Tuesday, May 21, 2019

Illinois regulators' annual report

The Attorney Registration and Disciplinary Commission (ARDC), the administrative agency that regulates licensed Illinois lawyers, has filed its year 2018 Annual Report with the Supreme Court of Illinois. You can read the full report here or a summary here.

The summary has some interesting findings.  For example:

Of the complaints filed with the ARDC, the majority involve claims of neglect.  The second most common claim:  failure on the part of the lawyer to communicate with the client.

10% of the complaints were filed by lawyers reporting on the conduct of other lawyers under rule 8.3.  Of these, 44% resulted in disciplinary complaints.

Illinois Lawyers Now has a comment here.

Monday, May 20, 2019

Tennessee Supreme Court imposes sanctions for improper contingency fee

A few days ago I saw a report on a case out of the Tennessee Supreme Court on a topic that you don't see that often:  an unreasonable contingency fee agreement.  The practice of using contingency fees is, of course, common; and the practice of structuring the contingency itself as a percentage of the recovery is standard.  In most cases, the percentage is about 33%.  That is also pretty standard.  And that is why I don't think we see many cases on this topic.  Everybody pretty much does the same thing because the market regulates itself.

Yet, here we have a new case with a twist on the practice of using contingency fees.

The lawyer in the case entered into a contingent fee agreement with his client, which provided that if the client refused to accept a settlement offer that the lawyer advised was reasonable and should be taken, the client would be required to pay the lawyer the contingency fee “on the basis of that offer” unless waived by the lawyer.

As you would expect given the end result of the case, the defendant made an offer, the lawyer advised the client to take it, but the client refused.  The lawyer then withdrew from representation and asked for a lien against his client’s eventual recovery in her personal injury case for fees and expenses based on the original agreement.

The court agreed with the hearing panel that the contingent fee agreement was unreasonable and violated the Rules of Professional Conduct because the Rules only allow a contingency fee on the outcome of the matter. The Court also agreed with the hearing panel that the contingency fee agreement violated the Rules of Professional Conduct because it gave the lawyer a proprietary interest in any settlement offer arising in the case.  Thus, the Court affirmed the judgments of the trial court and the hearing panel imposing a public censure.

As it is often the case, whether public censure, one of the lightest possible sanctions out there, was the correct measure of discipline is debatable.  But I supposed reasonable people can disagree on that and it is the subject of a different conversation.

The case is Moore v. Board of Professional Responsibility and you can read the opinion here.

Faughnan on Ethics has a comment on the case here.  As he clearly explains, "[a]t its core, this case explains the limits on the ability of a plaintiff’s attorney to try to guard against what happens if their client rejects the attorney’s advice on whether to accept a settlement offer. There do, in fact, have to be limits on the ability to hedge against that because the ethics rules establish explicitly that the decision whether to settle a civil case or not is the client’s decision. RPC 1.2(a)."

Sunday, May 19, 2019

Texas Attorney General sides with lawyers challenging mandatory bar membership

As you may remember I have been following the news about attacks in several states to the notion of a "unified bar."  See here and here, for example.  Lawsuits have been filed in Texas, Oklahoma, Oregon and North Dakota. 

In one way or another, all the lawsuits are claiming that the states' requirement that attorneys join the state bar association is an unconstitutional violation of attorneys' First Amendment rights to free speech and association.  More specifically, they argue that lawyers shouldn’t be forced to subsidize the state bar’s activities through mandatory membership dues if they don't agree with those activities for ideological or political reasons. 

For example, in the lawsuit in Texas, the plaintiffs are alleging they do not want to be forced to subsidize the state bar's diversity initiatives, access to justice programs and programs that help prevent deportations, and that promote legislative drafting and advocacy.

The most recent development on this topic is that Texas Attorney General Ken Paxton has filed an amicus brief that sides with the plaintiffs in the case in Texas.  He is the only AG to have taken this step so far in all the states where lawsuits have been filed.

Like I said in one of my previous posts, this is becoming the biggest topic in Professional Responsibility this year and the results of these lawsuits could have tremendous repercussions on how the profession continues to be regulated as well as on the viability of state programs that promote access to legal services.

Tuesday, May 14, 2019

New ABA Formal Opinion on duties of prosecutors when negotiating plea bargain deals

Last week, the ABA Standing Committee on Ethics and Professional Responsibility issued a new formal opinion on duties of prosecutors.  See Opinion 486, available here

As you probably know, prosecutors have a special role in the judicial system because they do not only litigate on behalf of the state, they are also considered "ministers of justice."  This puts them in what appears to be somewhat of a contradictory position in that they have to, at the same time, prosecute the defendant while protecting the defendant's rights. 

According to the chair of the Committee, hundreds of times weekly, prosecutors negotiate plea deals with misdemeanor defendants who lack counsel and may agree to unfair dispositions, which creates a disproportionate risk of harm for the poor and minorities, who are disproportionately represented among the defendant population. 

For this reason, the new opinion reminds prosecutors of their duties to ensure that the accused has a reasonable opportunity to obtain counsel, that decisions to resolve a case through plea bargaining are grounded in the prosecutor’s independent assessment of the case, and that prosecutors reveal known collateral consequences, which may include deportation and the loss of eligibility for a wide range of public services, including food assistance and public housing. 

The ABA Journal has more on the story.

Monday, May 13, 2019

Racially charged closing argument leads to reversal of a first degree murder conviction

I have written a number of stories in the past about cases in which appeals' courts reverse convictions simply based on what prosecutors say in their closing arguments.  In other words, cases in which improper arguments result in reversals of convictions.

Just a few days ago, I read another example.  In this case, a prosecutor's racially-charged rebuttal closing argument led to a reversal of a first degree murder conviction by the North Carolina Court of Appeals.  You can read a summary of the case here.

Friday, April 26, 2019

Advice for when you realize you made a huge mistake and will likely get sued...

I often tell my torts students that forgetting to file a claim before the statute of limitations runs is possible the dumbest mistake they can make.  "Buy, and more importantly, learn to use a calendar!",  I tell them.

So what happens if the do make that dumb mistake? What happens next?   Here is some good advice.

Thursday, April 25, 2019

More of a lawyer reacting to TV or Movie lawyers and cases

A couple of days ago I posted a video of a lawyer commenting on courtroom scenes from movies and TV shows.  Because I watched that video on YouTube, the next time I visited YouTube, it recommended other similar videos and I came across a channel called "Think Like a Lawyer" by "Legal Eagle" in which a lawyer comments on many different things, and which has a bunch of videos of him giving very detailed commentary on movies and TV shows, including My Cousin Vinny, Better Call Saul, A Few Good Men, The Bee Movie, Liar Liar, The Rainmaker and more.  He also has a lot of videos on advice for law students.  I watched some of those and I agree with a lot what he has to say, but not all ... but that is the subject of a different conversation.

