Wednesday, August 14, 2019

Bloomberg Law: California reportedly "inundated" with negative comments regarding proposed new rules on who can practice law, while getting support at a public hearing for those that allow sharing fees with non lawyers

A few days ago I wrote that the California Bar’s Task Force on Access Through Innovation of Legal Services submitted its recommendations for a period of public comment.

Today, I read that, according to a report in Bloomberg Law, "[t]he State Bar of California has been inundated with more than 400 comments in response to a series of sweeping proposed rule changes that include allowing nonlawyers to share in law firm profits and provide legal advice."  More than 100 comments were filed to the bar in the first 24 hours after the group issued notice that the comment period had begun.

Again, according to the story, the individual rule change that has received the most comments is the one that would authorize nonlawyers, with appropriate regulations in place, to provide certain types of legal advice and services. The new approach, suggested in order to provide access to legal services in areas of “critical need,” including evictions, and domestic violence and immigration cases, would provide an exemption to the rules banning unauthorized practice of law. As of Aug. 5, the state bar had received 12 comments in support of the proposal, but more than ten times that number against it.

Meanwhile, Bloomberg also reports in a separate story that "[t]he proposals . . . to allow nonlawyers to share in law firm profits and provide legal advice received vigorous backing from notable law professors and several other speakers at a public hearing Aug. 10."

The comment period runs through September 23.


Tuesday, August 13, 2019

Utah holds criminal defendant does not have to show actual innocence to support malpractice claim against lawyer

As you probably know, jurisdiction are divided on the issue of whether a convicted criminal defendant should be required to show actual innocence as a requirement to support a malpractice claim against his or her former criminal defense lawyer.

I recently wrote that Mississippi and Kentucky adopted an exoneration requirement, while Iowa and Idaho rejected it.  (For more stories on the issue, go here and scroll down.)

Today I am writing about this because I just read that the Utah Supreme Court has affirmed and clarified its holding that a criminal defendant can sue counsel for malpractice without proving actual innocence in a case called Paxman v King, available here.

The Legal Profession Blog has more details here.

Tuesday, August 6, 2019

Alaska asks for comments on whether to adopt Model Rule 8.4(g)

The Alaska Bar Association recently announced that it is considering adopting a rule equivalent to Model Rule 8.4(g), although the rule would be codified as Rule 8.4(f).  The Bar Association will be taking comments on whether to adopt the new rule until August 15. Comments may be sent by email to page@alaskabar.org, or by mail to the Alaska Bar Association at 840 K Street, #100, Anchorage, Alaska 99501, or by calling Bar Counsel At (907) 272-7469.

As you probably remember, Model Rule 8.4(g) has generated a very robust debate, and has proven to be controversial.  The controversy arises out of the fact that, at least as originally adopted by the ABA, the rule in part imposes a threat of discipline for otherwise protected speech outside the practice of law based on a standard of negligence. 

Since its adoption by the ABA in 2016, nine or ten jurisdictions have rejected adopting the Model Rule while only two have adopted it, and one of those (Maine) adopted it after making several important amendments.  See here.

I have written a lot about the rule and the controversy behind it.  You can click here to see my posts since it was proposed in reverse order, meaning that they will be listed with the most recent one on top.  Scroll down, and read from the bottom up if you want to read them in chronological order.

Illinois, where I live, has had an anti discrimination rule since 2010 or so (IRPC 8.4(f)), and I believe it is better than Model Rule 8.4(g) because it bases the evaluation of the conduct on a finding of violation of the law, rather than on a subjective evaluation by the disciplinary agency.  You can read the text of Illinois rule 8.4(f) here.

For a chart prepared by the ABA identifying the status of Model Rule 8.4(g) among all jurisdictions go here.

Monday, August 5, 2019

Ohio imposes discipline on lawyer for criticizing judges without reasonable factual basis

I have discussed in the past whether it would be constitutional to discipline attorneys for expressing their views when criticizing judges.  (See here, and here for example.) Clearly, there is a distinction between speech that may be a threat to someone's reputation (which may be protected by the First Amendment) and speech that actually expresses a threat of physical harm (which would not be).  (See here.) But even when the speech is merely a threat to someone's reputation, it may give rise to civil liability for defamation, and in such a case, should it also justify discipline?

