the trial if it had been admitted.

For this reason, when determining whether they have a duty to disclose, the prosecutor has to decide -- before the fact -- whether he or she believes that withholding the evidence will change the likely verdict in the case.   Thus, prosecutors can justify withholding evidence by claiming that they in good faith thought the evidence would not have affected the verdict.  If you add to that the fact that prosecutors are rarely punished for misconduct and the fact that, if discovered, the result of the conduct would be a retrial, you can understand why a prosecutor may be willing to take a chance and withhold the evidence.

One way to address the issue is to hold that the duty to disclose exculpatory evidence is broader than the duty required by Brady, as some opinions have held.  Another, suggested by the Court of Appeals in this case, is to hold that the prosecutor should always err on the side of disclosure. 

For more see the article in the ABA/BNA Lawyers' Manual at  33 Law. Man. Prof. Conduct 678.

Saturday, November 25, 2017

ABA files amicus brief arguing that conceding guilt over client's objection constitutes ineffective assistance of counsel

A couple of weeks ago, I posted a comment on McCoy v. Louisiana, a case before the U.S. Supreme Court in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  You can find my comment here.  Today, I learned that the ABA has filed an amicus brief in support of the appellant.  As I argued in my original comment, I agree with this view.  The ABA explained its position in a press release.  You can also read the full brief here.

Tuesday, November 21, 2017

Philadelphia law firms files complaint against out of town firm arguing false advertising and unfair competition

If you watch any TV, you have seen commercials of firms announcing they are available to represent client suffering from any number of injuries.  But if you notice closely on the very small print at the end of the commercial you'd notice a disclaimer saying that the firm is only licensed in certain states which often does not include the state in which the commercial is airing.  When contacted by potential clients from these states, the firms typically will refer the case to a lawyer licensed in that state and share the fee.

Obviously, lawyers are not allowed to represent clients in a state in which the lawyers are not admitted.  Lawyers are also not allowed to get fees for merely referring cases to other lawyers.  But lawyers are allowed to share fees with other lawyers under certain circumstances.

Yet, is the practice of purposely advertising in a jurisdiction one is not admitted to a violation of the rules?  

Rosenbaum & Associates, a Philadelphia personal injury law firm, thinks so.  It  recently filed a complaint against Morgan & Morgan, a Florida-based personal injury law firm, alleging that Morgan & Morgan falsely advertises that it represents clients in the Philadelphia area, when in fact Morgan allegedly employs only one attorney in Philadelphia with “little or no experience in handling personal injury matters.”  According to Rosenbaum, Morgan & Morgan refers nearly all of its cases to another law firm in violation of a rule that prohibits advertising that is “a pretext to refer cases obtained from advertising to other lawyers.”

For more on the story go here.  To read the complaint go here.

Not surprisingly, Rosenbaum's complaint is based on the fact that has experienced a decline in influx of new clients, which it attributes to Morgan & Morgan’s misleading advertisements.  The question is whether the decline is the result of unethical or illegal conduct or just the result of economic competition.  Is the Morgan law firm just better at marketing its services?  Is it just smarter at taking advantage of what the rules allow it to do? 

It will be interesting to see how the court addresses these questions.

How not to practice law: when representing one of the most high profile people in the nation, write incoherent letters with grammatical mistakes, go on TV and make dumb comments, hold bad press conferences and more

Unless you have been hiding in a cave for the last few weeks, you are now familiar with Roy Moore: the twice removed from the bench former judge, Senate candidate from Alabama.  You would think that having been a judge he would know some good lawyers who would be willing to represent him.  Yet, the lawyer doing most of the talking on his behalf has become a laughingstock for his inability to write coherently, his poor knowledge of the law and his TV appearances.  It has also been reported that he was disciplined in the past.

There are many stories on this, and you can Google more, but here are a few:

On his poorly written (that's being generous) demand letter to a news outlet (here, here, here and here).  For the news outlet's reply go to this story (called "Roy Moore’s Lawyer Gets Called A Moron In The Most Professional Way Possible").

On his disastrous appearance on TV in which he expressed his ignorance, at best, about how cultural differences might be an issue related to the accusations against Roy Moore (here and here).

Podcast: On being a Limited License Legal Technician in Washington State

In an effort to provide better access to legal services, back in 2012 Washington became the first state to adopt 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).   Go here for some background.

Once Washington approved its program at least seven other states—California, Colorado, Connecticut, Minnesota, Oregon, Vermont and Virginia— created task forces to study the possibility of limited licensing as a partial solution to the so-called “access to justice gap.”  However, the development of programs in those, or other, states has not been as successful as once expected.

A few days ago, Lawyerist posted a podcast with Laura Genoves about being one of the first Limited Licensed Legal Technicians in Washington State and the differences between a legal technician and a practicing attorney, including everything from education costs to how each can practice.   If you can't see the controls below, you can listen to the podcast by going here.

Sunday, November 19, 2017

In case you missed it: reminder that a lawyer's conduct outside the practice of law can have consequences

We all learned in law school that the regulation of  the profession is not really limited to practice of the profession.  And we all know that there are many many cases out there of lawyers getting in trouble for conduct in their personal lives.  But every now and then it is not bad to get a little reminder.   The latest example involves a Dallas prosecutor who got into what some have called a "drunken tirade" with an Uber driver.  The driver recorded the encounter, it went viral and the prosecutor got fired.  The fact you are a lawyer does not give you the right to claim you are more important than other people, to threaten them or to be abusive.  This should be common sense.  There are many stories and videos on the incident out there. Here is one of them:

New York Times article on whether defense lawyers should be allowed to contribute to the campaigns of District Attorneys

You may have heard recent accounts of negotiations between lawyer Marc E. Kasowitz, a lawyer for the Trump family and the Manhattan District Attorney regarding the possibility of charging Ivanka Trump and Donald Trump Jr. for allegedly misleading investors in a condo-hotel project. The stories highlighted that Mr. Vance had received a $25,000 contribution from Mr. Kasowitz (which was returned prior to the meeting) and that a year later Mr. Vance’s campaign accepted a $32,000 gift from Mr. Kasowitz, only to end up returning it seven weeks ago after reporters highlighted it.

Should there be some limits to, or regulation of, defense lawyers' contributions to District Attorney's campaigns?  The New York Times discusses the issue in a recent article you can access here.

Court of Appeals rejects appeal by lawyer who had been ordered to pay $4.2 million as sanction for sending unsolicited faxes to potential clients

In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Supreme Court held that a state can not ban a lawyer from sending targeted letters to potential clients in part because the invasion of privacy involved in receiving the unsolicited letter was minimal.  As someone later put it, the trip from the mailbox to the trash can is a short one. 

You would think the same could be said about a fax (technology that is not as common these days), but in a 2013 opinion, the 7th Circuit found that unsolicited faxes sent by a Chicago lawyer to potential clients were advertisements covered by the Federal Telephone Consumer Protection Act, which imposes penalties for sending faxes without an opt-out provision.  As a result, the lawyer was ordered to pay $500 for each of his 8,430 faxes, amounting to $4.2 million.

The case has been going up and down to and from the Court of Appeals since then and just recently it was reported that the Court has denied the most recent appeal.  Go here for more details

Florida Supreme Court adopts changes to the Rules

The Legal Profession Blog is reporting that the Florida Supreme Court has adopted some significant changes to its procedural and substantive rules governing lawyers but declined to act on a proposal to amend the rule on Potentially Misleading Advertisements. Go here for details.

