Monday, August 10, 2020

Judge imposes fine on DA for not disclosing documents in case involving use of fake subpoenas

Long time readers of this blog might remember that earlier this year I reported about a series of complaints filed against the Orleans Parish DA's office arguing that the DA's office had been using fake subpoenas (with false threats of fines and imprisonment) to coerce cooperation from witnesses and victims of crimes.  One lawsuit was filed by the MacArthur Justice Center, another one was filed by the ACLU and yet another lawsuit targeted the DA's office and the DA directly for violating the law and citizens' rights. (That one is still pending because the defendants were denied immunity by the Fifth Circuit Court of Appeals, making it far more likely someone will be held personally responsible).  See here.

I am writing about this today because the MacArthur Center lawsuit is back in the news.  TechDirt is reporting that the judge in the case has issued a $51,000 judgment against District Attorney Leon Cannizzaro for his office’s failure to turn over bogus subpoenas under a public-records request filed two years before the practice was exposed.

The judge's ruling stated that Cannizzaro acted “arbitrarily and capriciously” when he failed to disclose the documents requested by an attorney for a nonprofit law firm who was probing the practice in 2015.

According to the MacArthur Center, the $50,000 penalty may end up being applied against Cannizzaro personally rather than to his office.

Sunday, August 9, 2020

ABA adopts amendment to Model Rule 1.8(e) to allow financial assistance to pro bono clients -- UPDATED

Back in May I reported (here) that a proposal was going to be brought up at the annual ABA meeting to amend Model Rule 1.8(e) which would allow lawyers to provide financial assistance to pro bono litigation clients.  

The meeting ended recently and it is now official that the ABA's House of Delegates adopted what is now probably going to be known as the "humanitarian" exception to MR 1.8(e).   The vote,  was 378 to 16. 

UPDATE: You can read (or download) a copy of the approved language here.

A list of (and links to) all the resolutions approved by the ABA at the annual meeting is available here.

Thanks to Karen Rubin for the links!

Wednesday, August 5, 2020

Podcast on the termination of Washington's pioneering LLLTs program

At a time when several states are trying to adopt regulatory reforms to try to provide better access to legal services (see herehere and here), as I reported here, the Supreme Court of Washington decided to terminate its LLLT program.  It was the first in the country to regulate a system to allow non-lawyers to provide some legal services.

As you probably know, not everyone agrees that eliminating the program was a good idea, and yesterday Above the Law published a story reporting that the editorial board of the Seattle Times seems to be trying to put some pressure to get the program restored.  Take a look at the story here.

Also, there is a new podcast discussing the program and its termination in the Legal Talk Network.  You can listen to it by using the play button below or by going here.

Sunday, July 26, 2020

Chicago Bar Association and Chicago Bar Foundation publish report and recommendations on the future of the practice of law

Last week the Chicago Bar Association and Chicago Bar Foundation published a report that provides recommendations for reforming attorney regulations to meet the changing legal market. The recommendations are the result of nine months of work by a Task Force on the Sustainable Practice of Law & Innovation. Public comments will be accepted through August 21.

You can read the full report here.

The task force was created in October 2019 to address failures in the consumer legal market, in which many lawyers are struggling to make ends meet, while many people are also going without legal help.

The task force brought together a diverse group of more than 50 lawyers and legal professionals from across Illinois to develop a series of regulatory reform recommendations to address these challenges. The recommendations seek to meet three main goals: (1) Help lawyers connect to more potential clients and offer more affordable and accessible solutions, (2) Help people to recognize they have a legal problem and identify where they can turn for affordable and reliable legal help and (3) Spur more innovation in the profession and the delivery of services.

The recommendations include:

• Allowing lawyers to provide technology-based products to help meet the demand for legal services through an “approved legal technology provider.” The provider could be owned in whole or in part by nonlawyers.

• Recognizing licensed paralegals who can provide expanded services to legal consumers while working under the supervision of a lawyer.

• Streamlining confusing legal advertising rules to focus on the core principle that lawyers should refrain from making false, misleading, coercive or harassing communications.

• Expanding the rules on limited scope representation to allow lawyers to participate in technology-based legal solutions and to streamline the process for limited-scope court appearances.

• Creating a community justice navigator to help the public identify legitimate sources of legal information and to connect people to lawyers and other appropriate forms of legal help. The web-based information hub would be similar to resources provided to the public by the IRS.

• Giving the Illinois Rules of Professional Conduct a “plain language overhaul” that also rethinks “overly prescriptive or unnecessary regulatory provisions.”

• Evaluating whether broader changes are needed to relax limits on outside ownership of law firms. “a majority of the task force believes that preventing people who are not attorneys from having an ownership stake in law firms is unduly stifling innovation and preventing solo and small firm lawyers from reaching the scale necessary to reach the consumer legal market,” the report says.