You could spend a lot of time watching videos on this channel, so save the link for when you have some free time....

Wednesday, April 24, 2019

Michigan might be the next state to adopt a duty to keep up with "technology" as part of the duty of competence

As of last year, 36 states had adopted the Model Rules' comment that adds understanding "technology" as an element of competence. Texas was the most recent jurisdiction to do so and Washington DC recently announced it is considering it.

Today, Jurist is reporting that the Michigan Supreme Court has announced a proposed amendment which might make Michigan the next state to adopt a duty to keep up with "technology" as part of the duty of competence.  Go here for the story.

Tuesday, April 23, 2019

Former prosecutor comments on courtroom scenes from TV and the movies

I recently found this video in which a former prosecutor comments on courtroom scenes from TV shows and movies. She comments on a lot of different aspects of litigation, from substantive issues, rules of evidence, conduct of lawyers in the courtroom and the role of the judge.  The clip is a bit long, but I enjoyed watching it.  You can watch it below or by going here.  She discusses clips from, among others, A Few Good Men, Legally Blonde, To Kill a Mockingbird, Philadelphia, A Civil Action, Class Action, Roman Israel, esq, and from TV shows like Suits, The Good Wife, and The Practice.

There are, of course, a lot of other scenes from movies that could have been included, but there is only so much time...  One I recommend you take a look is the scene of the plaintiff's deposition in the movie Class Action.

Monday, April 22, 2019

Maine court expresses frustration with prosecution's cavalier attitude toward duties related to discovery and misunderstanding of duty of candor

This week, I will spend a few class hours discussing the duties of prosecutors and issues related to prosecutorial misconduct.

As I coincindence, over at the Legal Profession Blog, Mike Frisch is reporting about a recent case in Maine which illustrates some of the issues.

In this case, a defendant charged with driving on expired tags made a standard request for any dash cam video of the incident, but the prosecutor never responded nor sought to ascertain whether such video existed.

At trial, the prosecutor only used the officer involved in the case as a witness.  When the officer testified that there was in fact a dash cam video, the court became interested to know why the prosecutor had not bothered to produce it, and "[t]he court’s patience was obviously tried by the State’s continued  insistence that the video showing the alleged crime being committed had no  “evidentiary value.”"

In its order, the lower court rebuked the State for its approach to its discovery obligations and granted the defendant's motion to  suppress.

On appeal, among other things, the State argued that the court abused its discretion in selecting a sanction that effectively ended the  prosecution.  Yet the appeals court did not buy it. The court recognized that various obligations on prosecutors create challenges and that mistakes happen but affirmed that "[g]iven the substantial responsibility placed on the prosecutors to  provide timely discovery,... it is all the more important that the obligation be treated seriously. The court here expressed its frustration with  the State’s cavalier attitude toward discovery in several ways...  The court further noted the State’s persistent and inexplicable failure to recognize the relevance of the video."

Also, the court explained the prosecution's confusion about its duty of candor concluding that "[i]n arguing that the video was not “exculpatory,” and therefore not  discoverable, the State confuses its obligation pursuant to Rule 16(c) with its  obligation pursuant to Brady v. Maryland, 373 U.S. 83 (1963):
The due process  concepts articulated in Brady require the State to disclose to the defendant  evidence that is “favorable to the accused, either because it is exculpatory, or because it is impeaching . . . .” . . . Rule 16(c), in  contrast, requires the disclosure of items, including video recordings, that are  “material and relevant to the preparation of the defense.” . . .   

In conclusion,
What the State seems to miss in the matter before us, however, is  that there is a fine line between inadvertence and practices that the court  described here as “slipshod.” Carelessness in this critical area of constitutional  rights is not acceptable and is not an excuse. Moreover, the State’s continued  insistence that the defendant “suffered no harm” as a result of the State’s failure  to turn over the video of the crime makes it painfully evident that the State still  does not understand the nature of its obligations. 
          . . . .
The State’s continued insistence that the video of the defendant driving by the trooper was not material or relevant defies common sense and provides full support for the court’s determination that a serious sanction was warranted. The suppression of the evidence, while almost certainly fatal to the State’s prosecution, fell well within the discretion of the court. [and, according to the court, the lower court "plainly used the sanction to educate the State that its casual approach to fulfilling its discovery obligation was unacceptable.
The case us called State of Maine v Reed-Hansen, and you can read the opinion here.

Saturday, April 20, 2019

How to define "the practice of law"

If you are interested in professional responsibility matters, you know that courts and scholars have struggled over the years to define exactly what constitutes "the practice of law."  (Here is an old example.  An ABA commission at one point abandoned an attempt to come up with a model definition, in fact.

Whether it is to deal with issues related to unauthorized practice of law, multijurisdictional practice, practice by non lawyers, sharing of fees with non lawyers and so on, having a standard definition would be helpful.  But the attempts at defining what is practicing law usually end up being over or under inclusive, thus making it difficult to definitively say that, for example, the work of an accountant doing tax code advising for a client is or is not practicing law.

I am writing about this today because I just saw a recent post at MyShingle.com asking "What would be the effect of simply exempting matters smaller than $10k from the definition of the practice of law?"

The author's argument is that we could define the practice of law this way:  "Any matter that involves courts, contracts, wills, advice on rights or obligations that has a value of less than $10,000 is not the practice of law.  Admission to the bar is not required to represent clients in this category of matters."

As she says, this seems arbitrary, but, on the other hand, it is also practical. Why?  Because "[o]ne of the reasons that parties are often unrepresented in certain matters is because lawyers turn down cases that don’t make sense from a financial perspective."

So if people need help with work that requires advise on legal matters that most lawyers don't want to help with, why not let others who want to help do it?

You can read the article here.

As you know, a couple of jurisdictions already have programs that allow non lawyers to participate in the legal process by helping claimants, and participants in divorces, etc.    My most recent post on this subject, with links to older ones, is here.

Friday, April 19, 2019

ABA Ethics Opinion on whether it is a violation of the Code of Judicial Conduct for a judge to refuse to perform same sex marriages -- UPDATED

Earlier today, the ABA Standing Committee on Ethics and Professional Responsibility released its latest Formal Opinion (No. 485) which addresses whether it is a violation of the Code of Judicial Conduct for a judge to refuse to perform same sex marriages.  You can download or read the full opinion here.

The opinion's digest reads as follows:
A judge for whom performing marriages is a mandatory obligation of judicial office may not decline to perform marriages of same-sex couples. A judge for whom performing marriages is a discretionary judicial function may not decline to perform marriages of same-sex couples if the judge agrees to perform opposite-sex marriages. A judge’s refusal to perform same-sex marriages while performing opposite-sex marriages calls into question the judge’s integrity and impartiality and reflects bias and prejudice in violation of Rules 1.1, 2.2, 2.3(A), and 2.3(B) of the Model Code of Judicial Conduct. In a jurisdiction in which a judge is not obligated to perform marriages but has the discretion to do so, a judge may refuse to perform marriages for members of the public. A judge who declines to perform marriages for members of the public may still perform marriages for family and friends. If a judge chooses to perform marriages for family and friends, however, the judge may not decline to perform same-sex marriages for family and friends.
UPDATE 4/19/19:  The ABA Journal has a short article on the opinion in its April 2019 issue.  You can read the article here.