New York adopts new rule requiring judges to remind prosecutors to comply with duty to disclose exculpatory evidence

In response to the efforts of a task force convened by the state’s chief judge to address the causes of wrongful convictions in New York, beginning in January, judges will be required to issue an order reminding prosecutors of their obligation to turn over “information favorable to the defense” in all criminal cases.  According to the National Registry of Exonerations, 38% of the 234 exonerations in New York state have involved violations of the duty to disclose exculpatory evidence.  You can read the press release announcing the new rule here.  (This link also includes the task force's report, which makes a number of other recommendations worth reading.)  The new rule also directs judges to remind defense lawyers of their duty to provide effective assistance of counsel under Constitutional standards.   The ABA Journal has more on the story here.

7th Circuit refuses to reverse a conviction even though the prosecutor did not comply with duty of candor to disclose perjured testimony

    Applying the principle that a federal court of appeals can not reverse a conviction unless the defendant shows that the lower state court’s decision was contrary to, or an unreasonable application of, clearly established law under Supreme Court authority, the Court of Appeals for the Seventh Circuit recently refused to reverse a conviction even though the prosecutor in the case failed to comply with the duty of candor. 

    In the case, Long v. Pfister, one of the key witnesses for the prosecution identified the defendant as the perpetrator of the crime in question even though the witness had at one point recanted her testimony.  When asked on cross–examination, the witness denied having recanted her testimony.  Both the prosecutor and defense counsel knew this was a lie.  Defense counsel eventually called another witness who testified that the prosecutor’s witness had lied on the stand.  However, the prosecutor did nothing to inform the court or the jury about the perjured testimony. The defendant was convicted.

    The defendant was denied post conviction relief by a federal district court, but a panel of the Court of Appeals reversed.  The panel concluded that, by not spontaneously correcting the perjured testimony, the prosecutor had violated the rule of Napue v. Illinois, 360 U.S. 264 (1959)  and Giglio v. United States, 405 U.S. 150 (1972), which according to the panel’s interpretation, hold that whenever any witness makes a statement that the prosecutor knows is false, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement immediately.

    After an en banc rehearing, however, a majority of the court reversed.  According to the majority, the case involved four questions that have never been expressly decided by the Supreme Court: (1) Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?; (2) must the prosecutor correct false testimony when defense counsel already knows the truth?; (3) does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?; and (4) does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?

    In Napue v. Illinois the Supreme Court held that the State deprives a person of liberty without due process of law if it convicts the person by knowingly using false testimony.  Thus, Napue has been interpreted to hold that whenever any witness makes a statement that the prosecutor knows is untrue, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement. Rules of professional conduct in all jurisdictions also impose on all lawyers a duty to remedy the effects of material false evidence known to the lawyer before the end of the proceeding.  Further, in Giglio v. United States the Court reversed a conviction when a prosecutor failed to correct perjured testimony and then relied on it during summation to the jury. 

    The Court of Appeals, however, distinguished the case before it from these two cases.  In a 5 to 3 opinion, the court held that there is no clearly established Supreme Court law on whether a prosecutor has a duty to disclose perjury if the perjury is known to the defendant’s lawyer and the defendant’s lawyer presents evidence to contradict the perjured testimony. 

    In a strong dissenting opinion, however, three judges dispute the majority’s holding arguing that the opinion is based on notions that have been clearly rejected by the Supreme Court.  They, therefore, concluded that the defendant had met the burden to get Habeas Corpus relief. 

    According to the majority, it is not clearly established that a prosecutor has a duty to remedy known perjury if (1) the defendant’s lawyer already knew the testimony constituted perjury, (2) the defendant’s lawyer presented evidence to contradict it (which could create an inference in the jury that the testimony was not credible), and (3) the prosecution did not rely on the perjured testimony in its argument the jury. 

    The dissenting judges addressed all these arguments concluding that it is clear that a prosecutor has a duty to correct the testimony regardless of the circumstances.  A lie is a lie, and the prosecutor has a duty to correct it, they said.  The duty belongs to the prosecutor and he or she can’t rely on the evidence presented by the defendant to contradict the perjured testimony.  The fact that the defendant attempted to contradict the perjured testimony does not constitute a correction of the perjury.  

    It should be made clear that even though the case revolves around the issue of the duty of candor of a prosecutor, the court did not decide what that duty involves.  Unlike what has been reported in some news stories about the case (in the Chicago Daily Law Bulletin, for example), the court did not decide that a prosecutor does not have a duty to disclose perjury under the circumstances of the case.  It only held that the Supreme Court has not decided it.  It is precisely because, according to the court, the issue has not been decided, that it felt it could not reverse the conviction in this case.  I hope I am wrong, but I am afraid, however, that the case might be interpreted to relieve prosecutors of the duty of candor under certain circumstances.  That would be wrong.

    The Marshall Project has a comment on the case here.

Tuesday, November 7, 2017

Bitcoin and the Legal Ethics of Lawyers

"Bitcoin and the Legal Ethics of Lawyers," Prof. Ron Rotunda's most recent column, is now available here.

ACLU sues Nevada alleging constitutionally inadequate indigent defense system

The ACLU of Nevada has sued the state, alleging that indigent defense in rural counties is so inadequate—and so poorly overseen by state authorities—that the defense provided is inadequate  under the Sixth Amendment.  The ABA Journal has the story here.

Sunday, November 5, 2017

Justice Department asks Supreme Court to consider discipline for ACLU lawyers in abortion case

You have probably read or heard about the story of the 17 year old detainee who was seeking to get an abortion while in custody.  After the government refused to allow her to leave the shelter where she was being held in custody, a ruling by the full U.S. Court of Appeals for the District of Columbia Circuit cleared the way for the abortion.

The case has not ended however, since it is being reported now that the Department of Justice has filed a petition before the Supreme Court in which it is asking the justices to vacate the D.C. Circuit’s ruling.  This would mean that the decision would no longer serve as legal precedent.

More interestingly for readers of this blog, the government is also suggesting that the justices should sanction the woman's attorneys for misconduct that, the government argues, thwarted it from seeking Supreme Court review of the decision in the first place.  You can read more about this development in the SCotUS blog here.

According to the ABA Journal online, ACLU legal director David Cole responded to the government filing in a statement that states: “This administration has gone to astounding lengths to block this young woman from getting an abortion,” Cole said. “Now, because they were unable to stop her, they are raising baseless questions about our conduct. Our lawyers acted in the best interest of our client and in full compliance with the court orders and federal and Texas law. That government lawyers failed to seek judicial review quickly enough is their fault, not ours.”

Virginia might soon become the next state to hold participating in Avvo Legal Services is unethical

Readers of this blog know that I have written extensively on the issues related to Avvo Legal Services.  You can go here and scroll down to see all my posts and links to some of my articles.  And, it is no secret that I have been critical of Avvo's model from the beginning, arguing that it places attorneys in a position to violate several rules of professional conduct.

For this reason, I have not been surprised to see that ethics committees in Ohio, Pennsylvania, South Carolina, New Jersey, New York and, most recently, Utah have issued opinions holding that it would be unethical to participate in Avvo Legal Services.  Florida, and North Carolina are considering the question. Of these, only North Carolina is reportedly considering holding that participating in Avvo Legal Services would be OK, but it is also considering amending the rules -- which begs the question, if is OK to participate why would you need to amend the rules to allow it?  But that is a different conversation...

