Sunday, March 4, 2018

Office Depot now offers legal services..... Or does it?

A few weeks ago I was alerted that Office Depot had begun to advertise a new legal services plan.  You can find the announcement here.  I clicked on the announcement and it took me to a page explaining the services.  I saved it so I could go back to explore it when I had time so I could comment on it here.

It took me until today to find the time and when I went back to the page to explore it more carefully I was surprised to find a page that says "this page does not exist."

Maybe the page is just off today.  However, I also noticed that the service is no longer listed in the available services (here) so maybe something happened that made Office Depot or BizBox decide not to offer the service after all.

I just don't know; and I am very curious to find out what happened.  If anyone has more information on this please send it my way!

Here is a copy of the original page:

Five questions on technology competence

As you probably know, more than half the states have adopted the ABA Model Rules' suggestion that lawyers must be knowledgeable about "technology" as part of the duty of competence.  Go here and scroll down for multiple stories on the subject.

To help educate lawyers about technology, here is a short article called "Five Questions to Test Your Understanding of the Ethics of Technology."

Article on using digital assistants in the practice of law

Here is an interesting article on the use of digital assistants like Amazon's Alexa, Microsoft's Cortana and Google Voice in the practice of law, including a discussion of issues related to confidentiality.

How not to practice law: several updates

Here are a few new entries to the ongoing series "how not to practice law."

An attorney in Colorado got a three year suspension for lying to the court.  He claiming he had cancer in response to motions to show cause.  Story here.

A lawyer in Florida was disbarred for "obnoxious conduct." Apparently, the Florida Supreme Court has drawn a line in the sand: you can be “professional and aggressive” but not “obnoxious.” The conduct included loudly kicking a table and muttering “lie, lie, lie” during court proceedings, going on a "tirade" during a deposition and insulting opposing counsel. The case was reported here, herehere and here.

A Pennsylvania man has sued a Willig Williams & Davidson attorney representing his wife in a divorce proceeding alleging the attorney knocked him to the ground during a break in a hearing causing him permanent injury. The case is Charles Elliott v. Scott Orloff et al., case number 171201130, in the Court of Common Pleas of Philadelphia County.

In re: Encore Prop. Mgmt. of W. New York, LLC, Debtor., No. BR 18-20014-PRW, 2018 WL 941647, at *3 (Bankr. W.D.N.Y. Feb. 16, 2018) in which the court actually stated "A finer example of what not to do as a litigator would be hard to find."  (Thanks to Roy Simon for alerting me to these last two.)

A lawyer in Kentucky created a few fake bar associations so he could then claim his referral service was not in violation of a rule that limits referral services to those sanctioned by the Bar in the state.  You can find more on the story here, and here.  Is this unethical or a smart way to take advantage of a loophole?

And my favorite this month:  how not to practice law:  send a message to Bar officials telling them to go fuck themselves!  The Legal Profession Blog has the story here, which raises another interesting question in this case: whether the sanction was appropriate.  The lawyer was only issued a reprimand.  Should the sanction have been worse?

Sunday, February 25, 2018

3M settles case filed by state of Minnesota

3M has agreed to pay $850 million to settle a long-standing lawsuit filed by Minnesota, over the company’s disposal of perfluorochemicals used in Scotchgard and other products, which the state says polluted drinking water sources.  Go here for more details.

Why is this relevant?  Because this was the case in which the law firm Covington & Burling was disqualified for allegedly violating the "hot potato doctrine."  Go herehere, here and here for my original posts on the case.  The disqualification order was later remanded for further proceedings.

Saturday, February 24, 2018

Legal Talk Network: Podcast on Limited License Legal Technicians

Long time readers of this blog will remember the debate on whether non lawyers should be licensed to provide limited legal services and how Washington state became the first jurisdiction to recognize Limited License Legal Technicians (LLLTs).  See here, here, here and here, for some of my posts on this starting back in 2015.  Go here for a 2017 podcast on the subject.