For example, in one case that explores the fine line between the authority of the state to regulate attorney speech and an individual attorney's right to express his or her opinion about judges, the United States Court of Appeals for the Sixth Circuit ruled that the Kentucky State Bar violated and attorney's rights when it sent the attorney a warning letter after he criticized the state Legislative Ethics Commission.  See here.

In contrast, in other cases, courts have justified disciplinary action against lawyers for expressions about judges.  See here and here for example.

Model Rule 8.2(a) states, in part, that a lawyer "shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge..."  This standard resembles the standard used in defamation cases involving public figures because judges are public officials.  It would be unconstitutional for the state to impose discipline based on a lower standard.

Another important element of the standard, however, is that there is a distinction between statements of fact and statements of opinion.  A defamation action is not justified if the statement upon which it is based is merely an opinion.  A defamatory statement must be, by definition, false, and only a factual statement can be true or false.

For this reason, it is interesting to see how courts handle cases in which lawyers express their opinions about judges, while the state argues that the statement is based on a factual assertion.

I am writing about this today because I just read a short comment over at The Law For Lawyers Today  about a new case in Ohio in which an attorney was disciplined for expressing his opinion about certain judges.

In answering a complaint, the lawyer wrote that the appellate judges who had decided against his client had “contrived” their rationale “to justify a decision . . . premised apparently upon outside influences,” and had ruled in favor of him “for apparently undisclosed and non-legal reasons.”  In a different document, the lawyer also alleged that The lawyer alleged that “it is impossible to believe that the judicial decision” against his client in the appellate court “is not the result of undue influence and corruption,” and called it “a conspiracy to pervert justice.”

If the lawyer's statement had ended when he said the judges opinion was contrived, there would be no justification for discipline.  We say that often when criticizing opinions we think are wrongly decided, and it is an opinion.

The problem is in the rest of the statement which suggests a fact, ie, that the judges decided the case due to outside influences and for "non-legal reasons."  That is a statement of fact.  Either it is true or it isn't.  Thus, since this statement could give rise to a defamation action, it may give rise to a disciplinary inquiry.

Now the next question, however, is whether the state can meet the Constitutional standard of showing that the speaker issued the statement with knowledge of falsity or reckless disregard for the truth.

Here is where the case gets interesting.  In applying that standard, the board of professional conduct concluded that the lawyer here had no reasonable factual basis for his allegations.  Note how this is a lower standard than the one the board was supposed to apply.  Reasonableness is not recklessness, and it certainly is not knowledge.  I don't understand how an analysis based on reasonableness meets the constitutional standard.

Having said that, the ultimate decision was justified because of the lawyer’s own testimony admitting that he “did not actually know why the judges ruled as they did” and that he had not conducted “any investigation” before making his allegations.  The court could have said that this was evidence of recklessness.   Instead it suggested it was evidence of unreasonableness, which is not the same thing and which creates an unnecessary confusion about the proper analysis.

The case is called Disciplinary Counsel v. Oviatt, 155 Ohio St.3d 586 (2018) and you can read it here.

Sunday, August 4, 2019

In Court Without a Lawyer: The Consequences of Trump’s ‘Remain in Mexico’ Plan

The New York Times has published an article on how a new Trump administration immigration initiative is forcing many asylum seekers to navigate the court system without representation.  The article is called In Court Without a Lawyer: The Consequences of Trump’s ‘Remain in Mexico’ Plan  and you can read it here.

Friday, August 2, 2019

California task force issues report and recommendations on the future of the practice of law

If you are a reader of this blog you know that the legal profession in the United States has been involved in a long standing debate on whether to change a number of important approaches to the practice of law, most importantly on the notion of unauthorized practice of law, sharing fees with non lawyers, allowing non lawyers to provide certain types of legal services and alternative business structures.