Today's post is to announce the latest addition to the list of opinions holding that participating in Avvo Legal Services would violate current rules.

As reported in the Lawyer Ethics Alert Blog, just over a week ago, the Virginia State Bar voted to approve a draft ethics opinion holding that a lawyer’s participation in services such as Avvo's would violate the Virginia Rules of Professional Conduct.  Like most other opinions on the subject, it does not refer to Avvo by name but given the description of the services it addresses it is pretty clear the opinion relates to Avvo Legal Services.

Not surprisingly, the opinion reaches the same conclusions reached in the literature and other opinions, namely that participating in Avvo Legal Services violates rules related to sharing fees with non-lawyers, paying for referrals, duties to safeguard client property, and duties related to trust accounts including the duty to refund unearned portions of a fee.

Having said that, the opinion states lawyers could participate in the service if some of the conditions are changed.  Doing so, however, would change Avvo's terms and it is not clear that Avvo would want to agree to change its business model.

The opinion (which is available here) will now go before the Virginia Supreme Court for approval.

In light of so many opinions holding against Avvo's service, I have often suggested Avvo is going about its plan the wrong way.  Rather than arguing that the rules should be interpreted to say something they don't, or, worse, that they should be ignored, or continue to advance weak legal arguments, Avvo should advocate for changes in the rules.

Take a look at the position Avvo took in relation to the Virginia opinion (here) and note what they don't do.  They don't even try to address the substantive/legal arguments related to the violations of the rules.  They essentially say the opinion is bad because it does not allow Avvo to do what it wants.  The argument is essentially that what Avvo wants is good, and, thus, preventing it is bad.  Yet, the problem is that even if what Avvo wants is good, it leads to violations of the rules.  The solution can't be to ignore the rules.  The solution has to be to change the way Avvo wants to do what it wants to do so it does not violate the rules or to change the rules. 

What Avvo does now puts lawyers in a position to violate the rules.  Arguing that it doesn't is going nowhere fast.  So, why doesn't Avvo change course and try to present arguments for changing the rules to suggest a new approach would be better for the profession, for consumers and for society in general?  To its credit, Avvo seems to be trying this approach in North Carolina and maybe it is just waiting to see if it works there as a "test case" before trying it elsewhere.

I have argued for this change in tactics before and I am happy to report I am not alone in this view.  Brian Faughnan (of Faughnan on Ethics) has recently published "an open letter" to Avvo arguing the same point.

California finally adopts professional responsibility rule requiring prosecutors to disclose exculpatory evidence

A few days ago I reported that the Louisiana Supreme Court recently held that the duty to disclose exculpatory evidence in Rule 3.8(d) is not broader than the duty recognized by the US Supreme Court decision in Brady v. Maryland.  (See here.)

Now comes news that the California Supreme Court has approved revisions to the California Rules of Professional Conduct governing the ethical duties of prosecutors in California by revising Rule 5-110 to include the obligation to disclose exculpatory evidence.  If you are wondering how this was not part of the rule already, it is because California remains the only state that has not fully adopted the ABA Model Rules.  Popehat has the details here.

Interestingly, in contrast with the decision in Louisiana, the comment to the new California rule implies that the duty to disclose is broader than the duty imposed by Brady:
[3] The disclosure obligations in paragraph (d) are not limited to evidence or information that is material as defined by Brady v. Maryland . . .  and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. . . .

Saturday, October 28, 2017

Video on ethical issues related to the use of social media

Law Technology Today has posted a short video discussing a number of ethical issues related to the use of social media, including the dangers associated with disregarding confidentiality, unethical information gathering, failure to assert client control, evidence preservation and spoliation, ethical conduct involving jurors, and the impact of what attorneys share on social media themselves.  You can watch the video here.

Louisiana continues to make bad law regarding duty to disclose exculpatory evidence

As you probably know already, Louisiana has a long (and on might say troubling) history as it relates to the duty of disclosing exculpatory evidence (see  here and here), most notably Connick v. Thompson and Smith v. Cain (See here, here, and here).

Now comes word that the Louisiana Supreme Court has held that the duty to disclose exculpatory evidence in Rule 3.8(d) is not broader than the duty recognized by the US Supreme Court decision in Brady v. Maryland.

Although the ABA Standing Committee on Professional Responsibility has held that the Model Rule imposes a broader duty (see Formal Opinion 09-454), a few jurisdictions have held otherwise.  I have written about this in the past here.

Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in, at least, Washington, Utah, Texas, North Dakota, Massachusetts and the District of Columbia.  The New York City bar's ethics committee has also 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.  Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, and Wisconsin.

The Legal Profession Blog has a discussion on the new decision by the Louisiana Supreme Court here.  The case is called In re Seastrunk and you can read the opinion here.

FL supreme court asked to decide whether lawyers and judges can be Facebook friends

Last summer, the Third District Florida court of appeals affirmed an order refusing to disqualify a judge who was Facebook friends with one of the lawyers in a case before her.  The law firm that had filed the motion to disqualify has now asked the Florida Supreme Court to accept an appeal, citing a split on the issue among Florida state appellate courts.  The Law for Lawyers Today has more details on the story, and some links to more information on the issue, here.

UPDATE 11/4/17:  

Wednesday, October 25, 2017

Court imposes $9 million sanction on two firms for filing frivolous lawsuits

Just as my students and I are about to start discussing ethical issues related to litigation, including the rules related to filing frivolous claims, I saw this bit of news. 

A panel of four federal judges recently imposed sanctions totaling $9.1 million on two Florida law firms for filing 1,250 frivolous claims against tobacco companies accused of hiding the dangers of cigarettes, including suits on behalf of people who never authorized the suits, people who never lived in Florida, nonsmokers, and people whose cases had already been tried.  They also filed claims on behalf of people who had died before the claims were filed as if they were still alive rather than as wrongful death claims.

The ABA Journal online has the story here.

Saturday, October 21, 2017

How not to practice law -- UPDATED

It has been a while since I posted a story to the running "How not to practice law" series, so here are two new ones.

How not to practice law:  As a prosecutor, be in a personal-romantic relationship with the lead FBI investigator you use as principal witness to get indictments before a grand jury.  The Legal Profession Blog has the story.  The prosecutor was suspended for a year and a day (although all but 6 months was stayed.)   [UPDATE 10/29/17:  Lawyer Ethics Alerts Blog has a story on this case here.]

How not to practice law:  Offer to pay a witness $7,000 for his "honest testimony."  The Law For Lawyers Today has that story here.  The lawyer was suspended for 35 days.

Thursday, October 19, 2017

Utah State Bar has issued yet another ethics opinion stating that participating in Avvo Legal Services would be unethical

As long time readers of this blog know, I have been following the developments related to Avvo Legal Services for a while.  You can read all my comments by going here and scrolling down. 

Not too long ago, I commented on the fact that ethics committees in Ohio, Pennsylvania, South Carolina, New Jersey and New York had issued opinions holding that it would be unethical to participate in Avvo Legal Services.

Now comes news that about three weeks ago the Utah State Bar Association issued a similar opinion.  Although it does not mention Avvo by name, it concludes that participating in a program whose description is just like Avvo Legal Services would violate Utah’s Professional Conduct Rule 5.4 which bans splitting fees with a non-lawyer and Rule 7.2 which regulates restrictions on payment for recommending a lawyer’s services.  