Last week, the Legal Talk Network published a new podcast on the subject.  You can access it here.

Comments on proposed changes to the ABA rules on advertising

As you know, the ABA is considering a series of changes to some of its rules related to advertising.  As I have commented before, the changes are somewhat controversial, but mostly because many think they are not bold enough.  Go here for a summary of the issues.

2Civility, a website of The Illinois Supreme Court Commission on Professionalism, has published a short comment on the proposed changes that includes interesting comments from readers.

Also, Avvo's Lawyernomics has published (here) a comment called "Why the ABA’s Proposed Attorney Advertising Rule Changes Don’t Go Nearly Far Enough."

Avvo's comment is interesting but not quite well reasoned.  One of its main points is that states should eliminate rule 7.2 (and some others) entirely because the only rule needed is 7.1 which bans the publication of false or misleading advertising.

First of all, if we are going to eliminate something entirely, I'd say let's get rid of the notion of "misleading."  But that aside, the problem with arguing that everything can be "dealt with" by looking at the principle in rule 7.1 is that that principle is different than the one expressed in rule 7.2.

The principle in 7.1 is that the state has the authority to regulate speech that is not protected by the First Amendment.  Evidently, if the speech is not protected, the state can regulate it.  The principle in rule 7.2 is that, in addition to that, under certain circumstances the state can also regulate speech that is protected.

Opponents of the regulation of advertising can argue that the state should not engage in the regulation  of protected speech or that the regulation should be more limited than it is now.  That is a valid argument over which reasonable people can disagree.  But the basis of the argument is a debate on whether regulation is a good idea as a policy matter; not that rule 7.1 already covers it.

Comment on ABA Opinion on whether a judge can independently research adjudicative facts on the internet

Professional Responsibility: A Contemporary Approach has published a short comment on the ABA's Formal Opinion 478 on the restrictions imposed by the 2007 ABA Model Code of Judicial Conduct on a judge searching the internet for information helpful in deciding a case. The  opinion concludes that Rule 2.9(C) of the Model Code prohibits a judge from researching adjudicative facts on the internet unless a fact is subject to judicial notice.  You can read the comment here.  You can read the opinion here.

Sunday, February 18, 2018

Trump's budget proposal would eliiminate all funding for the largest single funder of civil legal aid for low-income people

At a time when the legal profession continues to debate how to best provide access to legal services for those who can't afford it, the Trump's administration budget proposal is trying once again to eliminate funding for the Legal Services Corp., the largest single funder of civil legal aid for low-income people.

ABA President Hilarie Bass issued a statement Friday saying the administration’s latest proposal to defund the LSC “is unwarranted and should be dead on arrival.”

The president also sought to cut all funds to the LSC last year but Congress kept the LSC budget at last year’s level, and at one point added $15 million to fund legal services for victims of natural disasters.

Go to the ABA Journal for more details.

Monday, February 5, 2018

Update on the Florida case challenging the notion of unathorized practice of law (and maybe the state's authority to regulate the practice of law)

Last month I posted that one of the important stories to watch in 2018 was going to be an $11 million antitrust lawsuit against the Florida Bar filed by an online service that helps people resolve claims related to driving tickets challenging the state of Florida's authority to regulate the practice of law.

In the most recent developlemtn in the case, the Florida Supreme Court has issued an order directing the company - TIKD - to file a response to the Florida Bar's allegations that TIKD is practicing law without a license, and to show cause why the court should not issue an injunction blocking its services.

In the meantime, a state senator presented an amendment to a bill that would allow TIKD to conduct its business but later withdrew it after lawyers raised concerns about whether the company was practicing law without a license.

Faughnan on Ethics has a comment here.

Thanks to Roy Simon for the updates!

