Sunday, December 30, 2018

Louisiana Supreme Court disbars prosecutor for posting internet comments

If you need another reminder about the perils of posting internet comments that may disclose confidential information, take a look at this story in The Law for Lawyers Today, discussing a recent decision disbarring an assistant U.S. attorney for the Eastern District of Louisiana for publishing comments (under an pseudonym) on the website of the New Orleans Times-Picayune.  Th opinion of the court is here.

Monday, December 24, 2018

Mississippi and Kentucky adopt exoneration requirement for malpractice claims against criminal defense attorneys

Some jurisdictions have recently abandoned the view that a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to prove that he or she was actually innocent of the crime for which they were convicted.  My most recent post on this is here.   Some of those, however, still require that the plaintiffs show they were exonerated through the criminal process (or what some call "post conviction relief").  In other words, in cases in which a convicted defendant wants to sue a former lawyer alleging they would not have been convicted but for the negligence of the lawyer there are three approaches:  requiring that the defendant show actual innocence, requiring that the defendant show post conviction relief (but not necessarily innocence) and not requiring anything other than the typical elements of a torts claim.

In two recent decisions, the Supreme Courts of Mississippi and Kentucky have decided to adopt the approach that requires "exoneration" for the malpractice claim to proceed.

The case in Mississippi is called Trigg v. Farese, and you can read the opinion here.  In it, the court concludes that "We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must “exonerate” himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled."

The case in Kentucky is called Lawrence v. Bingham, Greenbaum,Doll, LLP, and you can read the opinion here.  In it, the court adopted the following articulation of the Exoneration Rule: "to survive a motion to dismiss for failure to state a claim in a professional malpractice case against a criminal defense attorney, the convicted client must plead in his complaint that he has been exonerated of the underlying criminal conviction. He or she need not prove actual innocence, but they also may not rely solely upon a claim of actual innocence in the absence of an exonerating court decision through appeal or post-conviction order. Further, the statute of limitations on the legal malpractice claim does not begin to run until the postconviction exoneration occurs."

Sunday, December 23, 2018

The Three Most Read Professional Responsibility Stories of 2018

Recently, the ABA Journal posted its “Top 10 most-read legal news stories of 2018.”  Three related to professional responsibility.  Michael Kennedy, of Ethical Grounds, discusses them here.

Thursday, December 20, 2018

DC Ethics Committee new opinion on crowdfunding

The District of Columbia Bar Legal Ethics Committee has issued a new Ethics Opinion (Number 375) on whether an attorney can finance the representation of a client through "crowdfunding."

The opinion is short and straightforward and essentially follows the reasoning of other jurisdictions that have issued opinions on the subject.  You can read the full opinion here. Its summary describes its conclusions as follows:
Lawyers are generally free to represent clients who pay for legal services through crowdfunding. The ethical implications of crowdfunding a legal representation vary depending on the lawyer's level of involvement in the crowdfunding. When the client directs the crowdfunding and the lawyer is merely aware of it, the lawyer incurs no specific ethical obligations although the lawyer should consider potential risks associated with receipt of such funds and may counsel the client on the wisdom of publicly sharing confidential information. When the lawyer directs the crowdfunding, the lawyer must comply with the Rules governing a lawyer's receipt of money from third parties. Further, a lawyer who directs the crowdfunding should be cognizant of ethical obligations regarding fee agreements, communications with donors, and the management of the funds raised. 
Again, this is equivalent to what has been decided elsewhere, but there is one point the opinion does not address, and that is that under certain circumstance crowdfunding can lead to sharing fees with a non-lawyer.  Now, if my memory is correct, DC allows sharing fees with non lawyers under certain circumstances but I don't know if crowdfunding is one of those.

I published a short article on the subject in which I discuss the issues and the few opinions available back then.  You can read it here.

Monday, December 17, 2018

A different view on the justice gap and ABA Opinion 484

My most recent post was about ABA Opinion 484, which attempts to contribute to the effort to help close the access-to-justice gap.

