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

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.

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.

Tuesday, May 16, 2017

Florida Supreme Court dismisses Florida Bar’s petition proposing substantial revisions to lawyer referral service rules

Back in 2015, the Florida Supreme Court rejected amendments to state regulations on referral services and directed the State Bar to instead draft amendments that would “preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.”  See, In re Amend. to Rule Reg. The Fla. Bar 4-7.22—Lawyer Referral Services, 175 So. 3d 779, 781 (Fla. 2015).

The State Bar went back to work and adopted a new proposal in 2016, but this new proposal was recently rejected again by the Supreme Court because it still allowed attorneys to accept referrals from entities owned and operated by non-lawyers. 

What is interesting about this story is that the new proposal was adopted to make it easy for entities like LegalZoom, RocketLawyer and Avvo to participate in the state’s legal market.  To this end, under the new proposed amendments any private entities that connect consumers looking for legal services with lawyers would have been called “qualifying providers” regardless of whether they were “traditional” referral services or a technology-based “lead generator” (like Avvo, RocketLawyer or LegalZoom).

The Court however, rejected the proposal stating that the proposed amendments “do not comply with the Court’s direction concerning lawyer referral services that are not owned or operated by a member of the Bar” and it objected that the proposed amendments “seek to expand the scope of the rule to include “matching services” and other similar services not currently regulated by the Bar.”  This last reference, obviously, is directed at services like RocketLawyer, Avvo and LegalZoom.

Having said all that, however, the debate is not over.  The Court again sent the issue back to the State Bar stating that “the Bar’s petition in this case is . . . dismissed without prejudice to allow the members of this Court to engage in informed discussions with the Bar and those who are in favor or against the proposed regulation of matching and other similar services. The Court lacks sufficient background information on such services and their regulation at this time.”

In other words, it is still possible that the Court will adopt the proposed amendments; it just won’t do it at this time.

The Court’s order is officially called In Re: Amendments to the Rules Regulating The Florida Bar-Subchapter 4-7 and you can read it here.

Thanks to Lawyer Ethics Alerts Blog for the update.

Monday, May 15, 2017

NPR article on one example of prosecutorial misconduct

NPR has published an interesting short article chronicling a criminal case recently dismissed because of prosecutorial misconduct.  The title says it all:  "'This Was A Colossal Screw-Up': A Close Look At A Case Dismissed For Misconduct."

Georgia Supeme Court finds duty to disclose exculpatory evidence does not necessarily require disclosure before trial

The Georgia Supreme Court recently absolved a state prosecutor of ethics charges arising from an alleged violation of the duty to disclose exculpatory evidence because, according to the court, the “record fail[ed] to show any clear-cut violation of Brady or Rule 3.8 (d), and for that reason, we conclude that no discipline at all is warranted.”

Given that the court concludes the record shows "clearly and convincingly" that the prosecutor failed to disclose evidence to the defense, I wonder what the court means by a “clear cut violation.”  Does that mean that the record showed a violation but that it was an “acceptable violation,” a “so-so violation”...?  Hm; don’t know, but I will let that slide.

There are two more interesting things to point out here.  The first one if that the court does not make any distinction between the obligation imposed by the Constitutional standard in Brady and the regulatory standard in the Rules of Professional Conduct.  As you probably know, some jurisdictions consider the Rules to impose a broader duty.

The second interesting point is the reason the court did not find a violation of the prosecutor’s duty to disclose.  The court found that even though the record “clearly and convincingly shows that [the prosecutor] failed to disclose to defense counsel [the material evidence] before trial . . . Brady does not always require pretrial disclosure of exculpatory evidence . . .”  Citing several older Georgia cases, the court holds that a prosecutor can withhold exculpatory evidence from the defendant until the trial itself and that the duty would be satisfied even if the disclosure is made at the last minute if defense counsel has a chance to cross examine the witness who offers the evidence.  According to this line of cases “[w]hether a disclosure at trial is timely enough to satisfy Brady depends on the extent to which the delay in disclosing the exculpatory evidence deprived the defense of a meaningful opportunity to cross-examine the pertinent witness at trial, whether earlier disclosure would have benefited the defense, and whether the delay deprived the accused of a fair trial or materially prejudiced his defense.”

