Friday, May 18, 2018

Supreme Court decides McCoy v Louisiana, finding ineffective assistance of counsel when attorney conceded guilt over client's objection

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 argued he received ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection. (I later posted some updates and relevant links here.) 

In my original post, I argued, among other things, that the case could result in expanding the reach of an older case which I don’t like (Florida v. Nixon).  In Nixon, the Court found that the lawyer had not provided ineffective assistance of counsel based on a distinction between "conceding guilt" and "pleading guilty."   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 a fundamental decision, which is explicitly reserved for the client to make, without client consent.

McCoy had the potential to make things worse because the Court was asked to find no ineffective assistance of counsel even if an attorney decided to concede guilt over the express objection of the client. 

Yet, I am pleased to report that the Court found for the defendant, holding that
“a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reason- able doubt.”
I definitely think this is the right decision in this case.  I just wish the Court had used the opportunity to find it had erred in Nixon (and to overrule it) too.

You can read the full opinion here.  The SCotUS blog has an analysis of the opinion here and NPR has a short comment here.


Another lawsuit alleging UPL to keep an eye on

I recently wrote about the controversy over the company TIKD (here) which is fighting a complaint alleging it is engaged in the unauthorized practice of law in Florida, a case that could really question the authority of the legal profession to continue to operate as a monopoly that regulates itself.

Now comes news of another case that may have similar implications.  As reported in Bloomberg Law, a lawsuit was filed earlier this month in California federal court accusing venture-backed legal matchmaker UpCounsel Inc. of violating ethics rules and unfair competition laws to gain an edge over traditional legal service providers. The lawsuit was filed by LegalForce RAPC Worldwide P.C., an intellectual property law firm that uses artificial intelligence software to streamline the trademark application process. Raj Abhyanker, an engineer-turned-attorney who founded the plaintiff entities, told Bloomberg Law that the UpCounsel lawsuit will shine a light on regulatory inequities that have allowed nontraditional legal service providers to gain a competitive edge in the marketplace.

Note how ironic this claim is.  The legal marketplace is essentially a monopoly in which only state admitted lawyers can participate and which is regulated by people who are participants in the monopoly itself.  Companies like UpCounsel and others have argued that this constitutes an inequity because it prevents them from entering and competing in the market.  Yet, the plaintiffs in this lawsuit are now claiming that allowing the companies to enter the market would constitute unfair competition.  In other words, those who have benefited from controlling the market as a monopoly are now arguing it is unfair to allow others to enter the market because they might gain a competitive edge.

According to Bloomberg, UpCounsel has stated that the suit “is a frivolous act” by “an entrepreneur who has failed to compete in the market and is lashing out in frustration.” “UpCounsel's goal is to create a platform that provides access for businesses to find, connect and work with independent attorneys across the nation,” the statement said. The company, it added, has “worked diligently for years, and at great expense, to ensure our business is compliant with all ethical rules.”

I suspect that the future of regulation and the opening of the market to "outsiders" will be the "next big thing" in Professional Responsibility, and will probably get a lot of attention at the upcoming ABA National Conference on Professional Responsibility at the end of the month.

Tuesday, May 15, 2018

Wisconsin Supreme Court to consider raising pay for private lawyers assigned to represent criminal defendants

Wisconsin's Public Defender's Office assigns private attorneys around 40 percent of its cases and pays them the lowest rate in the nation. Now, the office is having a difficult time finding lawyers willing to take those cases. Tomorrow, the state Supreme Court will take up a petition that would give attorneys a raise. Wisconsin Public Radio's Danielle Kaeding has more.


Thursday, May 10, 2018

California adopts new rules -- UPDATED

A few days ago, in a comment on a different topic, I wrote something along the lines that California had not adopted the Model Rules...

Well, that's not true anymore!

The California Supreme Court announced today that it has adopted 69 new rules of professional conduct patterned on the ABA Model Rules.

Here is a press release and the court's order.

And here is a table that correlates the California rules in place until today and the new ones.

UPDATE 5-11-18:  Here is a link to the new rules. 

ABA Formal Opinion 481: When does a lawyer have a duty to inform a client that the lawyer has made a mistake in the representation?

The Standing Committee on Ethics and Professional Responsibility of the American Bar Association recently issued Formal Opinion 481, called “A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error” in which it concludes that attorneys have a duty to disclose material errors in representation to their clients. You can read the opinion here.

Evidently, the duty is limited by "materiality," but what is it that makes an error "material." According to the opinion, a material error is defined as one that a “disinterested lawyer” would conclude is either “(a) reasonably likely to harm or prejudice a client, or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.”