Today, over at the ABA Journal, Jason Tashea offers a different perspective on the issue.  You should read his full post, but here is the gist of it:
Time and again, the proposed solutions to close the gap—whether loans, technology, professional rule changes, process and business model improvements—are missing the larger point. The access-to-justice gap doesn’t exist because of absence of loans or the lack of technology or the intractable billable hour. It exists—and continues to grow—because the cost of life in America has increased dramatically while wages for most Americans have been stagnant or even falling for decades.

Friday, December 14, 2018

ABA Opinion 484: can a lawyer refer a client to a financing company in which the lawyer owns a financial interest?

At the end of November, the ABA Committee on Professional Responsibility issued Formal Opinion 484 on whether a lawyer may refer a client to a fee financing companies in which the lawyer owns a financial interest.  I have not read the opinion in full, so I can't comment on it at this time.  Here is the summary:
Lawyers may refer clients to fee financing companies or brokers in which the lawyers have no ownership or other financial interests provided they comply with Model Rules 1.2(c), 1.4(b), 1.5(a) and (b), 1.6, 1.7(a)(2), and 1.9(a). If a lawyer were to acquire an ownership or other financial interest in a finance company or brokerage and thereafter refer clients to that entity to finance the lawyer’s fees, the lawyer would be entering into a business transaction with a client, or obtaining a security or pecuniary interest adverse to the client, or both. In that instance, the lawyer would also be required to comply with Model Rule 1.8(a).

ABA Opinion 483 on the duties related to data breaches

Last October, the ABA Committee on Professional Responsibility published Formal Opinion 483 to provide guidance on how lawyers should handle data breaches before, during, and after an event. In short, lawyers must take proactive steps to protect sensitive client data and they must disclose material data breaches.

You can read the opinion here.  Here is a summary by the National Law Review:
The ABA states that data breaches pose a “major professional responsibility and liability threat” to the entire legal profession.  It defines a data breach as “a data event where material client confidential information is misappropriated, destroyed or otherwise compromised, or where a lawyer’s ability to perform the legal services for which the lawyer is hired is significantly impaired by the episode.”  When there is data breach, attorneys must first comply with state and federal legislation. Next, attorneys must disclose a breach to a current client if (a) that client’s material, confidential information is or reasonably may have been compromised (e.g., unauthorized access, use, theft, or destruction), or (b) the breach has materially disrupted the attorney’s ability to serve the client (e.g., ransomware limiting access to client information for any material amount of time). In essence, lawyers must notify clients when incidents like ransomware materially impair operations—even when there is no evidence of exfilatrated or compromised data.  Here, strong defense mechanisms include up-to-date, accessible, and easily restorable back-ups to fend off disruption of legal services
For some commentary on the opinion go here:

Faughnan on Ethics (on the relationship between the opinion and Model Rules 1.15 and 4.4)

Above the law

Lawyer Ethics Alerts Blog

Articles about lawyering and artificial intelligence

While I was away from blogging during the last few weeks I saw a few articles about artificial intelligence that you might find interesting.  Here are the links:

LawTech: Time for a cybernetic legal ethics?

What’s Artificial About Ethical AI In The Legal Industry? Everything

Legal Ethics: The Ethical Dilemma of Artificial Intelligence (The National Law Review)

Where Avvo Legal Services left off, Basic Counsel picks up

Regular readers of this blog know I have been writing about Avvo Legal Services for a long time, and that I have expressed serious concerns about possible ethics violations in participating in it.  You also know that those concerns were shared by enough jurisdictions out there that Avvo Legal Services stopped providing services and is no longer in business.

But where it left off, a new platform has taken its place.  I have not reviewed the details on how it functions but from what little I have read so far, it is clear they are trying to address the concerns that made participating in Avvo such a risk for lawyers.

The new platform is called Basic Counsel and it seeks to enable attorneys to offer flat-fee, limited scope services, while complaying with every state’s professional conduct rules.

Bob Ambrogi, of Law Sites, describes the services in some detail here.  In a nutshell, consumers search or browse the site for the service they need in the location they need it. When a consumer buys a service, the fee is sent directly to the lawyer and Basic Counsel collects a separate “platform fee” from the consumer of 5 percent of the service cost (with a $10 minimum).  As the lawyer works on the client's case, the platform offers ways for the attorney to keep the client informed on the tasks progress and ways for attorney and client to communicate and share documents.