I find it difficult to think that a prosecutor can knowingly delay disclosing information there is a duty to disclose and that it would be acceptable to surprise the defense in the middle of trial.  (And, even if the information is not withheld "knowingly," as the court states in the case, Brady applies irrespective of the good faith or bad faith of the prosecutor.)  I find the last quote of the court (above) to be of little comfort.  However, I am not an expert on criminal procedure or the Brady doctrine, which is maybe why I find this result surprising.  I just don’t know if this approach is common among jurisdictions.  Do you?  Let me know.

The Legal Profession blog has more information here.

Sunday, May 14, 2017

Virginia to amend rules regarding advertising

The Virginia Supreme Court has announced that it will adopt new lawyer advertising rules effective July 1, 2017.  Here is the announcement and the text of the new rules.  The new rules will largely follow the suggestions of the Association of Professional Responsibility Lawyers which, for some time now, has been advocating the simplification of advertising rules. Go here for a post on the APRL's report on the subject and here for a comment on it.

I don't have a problem with an effort to simplify the rules on advertising.  But there is an inherent problem in any rule that allows for discipline to be imposed based on a finding that information is "misleading."  The word misleading is so vague it leaves too much up to interpretation. Yet, the word is part of the Constitutional analysis developed by the Supreme Court, so we have learned to tolerate it, I guess.

For a comment on the new rules in Virginia go here.

2 Civility has a comment with some links here.

UPDATE 5/14/17:  The Law for Lawyers Today blog has a comment here.

Thursday, May 4, 2017

Hot potato doctrine applied in Mississippi

The Law for Lawyers Today blog is reporting on a recent case applying the "hot potato doctrine" in Mississippi.  You can read the story here.  The case does not seem to add much to what we already know about the doctrine other than the fact that the case did not quite involve the typical scenario in which the doctrine applies.

Typically the hot potato doctrine applies when a lawyer drops a current client in order to take on a new client.  In the Mississippi case, the lawyer took on the new client and then dropped the current client.   Thus, in this case what the lawyer did was enter into a concurrent conflict for a short period of time and then tried to resolve it by dropping one of the two concurrent clients.  In other words, the doctrine is usually applied when a lawyer drops a client in order to avoid entering into a conflict, while here the lawyer dropped a client in order to remedy a conflict he was in already.

Saturday, April 29, 2017

My most recent article is now available

My article Justice Gap vs. Core Values: The Common Themes in the Innovation Debate was recently published by the Journal of the Legal Profession.  You can find it at 41 J. of the Legal Profession 1 (2016).

Monday, April 3, 2017

Amendments to Illinois CLE requirements

Earlier today, the Illinois Supreme Court amended the Illinois rule that imposes a minimum number of hours of CLE dedicated to Professional Responsibility.  The Rule will still require Illinois lawyers to complete 6 hours of professional responsibility CLE every reporting period, but effective July 1, 2017, of those 6 hours, one hour must be devoted to issues of diversity and inclusion, and one hour must be devoted to mental health and substance abuse.  

You can read the Court’s press release here and the revised Rule here. The Commission on Professionalism has also answered some FAQs for both attorneys and providers regarding this upcoming requirement, including effective dates, application procedures and eligible courses and activities.

I am not sure I like this rule.  I don't understand why require certain topics and not others.  

Friday, March 31, 2017

Want to help the economy? Don't cut legal aid

Over at Above the Law, David A. Lash, the Managing Counsel for Pro Bono and Public Interest Services at O’Melveny & Myers LLP, has published a short article on the importance of supporting legal aid.  In it, he argues that "allocation of funding for legal aid is a wise investment. In addition to the lives it saves, investment in lawyers for the poor, on a strictly economic, cost-benefit analysis, is an investment worth making. For every dollar spent in support of legal services, an astonishing rate of return results. By any measure, an investment yield of ten-to-one is an investment worth making."

