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.