As Ambrogi points out, with regard to the potential ethics issues raised by a site such as this, there are clearly some differences between Basic Counsel and Avvo Legal Services.  For example, a concern of ethics bodies was that Avvo set the fee and defined the scope of the service. On Basic Counsel, the lawyer sets the fee and defines the scope.  Also, Avvo Legal Services collected the fee from the client and held it until the service was completed, which some said interfered with the lawyer’s duty to safeguard client funds. On Basic Counsel, the funds go directly to the lawyer.

Still another ethics issue for Avvo Legal Services was that it charged the lawyer a marketing fee, which some ethics bodies saw as fee splitting. Basic Counsel charges the client a platform fee, and Marchbanks says the fee is for the direct benefits the client obtains from using the platform — not for anything the attorney provides.

This sounds good, yet it is not clear to me how calling the fee a "platform fee" distinguishes it from Avvo's marketing fee when both are based on a percentage of the amount charged by the attorney.  It was that fact, which does not seem to be different in Basic Counsel's system, that got Avvo in trouble.  On the other hand, the percentage involved in Avvo was higher than the 5 percent charged by Basic Counsel.  In Avvo's case, the percentage also increased as the price for the services increased.

Why can't they make the platform fee a flat fee itself, not dependent on the value of the services?  It seems to me that would be a safer way to deal with this.  Otherwise, the door is still open for the interpretation that the fee constitutes sharing a fee with a non lawyer.

Having said that, as I have written about before many times, it is possible the rules can and will be changed to welcome this type of interaction because of the obvious benefits it provides to consumers.  But until that time, lawyers should be careful not to engage in conduct that has been interpreted to constitute sharing fees with non lawyers in violation of the rules.

Also, it is not clear whether lawyers should be concerned about confidentiality issues when it uses the platform to communicate and share documents with clients and prospective clients.

Florida Supreme Court: there is no reason to treat "Facebook friendships" differently when it comes to disqualifying judges

Almost a year ago, I wrote that the Florida Supreme Court was considering the question of whether a judge should be disqualified from presiding over a case because he or she was a "Facebook friend" of one of the lawyers.  In my post I argued that 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.  I agreed with my friend and colleague Ray McKoski who had written an article in which he argued that imposing a per se rule 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 stated, there is no rule that automatically bars a lawyer from appearing before a judge when the two share an actual friendship.

Well, now we have the official answer to the question from the Florida Supreme Court.  Last month, the Court released its long awaited decision, holding that
In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification. 
The case is called Law Offices of Herssein & Herssein v United Services Automobile Association.  You can read the opinion here.

It seems to me the opinion reaches the correct result, and what it surprising is that the decision was actually 4 to 3.  The position of the dissenting judges was that "a judge’s involvement with social media is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter. . . . I would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook “friends” appears before them. This rule does little to limit the judge’s personal liberty, while advancing the integrity of the judicial branch as the one branch of government that is above politics."

Yet, it is not clear how the fact the friendship originates in Facebook makes it so different from an actual old fashioned "personal" friendship that we need a strict rule.

For more commentary on the opinion go to:

Ethical Grounds

Faughnan on Ethics

The ABA Journal

Jurist

Hinshaw

Lawyer Ethics Alert Blog

Thursday, December 13, 2018

Free Webinar on Confidentiality and Privilege

On December 17, 2018, the ABA will host a webinar with the author of The Attorney-Client Privilege: A Practitioner's Guide, on client confidentiality and attorney-client privilege. This webinar is free to ABA members.

To register, go here.

I know, I know, it has been a long time....

It has been a while since I posted on the blog, and I am sorry about that.  My semester became extremely busy at one point because I had to take on two other courses and other projects, so I had very little time...  But now I am done with classes and, although I still have to grade exams for a couple of weeks, I have more free time.  There is a lot to talk about and I will try to catch up with the news before the end of the year.