You should read the article here.

Sunday, March 26, 2017

Court of Appeals for the Second Circuit rejects argument that rules that ban lawyers from raising capital from non lawyers are unconstitutional -- UPDATED

In an important and highly anticipated opinion, the Court of Appeals for the Second Circuit has rejected an argument against the rules of professional conduct which ban lawyers from accepting capital investment from non-laywers.  In this particular case, the specific rules challenged were those of the state of New York, but the reasoning of the court is likely to influence courts in other jurisdicitons.

The ruling is a big blow to those who have been proposing adopting different rules, now in use in the UK and Australia, that would allow lawyers to practice law through "alternative business structures."

On the other hand, the ruling should not be unexpected since the American legal profession has proven to be very reluctant to adopt such a view.  There is a lot of literature about this and it was the hot issue in Professional Responsibility circles for the last couple of years. 

Many thought the ABA was ready to point the way toward change when, in 2014, it created the Commission on the Future of Legal Services and charged it with the task of studying how legal services are delivered in other countries and of recommending innovations that would improve the delivery of, and the public’s access to, legal services in the United States.

Yet, when the Commission presented its final report at the 2016 ABA Annual Meeting it essentially merely encouraged states to “explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public.”  As for the notion of alternative business structures, the Commission’s report’s language was even more tentative, merely stating that “[c]ontinued exploration of alternative business structures will be useful.”  For my comment on the Commission's report go here.  I also have a short article on the debate regarding the future of the profession in 41 Journal of the Legal Profession 1 (2016).

Not content on waiting for the ABA to act, the law firm Jacoby & Meyers, challenged the constitutionality of a collection of New York regulations and laws that together prevent for‐profit law firms from accepting capital investment from non‐lawyers.

In its opinion rejecting the argument, the court explained that the law firm alleged that, if they were allowed to accept outside investment, they would be able to—and would—improve their infrastructure and efficiency and as a result reduce their fees and serve more clients, including clients who might otherwise be unable to afford their services, and that the challenged rules unconstitutionally infringe the firm's rights as lawyers to associate with clients and to access the courts—rights that are grounded, they argue, in the First Amendment.

The District Court dismissed the complaint, concluding that the firm failed to state a claim for violation of any constitutional right and that, even if such rights were to be recognized, the challenged regulations withstand scrutiny because they are rationally related to a legitimate state interest.

The Court of Appeals agreed and affirmed.  You can read the full opinion here.

UPDATE (3-28-17):  The ABA Journal has a short post on the story here.  The NY Personal Injury Blog has a comment here.

Yet another case on whether a fee sharing contract that does not follow the rules can be enforced

A few days ago I posted a note about a recent case on the issue of whether a fee sharing contract that does not strictly meet all the requirements of the rules of professional conduct can be enforced.  Since then, I have learned that the issue is currently under review by the Illinois Supreme Court.  You can listen to the oral argument here.

This is an interesting question and there are a few cases out there on the subject.  I will write a longer comment on the case soon.

Saturday, March 11, 2017

Is a fee sharing contract that violates the rules of professional conduct enforceable?

A few years ago I reported on an Illinois case that held that a contract that violated the rules of professional conduct could not be enforceable.  I did not like the decision, and my comments on it are here.

I was reminded of this case because just a couple of days I ago I read that a court in Washington DC recently reached a different result.  The Legal Profession blog has a report here.

ABA is seeking comments on proposal to amend advertising and solitication rules -- UPDATED

Feb. 24, 2017 
The ABA Standing Committee on Ethics & Professional Responsibility is currently accepting comments on APRL’s comprehensive proposal which seeks to standardize the rules and focuses regulation on false and misleading communications about legal services. It includes amendments to Model Rules 7.1, Communications Concerning a Lawyer’s Services; 7.2, Advertising; 7.3, Solicitation of Clients; 7.4, Communications of Fields of Practice and Specialization; and 7.5, Firm Names and Letterheads. The APRL proposal can be found here.  For more information, go to the ABA website here.