I have not had a chance to read the report so I can't comment on anything specifically.  However, I can say that the report is long, detailed and thoughtful.  Some of the suggesting do indeed support some significant changes in the regulation of the profession, and it is refreshing to see that the authors have recommended specific changes to the rules of professional conduct to match the recommendations.

This last point is important.  It always bothers me when I see recommendations that go against the current rules but no suggestion to change the rules.  If you are going to suggest new approaches, we will need new rules to match them.

But, like I said, I don't have the time right now to read the report so I can' comment on the details.  I will eventually get to it and let you know what I think. 

Wednesday, July 15, 2020

ABA issues opinion on Model Rule 8.4(g)

Long time readers of this blog know that I have written many times about Model Rule 8.4(g) and that I have expressed concerns about its breadth and vulnerability to attack under First Amendment grounds.  I wrote most of those comments when the rule was in the process of being enacted and adopted.  Since then seven states have adopted some version of the rule and a few others are currently considering doing so.  I have also had the chance to teach the rule and discuss the debate about it with my students every semester since it was proposed.

So I am glad to report that the ABA Standing Committee on Ethics and Professional Responsibility has published a formal opinion offering some guidance on how the rule should be interpreted and applied. 

I will comment more in detail when I have a chance to read it, but I wanted to let you know that the opinion is now available so you can read it too.  You can read it or download a copy of the opinion here.

Here is a copy of its summary:
This opinion offers guidance on the purpose, scope, and application of Model Rule 8.4(g). The Rule prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of various categories, including race, sex, religion, national origin, and sexual orientation. Whether conduct violates the Rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline.
Rule 8.4(g) covers conduct related to the practice of law that occurs outside the representation of a client or beyond the confines of a courtroom. In addition, it is not restricted to conduct that is severe or pervasive, a standard utilized in the employment context. However, and as this opinion explains, conduct that violates paragraph (g) will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.
The Rule does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation. The Model Rules are rules of reason, and whether conduct violates Rule 8.4(g) must necessarily be judged, in context, from an objectively reasonable perspective.
Besides being advocates and counselors, lawyers also serve a broader public role. Lawyers “should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Discriminatory and harassing conduct, when engaged in by lawyers in connection with the practice of law, engenders skepticism and distrust of those charged with ensuring justice and fairness. Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.

Sunday, July 12, 2020

Missouri Supreme Court finds that public defenders have immunity for discretionary functions

In a case called Laughlin v. Perry, decided on June 30, 2020, the Missouri Supreme Court found that public defenders are immune for legal malpractice liability under the doctrine of discretionary functions.   You can read the opinion here.   The court summarized its conclusion as follows:
As public defenders, Perry and Flottman are entitled to official immunity because they are public employees whose official statutory duties concern the performance of discretionary acts. . . . One need not be a public official engaged in the essence of governing to be entitled to official immunity; such immunity extends to protect public employees from liability for alleged acts of negligence committed during the course of performing discretionary acts requiring exercise of a degree of reason and judgment. There is no dispute Perry and Flottman were acting pursuant to their constitutionally and statutorily mandated duties in representing Laughlin, and . . .  choosing which defenses to raise and which arguments to pursue on appeal on behalf of indigent clients constitutes a discretionary act entitled to official immunity.

Saturday, July 4, 2020

NY may soon require training in "cyber security" as part of CLE

As you probably know already, many jurisdictions have adopted the ABA Model Rule's view that knowledge or understanding of technology should be an element of the duty of competence under rule 1.1.

Also Florida and North Carolina currently require mandatory CLE on issues of technology.  Florida was the first state to do so (in 2016) (see here). 

I am writing about this today to let you know that the New York State Bar Association has approved a committee report that recommends amending the mandatory continuing legal education rule to require one credit in cybersecurity.

LawSites has the story here.

Thursday, July 2, 2020

What is the proper sanction?

In class, we often discuss whether the cases we read resulted in a proper sanction and we also discuss how inconsistent courts often are when imposing sanctions.  A new case reported by the Legal Profession Blog caught my eye that illustrates the issue.

In this case, the court imposed a suspension of no less than three years for numerous and varied acts of misconduct that included "engaging in a pattern of incompetent representation, neglect, failure to communicate with clients, and failure to return unearned fees; failing to properly supervise a non-lawyer assistant and take reasonable steps to prevent the known misconduct of this assistant that resulted in the theft of client funds; failing to safeguard client funds and maintain all trust-account related records; representing a client with a conflict of interest; and failing to cooperate in multiple disciplinary investigations."  In addition, there were multiple aggravating factors and no mitigating factors.  The overwhelming majority of the 24 clients harmed by the lawyer's misconduct were immigrants facing immigration proceedings who made significant sacrifices to save the necessary funds to retain him and for most of whom the lawyer performed nominal or no work.

A dissenting judge argued the conduct deserved disbarment.

Pennsylvania adopts a modified version of Model Rule 8.4(g)

About a month ago, the Pennsylvania Supreme Court issued an Order adopting a modified version of ABA Model Rule 8.4(g). The new rule makes it professional misconduct for a lawyer to “by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination” against anyone.