Saturday, April 13, 2019

Devin Nunes files second lawsuit

A few days ago I posted about Devin Nunes' lawsuit against Twitter and others and asked whether it violated the rules against frivolous litigation.

Now comes news that Nunes has filed a second lawsuit and now the question is whether it violates the rules against filing claims for an "improper motive."  Tech Dirt has made an argument that it does.  You can read it here.

Wednesday, April 10, 2019

Yet another attack to the concept of the unified bar: Wisconsin lawyers file suit alleging bar's use of mandatory dues violates their constitutional rights

In what is quickly becoming the hot issue in Professional Responsibility this year, here is yet another news item regarding an attach on the concept of a unified bar.  For my recent posts on this subject, and links to older posts go here.

As reported by Courthouse News, two Wisconsin lawyers have filed a federal civil rights suit against the state’s bar association claiming mandatory membership to the bar association constitutes compelled speech in violation of the lawyers’ First and Fourteenth Amendment rights because of the dues lawyers have to pay -- or, more precisely, because they don't agree with the way the bar association uses the money paid in dues.

The case is called Jarchow v. State Bar of Wisconsin, and you can read the complaint here.  Among other things, the plaintiffs complain that the Wisconsin Bar Association publishes magazines with articles "on matters of intense public controversy" including advocacy for criminal justice reform, juvenile justice reform, elder law reform and advocacy for restoring funding to provide legal representation to the poor.  They also specifically claim they object to the bar’s advocacy on criminal justice issues, felon voting rights, unemployment insurance fraud, free exercise of religion and immigration law.

Tuesday, April 9, 2019

How not to practice law: threaten others and tell them to kill themselves

I have not posted any entries in the ongoing "how not to practice law" series in a while, so here you go:

As reported (here) by Prof. Jonathan Turley:
A prominent real estate lawyer who once described himself in a column as “jungle street skills and a passion for justice” has been suspended for bizarre and abusive conduct. Adam Leitman Bailey told a tenant that he should commit suicide as a worthless human being and even declared “now you’re my bitch.”  The problem is that the tenant recorded the call.  
In a decision by the New York Appellate Division, Bailey was given a four-month suspension and told to get counseling.

Monday, April 8, 2019

Article on Maine's system for providing counsel to indigent criminal defendants

The Sixth Amendment Center has published a short article criticizing the system used in Maine to provide counsel to indigent defendants.  According to the article, Maine is the only state in the country that provides all indigent defense services through private attorneys which makes it difficult to predict and contain costs and to supervise private attorneys to ensure they can and do provide effective representation. The article concludes that Maine struggles with both, as the Maine Commission on Indigent Legal Services is expected to oversee the representation by and cost of nearly 600 attorneys, handling more than 30,000 cases each year in 47 courthouses presided over by approximately 90 justices, judges, and magistrates, with a staff of just three people. 

You can read the full article here.

Sunday, April 7, 2019

What if a client asks lawyer to destroy the client's file or some of its contents?

Over at Ethical Grounds (the unofficial blog of Vermont's bar counsel), Michael Kennedy discusses a recent NY opinion on whether an attorney has to destroy the client's file upon request.

As Michael explains, ordinarily, upon the termination of a representation, Rule 1.16(d) requires a lawyer to surrender to the client all papers and property to which the client is entitled, which, of course, includes the client's file.  But, the lawyer is also entitled to keep a copy of the file, which, in fact, the lawyer may be required to do according to the lawyer’s malpractice.

The interesting question then becomes, what to do if a client directs a lawyer not to keep to a copy of a the file?

You can read the comment here.

Friday, April 5, 2019

Another challenge to the notion of a "unified bar" -- this one in Oklahoma -- UPDATED

A few days ago I posted a story about a challenge to the constitutionality of the unified bar system in Texas.  See here.

Today's news is that a similar lawsuit has been filed in Oklahoma.

The lawsuit, in a case called Schell v. Williams, filed on March 26, alleges that Oklahoma's requirement that attorneys join the state bar association to practice in the state is unconstitutional because by forcing attorneys to join the Oklahoma Bar Association, the state violates their First Amendment rights to free speech and association

As I discussed in my previous posts on this, this is not a new argument but it is not a frivolous argument.  The question really goes to the core of whether such a requirement is necessary to regulate the legal profession or improve the quality of legal services.  As of right now, there are similar challenges pending in, at least, Texas and North Dakota and the results in these cases will have national implications.

UPDATE 4/5/19:   As I have said elsewhere, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback. In addition to the cases I reported recently, I was recently reminded by a reader of the blog that there are two separate lawsuits filed on similar grounds in Oregon as well as ongoing longstanding litigation against the Washington State Bar.

In Oregon, at least one of the lawsuits contends that the fact the state bar published a statement condemning White Nationalism and, what it called the "normalization of violence" was "blatantly political" and unconstitutional.

Sunday, March 31, 2019

New statute in New York creates a commission to review prosecutorial misconduct

Long time readers of this blog know that I have posted a lot of stories about prosecutorial misconduct over the years (go here and scroll down).  And in many of those stories, I have often complained that courts do not do enough to confront the problem.

Today, for a change, I am reporting that one state is at least trying.  As reported in Jurist:
New York Governor Andrew Cuomo signed a bill Wednesday to create a commission to review prosecutorial misconduct by District Attorneys.  This is the second version of the bill that the governor has signed. The first version of the bill was challenged by a coalition of district attorneys under separation of powers concerns between the judiciary and legislature, but was halted among promises to revise the bill. The governor and state legislature made changes regarding the 11 appointments to the commission. The original version allowed the legislature to appoint all members of the Commission, and the bill signed on Wednesday allows for appointments from the governor, legislative party members, and Chief Judge Janet DiFiore. The commission will review potential misconduct of state prosecutors and impose necessary sanctions. The panel can subpoena witnesses and ask for relevant records to conduct its investigation. Upon a finding of misconduct, prosecutors can be sanctioned ranging from public censure to being removed by the governor. Prosecutors will also be able to challenge the panel’s decisions on an appeal to the Appellate Division of the NY’s Supreme Court.  The new version of the bill is still expected to face due process and equal protection challenges for expanding the power and authority of the state judiciary.
You can read the text of the bill here.

Saturday, March 30, 2019

Devin Nunes files lawsuit for $250 million against Twitter; does it violate the rules against frivolous suits?