In addition, it finds that the fee paid by the lawyer does not appear to be a fee for the reasonable costs of advertising and discusses how participating in the service may violate a number of other rules related to client confidentiality, lawyer independence, and safekeeping of client property.  Finally, the opinion states that participating in the program raises serious concerns about a lawyer’s ability to comply with Rule 1.15 since “[i]t is difficult to see how a lawyer can protect client funds “with the care required of a professional fiduciary” when trust fund account information is provided to a third party over which the lawyer has no control.”

As I have stated before, given the current regulatory structure, I am not surprised.  You can read the full opinion here.

Monday, October 16, 2017

"My computer ate my homework" is not a good excuse -- UPDATED

As readers of this blog know, the Model Rules of Professional Responsibility and now more than half the states, consider part of the duty of competence a duty to understand "technology" used in the practice of law.  (Go here for my most recent post on this.)  This means not only that lawyers should understand how the technology works but also how to use it properly.

So, what happens if the clerk of courts e-mails you an order, but your spam filter catches the e-mail and then deletes it after 30 days without alerting you, and you therefore fail to appeal the order in time?  You may be in trouble, that's what.

The Law For Lawyers Today discusses the issue here.

UPDATE:  Vermont's bar counsel, Michael Kennedy, picked up the story and added another good one.  In this new one a lawyer sent an email to a client asking whether the client wanted to file an appeal in a matter the court had decided against the client.  The e-mail never left the lawyer's computer system and, eventually, the client lost the right to file the appeal.   Lesson learned:  go "old school" and pick up the phone!

Friday, October 13, 2017

US Supreme Court grants cert to decide whether it is ineffective assistance of counsel to concede client's guilt over client's objection -- UPDATED

The U.S. Supreme Court has granted review in McCoy v. Louisiana in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  You can find all the documents related to, and more information on, the case at the SCOTUSblog here. The New York Times also has some information on the case here.

In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, "the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life." 

There is only one problem.  There is no such ethical duty.

The duty of the lawyer is to represent the client and this includes following the client's instructions as to the goals of the representation.

The case presents an opportunity to clarify a terrible old decision of the US Supreme Court called Florida v. Nixon.  In that case, a lawyer attempted unsuccessfully to get his client - also a death row inmate - to cooperate in preparing his defense.  The inmate, who probably had diminished capacity, either did not understand what was happening or did not wish to communicate with the lawyer.  Eventually, the lawyer decided to concede guilt in order to argue for a lower sentence at the sentencing phase of the trial.  On appeal, much of the discussion revolved around whether there is a difference between "conceding guilt" and "pleading guilty."  The distinction is important because the rules of professional conduct explicitly reserve the right to plead guilty to the client.  Simply stated the lawyer has no authority to decide whether to plead guilty without a client's consent.

In a confusing opinion, the Court found that the lawyer had not provided ineffective assistance of counsel.  Yet it is not clear whether the decision was based on either (a) that the decision was for the client to make but the lawyer could make the decision for the client because the client was incapable of communicating with the lawyer or (b) that the decision was for the lawyer to make because it was "tactical" in nature.  If the decision in the case was to plead guilty, then the Court's decision must have been based on option (a), which would be wrong under the rules of professional conduct.  If the decision was "to concede guilt" (meaning something different from pleading guilty, even if the effect is the same) then it can be argued the Court's decision was based on option (b).  

I have never been comfortable with Florida v Nixon for many reasons, the most important one of which is that I don't see the difference between conceding guilt and pleading guilty.  In the end, the Court allowed an attorney to make the most fundamental decision, which is explicitly reserved for the client to make, without client consent.

And now McCoy could be even worse.

In McCoy, the Court is being asked to take the decision in Nixon one step further and allow the attorney to make the decision over the express objection of the client based on the notion that the decision to "concede guilt" is purely tactical and, thus, can be made by the lawyer.  In fact, in affirming the lower court's decision, the Louisiana Supreme Court found no Sixth Amendment violation stating that “[g]iven the circumstances of this crime and the overwhelming evidence incriminating the defendant, admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.” [emphasis added.]

I did not like that interpretation in Florida v. Nixon and I like it even less here.  As explained in the amicus brief of the The Yale Law School Ethics Bureau (available here),
The decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense–a right that personally belongs to the accused. ... In this case, Mr. McCoy vigorously and repeatedly expressed his desire to assert innocence at trial. Yet Mr. English [McCoy's lawyer] disregarded those entreaties and readily conceded guilt . By doing so, Mr. English not only betrayed the sacred bond between lawyer and client, but also denied Mr. McCoy his personal right to put on a defense.

[Because of the egregious nature of the ethical failures in this case,] Mr. McCoy was constructively denied counsel. By conceding guilt over Mr. McCoy’s express objection, Mr. English failed to act within the scope of the attorney–client relationship. He was not, in any meaningful sense, acting as Mr. McCoy’s lawyer. Mr. McCoy therefore did not just receive an “incompetent counsel”–he effectively did not receive any counsel “at all.” ...

Additionally, Mr. English failed to subject the prosecution’s case to meaningful adversarial testing. Indeed, far from testing the prosecution’s case, Mr. English seemed downright eager to advance it. He readily conceded Mr. McCoy’s guilt in his opening statement; called Mr. McCoy to the stand only to impeach his credibility; and failed to present any evidence that challenged the prosecution’s theory of the case. ...

Relying on reasoning from the Court’s decision in Florida v. Nixon,... the Louisiana Supreme Court declined to find Mr. English’s conduct presumptively prejudicial. But Nixon only held that a lawyer is not required to obtain affirmative consent from the client before conceding guilt. It expressly did not address the situation presented here, where the client positively objects to conceding. The difference between conceding guilt in the face of a client’s non–response and his explicit objection is crucial; for it is the difference between a reasonable strategic decision based on limited information and total destruction of the attorney–client relationship.
I agree.

Another argument in the case is that the lawyer was compelled to concede guilt because the lawyer did not believe the client's story and, thus, thought the client was going to base his defense on false evidence.

Yet, the rules of professional conduct do not give a lawyer the authority to unilaterally concede a client’s guilt because the lawyer doubts his client’s claim of innocence.  Even if the lawyer believes the client intends to present false evidence, the alternative approaches to the problem provided by the rules do not include conceding guilt.

Whatever the Court decides, this will be a very important decision.

UPDATE (11/25/17):   The ABA has filed an amicus brief in support of the appellant.  As I argued in my original comment, I agree with this view.  The ABA explained its position in a press release.  You can also read the full brief here.

Wednesday, October 4, 2017

Quick review of the duty of confidentiality

The news that some of Trump's attorneys inadvertently disclosed some confidential information raised issues as to whether the conduct constituted a violation of the duty of confidentiality. I will let you do you own research as to the story and the different reactions to it.  But, here is a quick review of the general principles related to the duty by the Bar Counsel of Vermont, Michael Kennedy.

Sunday, September 24, 2017

Illinois Supreme Court hears oral argument on whether a Public Defender should be held in contempt for refusing to represent a defendant when doing so would result in a confict of interest

About two weeks ago, the Illinois Supreme Court heard oral arguments in a very interesting case that started last year when a trial judge appointed Cook County Public Defender Amy P. Campanelli to represent a defendant in a murder case.  The Public Defender refused to do so arguing that accepting the representation would constitute a concurrent conflict of interest.  She also told the judge she could not divulge more information because doing that would constitute a violation of the duty of confidentiality to her other clients.  The judge held the Public Defender in civil contempt and fined $250 per day.