Along these lines, about a year ago, the California Bar’s Board of Trustees formed the Task Force on Access Through Innovation of Legal Services to identify possible regulatory changes for enhancing the delivery of, and access to, legal services.

As I recently reported, a few weeks ago the task force submitted its recommendations for a period of public comment. The recommendations were described as “tentative,” and it is expected they may be revised based on the comments received. A report setting forth the final recommendations is expected to be submitted to the Board of Trustees no later than December 31, 2019.

I have not had a chance to read the recommendations, but according to a report I have read, the recommendations provide a general framework for lawyer regulation reform rather than specific amended language for the ethics rules. However, they do address two of the most debated issues in recent years: restrictions on the unauthorized practice of law by non lawyers and restrictions against fee-sharing reflected in Rule of Professional Conduct 5.4.

For the full text of the task force's report (250 pages) go here.  For a short summary and comment on the recommendations and similar efforts in other states go here.  According to this report, the more important highlights of the recommendations include:

- A recommendation to create exceptions to restrictions on the unauthorized practice of law to allow individuals who are not lawyers to offer certain types of legal services to consumers, subject to state regulation and to allow state-certified/regulated/approved entities to use technology-driven legal services to engage in authorized law practice activities subject to state ethical standards governing both the provider and technology.

- Recommendations intended to remove financial barriers to collaboration between lawyers and other non-lawyer professionals through the modification of rules like Model Rule 5.4.

My Shingle has a short comment on the proposals from the perspective of solo practitioners and small firms.  It explains some of the concerns related to the proposals but in the end concludes that  "[t]hese critiques aside, I strongly disagree that the California initiative will harm solo and small firm lawyers and our clients. To the contrary, the proposed reforms create enormous opportunities for us to develop new services that make our legal services more relevant and convenient to our clients’ lives."

Monday, July 29, 2019

Attorney gets reprimand for not trying to stop client's attempts to be evasive during deposition

Conventional wisdom states that lawyers should advise their clients (or other witnesses) to answer deposition questions "narrowly."  Yet, lawyers must be careful not to allow the witness to be too uncooperative.   In other words, lawyers have a duty to tell their clients to behave properly and to answer the questions.

Recently, the ABA Journal reported on a recent decision in Delaware which illustrates the point.  According to the story, the Delaware Supreme Court "called out" a Sullivan & Cromwell partner by name and said he apparently made no attempt to stop his client’s “flagrantly evasive, non-responsive and flippant answers.” According to the Court's opinion, a lawyer who represents a client who engages in deposition misbehavior “cannot simply be a spectator and do nothing."

This is a good decision with which I totally agree.  Lawyers need to know that the litigation process is not a game, and that the judicial system depends on lawyers playing by the rules.

When I was starting out as a lawyer many years ago, I took a deposition of an engineer in a products liability case.  All I was asked to do was to get the witness to describe the product's manufacturing process on the record.  I started the deposition by asking the witness what his name was.  As I recall, our dialogue went something like this:

Me:  "Can you tell us your name?"

Witness:  "Yes."

It went downhill from there; but after a while, his own lawyer realized the witness' games were causing everyone to waste their time.  The lawyer was not happy with his own witness and turned to the witness and told him to just answer the questions. 

According to the Supreme Court in Delaware, lawyers have a duty to do this.


Saturday, July 20, 2019

California task force has prepared report on whether to allow new forms of delivery of legal services

A task force on "access through innovation of legal services" appointed by the State Bar of California has prepared a report which includes proposals that according to some "could lead to sweeping changes to the delivery of legal services, including allowing private businesses to deliver legal services, without regard to whether the businesses have lawyer ownership or management, provided they are appropriately regulated."

In the report, which will be posted officially in the next few days to open a period of time for public commentary, the Task Force will make a number of controversial recommendations, including allowing non-lawyer legal technicians to provide legal advice and allowing non-lawyers to have an ownership interest in law firms.