By now, I am sure you have heard all the jokes about the lawsuit filed by Rep. Devin Nunes.  If not, here is the bottom line: Rep. Devin Nunes has sued Twitter, some satire Twitter accounts, and a real political commentator for a variety of "offenses" including defamation based on allegations that anyone with a basic understanding of the law should know would not support a claim for defamation.  He is asking for $250 million in compensation.  The defamation claim is frivolous.

Of course, frivolous lawsuits are not new, but this is the same Devin Nunes who co-sponsored the Discouraging Frivolous Lawsuits Act and who once voted for a House Amendment "to express a sense of Congress that free speech should be protected."

But, my question for the readers of this blog is this:  if the claims are so obviously frivolous, what was the lawyer who filed the complaint thinking?  Are the rules (both in civil procedure and professional responsibility codes) not enough to discourage filing of frivolous complaints?

For a detailed analysis of the complaint, go to TechDirt.

You can read more comments in ABA Journal, and The Daily Beast.

For the jokes I mentioned above, you can go here, and here for some examples.

Friday, March 29, 2019

Indiana Supreme Court Disciplinary Commission: "Indiana AG's party behavior violated 'heightened duty of ethical conduct'... "

The ABA Journal is reporting that an ethics complaint filed by the Indiana Supreme Court Disciplinary Commission accuses Indiana Attorney General Curtis Hill of inappropriately touching an Indiana lawmaker and three legislative staff members at a bar party, where he also made “rude and sexually suggestive comments.”  More interestingly, according to the complaint the AG “holds a position of extreme public trust,” and as a government lawyer he has “a heightened duty of ethical conduct.”

The allegations are alarming and I have no problem finding the conduct, if true, is totally unacceptable.

Yet, I do have a problem with the notion that certain lawyers have a "heightened" duty of ethical conduct.  Where does that come from?  Which lawyers are those?  Can someone point me to the rule or legal precedent which creates different levels of duties when it comes to ethical behavior?  I'd like to take a look at them to see if that classification can be justified.

Thursday, March 28, 2019

Murder conviction reversed because of failure to object to prosecutors obviously wrong statements to jury as to the meaning of "beyond a reasonable doubt"

The Georgia Supreme Court has vacated and remanded the murder conviction of two parents accused of the crime based on evidence that their healthy newborn returned to the hospital within hours with fatal injuries.

The defendants appealed arguing ineffective assistance of counsel and the court found that the record did not provide sufficient evident for the court to apply the needed analysis to decide that claim.

More interestingly, the court discussed mistakes by both defense counsel and the prosecutor.  The prosecutor made improper and obviously wrong comments during closing argument about the meaning of "reasonable doubt" but defense counsel did not object.  The prosecutor's statement was as follows:
The Judge will charge you on reasonable doubt. Just keep in mind, and he will charge you, reasonable doubt does not mean beyond all doubt. It does not mean to a mathematical certainty. Which means we don’t have to prove that ninety percent. You don’t have to be ninety percent sure. You don’t have to be eighty percent sure. You don’t have to be fifty-one percent sure. It does not mean to a mathematical certainty.  And it does not mean beyond a shadow of a doubt. That’s just something the TV made up. It’s actually beyond a reasonable doubt. And that would be a doubt to which you can attach a reason. And I submit to you there is no reasonable doubt in this case.
Correctly, the court found both that the prosecutor's statement was wrong, and that there was no reason why a competent defense lawyer would not have objected.  Thus, the conviction could not be trusted:
 We also note our serious concern regarding the State’s closing argument during trial that flatly stated that proof beyond a reasonable doubt in this murder case does not require the jury to be even 51% sure— in other words, requires less than even the preponderance of the evidence required to meet the burden of proof in a civil case. That is obviously wrong. A case like this one, where there was no direct evidence to prove that Albert, Ashley, both of them, or neither of them killed McKenzy, could turn on reasonable doubt, and the verdict could be affected by an argument that 50-50 proof is good enough. And the trial court’s jury instruction on reasonable doubt — which in many cases may cure previous misstatements on the subject — did not cure the State’s obviously wrong argument here. The State’s point was to define reasonable doubt as not requiring the State to prove its case to “a mathematical certainty” – a phrase the State repeated twice. Of course, that is a phrase that occurs in the pattern instruction as well, and so when the trial court gave that instruction, it may well have been understood by the jury not as correcting the State’s error, but as reinforcing it. We cannot conceive of any good reason that a competent criminal defense attorney could have to fail to object to such an egregious misstatement of the law.
The Legal Profession blog has the story here.  You can read the opinion here.

Wednesday, March 27, 2019

New Jersey Supreme Court rejects mandatory malpractice insurance, embraces disclosure of coverage

George Conk, of Professional Responsibility: A Contemporary Approach, is reporting that the New Jersey Supreme Court has issued a "Notice to the Bar" adopting only some of the  recommendations of its Ad Hoc Committee on Attorney Malpractice Insurance.  Among its conclusions, it rejects the notion that all private practitioners should be obligated to have malpractice insurance. However, the court decided to retain a rule that all limited liability firms must carry insurance. Also, the Court announced that it will revisit at an unspecified date whether attorneys who lack coverage should be required to disclose that fact.

Tuesday, March 26, 2019

Puerto Rico considers implementing IOLTA type rules; comments requested

As you probably know, IOLTA (short for "interest on lawyer trust accounts") programs are a mechanism for funding legal services for the poor. They require attorneys to place certain funds in interest generating accounts and banks to provide the interest to an agency that uses it to provide funds for legal services. All states and the District of Columbia have IOLTA programs. (About a decade ago, the program in DC became mandatory; see here).

Now comes news that the Supreme Court of Puerto Rico is considering adopting a similar program.  The text of it (in Spanish) is available here.  Comments should be sent to SecretariadoConferenciaJudicialyNotarial@ramajudicial.pr

If you want to learn more about the basics of IOLTA programs, you can listen to this short podcast.  Also, here is a short post on common mistakes lawyers make when handling an IOLTA account. If you want to read about the typical debate as to whether IOLTA programs are unconstitutional, you can take a look at this article, although that is only one of many, many others on the subject.

Monday, March 25, 2019

Texas lawsuit challenges mandatory membership in State Bar Association

Three Texas lawyers have filed a federal lawsuit claiming that mandatory membership in the State Bar of Texas violates their First Amendment right against coerced speech because the State Bar Association is using members’ mandatory dues, among other things, to fund programs that help undocumented immigrants seeking asylum, diversity initiatives and programs related to access to legal representation.  The case is called McDonald v. Longley and you can read the complaint here.

The question of the constitutionality of an integrated bar is not new.  In 1961, the US Supreme Court rejected a constitutional attack of mandatory membership in state bar associations in a case called Lathrop v. Donahue, 367 US 820 (1961). Also, in Cuyahoga Cty. Bar. Assn. v. Supeme Court of Ohio, 430 US 901 (1977), the Court summarily affirmed a lower court ruling on the constitutionality of a mandatory annual fee to support a state bar and disciplinary system. However, the free speech and free association arguments advanced in Lathrop were not rejected by the prevailing opinion. The Court simply found that more facts were needed for them to be considered. Other courts, however, have found that mandatory fees need to be related to bar organization matters.