In Holloway v Arkansas, the US Supreme Court held that reversal of a conviction should be automatic if the attorney for the defendant had been denied a request for separate counsel for a client based on a conflict of interest at trial.  Denying the request would force a defendant to be represented by an attorney with a conflict of interest in violation of the 6th Amendment to the Constitution.  Since then, most courts have held that an attorney's request for independent counsel should be granted because the attorney is in the best position to determine if there is a conflict.

Based on this case law, it would seem like the contempt conviction should be reversed.

The state argued the conviction should be affirmed because all the judge wanted was for the attorney to provide the basis for the objection to the representation rather than a vague and unsubstantiated claim of possible conflict.

You can listen to the oral argument here.  You can also download a video of the oral argument by going to this page and scrolling down to September 12.  The case is People v. Cole.

Monday, September 18, 2017

ACLU files lawsuit to block customs and border searches of electronic devices

Last week I reported that the New York City Bar Association  issued an ethics opinion holding that lawyers must take reasonable precautions to protect confidential information if the lawyer is searched by U.S border/customs agents.

In a related story, now comes news that the ACLU and the Electronic Frontier Foundation have sued the Department of Homeland Security to block U.S. Customs and Border Protection personnel from searching travelers’ electronic devices without warrants.

TechDirt has a comment here.  The Law for Lawyers Today has more information here.  You can read the complaint here

Sunday, September 17, 2017

How do we (or should we) define "the practice of law"?

How we define "the practice of law" has been a difficult question for a long time.  At one point, the ABA created a task force to propose a model definition which was eventually disbanded because it could not reach a viable solution.  And, more importantly, the answer to the question has tremendous implications.

The whole notion of regulation is based on the justification that there is something to regulate and that there is a reason for the regulation.  We have a hard time justifying it if we can't define what it is we are trying to regulate and why.  Likewise, the principle that lawyers need to be "admitted" to practice in a jurisdiction to be able to engage in the practice of law in that jurisdiction is equally shaky if we can't find a way to justify it.

Both principles are under attack.  There is an ongoing debate on whether lawyers admitted in one jurisdiction should be allowed to practice in all other jurisdictions.  In some jurisdictions, non-lawyers are allowed to engage in activities that could be considered to be the practice of law, and there are efforts in other jurisdictions to start allowing it.  Many are arguing for the elimination of rules that prevent lawyers from partnering up with non lawyers.  The use of technology has opened the door for computers to perform tasks that used to be performed by lawyers.  And now Congress is considering legislation that would affect the regulation of the profession.

Where will it all lead?  I don't know.   But the discussion starts with the basic question: what is the practice of law?

Prof.  Ronald Rotunda's most recent column at Justicia addresses the issue.  You can read it here.

Monday, September 11, 2017

Duty of confidentiality at the border

Given a number of recent reports that people's phones are being "searched" by customs officials when entering the US or other countries, it is not surprising to know that the New York City Bar Association recently issued an ethics opinion holding that lawyers must take reasonable precautions to protect confidential information if the lawyer is searched by U.S border/customs agents.  You can read the opinion here: NYCBA Opinion 2017-5.

Although the specific context in which the topic is discussed, the actual content of the opinion is nothing new or surprising.  It is merely an application of the principle already expressed in Model Rule 1.6(c) which states that "a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

Since the duty is to take reasonable measures to protect the information, the fact that the information is disclosed, by itself, would not result in a violation of the rule.  Whether an attorney violates the rule, will depend on the reasonableness of his or her efforts to protect the information, Thus, the key question is what will be considered "reasonable."

On this, the opinion restates the comment to the Model Rule which explains that reasonableness will depend on may factors and that factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

The opinion then adds that the simplest way to avoid a problem is to not possess any client confidential information when crossing the border and instead opting for other alternatives such as carrying a “burner” telephone, laptop computer, or other digital device, removing confidential information from digital devices, signing out of cloud-based services, uninstalling applications allowing remote access to confidential information, storing confidential information in secure online locations rather than locally on digital devices, and using encrypted software.

Saturday, September 9, 2017

How not to practice law: videotape co-worker while she is undressing in the office

It has been a while since I have posted an entry into the "How not to practice law" series, a series of posts about incredibly stupid things that lawyers do.  Past examples include the "typical" showing up drunk, judge having someone deciding case for them, lying and so on.

Today's story involves a lawyer who had the bright idea to place a secret camera in a colleague's office so he could record her changing clothes.  When caught, he was indicted and charged with a felony, after which he pled guilty to a reduced charge.  Now he is facing disciplinary charges for violating Illinois Rule 8.4(b) (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.)

You can read the disciplinary complaint here and a summary here.

All kidding aside, though, it is often the case that many of the stories in the "how not to practice law" series involve personal issues such as addiction, alcoholism, inability to control urges (whether based on greed or sexual desire) and so on.  That is troubling and sad, but lawyers need to know that their role requires professionalism, discipline and the ability to stay in control.  If you or someone you know has these types of issues, get help.  Bar associations have lawyer assistance programs or access to other alternative.  Everybody makes mistakes; but often those mistakes will cost lawyers their livelihood.

Sunday, September 3, 2017

California opinion on the "insurance triangle"

Back in April, the Los Angeles County Bar Association issued an ethics opinion on whether a lawyer hired by an insurance company to represent an insured can disclose certain information to the insurance company to the detriment of the insured.   It concludes that
When an attorney engaged by an insurance carrier to defend the interests of an insured obtains information that could provide a basis for the insurance carrier to deny coverage, the attorney is ethically prohibited from disclosing that information to the insurance carrier.  In such a situation, the attorney must withdraw from the representation.
Up to the last sentence, the conclusion is not surprising and, as far as I know, the generally accepted view on this issue everywhere.  But the last sentence (the duty to withdraw) only makes sense in jurisdictions that hold that an attorney hired by a person to represent another actually has two clients.  In jurisdictions where the attorney in such circumstances only has one client (the insured, in this example), there should be no duty to withdraw. 

Also, as pointed out by Faughnan on Ethics, what happens when the attorney in California withdraws and a new attorney is appointed to the representation of the insured.  The same thing will happen again, and that new attorney will have to withdraw.

You can read the opinion here.

Friday, August 18, 2017

Florida Bar to consider whether it is ethical to participate in Avvo Legal Services

A few days ago, I reported that the NY state bar association issued an opinion holding it would be unethical to participate in Avvo Legal Services. See here.  Now comes news that the Florida Bar’s Board of Governors has decided to prepare an advisory opinion on whether lawyers could participate with a private lawyer referral service which charges a different set fee depending upon the type of case referred.  Without mentioning it, of course, this description refers to the Avvo Legal Services scheme which has now been rejected in every ethics opinion that has considered the question. 

The Florida Bar has in the past attempted to change the state rules to allow lawyers to participate in private referral services, but the Florida Supreme Court rejected the idea.  In fact, it published an opinion on September 24, 2015 which instructed the Bar to draft rules that “preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.”  Given this background it will be interesting to see if the Board of Governors attempts to revise its position or follows the lead of the Court.  For more on the news from Florida go here.

For some of my previous posts on Avvo go here and scroll down.