Interestingly, however, the opinion finds that there is no duty to inform a former client if the lawyer discovers after the attorney-client relationship has ended that the lawyer made a material error in the former client’s representation.

You can find short comments on the opinion over at The Law for Lawyers Today and Professional Liability Matters.

Wednesday, May 9, 2018

TIKD v The Florida Bar: the case that challenges the very notion of professional regulation

If you are reading this blog it must be because you are interested in Professional Responsibility issues; and if you are interested in that topic, you probably know by now that there is a controversy in full swing in Florida that challenges the very notion of professional regulation.

I am referring to the antitrust case filed by a company called TIKD against the Florida Bar.  TIKD's website is here.

TIKD is a company that promises consumers to take care of their traffic tickets (with a money back guarantee).  The consumer pays a fee to the company and the company takes care of everything, including hiring a lawyer to represent the consumer.   Based on this business model, a law firm in Florida filed a complaint with the Florida Bar alleging that TIKD was practicing law without a license.  The Florida Bar issued an opinion finding that lawyers who work with TIKD could be in violation of Florida Bar disciplinary rules and requested an injunction to prevent TIKD from continuing to provide services in the state.

Meanwhile, TIKD went on the offensive and filed a federal lawsuit against the Florida Bar, the law firm, and others alleging, among other things, antitrust violations and that the Florida Bar and the law firm are engaged in a “concerted effort” to put TIKD out of business.

In response, the Florida Bar argued it has immunity from antitrust laws under the so-called state action doctrine, which provides that the Sherman Act does not apply to the conduct of a state when it regulates its economy by displacing competition in favor of regulation of a monopoly in the public service.  For the doctrine to apply, however, the state must act as a sovereign, rather than as a “participant in a private agreement or combination by others for restraint of trade.”

Private entities can also be protected by state-action immunity, but only if their conduct is (1) taken pursuant to a clearly articulated and affirmatively expressed state policy and (2) actively supervised by the State itself.  (See, California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980)).  Midcal, however, did not decide whether professional regulators, such as the Florida Bar, whose members are participants in the market they regulate, should be subject to the doctrine’s requirement of active state supervision for private entities claiming state-action immunity.

Thus, the application of the state action doctrine is the key to the controversy, and that’s where North Carolina State Board of Dental Examiners v. Federal Trade Commission comes into play. In that case the Supreme Court held that if a controlling number of decisionmakers are active market participants in the occupation the agency regulates, a state agency must be actively supervised by the state in order to obtain antitrust immunity.  (For a comment on the North Carolina case, you can go to the Harvard Law Review here.)

In the TIKD case, the Florida Bar is arguing that, as an “arm of the Florida Supreme Court,” it is entitled to state-action protection without having to meet the “clear articulation” or “active supervision” requirements recognized by the Supreme Court.  Yet, the U.S. Department of Justice has filed a statement of interest arguing that the Florida Bar is not immune from federal or state antitrust liability based on North Carolina State Board of Dental Examiners.  You can read the statement of interest here.

The National Law Review has a short discussion of the issues raised by the case here.

On the other side of the equation, so to speak, TIKD’s arguments are also problematic.  It argues that it is not engaging in the practice of law because it is merely a referral service rather than a law firm.  But its own representations in its website, do make it sound like it provides legal services to the consumers.  It essentially says, pay us, send us your ticket and we will provide you with a lawyer.  From what I can see in its website, the consumer does not choose the lawyer, TIKD does, and the lawyer doesn’t even have to meet the client.  At best TIKD seems to be operating as a temp agency, which finds lawyers and sends them off to do tasks for clients who have no (or very limited) contact with the lawyers themselves.

Also, if TIKD wants to be considered to be a referral service, then it needs to make sure it is complying with all the rules related to referral services, and the lawyers who are accepting referrals from TIKD need to worry about whether they are violating the rules related to paying for referrals or sharing fees with non-lawyers.

As of now, it seems that both the petition for injunction at the state level and the case in federal court are pending, but the results will have significant implications on the future of the notion of regulation of the profession.

More on the question of accepting fees in Bitcoin

After I posted a link to a story on whether attorneys can accept payment for fees in Bitcoin last night, I vaguely remembered I had seen an article about the same issue by Ron Rotunda in Verdict recently.  So I searched for it today and here it is.  As he always did, Ron provides a short and interesting analysis.