The California Bar press release announcing the proposals is here.  The minutes of the Task Force's meeting on the proposals are here.

For more information and a good comment on the proposals, check out this article in Above the Law: here.

The underlying force for these proposals is a concern that something needs to be done to provide more and more affordable access to legal services to people in need.  As you probably know, there are many studies that show that many (perhaps most) people with legal needs don't have access to affordable representation.  Opening the door for some regulated provision of legal services by non-lawyers might help close the gap.  Yet, some argue this is not a good idea.  And so, the debate continues.

These are not new ideas nor is it a new debate.  As your probably know already too, some jurisdictions do recognize "legal technicians" who are trained and regulated to provide limited legal services.

The ABA Journal has more information here.  Lawyer Ethics Alert Blog has more here.

UPDATE 8/2/19:  for a short update go here.

Monday, July 1, 2019

Texas Bar Ethics Committee Opinion on a lawyer's duty to safeguard client funds for the benefit of a third party -- UPDATED

Back in September 2018, the Texas Bar Ethics Committee issued a short ethics opinion trying to explain the proper analysis attorneys should follow to determine if they owe a duty to a third party who claims to have an interest in client money in the lawyer's trust account.

More specifically, the opinion addresses these two questions:  "when does a third party have an interest in client funds sufficient to trigger a lawyer’s duty to disburse or safeguard those funds for the third party’s benefit?" and "[d]oes termination of the attorney-client relationship affect a lawyer’s duty to safeguard or disburse client funds in which a third party claims an interest?"

You can read the opinion online here or download it in pdf here.

UPDATE (7/1/19):  Ethical Grounds has posted a comment on the opinion here.


Tuesday, June 18, 2019

ABA new ethics opinion on splitting fees with client's prior counsel

The ABA Standing Committee on Professional Responsibility just released a new ethics opinion on splitting fees with a client's prior attorney.  You can read (and download) the full opinion here. The summary reads as follows:
In a contingent fee matter, when a counsel (successor counsel) from one firm replaces a counsel (predecessor counsel) from another firm as counsel for the client, Rules 1.5(b) and (c) require that the successor counsel notify the client, in writing, that a portion of any contingent fee earned may be paid to the predecessor counsel. The successor counsel may not be able to state at the beginning of the representation the specific amount or percentage of a recovery, if any, that may be owed to the predecessor counsel unless the amount or percentage has been agreed by the client and both predecessor and successor counsels. The successor counsel is not bound by the requirements of Rule 1.5(e), either at the time of engagement or upon a recovery, because Rule 1.5(e) addresses situations where two lawyers are working on a case together, not situations where one lawyer is replacing another. Upon a monetary recovery, the successor counsel may only disburse a portion of the overall attorney’s fee to the predecessor counsel with client consent or pursuant to an order of a tribunal of competent jurisdiction. If there is a dispute as to the amount due to the predecessor counsel under Rule 1.15(e) the disputed amount may have to remain in a client trust account until the matter is resolved. If successor counsel negotiates with predecessor counsel on the client’s behalf, successor counsel must explain to the client the potential conflict of interest in the dual roles pursuant to Rule 1.7, where successor counsel has a personal interest in the amount predecessor counsel may receive or in the timing of the release of funds held pursuant to Rule 1.15(e).


Attorney Compensation Survey

Martindale-Avvo has published its 2019 compensation survey available here.  I am not sure it has any surprises, but there are a few interesting graphs.  Among them, the one that caught my eye was the gender gap (page 6).  The comment that accompanies the graph states:  "A gender-compensation gap exists among solo practitioners and attorneys employed at small firms, with female attorneys reporting receiving 36% less income in 2018 than their male counterparts. Some of this disparity may be attributed to the number of years spent practicing law, with female attorneys reporting substantially fewer average years (16.3) in practice than their male counterparts (22.7). A higher proportion of female attorneys also represent consumers, where reported income in 2018 was less than that of attorneys primarily representing businesses."