Pennsylvania had been trying to figure out what to do about this rule since 2016.  First it rejected it entirely, opting for a different approach.  I wrote about that decision here. But then they changed their minds, I guess, and considered other proposals.  One proposal expressed some concerns about the rule's possible violation of the First Amendment, but evidently that concern was abandoned at some point before the recent adoption of the new rule.  In fact, it is remarkable that the text of the rule would say "by words" where the most important debate about the Model Rule is whether it regulates speech in violation of the First Amendment. 

You can read the new rule here; and for a comment tracing the trajectory of the issue in Pennsylvania and a critique of the adopted rule, go here.  The conclusion:  "In many regards, the April 2019 proposal is worse than the May 2018 proposal. The earlier version showed some concerns about the First Amendment. The adopted version threw those cautions to this wind.  This rule can be used to censor protected speech, and worse, will chill attorneys who seek to engage in protected speech."

Wednesday, July 1, 2020

Improper comments by prosecutor lead to conviction reversal

Long time readers of this blog know I have posted many stories on prosecutorial misconduct including many in which convictions have been reversed simply because of improper comments by prosecutors.  Here is another one, recently reported in the Legal Profession Blog.  Take a look an you tell me if you think the comment deserved a reversal.

As reported in the LPB, here is how the court explained the issue:
In her closing argument, the prosecutor asked the jury, “Did you watch [Defendant] in the courtroom when [Victim] took the stand? He wouldn’t even look at her. He looked at every other witness in the eye, but he wouldn’t look at her.” The argument had no purpose other than to invite the jury to draw an adverse conclusion from Defendant’s failure to get on the stand and explain why he would not look at Victim as she testified. After Defendant objected, the jury heard the district court overrule the objection, which placed the “stamp of judicial approval” on the improper argument, further magnifying the prejudice. . . .  Having obtained the district court’s stamp of judicial approval, the prosecutor compounded the prejudice by repeating the statement and adding, “And why wouldn’t he look at her? Because he knew what he’d done. He knew what he did.” . . . The prosecutor’s accusatory tone was tantamount to pointing a finger at Defendant.
And based on this argument, the court held that the prosecutor’s arguments violated Defendant’s Fifth and Fourteenth Amendment rights and deprived Defendant of a fair trial, resulting in reversible error; adding that "Prosecutors do not have license to make improper and prejudicial arguments with impunity. We reverse the Court of Appeals holding that Defendant received a fair trial, and we remand to the district court for a new trial."

If this conduct justifies a reversal of a conviction shouldn't it also justify sanctions for violation of Rule 8.4(d) on conduct that is prejudicial to the administration of justice?

What do you think?

Monday, June 29, 2020

Wisconsin reaffirms that criminal defendants must show actual innocence to support malpractice claim against former defense counsel

Long time readers of this blog may remember that I have posted many stories commenting on the fact that many (probably most) jurisdictions require former criminal defendants to prove actual innocence as a requirement to support malpractice claims against their criminal defense counsel.  In recent years, a number of jurisdictions have rejected this notion, but it still seems to be the majority approach.

I am writing about this again today to report that earlier this month, the Supreme Court of Wisconsin reaffirmed its position on this in a case called Skindzelewski v. Smith, which you can read here.

Sunday, June 28, 2020

New Jersey considers adopting exception to duty of confidentiality to prevent or remedy wrongful convictions

Long time readers of this blog might remember an incident reported a few years ago out of Chicago that involved two lawyers who came forward to disclose that they knew that a man named Alton Logan had been convicted (and sentenced to life) 26 years earlier for a crime he did not commit.  The lawyers had not disclosed the information sooner because they had obtained the information from one of their own clients, who had confessed to them that he had committed the crime for which Alton Logan had been convicted.

At the time of the confession, the lawyers tried to obtain consent from their client to disclose the confidential information, but they were only able to get him to consent to disclose after his death...  and then he proceeded to live for another 26 years.

When the lawyers finally came forward, the incident got national coverage (including a segment in the TV show 60 minutes) and sparked a debate on whether states should recognize an exception to the duty of confidentiality to allow lawyers to disclose information when reasonably necessary to prevent or remedy a wrongful conviction.

Attempts to amend the ABA Model Rules for this purpose have never progressed very far within the ABA, but there are three states that currently recognize such an exception (Massachusetts, Alaska and North Carolina).  Soon there may be four.

The New Jersey Supreme Court recently published a task force report with a recommendation to adopt an exception to the duty of confidentiality to require lawyers to disclose information that demonstrates that an innocent person has been wrongly incarcerated.

The recommendation, however, was not unanimous and there is a strong dissenting opinion. Also, the task force members who were in the majority were divided on whether the exception should be mandatory or permissive.

You can read the report here.