Tuesday, May 8, 2018

Tennessee Formal Opinion finds that prosecutors' ethical duty to disclose evidence to the defendant is broader than duty under Brady v. Maryland

As I have discussed before, some cases or ethics opinions have found that the ethical duty to disclose exculpatory evidence is broader than the duty established by Brady v. Maryland (DC and New York, for example, see here and here). Others have held both duties are the same (Wisconsin, for example).

We can now add the Tennessee Supreme Court's Board of Professional Responsibility to the list of those who think the duty is broader.  You can read its ethics opinion on the issue here.  You can read a comment on it, here.

If you want to read about how a prosecutor approaches the issue of exculpatory evidence, go here.

How not to practice law: lie to judge about family emergency after Instagram posts show you were on vacation

Here is the latest installment in our running list of dumb things lawyers do.  In today's tale, the lawyer claimed to have missed a deadline because she had to leave the country because of a family emergency.  The court found the attorney's claims were false, as exposed by social media posts.  Go here for the full story.

Can a lawyer accept Bitcoin as payment for legal fees?

Over at Ethical Grounds, Michael Kennedy discusses Nebraska’s Lawyers Advisory Committee's  Ethics Advisory Opinion 17-03, which appears to be the only formal opinion on whether an attorney can accept Bitcoin (or other cryptocurrencies) as payment for legal fees. 

As he explains, the answer is essentially yes, as long all applicable rules are followed.  You can read the full opinion here.

North Carolina considering mandating CLE on technology

Back in 2016, I reported (here) that Florida became the first state to mandate technology training for lawyers by adopting a rule that requires lawyers to complete three hours of CLE every three years “in approved technology programs.”  Since then, no other state has adopted a similar rule, but that may be about to change. 

LawSites is reporting that the North Carolina State Bar Council has approved a proposed amendment to lawyers’ annual CLE requirements that would mandate that one hour of the required 12 hours of CLE training annually be devoted to technology training.  Go here for the full story.

Tuesday, May 1, 2018

Maine is considering revising Rule 1.10 to allow for screening as a solution to imputed conflicts of interest

The Maine Supreme Court is seeking comments on a proposal to revise Rule 1.10 to allow for screening as a solution to imputed conflicts of interest.  The Legal Profession blog has more information here.

New ABA Center for Innovation project will connect legal aid providers with free legal tech

Article here.

Tennessee formally rejects Model Rule 8.4(g) on conduct (and speech)

A little over a week ago, the Tennessee Supreme Court issued a one page order formally rejecting a proposal to adopt ABA Model Rule 8.4(g).

This ABA section has proven to be controversial.  Pennsylvania rejected it, and just when it looked like Nevada would adopt it, it decided to retract its position in reaction.

More than a year since its approval, however, according to the ABA webstite, only one state (Vermont) has adopted the new rule.  And now we can add Tennessee to the list of states that have considered it and rejected it.

The Court's order states, in part:
On November 15, 2017, the Tennessee Board of Professional Responsibility (“BPR”) and the Tennessee Bar Association (“TBA”) filed a petition asking the Court to amend Rule 8, RPC 8.4 of the Rules of the Tennessee Supreme Court by adopting a new RPC 8.4(g). This proposed rule of professional conduct provision pertains to the prohibition of discrimination and harassment by attorneys in relation to the practice of law. . . . .
The Court has received in excess of four hundred (400) pages of comments to the proposed amendment to Rule 8, RPC 8.4, from members of the bar, members of the public, and various organizations, including the Knoxville Bar Association and the Memphis Bar Association. . . .
The Court has carefully considered the BPR and TBA’s proposed amendment, the comments received, including the points and issues raised therein, and this entire matter. Upon due consideration, the BPR and TBA’s petition to adopt a new Rule 8, RPC 8.4(g) is respectfully DENIED. It is so ORDERED.
And that's that.  No further explanation or discussion.  Yet, it is safe to assume that the comments probably explored the same concerns that have been raised elsewhere (some of which I discussed in my comments to the original ABA proposal. The proposal changed a little since then but it remained problematic.)

Brian Faughnan, who publishes Faughnan on Ethics (blog I like), was directly involved in the process in favor of adopting the proposal in Tennessee and was, understandably disappointed in the result.  He offers his thoughts on the matter here.