Also, I discussed in some detail the back and forth history of the issue in Puerto Rico here.

The Texas Bar allows its members to opt out of supporting causes they do not believe in, but the plaintiffs in the lawsuit allege this system is inadequate.  At the very least, they argue, the system should be one in which the members would be required to "opt in" to avoid forcing them to fall into the default position of supporting causes they may or may not agree with.

Courthouse News and The ABA Journal have stories on the Texas lawsuit here and here.  According to the ABA Journal's story, the Texas lawsuit is among at least four current lawsuits that challenge mandatory state bar dues.

Sunday, March 24, 2019

District court grants (partially) motion to dismiss in case against prosecutors for using fake subpoenas and threats to trick witnesses and victims into cooperating with investigations

Long time readers of this blog know that I have reported on a number of cases documenting the misconduct of prosecutors in New Orleans.  (See here.)

Earlier this month, I heard about a new similar case making its way through the courts.  In this case, the plaintiffs allege that the Orleans Parish DA's office for years have been using fake subpoenas to coerce cooperation from witnesses and victims of crimes.  According to the allegations, prosecutors sent out bogus subpoenas -- bearing threats of fines and imprisonment -- to hundreds of witnesses, even though the subpoenas had not been approved by courts overseeing the ongoing prosecutions. The DA's office was simply cranking out fake subpoenas and hoping recipients would be too intimidated by the threat of jail time to question the veracity of the documents.

Several lawsuits followed, and the District Court of the Eastern District of Louisiana recently decided a motion to dismiss in one of them.  It held that the prosecutors had immunity for some of the alleged conduct, but not for all.  In fact, the court held that the individual defendants are not entitled to absolute immunity for their alleged role in creating or delivering “subpoenas” to victims and witnesses of crimes.

Typically, prosecutors have absolute immunity for their work as litigators, but only qualified immunity for their work as members of the law enforcement team, or as investigators.  It is often not easy to determine when one role ends and the other begins, which is why, as you would expect, there is quite a bit of case law on the subject.  But, in this case, it looks like the court thought that creating and delivering the fake subpoenas was part of the pre-litigation state of the building a case.

Evidently, the plaintiffs will still have to deal with the defense of qualified immunity, but it will be interesting to see how the case develops from now on.

You can read the court's opinion here.   Tech Dirt has a comment on the case here.

Sunday, March 17, 2019

Lawyer gets sanctions for conduct as a landlord

I recently posted a few stories (here) that raise the same question:  under what circumstances is the state justified in imposing sanctions for conduct not related to the practice of law.

As I said in one of my recent posts, there is a case in Illinois that suggests the answer depends on whether the conduct leads to the conclusion that the attorney should not be trusted to do what attorney's do.

Using this analysis, it can be argued, for example, that a lawyer who who steals money should not be trusted to handle other people's money or affairs.

Now comes the story of a lawyer who put glue in his tenant’s locks and let the air out of her tires.  The lawyer's defense:  he was acting as a landlord, not as a lawyer.

So, is this conduct that should subject the lawyer to sanctions?  Under what rule?

If the conduct is "criminal", maybe the state can base the decision on rule 8.4(b) which considers misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.  Is that a strong argument?

There are very few details about the decision of the Board, but from what I read it is not based on a specific rule.  Instead, the story cites the board as concluding that the conduct "exposed the legal profession to obloquy, contempt, censure and reproach” and that the conduct was “contrary to justice, ethics, honesty or good morals.”

This is an awful standard.  First, it is not based on any specific rule; second, it is based on the notion of either an "appearance of impropriety" or an effect on "the image of the profession" or both; and, third, it suggests that lawyers are bound by a duty to abide by "good morals."

I have never liked the use of a standard based on an appearance of impropriety or the image of the profession, which is such a vague and subjective standard.

In terms of the appearance of impropriety, there are essentially three approaches:  some states hold it should not be used as a standard for discipline; others hold that it can be used as a factor when used in addition to other more clearly defined standards; and others still hold it can be used as a factor on its own.

The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to another standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite. 

The notion of "good morals" is also problematic for many reasons.  First of all, who decides what is to be considered "good morals" and what is the basis for that decision?  This is the same problem when we deal with a standard based on the "dignity of the profession."  Who decides what is "dignified"?   This notion was rejected in an old case in Illinois that holds that "we do not intend to imply that attorneys must conform to conventional notions of morality in all questions of conscience and personal life."

Finally, if the question of the basis for possible discipline was not hard enough, then we get into the next problem:  what is the appropriate sanction for conduct outside the practice of law? (I wrote about this recently here.)

According to the story, the Michigan Attorney Discipline Board found misconduct but has not yet determined the appropriate discipline.

Thursday, March 14, 2019

You always risk disbarment

I always tell my students that because there are no penalties associated with specific rules of conduct, "you always risk disbarment."  It is true that more often that not, courts try to be consistent with previous cases involving similar conduct, but that does not eliminate the possibility that judges will disagree on what the proper sanction should be.

Interestingly, for some reason, these types of disagreements are common in cases involving conduct outside the practice of law.

I am writing about this today because I just saw a story about a recently admitted lawyer in Florida who was suspended for stealing $760.  The lawyer had been admitted to practice but was working as a cashier at the time.  Adding insult to injury, she claimed she stole the money because of the pressure of paying her law student debt.

In any case, back to the topic at hand, the case made its way up to the Florida Supreme Court, where the judges increased the sanction from ten days plus one year probation to a three year suspension.  One dissenting judge argued that was too harsh, but two others argued the lawyer should have been disbarred.

So how do you decide this case?  There is a case in Illinois that summarizes the analysis as asking whether the facts show that the conduct leads to the conclusion that the attorney should not be trusted to do what attorney's do.

Clearly, a person who steals money should not be trusted to handle other people's money or affairs.  But does that mean that the person should be disbarred in every case?  Does it matter that the amount stolen was relatively low? Does it matter that the lawyer had to pay her student debt (or that some have argued that the debt was caused by a school that allegedly took advantage of her)?

As the author of the article states, "Judges should be flexible on how lawyers should be disciplined. At the same time, practicing lawyers should be on notice that a relatively small crime can lead to disbarment which should deter them from committing similar acts."

In other words, "you always risk disbarment."

Wednesday, March 13, 2019

Supreme Court adds to the definition of ineffective assistance of counsel

The US Supreme Court recently held (in a 6-3 opinion) that a lawyer renders ineffective assistance of counsel when he or she decides not to file an appeal of a guilty plea despite his client’s request, even if the client waived his right to appeal in the plea agreement.  The case is called Garza v. Idaho, and you can read the opinion here.  You can also find all the relevant documents in the case here.