UPDATE (3-11-17):  The Illinois Supreme Court Commission on Professionalism has published an article summarizing the debate on this issue here.

Tennessee adopts duty of competence regarding "technology"; Two recent articles explore the meaning of such a duty

Last week, the Supreme Court of Tennessee issued an order adopting a number of amendments to the state's rules of professional conduct, including adopting a duty of technology competence.  Twenty seven states have now adopted such a duty.  Law Sites has more details here.

Meanwhile, Law Technology Today has published a two part article on the ethical duty of technology competence.  Part I is here; Part II is here.

Tuesday, March 7, 2017

New Ohio opinion reminds us of the difference between fees and expenses

The Ohio Board of Professional Conduct recently issued an advisory opinion on lawyer advertising that emphasizes the need to be clear about the difference between fees and expenses.  The opinion, Advisory Opinion 2017-01, states that lawyers who provide services on a contingent fee basis may not use statements such as “There’s no charge unless we win your case,” or “No fee without recovery,” if the lawyer intends to recover the value of litigation costs and expenses from the client. If a lawyer intends to recover advanced costs and expenses of litigation from the client, a disclaimer is required in the advertisement that explains the client’s obligations for repayment.

Friday, March 3, 2017

California Committee issues final draft of opinion on whether blogs are subject to advertising rules

Legal Ethics in Motion is reporting that the California Standing Committee on Professional Responsibility and Conduct has finalized an opinion on whether attorney-authored blogs should be governed by the advertising regulations. The Committee concluded that blogs should be governed as attorney advertising if the blog directly or indirectly expresses the attorney’s availability for professional employment. Thus, a blog that is a part of a firm’s professional website is governed by the advertising guidelines.  “Stand-alone” blogs, or blogs that exists independently of any website an attorney maintains or uses for professional marketing purposes, are also subject to the rules if its content has the same effect as professional blogs.  For more information go here.

New York State Bar Association launches new platform to provide better access to legal representation

The New York State Bar Association, and, a developer of referral-network and marketplace platforms for the legal industry, have teamed up to launch a state-of-the-art lawyer referral platform that they say will significantly expand access to legal services in that state.  Interestingly, the developers of this new platform have been reported to describe it "as a more ethical alternative to privately run referral sites such as Avvo..." It will serve New York residents seeking legal help as well as businesses anywhere seeking advice on New York law.  Law Sites has more information here.

Monday, February 27, 2017

Judge finds party waived privilege by placing information on unprotected file sharing website

Earlier this month a federal magistrate judge in Virginia held that placing privileged materials on an unprotected file-sharing site waived a plaintiff's attorney-client privilege and work product protection for those materials.  The case is called Harleysville Ins. Co. v. Holding Funeral Home, Inc.  (also here).  For more details, go to 33 Law. Man. Prof. Conduct 76.  The ABA Journal has more information here.

Although some jurisdictions are divided on the issue of whether accidental disclosure automatically waives the privilege, in this case the judge held that the party's actions "were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to imagine an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web."

Saturday, February 25, 2017

Legal ethics professors file disciplinary complaint against Kellyanne Conway - UPDATED

If you saw the original story, scroll down to the end for an update:

I am sure you have heard by now that fifteen professors of legal ethics have sent a letter to the Washington DC Office of Disciplinary Counsel arguing that Kellyanne Conway has incurred in multiple violations of Rule 8.4(c) which recognizes as misconduct engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

The complaint has sparked a spirited debate among ethicists and other commentators. It certainly dominated the discussion for most of the day yesterday in the listserv of the Association of Professional Responsibility Lawyers.