UPDATE:  Just a few minutes after I posted the story, the ABA/BNA Lawyers' Manual on Professional Responsibility ran a story (or here) on this.  In it, it mentions that South Texas College of Law constitutional law professor Josh Blackman told Bloomberg Law that lawyers “don't forsake all of [their] free speech rights by becoming an attorney.” And the bar doesn't have the same interest in disciplining lawyers for conduct at a bar association dinner or at continuing legal education classes, as it does in disciplining lawyer conduct in a courtroom, deposition or mediation, Blackman said. The rule is a tool “to silence and chill people.” Blackman was recently protested and heckled by students at CUNY Law School for speaking about free speech. Blackman said those kids will be enforcing 8.4(g) in a few years and “if you give these kids a loaded weapon, they'll use it to discipline people who speak things they don't like.”

Lessons on confidentiality and privilege

Faughnan on Ethics discusses seven lessons learned on confidentiality and privilege out of the "client number three" revelation in the Michael Cohen saga.  The post is short and worth reading as a reminder of some basic principles.

Should legal technicians be allowed to represent clients in courtrooms

A few years ago, Washington state made news by approving a program to recognize licensed limited legal technicians (LLLTs) who would be allowed to provide limited legal services to clients.  Since then, other jurisdictions have been working on approving similar programs.

The program has not generated the results many expected.  There were problems with the direction of the program itself, and so far only 30 people have become LLLTs.

In addition, the original program, however, did not allow the LLLTs to represent clients in courts.  This decision limited one of the goals of the program which is to provide access to legal representation to those who don't have access to it.

Thus, it can be argued that there is an inherent contradiction in a system that seeks to increase access to legal services but that also limits the participation of LLLTs in that representation. 

Here is a recent article addressing this issue, which argues that LLLTs should be allowed to represent clients in the courtroom.

Somebody please ...

Trump keeps tweeting about the "special council" !  Please, somebody tell him the word is counsel.  Didn't someone say he was "post literate" ...

Thursday, April 19, 2018

Confidentiality and privilege review - the Hannity and Trump edition

Over at Faughnan on Ethics, Brian Faughnan has published a short but very accurate review of the basics regarding confidentiality and privilege.  You should read it here.

The only thing I would add to what he says is that one way to remember the distinction between confidentiality and privilege is to understand that privilege is a right (of the holder of the privilege) while confidentiality is a duty (of the lawyer.)  Privilege gives the right to prevent disclosure of information; confidentiality imposes an obligation to keep the information secret.

Sunday, April 15, 2018

Iowa Supreme Court finds that proof of exoneration is not necessarily required for a convicted defendant to sue for legal malpractice -- UPDATED

In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. This view has been criticized but still appears to be the majority view. Yet, a number of jurisdictions have recently decided otherwise.

Back in 2016, I reported that the Iowa Supreme Court decided actual innocence is no longer required as an element of the cause of action; and I just saw that it recently reaffirmed this new approach in a case decided this year.  Here is the story which includes a link to the opinion.

Other jurisdictions that have held innocence is not a requirement include Washington, Kansas (also here) and Idaho.

UPDATE (4/15/2018):  Thanks to Patrick J. Olmstead, Jr. who wrote to me to let me know that the Indiana Court of Appeals also abandoned the actual innocence requirement in a case called Beal v. Blinn, 9 N.E.3d 694 (2014).

Saturday, April 14, 2018

Article on the lack of accountability of prosecutors for misconduct and what can be done about it

I have written often about prosecutorial misconduct and how rare it is to see accountability on the part of prosecutors who engage in it.  (Go here and scroll down for my posts on this.)  For this reason I recommend you go read an article by United States District Judge Frederic Block of the Eastern District of New York in which he argues it’s time to end the notion of absolute immunity for prosecutors.  You should read the full article here

Simple Justice has a comment on the article here.

Monday, April 9, 2018

Indiana Supreme Court Disciplinary Commission announces it will begin to publish advisory opinions; and uses first opinion to find that participating in Avvo creates the risk of violating the rules

The Indiana Supreme Court announced today that it will begin offering ethical guidance to Indiana lawyers and judges via the Supreme Court’s Disciplinary Commission.  The opinions, which will be available online at the Indiana Courts Portal (here), will be non-binding and will be issued in response to prospective or hypothetical questions regarding the application of the ethics rules applicable to Indiana judges and lawyers. (By saying "prospective" there, the court means that it will not offer advice on past conduct.)

The commission made the announcement at the same time it release its first opinion which is on a topic I have written about extensively: whether participating in Avvo Legal Services (and other similar services) would constitute a violation of the rules of professional conduct. 

In the opinion, which is only three pages long, the Commission does not answer the question definitively, but concludes that participating in such programs raises the risk of violation of certain rules, including Rules 1.2(c), 5.4(a), 5.4(c), 7.2(b), 7.3(d) and 7.3(e).