Saturday, February 3, 2018

Short summary of the ABA proposed changes to advertising rules (and some questions left unanswered)

Over at The Law for Lawyers Today, Karen Rubin has posted a short but informative comment on the ABA proposed changes to the Model Rules on advertising and solicitation.  You should go take a look at it here.

As she explains, the proposed changes are not that bold and do leave some of the most controversial issues untouched.  However, I do like the proposal that eases the approach to the ban on advertising as "specializing in" a particular area of law which I have criticized many times in the past.  (See here, and here for example.)

Tuesday, January 30, 2018

Reminder: You can comment on the ABA's proposed amendments to rules regarding advertising

The Standing Committee on Ethics and Professional Responsibility has released a Working Draft of proposed amendments to the ABA Model Rules of Professional Conduct on lawyer advertising. More information about the Working Draft is available here. The Ethics Committee wants to hear your opinion on its draft and your ideas for making it better.  You have two ways to communicate your thoughts and suggestions: (1) attend the February 2, 2018, public forum in Vancouver, Canada held in conjunction with the ABA MidYear Meeting and (2) provide written comment to the Committee through its email address  The Center’s Ethics Department has compiled a summary of the proposed amendments. It is available here.

UPDATE (1/20/18):  Legal Ethics in Motion has an update a lots of links to more information here.

Monday, January 29, 2018

9th Circuit finds juvenile facing deportation has no right to free lawyer

The ABA Journal is reporting that a federal appeals court ruled today that a minor has no right to a court-appointed lawyer in immigration proceedings.  Go here for the full story.

UPDATE (1/20/18):  Jurist has more on the story and links to the decision here.

Friday, January 26, 2018

US Supreme Court hears oral argument in McCoy v Louisiana; Justice Sotomayor compares it to an ethics class in law school -- UPDATED

Back in October I wrote a comment on McCoy v. Louisiana, a case before the US Supreme Court in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  During the argument Justice Sotomayor said the case sounded like a law school hypo.  And she is right (for all the reasons I mentioned in my comment).  Also, according to the ABA Journal, Justice Neil Gorsuch was among the justices who appeared to see merit in the defendant's case.

The ABA filed an amicus brief (see here).

The oral argument is available here.

Bloonberg Law has a story on the case here.

The New York Times has an article on the case here.

The SCotUS blog has a summary and analysis of the case here.

NPR's coverage of the case is here.

Above the Law has a post on the case here.

I am very interested in how the Court will decide this case and, particularly, how it will treat Florida v. Nixon.  (Again, see my comment above).

UPDATE 1/26/18: Ethical Grounds has a comment on the case here.

Wednesday, January 24, 2018

Why has the legal system failed to keep pace with technology?

If you think that the legal system failed to keep pace with technology, you may wonder why that is the case.  Robert Ambrogi, who writes and speaks frequently on issues related to technology offers his answer here.

High profile case dismissed because of prosecutorial misconduct

Earlier this month I heard that the court dismissed the case against rancher Cliven Bundy, two of his sons and a militia commander from Montana (arising out of  an armed standoff against federal agents in Nevada).  However, I did not noticed until recently that in dismissing the case, the Chief U.S. District Judge chastised the federal government for what she characterized as a “reckless disregard to fulfill its constitutional duties.”

The ruling was prompted by the discovery of more 3,000 pages of evidence federal prosecutors failed to turn over to defense attorneys. You can read more about the case here and here.

May Judges be "Facebook friends" with lawyers? Should Judges be allowed to preside over cases litigated by the judge's "Facebook friends"?

Because two of the state’s appellate districts took opposing views on the issue, the Florida Supreme Court has agreed to decide whether a judge may be a "Facebook friend" of a lawyer who appears before the judge.