Some of the debate has centered on whether the complaint has any basis in the rules [it does]; whether the rule is (or should be considered to be, rather) unconstitutional [it hasn't and there is precedent in many jurisdictions to suggest it wouldn't] and whether the bar has the authority to regulate Conway's conduct since it was not in the practice of law [there is precedent in many jurisdictions to support the view that it does].  Also, a separate question is whether the bar would (or should) spend resources on a complaint based on these types of allegations.

Given that the answer to that last question is that disciplinary agencies usually do not go after lawyers for relatively "minor" and or "private" instances of dishonesty, the issue depends on how important you think Conway's conduct (or alleged misconduct) really is. 

I am sure that if you "google" (a word that is now a verb) the story, you will find a lot of comments.  Here are just a few:

You can read the complaint itself here.

The Washington Post reports the story here.

Above the Law has a short statement that starts "It’s becoming increasingly likely that Kellyanne Conway isn’t a real person so much as a Professional Responsibility issue-spotter made flesh. Between making up terrorist attacks or shilling Ivanka’s crummy baubles or generally degraded political discourse by treating it like a criminal trial, Kellyanne’s had a busy month of run-ins with the generally accepted principles of legal ethics." 

Jonathan Turley argues the complaint is not justified and lacks credibility.

Attorney Paul Alan Levy criticizes the complaint on First Amendment grounds here.

The ABA Journal reports here.

UPDATE (2/27/17):  Professor Steven Lubet, a Legal Ethics professor at Northwestern, criticizes the complaint here

Saturday, February 18, 2017

Metadata Fair Game in Texas?

As reported in Legal Ethics in Motion, a recent opinion of a Texas bar panel concludes that there is no duty to inform opposing counsel that that opposing counsel sent a document containing metadata.   Moreover, Texas rules do not prohibit searching for and extracting metadata from documents. Of the nineteen jurisdictions that have issued opinions with specific requirements regarding attorneys’ obligation when transmitting or receiving documents containing metadata, Texas is only the third state to opine that its rules do not require notification to the sender of the document.

For a current survey of the state of the law regarding metadata, check out this page in the ABA's website.  For more on the opinion in Texas, go here.

Illinois State Bar Association issues Opinion on using cloud services to store client information

Back in October, the Illinois State Bar Association (ISBA) issued a Professional Conduct Advisory Opinion stating that a lawyer may use cloud-based services to store client information as long as the lawyer takes reasonable measures to ensure that the client information remains confidential and is protected from breaches.

Carefully choosing an internet cloud space provider is, of course, the first step a lawyer must take in order to comply with the duty.  But, it is important to note that the opinion clearly states that a lawyer does not comply with the obligation to protect the client information by merely selecting (however carefully) a reputable provider.   Thus, the opinion concludes that lawyers must conduct periodic reviews and regularly monitor existing practices to determine if the client information is adequately secured and protected.  This means lawyers can not simply rely on the providers, the lawyers themselves must do something.  And to do something, the lawyers must know what it is they are dealing with.  As I say to my students, lawyers must become personally knowledgeable in computer science of employ someone who is.

States continue to adopt the ABA's suggested language on a duty of competence related to "technology" and this opinion, obviously, follows the trend.  All lawyers are now expected to know about, and understand, the advantages and the risks of using technological advances such as cloud storage.  As reported recently, Florida lawyers are now required to take CLE credits on technology issues.  As technology advances, lawyers are expected to keep up.

You can read the ISBA opinion here.  For information on the current state of the law regarding ethical issues and cloud computing, check out this page in the ABA's website.

Thanks to Ethics in Motion for the update and the link.

Sunday, February 12, 2017

Florida adopts duty of technology competence and a requirement regarding technology CLE -- Updated

October 1, 2016. 
Last week the Supreme Court of Florida became the 25th state to adopt the duty of technological competence that the ABA adopted in its recent amendments to the Model Rules.  That's not terribly surprising as the language of the Model Rules usually eventually finds its way into state rules.

However, the Florida Supreme Court did go a bit further.  As explained by the court, the amendment "add[s] language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.

Go here for more information and a copy of the Court's order.   The ABA Journal online also has the story here.