Also, with all the talk about alternative billing in recent years, some might be surprised to learn that more than three-quarters of respondents use an hourly rate structure to bill clients.  Flat fees is the second most popular billing method (see page 12).

Monday, June 17, 2019

Maine adopts (a different version of) ABA Model Rule 8.4(g) -- UPDATED

UPDATED (6-17-19)

In my original post on this, I stated something along the lines of "Maine adopted the Model Rule" and several readers yelled "Objection" because Maine's adopted version of the rule is different than the Model Rule.  

And they are correct.  Objection granted! So here is an updated post:

As you probably know, in 2016 the ABA adopted an amendment to Model Rule 8.4 to add a new section regulating conduct deemed to constitute discrimination or harassment.  See MR 8.4(g).

The new rule has proved controversial, and since its adoption by the ABA, only one state (Vermont) has incorporated it into its own rules. At least four states (Arizona and Tennessee among them) have affirmatively rejected it, and one or two more (Nevada and Pennsylvania) have abandoned efforts to adopt it.  (To read a little about why the rule is controversial go here, here, here, and here.)

Well, the landscape just changed a little because Maine recently adopted some aspects of the Model Rule.  In a prior post I stated the Maine had adopted the Model rule, but the rule adopted in Maine differs from the ABA Model Rule, so maybe it is more accurate to say that Maine adopted an amended version of the Model Rule.

The first difference between the Model Rule and the Rule adopted in Maine is that the state’s rule omits marital status and socioeconomic status as types of discrimination.  I don't know why it eliminates the reference to marital status.  I assume the elimination of socioeconomic status has to deal with arguments that this category is too vague.

Second, the Maine rule actually defines the concepts of discrimination and harassment as they apply to the rule.

Third, although the Maine rule adopted the Model Rule's language of "related to the practice of law" to define when the rule applies, extending it from the more limiting "when representing a client", the adopted rule in Maine does not extend the notion of "the practice of law" as much as the Model Rule does.  Unlike the Model Rule which extends the notion of "related to the practice of law" to include conduct in social activities, the new rule in Maine limits the notion of the practice of law to exactly that, ie, conduct within the practice of law.  This change is in response to a common criticism of the Model Rule -- the fact that it expands the application of the rule to conduct outside the practice of law.

Finally, there is one aspect of the new rule that I find confusing.  The Model Rule considers misconduct when a lawyer engages in conduct that the lawyer "should know" is discrimination or harassment.  This means the standard upon which it is based is negligence.  The Maine rule adopts this same language but in the definition of discrimination refers to conduct that the lawyer "reasonably should know manifests an intention" to engage in the conduct (as described in the rule).  Also, in the "Guidance" section below the rule, which is not part of the rule itself, it says that "the extent of enforcement or initiation of formal disciplinary proceedings will depend on "the level of intentionality" and seriousness of the conduct.  So, even though the language sounds like negligence, is the Maine rule based on intent?

You can read the text of the new rule as adopted in Maine here.

The ABA Journal has more on the story here.


Tuesday, June 11, 2019

New complaint filed in Indiana raises the issue of whether a lawyer has a duty to disclose confidential information related to sexual abuse of children

A couple of years ago, I published an article on an advisory opinion of the Legal Ethics Committee of the Indiana State Bar Association on whether a lawyer has a duty to disclose information regarding sexual abuse of a minor under Indiana law.  The opinion concluded that, absent client consent, in most circumstances an attorney has a duty NOT to report confidential information about child abuse.

As I argued in my article, because Indiana has a mandatory disclosure statute, this conclusion is wrong. You can read my article here.

I am writing about this today because I just heard about a case that is making its way through the Indiana disciplinary process which raises the issue.  And, given the fact that the opinion is still out there, I am worried about the possibility of the case making it to the courts and setting a bad precedent.

The complaint filed against the lawyer (available here) clearly sets out the facts of the case.  In a nutshell, here is what happened: the father of a 15 year old girl discovered that a teacher at her school had been propositioning his daughter and sending her “dick pics.”  Rather than going to pay a visit to the teacher armed with a baseball bat, which would have been my first reaction, or going to the police, which is what he should have done, the father went to talk to the “Head of Schools” (which I assume is either the equivalent of a principal or a school superintendent, but I could be wrong).  The Head of Schools, in turn, hired the lawyer in question to represent the school.