Recognizing that lawyers who reveal client confidences to remedy a wrongful incarceration necessarily harm their own client, the majority concludes that that disclosure of such information strongly serves the interest of justice and enhances public confidence in the criminal justice system. "On balance," the report states, "an exception for this purpose is justified because the suffering of the wrongly incarcerated person is great, while the universe of confessing clients is likely to be exceptionally small."

The exception to the duty of confidentiality related to wrongful convictions in two of the three states that currently have such an exception is permissive.  In North Carolina, there is a mandatory duty to disclose, but it has such restrictions that make the duty a very limited one.

Interestingly, the New Jersey task force members who support the adoption of a new exception to the duty of confidentiality were divided on whether the new rule should be mandatory or permissive.  The majority proposed a mandatory duty to disclose, but again, this was not a unanimous position.

In contrast, a strong minority of the task force, including representatives of the Offices of the Attorney General and Public Defender, opposes a new exception to the duty of confidentiality arguing that lawyers should not disclose (much less be forced to disclose) information that is likely to expose their clients to criminal liability because the proposed exception would require lawyers not only to betray their clients, but also to inflict direct harm on them.

This is a very difficult question for me because I can see the strengths in both sides of the argument and, for that reason I have changed my mind back and forth thinking about it over time.

Given the inadequacies of our criminal justice system, I find the argument for an exception compelling but I can also see the obvious clash with one of the most fundamental values that we hold as a profession.

So, help me decide.  What do you think?

Thursday, June 18, 2020

How to ethically respond to negative reviews from clients

The ABA Journal has published a short article on "dos and don'ts" for when lawyers want to reply to a negative online review.  You can read the full article here.

Wednesday, June 17, 2020

Colorado Supreme Court holds that a man convicted by a jury that included judge's wife isn't entitled to new trial

Reading some old news I came across this headline:  "Man convicted by jury that included judge's wife isn't entitled to new trial..."  Here is the story.

Tuesday, June 16, 2020

Prosecutorial misconduct

For those of you interested in prosecutors' ethics, I recently found this collection of short podcasts discussing instances of possible prosecutorial misconduct in Illinois. 

Monday, June 15, 2020

Permanent disbarment

As you probably know, but is often misunderstood by those outside the profession, disbarment is more often that not NOT permanent. In most states, disbarred lawyers can ask to be reinstated and they often are.  So it is a bit rare to read about a case in which the order disbarring an attorney also bars the attorney from ever seeking reinstatement again.  If you want to see an example of such a case, go here.

Sunday, June 14, 2020

12 tips to help you avoid disciplinary proceedings

Here is a short article on tips to help you avoid disciplinary proceedings.  The tips are good ones:

1. Implement Strong Law Office Management Procedures

2. Intake Is Critical

3. Client and Third Party Funds and Property Are Sacrosanct 

4. Communicate, Communicate, Communicate

5.   Be Diligent

6. Be Honest

7. Honor Client Confidences

8. The Internet Is Not a Safe Haven

9. Conflicts of Interest Are Real

10. Be Civil and Professional

11. Take the Time to Think It Through

12. Stay Current

Saturday, June 13, 2020

US Supreme Court denies review of mandatory bar membership case

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional.  See here and here for example.  My most recent post on this was on the case from Wisconsin in which two Wisconsin attorneys argued that a requirement to be members of the bar association and pay dues violated their First Amendment rights. See here.

Last Monday, the US Supreme Court on Monday denied a request to hear that Wisconsin case.  Justices Thomas and Gorsuch dissented.

For more on the story go to the SCOTUS blog, here, and to Courthouse News Services, here.  Jurist has a short report here.

Friday, June 12, 2020

ABA issues new formal opinion on Model Rule 1.18 and the duties owed to prospective clients

A couple of days ago, the ABA Standing Committee on Ethics and Professional Responsibility issued formal opinion 492 in which it discusses the duties owed to prospective clients under MR 1.18.  I don't think it says anything we did not know already.  Here is the summary:
A prospective client is a person who consults a lawyer about the possibility of forming a client-lawyer relationship. Model Rule 1.18 governs whether the consultation limits the lawyer or the lawyer’s firm from accepting a new client whose interests are materially adverse to the prospective client in a matter that is the same or substantially related to the subject of the consultation, even when no client-lawyer relationship results from the consultation. Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter. Whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances including the length of the consultation and the nature of the topics discussed. The inquiry does not require the prior prospective client to reveal confidential information. Further, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent, as set forth in Model Rule 1.18(d)(1) and (2).
You download or read the opinion here.

The ABA Journal has a story here.

Thursday, June 11, 2020

Washington State (prospectively) terminates its pioneering program of non-lawyer technicians (LLLTs)

Long time readers of this blog will remember that I have posted many comments about or related to Washington's program that allows non-lawyers to provide certain limited legal services.  When it was created, it was the first of its kind and was widely celebrated as a good idea that would facilitate access to legal services and therefore help "bridge the gap" between available legal services and unmet legal needs.  It was expected to grow over time and since its creation, several other states adopted similar models.