I haven't had a chance to read the opinion myself, so I will limit the post to a link to this summary and analysis.

Tuesday, March 12, 2019

A few stories this week had to do with lawyers getting in trouble for things they said -- UPDATED

A prominent metro Detroit attorney is facing new claims of professional misconduct for allegedly mouthing off to a young female prosecutor and then, in a Facebook rant, misrepresenting what happened.  Here is the story.

The Florida Bar obtained the emergency suspension of a lawyer who attacked opposing counsel on social media.  You can read more about this story here and here.

A state appeals court ruled that a drug court defendant in Washington state is entitled to a new sentencing hearing because the judge who used expletives and said that the defendant was 'just a criminal,' showed “personal animosity.”  Interestingly, the judge had already been admonished in the past because of similar behavior.  He is no longer a drug court judge.  Here is that story.

Finally, a federal judge in San Francisco ordered a lawyer to pay a $500 sanction for discussing irrelevant and banned evidence in her opening statement in a trial.  Here is the story.

UPDATE 3/12/19:  A judge in Texas, has received a public warning for telling jurors that God told him a sex trafficking defendant was innocent.  See more here and here.

Wednesday, March 6, 2019

Bullying from the bench

A few days ago, I posted a note with links to stories of lawyers getting in trouble for things they said.  It included two stories about judges.  See here.  Today, I saw the most recent copy of the ABA Journal has a story called "Bullying From the Bench" on recent high profile bad behavior by judges.  You can read it here.

Tuesday, March 5, 2019

Texas adopts duty to keep up with technology as part of concept of competence

Yesterday I posted that the Washington DC bar is considering adopting the Model Rules' approach to competence which now includes a duty to keep abreast of developments in "technology."

Today I heard that Texas is the most recent state to have adopted this notion.  You can read the details of the story here.

Monday, March 4, 2019

District of Columbia Bar is soliciting comments to possible amendments to the Rules of Professional Conduct

As reported in the Legal Profession blog, the D.C. Bar Rules of Professional Conduct Review Committee is soliciting public comment from Bar members and others on its final draft report and recommendations to amend certain D.C. Rules of Professional Conduct. Comments are due by close of business on April 5, 2019.

Before submission to the Bar’s Board of Governors, the Committee requests comment on the proposed amendments summarized below. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules.

1. Technology and Confidentiality

As of last year, 36 states had adopted the Model Rules' comment that adds understanding "technology" as an element of competence.

Following this trend, the DC Bar proposal includes a proposed amendment to Comment [5] to Rule 1.1 to specify the continuing responsibility of lawyers to stay abreast of changes in technology as a matter of competence. Also, there is a proposal to amend Rule 1.6 and its comments to address a lawyer’s duty to exercise reasonable care to prevent unauthorized access to electronic information and the reasonableness of security measures to be taken by a lawyer when using and storing electronic communications. Finally, there is a proposal to amend Rule 4.4 and its comments to clarify a lawyer’s obligations after receiving inadvertently sent information or metadata.

In my opinion, these are not controversial and should be adopted.

2. Nondiscrimination and Anti-harassment

The most controversial proposal is to amend Rule 9.1, which prohibits discrimination by lawyers in conditions of employment based on a list of enumerated classes, to substantially align it with ABA Model Rule 8.4(g) addressing discrimination and harassment in conduct related to the practice of law.

I have written about this topic before and have expressed my doubts about the constitutionality of the Model Rule.  My original thoughts way back when it was proposed are here.  Although some of the problems I discuss there were addressed in the Model Rule that was eventually adopted, I think it remains problematic, and I still prefer the more limited approach currently in use in Illinois' Rule 8.4(j).

Up to now, only one state (Vermont) has adopted the Model Rule.  Tennessee and Arizona have rejected it (see here and here); Nevada abandoned an attempt to adopt it (see here and here); Pennsylvania rejected it (here), then considered it again, and now it is not clear what the status is...

I suspect this proposal will generate a vigorous debate.

3. In Re Kline

The third proposal that I find interesting is to amend Comment [1] to Rule 3.8 to make it consistent with the District of Columbia Court of Appeals holding in In re Kline, 113 A.3d 202 (D.C. 2015).

I wrote about this case here.  In it, the Court held that the District of Columbia's version of Rule 3.8 on "special responsibilities of prosecutors"  is broader than the duty imposed by the constitutional standards in Brady v. Maryland

This appears to be the prevalent interpretation of the Model Rule in other states, but it is not the only interpretation.  Wisconsin, for example, has interpreted that the duty under the rule is not broader than that imposed by constitutional standards.  (See my post on this here.)

4.  Post-Conviction Exculpatory Information: Special Responsibilities of a Prosecutor

Another interesting proposal that may generate some debate seeks to amend Rule 3.8 and Comments to make them more closely aligned with ABA Model Rules 3.8(g) and (h), but with some significant differences. In May 2015, the District of Columbia Court of Appeals asked the Bar to reconsider paragraphs (g) and (h) of ABA Model Rule 3.8, which impose duties on prosecutors to disclose certain post-conviction exculpatory information, and to determine whether the District of Columbia should adopt similar provisions.

5. And finally, ...Outsourcing

The proposal is to amend the Comments to Rules 1.1 and 5.3 to address a lawyer’s duties when outsourcing legal work or when using “outside” or contract lawyers. The proposed changes include language requiring the lawyer to inform the client about the identity of the other lawyers who will participate in the representation and the contemplated division of responsibility among them, as well as amendments to better address situations where the client, not the lawyer, is directing the outsourcing.

For Information and to Submit Comments

More information about this call for public comment, including the Committee’s final draft report and recommendations, can be found here.

Written comments should be submitted by email to ethics@dcbar.org or by mail to: Rules Review Committee, c/o Hope C. Todd, D.C. Bar, 901 4th Street NW, Washington DC, 20001, no later than April 5, 2019. For hard copies of the report, please contact Duane Tolson at 202-780-2777.

Wednesday, February 27, 2019

US Supreme Court finds for inmate in claim of ineffective assistance of counsel

The US Supreme Court announced a decision today in which it expanded the notion of ineffective assistance of counsel.  The court ruled for Gilberto Garza Jr., who waived his right to appeal in two plea agreements, then changed his mind and told his lawyer to file an appeal.  The lawyer did not file the appeal notice because of the waiver, and the deadline passed. In a petition for post-conviction relief, Garza argued that his lawyer had provided ineffective assistance.

To prove ineffective assistance, defendants must show that their lawyer’s representation fell below an objective standard of reasonableness, and that the deficiency was prejudicial to the defense.

The issue in the case was whether Garza was entitled to a presumption that his lawyer’s failure to file the notice caused prejudice, a presumption that had been recognized in a 2000 case in which there was no appeal waiver.