In a short Op-ed piece in the Orlando Sentinel, my friend and colleague Ray McKoski takes on the issue and argues that imposing a per se rule against virtual friendships would be an overreaction given the fact that judges preside over lawyers who they know and are friends with outside of Facebook. As he correctly states:
No ethics rule bars a lawyer from appearing before a judge when the two share an actual friendship. Courts nationwide, including Florida courts, recognize that a judge’s real friendship with an attorney does not disqualify a judge from a case involving the lawyer. The rule permitting judges to preside over cases involving real friends simply cannot be reconciled with the proposition that virtual friendships require a judge’s automatic disqualification.
Whether the  relationship between a lawyer and a judge is so close as to call the judge’s impartiality into question, the question should be decided on a case by case basis. 

Monday, January 15, 2018

Article on unauthorized practice of law and the possibility of providing access to legal services by recognizing limited legal technicians

Long time readers of this blog are familiar with the on-going debates on whether non lawyers should be allowed to provide some types of legal services.  As you recall, Washington state became the leader in this discussion when it approved rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians, or LLLTs) in 2012.  Other states have had similar discussions.  For some posts on this topic go here, here, here, and here.  And, one controversial part of the discussion is whether the resistance from some lawyers, and bar associations is based on protectionism rather than on a concern for the public.  See here, for example.

A few days ago, the ABA Journal online published a short article on this topic called: "When UPL accusations against lawyer paraprofessionals are just protectionism."  Its conclusion:  "It’s time to embrace alternative delivery by removing barriers masquerading as ethical issues or provider ability accusations and refocus the discussion on client demand, not attorney supply."

Thursday, January 11, 2018

Avvo is acquired by Legal Brands, a company that already owns a series of law related websites -- UPDATED

Breaking news:  Avvo has been acquired by Internet Brands which already owns legal sites Nolo, Martindale-Hubbell, Ngage and Total Attorneys.  You can read the first announcement here.  Also, go here for comments by Avvo's CEO and here for more information.

This came as a surprise and I have not seen any information on the deal other than what is being reported in the links above.  As of now, it seems Avvo's services will remain unchanged, but it will be interesting to see if the new company eventually introduces changes in response to the continuing resistance by many jurisdictions to allowing attorneys to participate in Avvo's "Avvo Legal Services."  For more on that controversy go here and scroll down.

UPDATE (1/24/18):  Now that Avvo has been acquired, what should we expect?  Above the Law has a short article on that.

Wednesday, January 10, 2018

Vermont adopts rule regulating sexual relations with clients

Ethical Grounds is reporting that the Vermont Supreme Court recently adopted a version of Model Rule 1.8(j) which regulates sexual relations with clients.  The model rule has been in place for quite some time, and quite frankly I am surprised to hear it had not been adopted sooner. 

Florida Supreme Court adopts changes to the Rules

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

UPDATE (1/10/18):  The Lawyer Ethics Alerts Blog has more details on the court's rejection of the proposal related to language expressing that a lawyer specializes or is an expert.

Stories to look out for in 2018

The Law For Lawyers Today has a short post on a few of the top stories to watch out for in 2018 and a couple of them are things I have been commenting about for a while:  the issues related to participating in services like Avvo Legal Services and whether states will adopt Model Rule 8.4(g).  On this last topic, I posted recently here and here.

Another important story relates to the claim that an online service that claims to help people resolve claims related to driving tickets is engaged in the unauthorized practice of law in Florida.  This, I think, will be a big story this year because it may have significant implications on the notion of what constitutes the practice of law, and the authority of a state to regulate that practice.  Bloomberg has a very good summary of the issues related to that story here.

Wednesday, January 3, 2018

Nevada retracts its petition to adopt Model Rule 8.4(g)

In my most recent post, I wrote that the Tennessee Bar Association has asked the state's supreme court to adopt an amended version of ABA Model Rule 8.4(g).  In that post, I mentioned that at one point, it looked like Nevada would be the first state to adopt the rule, but that I had not seen news that it had. 

One of my readers then sent me a message with an update from Nevada.  A few months ago, in reaction to the opposition to the proposed new rule, the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” The Board’s request was granted September 25, 2017.