You can read the complaint for the rest of the facts, so let’s fast forward to what’s important.  Neither the lawyer nor the Head of Schools disclosed the teacher’s conduct to the authorities until the associate Head of Schools said it had to be done -- who said so the moment he heard about the problem for the first time.  Meanwhile, the lawyer tried to cover up the incident by offering settlement agreements and requesting pledges of confidentiality. 

The problem here is that Indiana has a mandatory child abuse disclosure statute that imposes a duty to disclose on everyone, including lawyers.

Everyone means everyone, and only the Associate Head of Schools acted accordingly.  Even after the authorities became involved, the lawyer continued to mislead the investigators preventing access to information and evidence.  Some time after the incident came to light and the police intervened, the Head of Schools committed suicide.  The lawyer is now fighting for his license and may have to face charges of possessing child pornography.

Here is my concern: the opinion of the Indiana State Bar would condone the lawyer's conduct in this case.  Yet, the opinion is wrong because the statute is mandatory and, therefore, the lawyer had a duty to disclose according to the law, which would not have constituted a violation of the rules of conduct because the rules explicitly recognize that a lawyer can disclose confidential information when required to do so by law.

I hope the disciplinary authorities and, if it gets there, the courts, get it right.

The Legal Profession Blog has more information on the case here.

Sunday, June 9, 2019

Trump administration ends legal services for unaccompanied immigrant children

In apparent violation of a long-standing federal court settlement, the Trump administration government has stopped paying for legal services and English-language courses at jails for immigrant children around the country, saying budget cuts make it necessary. 

Courthouse News has more on the story here, as does Jurist (here) and Above the Law, which called the decision, the administration's latest act of pure villainy.

Monday, June 3, 2019

New report on lawyers' wellness

In 2017, the ABA National Task Force on Lawyer Well-Being published a report on attorney well-being which described the wellness deficiencies that exist within the legal profession and called for critical self-examination and evaluation by the members of the profession.  Since then, many bar associations have sought to identify the signs of mental health problems, to identify resources for lawyers who need treatment, and to strengthen judicial and lawyer assistance programs.  However, according to a new report of the Virginia Bar Association, little has been done to identify the reasons that explain why lawyers experience wellness problems at a disproportionate rate when compared to the public as a whole.

To explore that question, the Virginia State Bar created a task force that set out to identify specific aspects or characteristics of the practice of law that might serve as a risk to a lawyer’s well-being.

The task force's report is now available here.  The report is relatively long - 80 pages - but you should take a look at its summary, which appears in the form of a very interesting and useful chart on pages 2-11.

The chart lists a long list of "occupational risks" involved in lawyering, and for each offers a list of potential effects on the individuals, as well as practice pointers for individuals and organizations to help minimize those effects.

The list of occupational risks is listed in the table of contents which I have copied below.


Sunday, June 2, 2019

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

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.


UPDATE 6-2-19:  Michael Ambrogi, of Law Sites, a website in which he comments on issues of technology and the law, has published a comment on the proposed changes here.

Thursday, May 30, 2019

New Mexico to consider allowing non lawyers to provide some legal services - UPDATED

Long time readers of this blog will remember that in recent years a few states have adopted programs to allow non lawyers to provide limited legal services.  The first was Washington, whose program made the term LLLTs (for limited licence legal technicians) the big debate at the time.  (If you click on the labels Washington and Utah on the right, you can scroll down and find lots of posts on this subject).

Now comes news that the New Mexico Supreme Court recently formed the group – comprised of lawyers, educators and advocates – to look into implementing an LLLT program in the state in order to create changes to court rules and programs that would improve the availability of legal services in the state.   Courthouse News Service has the story.

Update 5/30/10:   Illinois Lawyer Now has a story and links here.