So, I am not happy to report that in a surprise move (at least to me), the Washington Supreme Court has decided to terminate the program.  Or, maybe "terminate" is not the right word because current legal technicians in good standing may continue to be licensed and may continue to provide services. Individuals already in the pipeline as of June 4, 2020, who can complete all the requirements to be licensed as a LLLT by July 31, 2021, may do so. No new LLLTs will be admitted after that date.  The ABA Journal has more details on the story here.

In a very short letter to the director of the program, the Chief Justice of the state supreme court explained that
The LLLT program was created in 2012 as an effort to respond to unmet legal needs of Washington residents who could not afford to hire a lawyer. Through this program,  licensed legal technicians were able to provide narrow legal services to clients in certain family law matters. The program was an innovative attempt to increase access to legal services. However, after careful consideration of the overall costs of sustaining the program and the small number of interested individuals, a majority of the court determined that the LLLT program is not an effective way to meet these needs, and voted to sunset the program. 
I am disappointed that the program did not survive.  I am now even more interested to see how similar programs do in other states.  I am also curious to see if Washington will try to come up with an alternative.

The vote to end the program was not unanimous and in a separate letter, Justice Barbara A. Madsen said that she “passionately” disagreed with the court’s vote stating that "[t]he elimination of the LLLT license, which was created to address access to justice across income and race, is a step backward in this critical work. It is not the time for closing the doors to justice but, instead, for opening them wider.”  You can read the full letter here.

LawSites has a comment here.

Wednesday, June 10, 2020

Trying to catch up!

It has been a very busy three weeks (for me personally and for everyone else around the country) since I last posted a comment here, but I am now caught up with work and other things, so I am going to try to catch up with recent developments in professional responsibility. 

Tuesday, May 19, 2020

Illinois State Bar Association issues three new ethics opinions

The Illinois State Bar Association’s Board of Governors approved three new Professional Conduct Advisory Opinions on May 15 during its regularly scheduled Board meeting.

The opinions address the duties of an in-house counsel when confronted with conduct that may be harmful to his or her employer; the prohibition on a lawyer threatening criminal charges to gain an advantage in a civil matter; and the propriety of a firm name of “X and Y” when one of the named lawyers has changed careers and no longer practices law.

Opinion 20-02

Opinion 20-02 relates to the duties of an in-house counsel when confronted with conduct that may be harmful to his or her employer. It discusses Illinois Rule of Professional Conduct 1.13 and the in-house counsel’s reporting obligations. It also covers the in-house counsel’s authority under Illinois Rule of Professional Conduct 1.13 and 1.6 to disclose confidential information outside of the entity in certain circumstances.

Opinion 20-03

Opinion 20-03 addresses prohibition of a lawyer threatening criminal charges to gain an advantage in a civil matter. The opinion concludes by indicating that in a demand letter, a lawyer may accurately set forth the law, including the possibility of civil and criminal liability, as well as including a copy of the applicable statute. However, a lawyer would be prohibited from stating that criminal liability could be avoided by complying with the demand.

Opinion 20-04

Opinion 20-04 addresses the propriety of a firm name when one of the named lawyers has changed careers and no longer practices law. The opinion also discusses the availability of the designation “of counsel” to a lawyer no longer practicing law with the firm, finding that such a designation would be inappropriate.

Thank you to Illinois Lawyer Now for this update, the summaries and the links.

Sunday, May 17, 2020

New Jersey Supreme Court reiterates generally accepted notion that even if information is available to the public it is confidential if it is not generally known

As I am sure you know, subject to some exceptions that are not relevant here, lawyers have a duty to keep confidential information secret.  Yet, students and lawyers sometimes have a hard time defining what is considered to be "confidential information."  In particular, sometimes they think that if the information is "public," it is by definition not confidential.

The problem is that it is not that simple.  It depends on what you mean by "public." One thing is to say that the information is "public" because it is widely known to the public; but is a different thing to say that information is "public" because it is contained in a public record that is available to the public.

For this reason, the generally accepted definition of confidential information does not use the adjective "public."  According to this definition, confidential information is information related to the representation that is not generally known.  (A couple of years ago, the ABA issued an ethics opinion clarifying the notion of generally known information.)

Thus, information can be public (in the sense that it is available to the public) but not generally known, in which case, the fact that the information is public does not change the fact that it is still confidential.  

I am writing about this today because a recent decision by the New Jersey Supreme Court, again reiterates that this distinction is important and can result in problems for lawyers, often when the lawyers discuss information about former clients.  

The case is called In the Matter of Calpin, and the facts are similar to many other cases that have raised this issues in recent years.  A client (or former client at the time) wrote a negative review about the lawyer in Yelp! and the lawyer decided to reply by, among other things, disclosing some information about the client.  The information was "public" in the sense that it was available in public records, but is was not generally known and for that reason the court held that the lawyer violated the duty of confidentiality.

You can read more about the case here; and you can read the opinion here.