Wednesday, August 9, 2017

NY State Bar Association issues opinion holding participating in Avvo Legal Services is unethical

The New York State Bar Association’s Committee on Professional Ethics has issued a new opinion holding that participating in Avvo Legal Services violates the state’s rules of professional conduct.  In particular, the opinion holds that a lawyer paying Avvo’s current marketing fee for Avvo Legal Services is the equivalent of making an improper payment for a recommendation in violation of Rule 7.2(a). 

As long time readers of this blog know, the opinion is similar to opinions in Ohio, Pennsylvania, South Carolina and New Jersey.  And, as I have argued many times, no one should be surprised by the conclusions reached in these opinions because the analysis is consistent with the text of the rules.  You can read my article on the subject here, which was published just after the first couple of those opinions were issued. 

In that article, I pointed out that because the comment to rule 7.2 states that lawyers are banned from paying a lead generator “if the lead generator states, implies, or creates a reasonable impression that it is recommending the lawyer,”  lawyers paying Avvo should be concerned with the possibility that their state disciplinary authority might argue that by providing Avvo’s own “ratings,” as opposed to client ratings, Avvo creates the impression that Avvo is recommending some lawyers more than others. 

That question had not been approached back when I wrote that.  Now it has.  While the other opinions have mostly emphasized the issue of whether paying Avvo’s fees constitutes sharing fees with a non-lawyer, the NYSBA opinion focuses on that precise point.  You can read the full opinion of the New York State Bar Association’s Committee (Opinion 1132 (8/8/17))  here

As the Committee explains “[i]f the lawyer is paying [Avvo’s] fee solely to obtain advertising and marketing services from Avvo, then the lawyer is not giving Avvo something “of value” to recommend the lawyer, but is instead paying Avvo for marketing services, which does not violate Rule 7.2(a).  If, however, the marketing fee also includes a payment to Avvo for recommending the lawyer, then the payment constitutes giving something “of value” for a recommendation, which does violate Rule 7.2(a).”

After discussing Avvo’s business model, the Committee concluded that Avvo does seem be recommending lawyers and, thus, lawyers who pay Avvo’s fee would be in violation of the rule.  This is so, according to the opinion, because Avvo does more than merely list lawyers, their profiles, and their contact information. Avvo also gives each lawyer an Avvo rating, on a scale from 1 to 10 in a way that suggests mathematical precision.  Also, some of Avvo’s ads expressly state that the Avvo Rating enables a potential client to find “the right” lawyer or “the right lawyer for their needs.”

Based on this, the committee found that “[t]hrough these statements and through Avvo’s description of its rating system, Avvo is giving potential clients the impression that a lawyer with a rating of “10” is “superb,” and is thus a better lawyer for the client’s matter than a lawyer with a lower rating.”  Thus, the opinion concludes that “the way Avvo describes in its advertising material the ratings of participating lawyers either expressly states or at least implies or creates the reasonable impression that Avvo is “recommending” those lawyers.”

In addition, the opinion pointed out (but did not resolve) more issues raised by participation in Avvo Legal Services, including:

(1) the fact that Avvo sets the amount of the legal fee for each service raises questions about whether a participating lawyer can deliver competent legal services for Avvo’s chosen price and whether a lawyer is allowing Avvo to interfere in the lawyer’s independent professional judgment regarding how much time to spend on a matter.

(2) the marketing fee raises questions about whether lawyers who participate in Avvo Legal Services are improperly sharing legal fees with a nonlawyer.

(3) Avvo’s satisfaction guarantee raises questions about confidentiality. If clients call Avvo to complain, does the “documentation” that Avvo asks for or receives include “confidential information” within the meaning of Rule 1.6(a)?

As in the past, Avvo’s chief legal officer, has posted a short response to the opinion, but, also as in the past, it is weak and again bases part of the argument on the wrong the constitutional standard.

Yet, Avvo can count one small "victory" in the NYSBA opinion.  Avvo always refers to its fee as "marketing fee" -- not as just "fee" -- perhaps thinking that if you repeat something enough times people will begin to believe it.  And it works.  While other opinions have held that merely because Avvo says the fee is for "marketing" (by which they really mean "advertising"), it does not make it so, the NYSBA opinion states explicitly that Avvo’s website is an “advertisement.”  According to the opinion, "[t]he Avvo website is a public communication on behalf of each participating lawyer, about that lawyer, for the primary purpose of helping the participating lawyers obtain employment by potential clients who use the Avvo website."

Monday, July 31, 2017

Florida seeks comments on proposed opinion on whether to allow sharing of fees with firms that allow sharing of fees with non-lawyers

The Florida bar is likely to adopt an ethics opinion that would make it easier for Florida lawyers to enter into co-counsel relationships with law firms in which non-lawyers have ownership stake -- or, in other words, to share fees with firms that share fees with non-lawyers.  Only two jurisdictions in the US allow sharing fees with non-lawyers, but a number of foreign countries do. 

This is a big change in approach since only two jurisdictions in the US currently allow sharing of fees with non-lawyers and it may open the door for even more changes including allowing lawyers to share fees with non-lawyers directly in Florida - which would be good news for Avvo, as discussed in previous posts below. 

But let's not get ahead of ourselves, yet.  The draft opinion emphasizes that it does not address a Florida Bar member becoming a partner, shareholder, associate, or other formal arrangement in a law firm that is permitted to have non-lawyer ownership in its home jurisdiction.

The committee will accept comments on the proposed opinion until Aug. 15. If no comments are received, the opinion will become final five days later. If comments are received, the matter will be taken up at The Florida Bar's Fall Meeting on October 13.

You can read the proposed opinion here.

Sunday, July 23, 2017

Avvo responds to NJ Opinion

Last month I reported (here) that three committees of the New Jersey Supreme Court issued a joint opinion concluding that it would be unethical to participate in Avvo Legal Services.  A few days ago, Avvo's Chief Legal Officer posted a reply to the opinion in the blog Socially Awkward.  The reply is short and, in my opinion, weak.  All it does is repeat some of the arguments the opinion rejected.  It also gets the constitutional standard that applies to the commercial speech doctrine wrong (as I have pointed out in the past).

For some of my previous posts on Avvo go here, here, here, here, here, here, here, here, here, and here.

Thursday, June 29, 2017

Three committees of the New Jersey Supreme Court issue opinion holding that it is unethical to participate in Avvo Legal Services; also affects Legal Zoom and Rocket Lawyer but for different reasons

The Advisory Committee on Professional Ethics, the Committee on Attorney Advertising, and the Committee on the Unauthorized Practice of Law of the Supreme Court of New Jersey recently issued an opinion holding, among other things, that it would be unethical to participate in Avvo Legal Services.  You can read the opinion here.

This comes as no surprise to me since I have argued both here and in a law review article (available here), that under the current regulatory system, Avvo Legal Services puts lawyers in positions to violate a number of rules and that Avvo's arguments to the contrary are not convincing.  All the opinions addressing the question so far have reached the same conclusion.  See here.

The opinion from the New Jersey committees is short and well written and addresses most, if not all, the arguments I have been discussing regarding Avvo's claims.  And it reaches pretty much the same conclusions I reached in my article, concluding that New Jersey lawyers may not participate in Avvo legal service programs because the programs improperly require the lawyer to share a legal fee with a non-lawyer in violation of Rule of Professional Conduct 5.4(a), and to pay an impermissible referral fee in violation of Rule of Professional Conduct 7.2(c) and 7.3(d).

