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. 


Thursday, February 14, 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

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.

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.