The opinion essentially expresses the conclusions of the Commission rather than explain the analysis it used to reach those conclusions.  However, the conclusions are in accord with opinions published so far in other jurisdictions, all of which so far have reached essentially the same conclusions.  North Carolina is considering a proposed opinion that would conclude the opposite but it has not been adopted yet.  If adopted, it would be the first one to find that participating in Avvo Legal Services would not violate the rules, although it has been reported that North Carolina is also considering amending the rules, which suggests that it would violate the current rules. 

For all my posts on Avvo, go here, scroll down and then read up in chronological order... (ie, the most recent posts will appear at the top of the page.)

Wednesday, April 4, 2018

The ethics of switching firms

This is an important topic since the vast majority of lawyers will not end their careers in the same firm they start it.  Here is a recent summary of some of the issues involved...

Saturday, March 31, 2018

Alaska warns about using "cc" an "bcc" when using e-mail.

A recent ethics opinion issued in Alaska concludes that it is not necessarily unethical for attorneys to carbon-copy or blind-copy clients in e-mails exchanged with opposing counsel.  However, the ethics opinion warns that the practice of using “cc” or “bcc” could cause lawyers to face disciplinary action—as well as be adverse to their clients’ interests—if the client inadvertently clicks “reply all” and responds with a message that reveals case strategy, negotiation tactics, or other confidential information that should not be disclosed.

It is interesting that the attorney would face disciplinary action for the conduct of the client, but I guess it is the conduct of the lawyer which put the client in the position to make the mistake.  There are opinions in other two states that have held the same thing.

For more details on this story, go here.  You can read the opinion here.

Podcast: Ethical misadventures in E-discovery

The Legal Talk Network has posted a new podcast on ethical issues related to e-discovery.  You can listen to it by clicking on the play button below or by going here.

Illinois State Bar Association issues opinion holding it is unethical to use email tracking software.

A recent Professional Conduct Advisory Opinion from the Illinois State Bar Association (Opinion No. 18-01, January 2018) joined at least three other jurisdictions in concluding that the practice of using hidden email tracking software would be unethical for a variety of reasons. (See Alaska Bar Association Ethics Opinion No. 2016-01; New York State Bar Association Ethics Opinion 749; and Pennsylvania Bar Association Formal Opinion 2017-300.)

For more on this story go here, and here. Michael Kennedy, of Ethical Grounds, offers good analysis here.

Tuesday, March 27, 2018

Prosecutors investigate firms that offer to pay cash to plaintiffs

According to a story in the New York Times, published March 19, federal prosecutors are investigating finance companies that provide cash advances to plaintiffs in personal injury and other lawsuits. 

Because lawyers are banned from providing financial assistance to clients involved in litigation, it is not uncommon for plaintiffs who need money quickly to either settle their claims for less than their value or to seek help from these companies which offer cash in exchange for repayment out of a future judgment plus interest.  And it is that interest that raises concerns because it is often extremely high. 

Again, due to the fact that lawyers can't help clients financially, it is also not uncommon for lawyers to suggest to their clients to go to the financing companies for help.  In fact, many of the cash-advance firms rely on lawyers to send them financially unsophisticated clients who are waiting to collect on legal settlements. And this is also under investigation. 

According to the story, federal prosecutors in Manhattan are seeking information about the business relationships between the cash-advance firms and the trial lawyers who sometimes refer their clients to the firms, apparently looking into whether there were formal financial arrangements between the parties, which could be construed as illegal kickbacks.

Those who defend the financing industry argue that it provides a crucial service, allowing customers to afford basic expenses and to hold out for potentially more attractive settlements instead of automatically accepting defendants’ initial offers. 

This is true but it does not necessarily justify the high interests which appear to be abusive.  But the industry responds to this argument by saying that the high interests charged are justified because the recovery of the financial advances are not guaranteed.  If the plaintiff does not recover a judgment in their favor, or if it is too low, the company does not recover its investment.

In response, a few states have imposed ceilings on the interest rates on settlement advances, which might be a good way to achieve an acceptable compromise.  State legislators in New York have introduced similar legislation.

Monday, March 26, 2018

Omnibus spending bill includes increase in funding for the Legal Services Corp.

Last month, I reported that Trump's budget proposal would eliminate all funding for the Legal Services Corp, the largest single funder of civil legal aid for low-income people.

However, somehow the omnibus spending bill he signed included a funding increase for the LSC which will get an additional $25 million, for a total of $410 million in fiscal 2018.