Interestingly, Avvo was able to respond to the inquiry addressed by the committees before the opinion was issued and it seems it made the same arguments it has been making elsewhere and that I have discussed before.  The opinion rejects them all for pretty much the same reasons I described in my article.

For example, Avvo argued that its fee scheme does not constitute sharing fees with a non-lawyer because it is a "marketing fee."  About this, the opinion concludes that the fact that Avvo refers to its fee as a “marketing fee” does not determine the purpose of the fee or negate the fact that paying it constitutes sharing a fee with a non-lawyer.

Similarly, I have argued that the fact that Avvo’s fee varies depending on the value of the legal fee creates the impression that  the  lawyer  is  paying  Avvo  a  percentage  of  the  legal  fee,  which  is precisely what the ban on sharing fees with a non lawyer prohibits.

On this, the New Jersey opinion concludes that the fee lawyers pay to Avvo is not for marketing because "it is a fee that varies with the cost of the legal service provided by the lawyer, and is paid only after the lawyer has completed rendering legal services to a client who was referred to the lawyer by Avvo."   Further, it states:
Avvo claimed that the “marketing fee” is not a referral fee but an advertising cost, and because the “marketing fee” is a separate transaction, there is no improper fee sharing. The label and timing of the fee does not transform it into an advertising cost. This fee varies depending on the cost of the legal service provided, which is inconsistent with the essential elements of an advertising cost. Avvo defended the varying amounts of its “marketing fees” by stating that in the online market, bigger-ticket services should have bigger-ticket fees. It stated that it spends more to advertise the range of services and takes a bigger payment processing risk for more expensive services. The Committees are not convinced that the sliding scale of fees for legal services rendered bear any relation to marketing.
Moreover, as I pointed out in my article, according to the drafters of the Comment to Model Rule 7.2, a fee paid to a non lawyer for a client lead should not be contingent on a person’s use of the lawyer’s service because “[s]uch a fee would constitute an  impermissible  sharing  of  fees  with  non lawyers  under  Model  Rule 5.4(a).”  Since a lawyer does not have to pay a fee to Avvo unless a client chooses the lawyer, the fee seems to be “contingent on a person’s use of the lawyer’s  service.”  Thus,  paying  the  fee  to  Avvo arguably constitutes  a violation of the ban on fee sharing and, as a consequence, of Model Rule 7.2.

Once again, the New Jersey opinion agrees with my analysis when it concludes that "[w]hen the lawyers pay a fee to the company based on the retention of the lawyer by the client or the establishment of an attorney-client relationship, the answer to the inquiry is simple: the company operates an impermissible referral service."

Finally, the opinion addressed Avvo's contention that fee sharing with non-lawyers is not inherently unethical.  According to this argument it is unethical only if it results in an interference with the lawyer's independent professional judgment.

In my article I explained that Avvo's argument is wrong because, at least as far as the text of the Model Rule is concerned, unless allowed by one of the specific exceptions, splitting fees with a non lawyer is inherently unethical. The rule does not say that sharing a fee with a non lawyer is unethical only if it interferes with the attorney’s independent professional judgment; it says sharing a fee is unethical because it is a threat to an attorney’s independent professional  judgment. Clearly,  part  of  the  policy  behind  the  rule  is  to protect the attorney’s independent professional judgment, but that does not mean that the interference needs to be shown in order for the rule to apply.

And, again, the New Jersey opinion agrees:
Avvo further asserted that fee sharing is only unethical if it compromises the lawyer’s professional judgment. The Committees acknowledge that concerns about independent professional judgment undergird the prohibition on sharing legal fees with nonlawyers. But the precedent in New Jersey, in case law, opinions, and the language of the Rule of Professional Conduct itself, do not restrict the prohibition to situations where there is a clear connection between the fee sharing and the lawyer’s professional judgment. . . .  Sharing fees with a nonlawyer is prohibited, without qualification.
The opinion also addressed certain services offered by LegalZoom and Rocket Lawyer.  It found they also violate the rules, but for other, easy to address, reasons.  The opinion held that these programs are different than Avvo's because they operate as legal service plans and that, therefore, New Jersey lawyers may not participate in the plans until they are registered with the Administrative Office of the Courts.  This is a setback for LegalZoom and Rocket Lawyer, but one that should be easy to solve by registering the programs accordingly.

Simple Justice has a comment on the New Jersey opinion here.  (He agrees with me.)
My Shingle has a comment here.  (She does not.)
Above the Law comments here.
The Law for Lawyers today comments here.

Now back to the issues related to Avvo Legal Services, I want to reiterate something else I have stated in the past.  Saying that participating in Avvo Legal Services would violate the rules is not the end of the debate.  The more interesting question is whether the rules should be changed to accommodate what Avvo wants to do.  That is not addressed by the New Jersey opinion.  As I reported recently, though, it is under review in North Carolina and, perhaps in Oregon.

In other words, I think Avvo is going at this all wrong.  It should not be arguing that participating in its services does not constitute a violation of the rules.  Given the current rules, that argument is weak.  What it should be doing is arguing that the rules should be changed to allow it to do what it wants to do and to allow lawyers to participate.  That is a better approach, which may yield better results for Avvo.  What happens in North Carolina will tell.

Sunday, June 18, 2017

Professional Responsibility Committee of the California Bar issues opinion on whether a blog should be subject to advertising rules

The Standing Committee on Professional Responsibility of the State Bar of California recently issued an advisory opinion on whether “blogging” by an attorney is, or should be, subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising.  The answer, summarized below, is pretty straight forward and are pretty much what I suggested would be the logical answer to the question when I first blogged about it a few years ago (here).

The opinion is available here and the summary is as follows:

1. Blogging by an attorney is subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services , or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.

2. A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.

3. A stand-alone blog by an attorney that does not relate to the practice of law or [that] otherwise express[es] the attorney’s availability for professional employment will not become subject to the rules regulating attorney advertising simply [even if] the blog contains a link to the attorney or law firm’s professional website.

Nevada may become the first jurisdiction to adopt controversial ABA Model Rule 8.4(g)

Back in January I wrote a long post on a proposal to amend Model Rule 8.4 to make it a sanctionable offense to engage in harassment or discrimination.  I thought that the original proposal was problematic for a number of reasons.  Some of the problems I thought of originally were addressed (and fixed) in subsequent versions of the proposal, but I still have some concerns. Go here for some of my comments

The ABA eventually adopted the amendment and enacted a Model Rule 8.4(g).  Despite strong support for it within the ABA, not everyone agreed it was a good idea.  See here for example.  The Texas Attorney General issued an opinion concluding it is unconstitutional.  So did the Montana legislature in a resolution.  Pennsylvania rejected it and instead adopted the approach used in Illinois, which is different from the one suggested by the ABA.  Illinois rejected adopting the new rule too.  So did the Professional Responsibility Committee of the South Carolina Bar.

So far, no jurisdiction has adopted the Model Rule.  It is still too early to say that it has been a failure but at least some within the ABA are frustrated the reaction has not been more positive.

Now comes news that Nevada may become the first state to adopt the new rule, although according to this commentator, the state is being misled by the rules proponents.

Virginia Supreme Court makes revisions to lawyer advertising rules which streamline the rules and reduce their number

Back in May I reported that the Virginia Supreme Court announced it was going to adopt new lawyer advertising rules.  See here.  The new rules are now in place.  You can find a copy of the new rules here.

Saturday, June 10, 2017

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

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. 