To my knowledge, only on case (Hunter v Virginia State Bar, 744 S.E.2d 611 (Va. 2013)) has held that the state can not discipline a lawyer who discloses public information that is not generally known.

Saturday, May 16, 2020

Illinois State Bar Advisory Opinion on the Types of Legal Services Law School Graduates Awaiting Bar Exam Can Perform Under Supervision of Licensed Lawyer

The Illinois State Bar Association has approved an ethics opinion that says recent law school graduates who have not yet taken the bar exam can perform many of the services normally performed by licensed first-year associates as long as they are being properly supervised by a licensed lawyer.

You can read the full opinion here.

Wednesday, May 6, 2020

Texas Supreme Court reiterates that former criminal defendants suing their lawyers for negligence must prove actual innocence

Long time readers of this blog may remember that I have posted many stories commenting on the fact that many (probably most) jurisdictions require former criminal defendants to prove actual innocence as a requirement to support malpractice claims against their criminal defense counsel. (Go here and scroll down for stories on this.)  In recent years, a number of jurisdictions have rejected this notion, but it still seems to be the majority approach.

Earlier this year, the Supreme Court of Texas reaffirmed its position on this in a case called Gray v. Skelton, which you can read here.

What makes this case interesting is that it clarifies that merely getting a conviction reversed, or being "exonerated" is not, by itself, enough to show actual innocence.  As the court explains, 
...exoneration . . . requires not only that the underlying criminal conviction be vacated but also proof of innocence. Innocence, however, can be established in more than one way. It can be established in the underlying criminal proceeding when the conviction is vacated on an actual-innocence finding. . . .Or, if the conviction is vacated on other grounds, formerly convicted individuals may prove their innocence in their malpractice suit against their criminal-defense attorneys. 

Tuesday, May 5, 2020

ABA issues new ethics opinion on the duty not to counsel clients about, or assist in, committing a crime or fraud

At the end of April, the ABA's Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (No. 491) titled "Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings." You can read the opinion here.

In my humble opinion, it does not add much that we did not know already but it is always nice to have guidance on important questions.  What it does, perhaps without realizing it, is provide support for an argument with regard to a number of other duties -- more about that below.  Here is the summary of the new opinion:
Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness to or conscious avoidance of facts. Accordingly, where facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity. Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish “knowledge” under Rule 1.2(d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct, and to advance the client’s legitimate interests. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4. If the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.
Now, why do I think that this opinion is important for rules not mentioned in the opinion?  Because it addresses the duty of the lawyer to act to "find out more" when the duty is expressed in a rule that takes effect if the lawyer has "knowledge."  Model Rules 1.9(b), 1.10(a), 1.13(b), 4.1 and 8.4(f) are all based on knowledge, for example.  

When I teach the duties related to perjury we discuss the notion of selective ignorance and how much investigation a lawyer has a duty to do before being able to claim they did not "know" something, given that knowledge is a subjective state of mind but can be proven with objective evidence of the circumstances.  This opinion provides some guidance on that issue.

[By the way, before anyone writes to me about this, No, Rule 8.4(g) is not based on knowledge.  8.4(g) is based on a negligence standard. Read it carefully.  So is 3.6.]

Monday, May 4, 2020

NY City Bar Association proposes humanitarian exception to rule that bans financial assistance to clients; ABA also considers similar proposal; do they go far enough?

Just over a week ago, the New York City Bar Association proposed an "urgent amendment" to Rule 1.8(e) of the New York Rules of Professional Conduct to provide a “humanitarian exception” while the ABA is also considering a similar proposal.

As you may remember this is the rule that in most jurisdictions bans attorneys from providing financial assistance to clients involved in litigation. It is a rule that has been around forever, but as old as it is, it has also been criticized for not allowing much flexibility.  Some jurisdictions have adopted exceptions for deserving circumstances and in other jurisdictions courts have interpreted the rule to allow humanitarian help, even if the rule does not say that.

So, partly - probably mostly - in response to the health crisis brought about by the Covid-19 pandemic, the New York City Bar Association has made a formal proposal for an amendment to the rule.  You can read the full text of the proposal here.

As the proposal states, the proposed amendment would create a “humanitarian exception” to the current rule, which prohibits lawyers from providing financial assistance to litigation clients. 

This proposal was originally approved back in January 31, 2020 by the NY State Bar Association which then sent its recommendation to the Administrative Board of the Courts for consideration.  The NYCBA is merely now urging the Courts to act quickly to approve the humanitarian exception.

It should be noted that the request makes clear that the need for the humanitarian exception is not limited to the current pandemic.