Idaho courts had ruled against Garza, finding that he could not make the necessary showing that the deficient performance at issue resulted in prejudice.

Reversing that ruling, the Supreme Court ruled 6-3 that this requirement goes against the rule that prejudice to the defendant should be presumed “when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued.”

The ABA Journal has a story here.

Courthouse News Service has a story here.

Florida opens investigation into whether Representative Matt Gaetz violated rules of professional conduct when he tweeted what some have interpreted to be a threat to Michael Cohen

The Daily Beast is reporting that the Florida Bar has opened an investigation into whether Rep. Matt Gaetz (R-FL) violated professional conduct rules by threatening former Trump lawyer Michael Cohen ahead of Cohen’s congressional testimony on Wednesday.  The full story is here.

Michael Cohen was disbarred yesterday, while he testified in Congress

Michael Cohen is making news everywhere today.  Yesterday he testified (in a private hearing).  Today, he is testifying in a public hearing before the House Oversight and Government Reform Committee.  Cohen's prepared opening statement is available here (in writing).  The video of today's opening statement is available here.  There are some interesting details about what Trump knew and when, but the gist of it is that Trump is a liar, a racist and a con man, or, in other words, nothing we have not heard before. 

But more important for readers of this blog, yesterday the New York Appellate Court issued its opinion officially announcing his disbarment based on his guilty pleas for evasion of assessment of income tax liability in violation of 26 USC § 7201, making false statements to a financial institution in connection with a credit decision in violation of 18 USC §§ 1014 and 2, causing an unlawful corporate contribution in violation of 52 USC §§ 30118(A) and 30109(d)(1)(A), and 18 USC § 2(b), making an excessive campaign contribution in violation of 52 USC §§ 30116(a)(1)(A), 30116(a)(7) and 30109(d)(1)(A), and 18 USC § 2(b), and making false statements to the United States Congress in violation of 18 USC § 1001(a)(2).

The full order is available here.  The Professional Responsibility blog has a summary here.

Sunday, February 17, 2019

The Ohio Board of Professional Conduct's recent advisory opinion on conflicts of interest

The Ohio Board of Professional Conduct has issued an advisory opinion which reiterates three basic and uncontroversial principles on conflicts of interest.  The opinion is Advisory Opinion 2019-01 and you can read it in full here

The opinion makes three points:

First, the opinion states that, absent informed consent, a lawyer may not undertake representation of an adverse party in an unrelated matter when the lawyer represents current clients with claims pending against the adverse party.  This conclusion should not be surprising.  It is just the basic principle against concurrent conflicts of interest expressed in Model Rule 1.7.

Second, the opinion states that a lawyer may not withdraw from the representation of a current client in order to undertake representation of an adverse party, even if the matters are unrelated.  This is another way of saying that the Board would apply the so-called "hot potato doctrine" which prevents a lawyer from trying to dump a client in order to "convert" the client from a current client into a former client before taking on a new client in a matter adverse to the interests of the converted former client.  I can't say how many jurisdictions have formally adopted the doctrine, but it is pretty well known so I am not surprised by the opinion's position on this.

Third, the opinion states that absent informed consent, a lawyer may not represent a former adverse party in a new matter against a former client if the new matter is the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.  Again, this is not news since it is simply stating the basic principle regarding successive conflicts of interests expressed in Model Rule 1.9. 

Monday, February 11, 2019

Why Lawyers May Not Ethically Be Able To Use Whatsapp

Have you ever tried to install an app, only to get a message saying the app wants to access your contacts?  Do you know why the app needs such access?  Are you violating the duty of confidentiality by providing access to your clients contact information?  If the app won't install unless you allow access to the contacts, do you need client consent to install the app?

Here is an interesting article on the subject.  The article also relates to the duty of competence about technology.

Sunday, February 10, 2019

Resolution before ABA House of Delegates regarding companies that offer legal documents online is withdrawn

At a recent meeting of the ABA, the ABA House of Delegates was due to consider a resolution that proposed model rules for companies that offer legal documents online, but the resolution was withdrawn after the ABA Center for Innovation, the Standing Committee on the Delivery of Legal Services, the Business Law Section and the Section of Dispute Resolution argued the proposed guidelines needed more work before going forward.

You can read the proposed resolution here.

According to a story in the ABA Journal, there were concerns regarding warranties, intellectual property and dispute resolution. There was also uncertainty over whether the proposed guidelines would apply to courts offering online forms.  The ABA Journal has more details here.

Friday, February 1, 2019

Report on alternative legal services providers

A recent report by Thomson Reuters concludes that the "alternative legal services provider" market grew approximately 25 percent from $8.4 billion in 2015 to $10.7 billion in 2017 amid growing demand from both corporations and law firms.

The report found that the five most common types of alternative legal service providers are litigation and investigation support, legal research, document review, e-discovery, and regulatory risk and compliance.

The ABA Journal has details, and a link to the report, here

Thoughts on the regulation of the profession

A recent column in Above the Law reflects on the regulation of the profession.  It concludes that "the legal profession is one of the best-regulated professions out there, and we can all kind of be happy that we have more safeguards against bad actors than other professions."

I generally agree with the underlying sentiment but the conclusion needs to be more nuanced than that.  It is true that the legal profession is highly regulated and that much of that regulation is in place for good reasons, but it is debatable whether all regulation is needed.  For example, I think there are good arguments to suggest that it is time to revise the limits to multijurisdictional practice, for example.  Also, whether we can be "happy" depends on how the regulation is implemented, which varies a lot from jurisdiction to jurisdiction.

Ohio Supreme Court continues trend of suspending lawyers for violation of rule against having sex with clients

The Law for Lawyers Today is reporting that "[t]he Ohio Supreme Court is continuing its trend of suspending lawyers who violate the disciplinary rule on sex with clients, and has again rejected arguments that pointed to the consensual nature of the relationship.  In a recent opinion involving sex between criminal defense counsel and his client, the court characterized the lower disciplinary Board’s analysis as “blaming the victim,” and increased the penalty above what the Board recommended."  Go here for details and analysis.

Can a paralegal (or other non-lawyer employee) cause a conflict that disqualifies a law firm when the paralegal joins the firm?

This is a question that is addressed in the comments to Model Rule 1.10, but it is not a bad idea to review it once more.  Michael Kennedy, of Ethical Grounds, did so earlier this week here.

Sunday, January 27, 2019

DC Ethics Committee new opinion on crowdfunding -- UPDATED

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 think its rule applies to crowdfunding.

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.

UPDATE (1/27/19):  Karen Rubin, of The Law For Lawyers Today, has posted a comment on the opinion here.

Thursday, January 17, 2019

Texas Committee proposes new rules on advertising

As you probably remember, the ABA recently amended the rules related to advertising and solicitation.  Some states are now following its lead.