UPDATE 6/10/17: The Illinois Review Board has recommended a 60 day suspension. The Legal Profession blog has an update here

Sunday, June 4, 2017

Magistrate imposes sanctions on lawyer for making too many improper objections during deposition -- UPDATED

I have often complained that judges don't do enough to discourage misconduct by lawyers during discovery in civil trials, which I think is very important because most civil trials settle on the basis of what happens during discovery. 

For this reason, I was glad to read a story in the ABA Journal about a recent case in which a federal magistrate imposed sanctions on New York City because of the conduct of one of its lawyers during a deposition.  The lawyer reportedly made more than 600 improper objections which lengthened the deposition, may have influenced the answers of the witness and prevented the witness from answering questions even though there was no basis to do so.  The lawyer's conduct was so improper that the lawyer taking the deposition had to interrupt the deposition in order to call the judge’s chambers to seek guidance.

The conduct was clearly improper, and I am glad the magistrate imposed sanctions.  I wish, however, that the sanctions could have been harsher.   Unfortunately, given the recent US Supreme Court decision in Goodyear v Haeger, the power to impose sanctions for discovery misconduct is now more limited.  I did not like the result in that case, which I think eliminates one of the few ways in which courts can try control discovery abuse, but that is a different and longer topic.

UPDATE 6/4/17:  The Law for Lawyers Today has a comment here.

Tuesday, May 23, 2017

New ABA Ethics Opinion on duties related to the use of modern technology -- UPDATED

The ABA Standing Committee on Ethics and Professional Responsibility recently issued Formal Ethics Opinion 477, which updates Formal Ethics Opinion 99-413, and which addresses different duties related to the use of modern technology.

The opinion concludes that "[a] lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security."

This does not strike me as new or surprising.  It essentially reinforces a duty already in place in Rule 1.6(c) of the Model Rules of Professional Conduct which states that a lawyer "shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

What is new (but I don't know if surprising) is that the committee declined to draw a bright line as to when encryption or other security measures would be required. Instead, the committee recommended that lawyers undergo a “fact-based analysis” that includes evaluating factors such as the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.  Thus, some cases may require lawyers to use encryption, while others might not.  

For a good explanation of the opinion go here, and here.

UPDATE 5/23/17:   Formal Opinion 477 has been revised to clarify that the opinion does not alter Formal Ethics Opinion 11-459 and to note that the change in Model Rule 1.6(c) supported 11-459. There is no substantive change in the opinion. The revised opinion can be found here.  For a good analysis of the opinion go here.

Saturday, May 20, 2017

Wednesday, May 17, 2017

North Carolina is considering amending its rules to make it easier for lawyers to participate in Avvo Legal Services

Long time readers of this blog know that I have been following and writing about the debates related to Avvo Legal Services for some time now.  For an article on my position on the subject go here

As you may remember Avvo has attempted to argue that lawyers should not worry about participating in Avvo Legal Services because doing so does not violate rules of professional conduct, or, if it does, because the rules are unconstitutional.  Yet, all the opinions issued so far have concluded that Avvo is wrong.  And that is because under the current regulatory scheme in pretty much all states, Avvo’s arguments are weak. 

Having said that, however, note that the key to the previous statement is “under the current regulatory scheme.”  Saying that participating in Avvo Legal Services would violate the rules is not the end of the debate.  The more interesting question is whether the rules should be changed to accommodate what Avvo wants to do. 

Today’s update on this story is that instead of continuing to argue that the rules don't apply or that they should be ignored, Avvo apparently has been trying to convince the North Carolina regulators to change the rules.  As a result, North Carolina may soon become the first state to change the regulatory approach in order to formally make it acceptable for lawyers to participate in services like Avvo Legal Services.  (Interestingly, as you might remember, North Carolina also amended its definition of the “practice of law” as part of an agreement with LegalZoom.)

According to documents I have reviewed, as a result of meetings between Avvo and a committee of the State Bar Association, the committee has drafted a proposal to amend several rules of professional conduct, including Rule 5.4, which bans splitting fees with non-lawyers.  The proposal would add a new paragraph to the rule to state that “a lawyer may pay a portion of a legal fee to a credit card processor, group advertising provider or online platform for identifying and hiring a lawyer if the amount paid is a reasonable charge for administrative or marketing services and there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship.”

Adoption of this new rule would be good news for Avvo, but would not necessarily clear the way entirely.  One point of contention within the committee was whether Avvo’s rating system operates as a recommendation to consumers which would result in a violation of rule 7.1 if lawyers were to pay Avvo for recommending them, particularly since Avvo does not disclose the basis of the rating system.  Within the committee, this created a concern over whether Avvo is providing recommendations that are not based on legitimate criteria because the rating system is not transparent since it does not provide information on the factors used to create the rating.

To address this concern, there is now a proposal to add a new paragraph to the comment of Rule 7.1 to state (in part) that “A lawyer may participate in online directories and other rating systems that allow the lawyer to “claim” the lawyer’s profile and to provide information for inclusion in the profile or to be used to rate the lawyer.  The information provided by the lawyer must be truthful and not misleading.  No money may be paid by the lawyer for a rating and, before voluntarily providing information to an online rating system, the lawyer must determine that the rating system uses objective standards that are verifiable and would be recognized by a reasonable lawyer as establishing a legitimate basis for evaluating the lawyer’s services. . . .”

If it is true that Avvo does not disclose the basis of its ratings, I am not clear how a lawyer can meet these requirements. 

Finally, as one would expect, another concern is whether allowing Avvo to retain the consumer’s payment until the lawyer finishes providing the legal services constitutes a violation of the lawyer’s duty to safeguard client’s funds in a trust account and to contribute the interest generated by that account to the state’s IOLTA program.

To address this concern, Avvo has suggested an amendment to the comment of the rule on safeguarding property, but it is not clear that the committee of the State Bar has adopted it.  Avvo’s proposal is to add a new paragraph to the comment to read: “Client or third person funds sometimes pass through, or are originated by, intermediaries before reaching the lawyer’s account.  Such intermediaries have traditionally included banks, credit card processors, or litigation funding entities, and have been chosen unilaterally by the client.  However, newer intermediaries include attorney marketing programs, chosen by the attorney, that collect payments directly from clients and pass them through to the attorney.  Attorneys have an affirmative obligation to ensure that such intermediaries 1) adequately protect client funds and 2) do not retain client funds for a period [of time] that materially impacts i) the client’s opportunity to earn interest on the funds, or ii) the availability of interest earnings for [state legal services organization that receives IOLTA interest, if applicable].  Absent other indicia of fraud (such as the use of non-industry standard methods for collecting credit card information), an attorney’s diligence obligation will be deemed met with respect to intermediaries that collect client funds using credit or debit cards and remit such funds to attorney accounts within [ ] days.”

As of now, I don’t know if the State Bar proposal will include this suggested language.  It is not included in the copy I have, but there may be more documents I have not seen yet.  Clearly, Avvo's goal is to exempt lawyers from having to deposit client money in a trust account, at least for some, as of yet not determined, period of time.  For those who have argued the rules about trust accounts should be abandoned or relaxed, this would not be a problem.  But for those who think they need to be followed strictly in order to protect clients, this proposal might be a problem.  The North Carolina rules regarding trust accounts can be found here.

The documents I have seen about these proposals are all from within the last three months, but I do not know what is the current status of the proposals.  It remains to be seen if they will be adopted by the State Bar Ethics Committee.

Stay tuned.