. . . .Even before the current crisis, lawyers representing indigent clients pro bono have sought to provide financial assistance to clients in order to help them with basic necessities such as food, clothing, and access to healthcare.
      Under the current version of the ethics rules, a lawyer or law office could face disciplinary action for engaging in many of the activities described above.  But that should not be the case.  The humanitarian exception before the Courts is consistent with lawyers’ ethical and moral obligations to “seek improvement of the law; and to promote access to the legal system and the administration of justice.”  Especially now, lawyers should not be limited in their ability to provide assistance to clients who are struggling to make ends meet.
The proposal ends by suggesting that, as an alternative, if the Courts require more time to study the humanitarian exception and decide whether to fully amend Rule 1.8(e), the Courts should consider taking immediate short-term action, such as issuing a temporary order adopting the humanitarian exception until such a time as New York is no longer in a state of emergency that would expressly allow lawyers to provide financial assistance to indigent clients they are representing pro bono if the client has been financially impacted by the COVID-19 pandemic.

I understand the public policy behind rules that ban lawyers from providing financial assistance to clients but I agree that a humanitarian exception is a good idea.  In fact, I have argued that the rule should be amended rather than interpreted judicially to say something it does not say.  The proposal in NY takes the correct approach and it should be approved.

For comments on the issue go to The Law for Lawyers Today, Ethical Grounds, and Louisiana Legal Ethics.

Meanwhile, the ABA's Standing Committees on Ethics and Professional Responsibility and on Legal Aid and Indigent Defense have drafted a proposal to have the ABA House of Delegates approve a similar provision for the Model Rules.  The new exception would allow lawyers providing pro-bono services to provide financial assistance to clients under certain circumstances.  You can read the proposal here.

Note that neither proposal would allow a lawyer to provide financial assistance to a client if the legal services are being provided for a fee.  This means that a lawyer representing a client in financial need on a contingency fee would not be allowed to provide financial assistance.  If the client charged a contingency fee is in as much need as the one who is not charged a fee, why not allow the exception to apply?

Sunday, May 3, 2020

Utah Supreme Court proposes important regulatory reforms

I often tell my students that by the time they graduate and pass the bar the regulation of the profession might be different than what we cover in the class.  Most recently, I mentioned that in relation to the growing trend of allowing non-lawyers to provide some legal services as "legal technicians."

This year I mentioned it in class in relation to two other topics:  advertising regulation and business organizations (or the rules that prevent lawyers from partnering with non-lawyer).  And, a couple of weeks ago, the Utah Supreme Court took a decisive step forward in the direction of deregulation that may start a trend toward more changes in the near future.

The proposed changes, posted for a 90-day period of public comment, would amend Utah’s Rules of Professional Conduct to allow fee-sharing with non-lawyers and to allow non-lawyers to have ownership or partnership interest in law firms or other authorized legal services providers.  The rules would also amend advertising rules and eliminate Rule 1.5(e) which regulates how lawyers can share fees with lawyers in different firms.

The proposed changes would also establish a two-year pilot of a regulatory sandbox — a regulatory body under the oversight of the Supreme Court, to be called the Office of Legal Services Innovation, whose charge would be to license and oversee new forms of legal providers and services.

This is a significant development that will change the way law is practiced and regulated.  It will be interesting to see what the reaction is during the comment period. 

For a copy of the proposed changes go here.  For a summary of the proposal and comments go to LawSites, and Legal Ethics in Motion.

Saturday, May 2, 2020

Ethics Training with Kim Wexler (of Better Call Saul) -- UPDATED

Many of you know the TV show "Better Call Saul," now in its fifth season.  (If you don't go here first, then here.)  The show's website is here.

Kim Wexler is a character in the show, and as part of the promo campaign for the show's new season, there is an ongoing series on YouTube called Ethics Training with Kim Wexler:  

Conflicts of Interest

Marital Privilege


Attorney-Client Privilege
(unfortunately, this one makes the usual mistake of confusing privilege with confidentiality!)

Sunday, April 26, 2020

Ethics opinion on working from home (because of the pandemic) -- UPDATED

The Pennsylvania Bar Association has issued an ethics opinion intended to provide guidance now and into the future on working from home and other remote locations.  You can read it here.  It discusses issues and concerns related to confidentiality, competence, supervisory attorneys, and proper use of technology.

Law Sites has a summary here.

UPDATE 4/26/20:  LexBlog has a comment here.

UPDATE 5/2/20:  Legal Ethics in Motion has a comment here.

Thursday, April 23, 2020

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

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.

UPDATE (2/16/20):  ABove the Law has a comment on the case here.

UPDATE (4/23/20):  the Fifth Circuit Court of appeals affirmed the lower court.  Bloomberg has the story here.

Thursday, April 9, 2020

More on the topic of the practice of law during the pandemic - UPDATE x2

The original message and first update appear below. 

TODAY'S UPDATE (4/9/20):   Friend of the blog and Bar Counsel for Vermont, Michael Kennedy continues his shelter in place "CLE From my Garage" series with a very good program on legal ethics issues and the pandemic in his new YouTube channel.  You can watch the program here.  And you can catch all his programs in his channel here.

