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.
I tend to agree.  Whether the relationship between a lawyer and a judge is so close as to call the judge’s impartiality into 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.