Tuesday, May 28, 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.

UPDATE 5/28/19:  Another lawsuit claiming requiring lawyers to be members of the state bar association violates the First Amendment has been filed.  The case is called Jarchow v State Bar of Wisconsin (Case No. 3:19-CV-00266) was filed, you guessed it, in Wisconsin on May 21. 

Monday, May 27, 2019

Should an attorney be disciplined for engaging in animal cruelty

We all know that lawyers can be disciplined for conduct outside of the practice of law; and we all know that criminal conduct outside the practice of law will likely result in discipline.  But whether lawyers can or should be subject to discipline for non-criminal, yet somehow "bad" conduct, is not always clear. 

Typically, rules or cases limit discipline for non criminal/non professional conduct to conduct that in some way shows the lawyer should not be trusted to do what lawyers typically do. 

Which brings me to today's post.  A few days ago, several outlets reported that the Florida Bar has opened an investigation into the conduct of a lawyer who "shooed" a raccoon off his boat after finding the animal had stowed away on board. Given that the boat was 20 miles from the coast and that I am not sure raccoons can swim that well, the presumption is that the raccoon did not survive. 

Oh, and if this happened on a boat 20 miles out to sea, how did we come to know about it?  Well, the lawyer thought it would be a good idea to post a video of the incident on social media in which you can hear someone (presumably the lawyer) using profanity and then laughing at the poor raccoon yelling "so long sucker" when it fell in the water.

If there is a crime here, then the first paragraph of this post applies and that will be that.  Yet, for the sake of argument, let's assume that there is no crime.  Let's say there's simply ...whatever you want to call what the video shows (cruelty, stupidity, profanity, obnoxiousness... ??).  Is this the type of conduct for which a lawyer should be disciplined?  It may say something about the person, but does it say something about the lawyer as a lawyer?  Should there be a difference?

How do these facts compare to cases in which lawyers have acted foolishly or abusively in public while intoxicated? ... or taken money from trusts when serving as trustees but not as lawyers?...  or expressed obnoxious, even racist ideas, ... or engaged in other conduct outside the practice of law?

You can read more about this particular story here, and here.

Saturday, May 25, 2019

Washington State Bar Association rejects proposal to require lawyers to carry malpractice insurance

Not long after the State Bar of California’s board decided against requiring lawyers to carry malpractice insurance, the Washington State Bar Association’s board has rejected a similar recommendation.  Oregon and Idaho remain the only two states with a malpractice requirement for attorneys.

The task force that studied the issue in Washington had concluded that the lack of an insurance requirement “poses a distinct risk to clients.”  Yet, the Board voted down the proposal.

One of the reasons behind the decision was the concern that a malpractice insurance requirement would hurt access to justice because lawyers would be required to raise their fees to cover the cost of insurance. 

Above the Law has more on the story here.

Thursday, May 23, 2019

Lawyers duties and technology

As you know the Model Rules, and now at least 36 states, consider that understanding and keeping up with developments in "technology" is part of a lawyer's duty of competence.

Yet, only two states require that lawyers' CLE programs include hours devoted to issues related to technology and the practice of law.  Two recent articles touch on these subjects:

Law Technology Today has a recent article on why every state should require technology CLEs.  You can read it here.

Also, Above the Law has a comment on a recent Ethics Opinion in Louisiana which the author of the comment argues misses the point on tech competence.  First, he argues that the opinion wrongly presumes that using technology in law practice is optional and that a lawyer must be competent in technology only if the lawyer chooses to use technology.  Second, he argues that the opinion also presumes that a lawyer's competence only relates to the lawyers’ direct use of technology on behalf of a client. As he argues, and I agree, "that misses a critical component of the duty of technology competence — understanding the client’s use of technology. A lawyer cannot competently represent a client if the lawyer does not understand the client’s technology usage and systems and how they may relate to the matter at hand." 

I agree on both points, and I would add that a lawyer needs to be competent in the use of technology also because lawyers need to understand other lawyers' use of technology. 

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.

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."