Interestingly, once it is decided that having knowledge about technology is part of the duty of competence, it follows that it will become an element of the standard of care for malpractice cases. 

UPDATE 2/12/17:  The ABA Journal has a story here.

A recently launched company helps consumers find lawyers based on their win rates

Law Sites has a story and a critique of a recently launched company helps consumers find lawyers based on their win rates.  The ABA Journal also has the story here.  Although I believe the company is genuinely trying to provide access to lawyers for people who don't necessarily know how to find a good lawyer, I think this approach is, to put it mildly, dumb.  Maybe with some major changes they can come up with something that will provide better information for consumers, but the initial idea does not make much sense to me.

The first time the idea was discussed, about a year ago, when a different company proposed the same approach, it was received with negative reviews and the company abandoned the idea.

There are many reasons why using "winning records" as a measure of attorney quality.  First, not all legal services can be measured in terms of wins and losses.  Second, the vast, VAST, majority of cases don't go to trial, so any win-loss records based on trial results only measures a minimally small number of litigated cases.  Third, in those cases that settle, both clients can easily feel they got a "win" when their lawyers exceed their expectations as to the terms of the settlement.  An approach to measuring skill based on winning records does not take into account negotiation skills which, needless to say, are important in litigation. A defendant's lawyer who gets a settlement that saves the client a lot of money may be much more skilled than a plaintiff's lawyer who claims to have "won" the settlement. Simply stated "winning" or "losing" if it can be identified as an actual result to begin with, is not a reliable measure of lawyering skill. Providing consumers with such limited and misleading information may actually be counterproductive. 

Ethical Considerations When Switching from Criminal Defense to the Prosecution

Here is a new short article on ethical considerations when switching from criminal defense to the prosecution published by the New York Legal Ethics Reporter.

Saturday, February 11, 2017

Ethical Implications of Emergent Technologies

Last week I discussed the comment to Model Rule 1.1 which makes it an element of the duty of competence to understand, and stay current on, issues related to "technology."  As if on cue, yesterday the New York Legal Ethics Reported posted a short article with an update on some of the issues.  So, to help you comply with your duties under MR 1.1, here is the link.  You are welcome!

Thursday, February 9, 2017

ABA approves new rule on CLE

Just a few days ago, the ABA House of Delegates adopted a new Model  Rule  for  Minimum Continuing Legal Education (MCLE).  You can find the text of the rule and the report in support of the proposal here.

Sunday, January 29, 2017

Idaho Supreme Court abandons actual innocence requirement for legal malpractice actions against former criminal defense attorneys

Just about a year ago I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  A few months later, however, the Washington State Supreme Court reversed the trend by adhering to the majority view and holding that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.

Now comes news that last week the Idaho Supreme Court has abandoned the actual innocence rule in a case called Molen v. Christian.  In part, the court concluded:
We hold that actual innocence is not an element of a criminal malpractice cause of action. Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the fundamental principle that a person is presumed innocent until proven guilty beyond a reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or she incurs as a result of being guilty of a crime. . . .  Additionally, as a practical matter, requiring actual innocence would essentially eliminate a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty. For the foregoing reasons, we hold that actual innocence is not an element of a criminal malpractice cause of action.
This means that three of the last four jurisdictions to consider the issue have rejected the majority approach, which makes me wonder if what is the majority has now shifted.  I have not done a state by state survey recently, so I don't know for sure.  However, I have not read anyone make that claim yet, so I assume the majority approach is still to require a showing of actual innocence.  If someone has information about the actual count of how many states follow each approach, please let me know. 

Thursday, January 26, 2017

Illinois Supreme Court adopts 'proactive management-based regulation'

Yesterday, the Illinois Supreme Court announced rule amendments that make Illinois the first state to adopt so-called “proactive management based regulation” (PMBR), a system designed to prevent ethical missteps by requiring lawyers without malpractice insurance to review their operations. For the text of the changes, see Amended Rule 756(e).  The Illinois State Bar Association website has more detailed information about the program here.