Read more about it here.

ABA Ethics Opinion on confidentiality draws criticism

Back in December I wrote about ABA Standing Committee on Ethics and Professional Responsibility Ethics Opinion No. 479 (here) which discussed, among other things, the distinction between information which is generally known and information that is in the public record.  In my opinion, the opinion did not really add anything in terms of substantive law we did not know already, but it did give some guidance on how to determine if information should be considered to be generally known.

A few days ago, the Committee followed up that opinion with another one also on the topic of confidentiality and it has not been well received by some.  As one commentator wrote, "Granted, the ABA has a reputation for being a bit behind the curve on technology issues. But in reading this opinion, one has the feeling that someone at the ABA found it in a desk drawer where it had been lost for a decade and decided, “What the heck, let’s publish it.”"  See here.

The Law for Lawyers Today has a short comment on the opinion here.  So does Ethical Grounds.

Like Opinion No. 479, the new opinion (No. 480), which is available here, does not seem to say anything new at first.  Essentially, it holds that lawyers should not disclose confidential information in violation of the rules when blogging.  This sounds obvious, but the opinion has been criticized by some because it repeats the notion that information that is in the public record can be confidential and disclosing it can be a violation of the rules (unless allowed by one of the exceptions to the rule).

Again, in terms of substantive law, this is nothing new.   But the opinion's conclusion does raise the question of whether it would be a violation of the first amendment for the state to discipline a lawyer for disclosing information that is in the public record.

I only know of one case that has addressed this question directly (Hunter v Virginia State Bar) and it held that disciplining a lawyer (under rule 1.6) for disclosing information in the public record even though it was confidential would violate the First Amendment.

Opinion 480 addresses the issue and points out other court decisions that disagree with Hunter as well as other secondary sources that address the issue.

So, go ahead and read the opinion (particularly the section called First Amendment Considerations, and its footnotes) and then read Robert Ambrogi's criticism here or Avvo's Josh King's comments here.

Florida amends rules regarding lawyer referrals to include online for-profit services

Earlier this month the Florida Supreme Court amended the state’s lawyer referral rules to include for-profit “matching” sites and lawyer directories,, such as Avvo Legal Services, Rocket Lawyer and LegalZoom.  You can find the amendments here.

According to the court the amendments create a single regulatory scheme that includes for-profit lawyer referral services, pooled advertising programs, lawyer directories, internet “matching” sites and lead generation services.

However, the rule did not change some of the current requirements to which some of the online services object.  For example, the rule still bans fee-sharing with non-lawyers which is the main reason ethics opinions in other jurisdictions have held that participating in services like Avvo Legal Services would be unethical.

Read more about the new rules here.

Friday, March 23, 2018

How not to practice law: show up to court with a .337 blood alcohol level

Yesterday I read a story about a man who was arrested for driving under the influence with a .316 alcohol level, when the legal limit is .08 and .350 is considered "lethal."  I thought that someone could function with a .316 level was incredible!

Yet, today the Legal Profession blog is reporting that ... well, take a look:
Gray represented his client in a civil case in Jefferson Circuit Court, ... On the last day of trial, Gray delivered an hour-long closing argument. Gray's demeanor and performance during the argument concerned the trial judge, and after the jury returned its verdict against Gray's client, the trial judge asked Gray to submit to a breathalyzer test. Gray acquiesced and blew a .337 on the breathalyzer. Emergency medical services were called and Gray was taken to a local hospital by ambulance.
Oh, and, by the way, the lawyer was suspended from the practice of law too.

Thursday, March 22, 2018

Podcast: Ethically problematic marketing

Lawyerist and The Legal Talk Network has posted a podcast on ethically problematic marketing strategies. You can listen to it by clicking on the play button below or by going here.

 

Wednesday, March 21, 2018

Florida adopts new rules related to referral services

The Florida Supreme Court has adopted new rules regarding lawyer referral services concluding that the amendments "are necessary to ensure that all services that connect prospective clients to lawyers conform to the Rules Regulating the Florida Bar and operate in a manner consistent with the public interest."

On the other hand, the Court stated that the amendments do not resolve the Court's concern "with how some lawyer referral services operate in Florida, especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident,"  adding that "[t]he findings of the Special Committee on this matter are troubling and we continue to believe additional measures are needed to ensure the public is not exposed to harm."

To this end, the Court directed the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s recommendation.

You can read the adopted amendments here.  You can find more information on the adopted changes here.

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 modelruleamend@americanbar.org.  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.