The Texas Committee on Disciplinary Rules has proposed revisions to Texas’s ethics rules on advertising that are open for public comment until March 1, 2019.  You can read the proposal here.  Brian Faughnan has a short comment on what he sees as the pros and cons here.

Wednesday, January 9, 2019

Supreme Court issues opinion on federal cap on attorneys' fees

The US Supreme Court recently issued its opinion in Culbertson v. Berryhill holding that a federal law imposing 25 percent cap on attorney’s fees in Social Security cases applies only to fees relating to court proceedings rather than all fees incurred. 

You can read the opinion here.

The SCotUS blog has a comment on the opinion go here, a comment on the oral argument here and more documents and links here.

Courthouse News has a short summary here.

The grades you don't want as a student and basic duties owed to clients, or the basic principles of ethical lawyering

Years ago, I wrote a short essay on whether we could reduce the professional conduct rules to just a few basic principles.  I concluded that, although we need the rules for guidance on specific issues, we can use a few general principles to define the notion of professional responsibility upon which all rules are generally based.

Along the same lines, a few weeks ago, Brian Faughnan posted a comment on “A recipe for ethical lawyering?” in which he expressed a similar idea by referring to the 5 Cs of lawyering:
Be COMPETENT at what you do
Recognize and respect your obligations of CONFIDENTIALITY
COMMUNICATE appropriately with your clients (and others) both as to content and frequency
Employ CANDOR in all situations in your practice [If you absolutely cannot be 100% truthful, and can’t simply stay silent, then don’t be false.]
Avoid CONFLICTS for which you don’t have, or cannot get, consent.
A few days later, Michael Kennedy followed up with his own commentary on the 5 Cs.

There is little to add to these two fine comments, but I will mention my own take on the 5 Cs, which is this: to try to get my students to remember the basic duties attorneys owe their clients, I tell them to think about the grades the do NOT want to get this semester: 1 F, 1 D and 4 Cs:

The F is for the Fiduciary duty owed to clients which in fact includes most, if not all, the others.

The D is for Diligence.

The Cs are for Competence, Confidentiality, Communication and Conflicts.

There are a couple of problems with my little word game for my students,* but it works for its purpose, I guess.... I hope...

*Note that “Conflicts” is, of course, not a duty – the duty is loyalty – but I needed a “C” to make the saying work!  Also note that I did not mention candor because, technically, the rule on candor says candor is owed to the tribunal, and my lesson was on duties owed to the client.  The equivalent of candor owed to the client would be Honesty, which I mention separately.  It is covered in the "catch-a;;" Rule 8.4 but can also be included in the notion of a fiduciary duty.

Sunday, January 6, 2019

The Virginia State Bar has proposed a significant revision to Rule 4.4(b) and its comments

The Virginia State Bar has proposed a significant revision to Rule 4.4(b) and its comments that does NOT follow the text of the Model Rules. 

The Model rule states: "A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender."

In contrast, the proposed new rule in Virginia states:  "A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information is privileged and was inadvertently sent shall immediately terminate review or use of the document or electronically stored information, promptly notify the sender, and abide by the sender’s instructions to return or destroy the document or electronically stored information."

Do you see the difference?  The proposed rule imposes a much more detailed duty on the lawyer and addresses what the comments to the Model Rules refer to as matters "beyond the scope of [the] rules." 

In particular, comment [2] to Model Rule 4.4(b) states that "[w]hether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these Rules ..."  But, as you see above, the Virginia proposed rule does impose specific duties that go beyond notifying the sender.  They impose a duty to immediately terminate review or use of the materials, and abide by the sender’s instructions to return or destroy the document or electronically stored information.  Presumably, this means to stop reading the moment it is evident the attorney should not be reading whatever it is that was sent by mistake. 

The Legal Profession Blog has the full text of the proposed new rule here.

Texas Bar issues opinion on whether attorney can renegotiate a flat fee

Long time readers of this blog might remember that I have published a couple of short articles on flat fees. (See here and here, for example.)  One issue related to flat fees that is interesting is whether an attorney should have the right to renegotiate the fee if it turns out that he or she miscalculated the amount of time the legal services would take.  Obviously, you would think that once the fee agreement is set, the attorney can't unilaterally change it to force the client to pay more.  The main reason a client would agree to a flat fee is the fact they know ahead of time how much the total fee will be.

This puts an attorney in a difficult position when it turns out the amount of work the fee pays for turns out to be a lot more than expected.  The attorney could ask the client to pay more, but what if the client refuses?  After all, they have a contract that says the services would be provided for the agreed amount and therefore have the right to expect the work will be done regardless of how much work it is.  In a case like that, the lawyer miscalculated and would suffer the consequences of his/her mistake.  Like I said, I guess there is nothing that says that the lawyer can't ask the client to pay more, but if the client refuses, the lawyer has to suck it up -- do the work diligently, competently and completely even if it means taking a financial loss.

So the question I would ask is whether it would be ethical for the lawyer to include in the initial contract a clause allowing the lawyer to recalculate or at least to force the client to agree to renegotiate the fee under certain conditions.

A few months ago, the Texas Bar issued an Ethics Opinion partially addressing the issue.  It concludes as follows:
A lawyer may renegotiate his fixed, flat fee for representing a client in a litigation matter after the litigation is underway if modification of the fee agreement is fair under the circumstances. The burden of proving fairness is the lawyer’s and will depend upon factors such as the length of the lawyer-client relationship, whether the reason for the renegotiation could have been anticipated at the outset of the representation, and the client’s level of sophistication. Before seeking to renegotiate a fixed fee, the lawyer should be mindful of the risks that the lawyer voluntarily assumed when proposing or agreeing to that fee—including the possibility that the fixed fee might not be adequate to compensate the lawyer when compared to other fee arrangements.
Notice that the opinion refers to "renegotiating the fee" not to including something in the initial contract.  Does that mean that the opinion considers it ethical for an attorney to seek to renegotiate with the client, or that it would be ethical for the attorney to change the terms of the original agreement?   It is not clear, but it seems to me it is talking about whether it is ethical to ask the client to renegotiate, and it concludes that it would be depending on certain factors.

But, to me, that does not really answer some of the other important questions.  Let's say it is ethical for the attorney to ask, what happens if the client refuses to agree to the new proposed fee?  Can the attorney force the client to accept new terms?  Does the fact that the attorney can ask a client to renegotiate the terms of the contract, make the new terms themselves part of the contract?    My guess is that these questions would need to be addressed in the original contract and the client would have to agree to the terms ahead of time.

Also notice that the opinion seems to be limited to litigation.  Why is that?  What if a client asks me to prepare a will and I agree to do it for a flat fee of $100, which is my hourly fee, because I think it won't take me more than an hour.  Later I realize it will take me a lot longer than that. If the language of the opinion is limited to litigation, I'd have to suck it up, which a litigator wouldn't.  Why the difference?  What makes their time or work more valuable than mine?

You can read the full opinion (which is very short) here.