March 30, 2020

Here are a few articles and comments published in the last few days on the practice of law and the pandemic:

Quandaries and Quagmires: Legal ethics, risk management in pandemic (Minnesota Lawyer)

The Impact Of COVID-19 On Law Firm Practices (Above the Law)

Biglaw Firm Cuts Back Partner Compensation Amid COVID-19 Economic Upheaval (Above the Law)

UPDATE (4/4/20):

Attorney Ethics Considerations in the Age of Coronavirus (LexBlog)

4 Ethical Questions For Operating a Virtual Law Office   (Illinois Law Now)

Wednesday, April 8, 2020

Illinois Supreme Court Commission on Pretrial Practices Releases Final Report on Criminal Justice System

The Illinois Supreme Court Commission on Pretrial Practices has released its final report concerning pretrial reform in the Illinois criminal justice system.  For more information go here.  You can read the report here.  For the preliminary report and other sources of information go here.

Tuesday, April 7, 2020

What Are The Differences Between the ABA Model Rules and the Louisiana Rules?

If you ever need to figure out the differences between the ABA Model Rules and the Louisiana Rules, here is a video that explains them.

Monday, April 6, 2020

Two courts uphold public defenders' ability to limit caseload

The Legal Profession blog recently reported two different instances where courts in Wyoming and Massachusetts recognized that public defenders should be allowed to refuse new cases. 

In the Massachusetts case, the attorney in charge informed the First Justice of the Springfield District Court that staff attorneys in the Springfield Public's Defenders' Office could not handle any more duty days in that court. In response, the district court ordered that the public defender continue to accept appointments.  The Supreme Court reversed holding that "to the extent such an order may require . . . staff attorneys to accept more appointments than they can reasonably handle, it risks interfering with their ethical obligations under the Massachusetts Rules of Professional Conduct to act with reasonable diligence and promptness in representing their clients, and thereby threatens to undermine the very right to counsel that the order seeks to protect."

In the Wyoming case, State Public Defender Diane Lozano notified the Circuit Court of the Sixth Judicial District that until further notice, the public defender was not available to take appointments to represent misdemeanor defendants due to an excessive caseload and shortage of attorneys in its Campbell County office. Shortly thereafter, the circuit court entered orders appointing Ms. Lozano, or her representative, to represent misdemeanor defendants in two cases. When the local public defender’s office declined the appointments, the court held Ms. Lozano in contempt. The Supreme Court reversed, holding that "[t]he public defender is in the best position to know its resources, including its attorneys, the skills and experience of its attorneys, and the weight and complexity of each office’s caseload."

Further, the court explained that "Ms. Lozano testified concerning the public defender’s caseload policies and that the Campbell County office was at 168% of the maximum caseload. Counsel for the Wyoming State Bar testified that the public defender’s policies on caseloads “support a way of measuring when an attorney’s caseload gets to the point where the attorney has no ethical choice but to decline representation.”"

Based on that, the court concluded that the public defender has discretion to decline an appointment or appointments and that in exercising that discretion, there is no requirement, statutory or otherwise, that the public defender show an individualized injury in fact or meet the Strickland post-conviction showing of prejudice.

Monday, March 30, 2020

Podcast: How to practice law remotely and efficiently during the COVID-19 crisis

Here is a podcast on "How to practice law remotely and efficiently during the COVID-19 crisis" originally posted by the show Asked and Answered in the Legal Talk Network.  If you can see the play controls below, you can go here.

Lawyers behaving badly during crisis

Yesterday I posted a link to advice on how to behave responsibly during the crisis.  Today I bring you two examples of the opposite.

In two separate opinions, judges chastised lawyers for making unreasonable requests in litigation during the pandemic.

In the fist one, a company that creates life-like images of fantasy subjects such as elves and unicorns asked the court for an emergency hearing in a trademark infringement case.  In what has now come to be known as "the unicorn order," the judge denied the request, stating
Plaintiff recognizes that the community is in the midst of a “coronavirus pandemic.” . . . But Plaintiff argues that it will suffer an “irreparable injury” if this Court does not hold a hearing this week and immediately put a stop to the infringing unicorns and the knock-off elves. . . . 
. . . .  
Thirty minutes ago, this Court learned that Plaintiff filed yet another emergency motion.  They teed it up in front of the designated emergency judge, and thus consumed the attention of the Chief Judge. . . . The filing calls to mind the sage words of Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” See Hill v. Norfolk and Western Railway Co., 814 F.2d 1192, 1202 (7th Cir. 1987) (quoting 1 Jessup, Elihu Root 133 (1938)). 
The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied. 
You can read the full order here; and more details here and here.

Similarly, in another case the plaintiff unilaterally scheduled a deposition and defendants filed an emergency motion for a protective order.  The judge denied the order as follows:

The entire world is in the midst of a pandemic. Thousands of people worldwide have contracted the Corona virus and there have been hundreds of virus-caused deaths in the United States. Millions of Americans have been ordered to remain in their homes. Millions more have lost their jobs in the past two weeks. The stock market has taken a brutal beating in the last two to three weeks. Many people are scared. Others are panicked. Everyone is unsure about the future. Cruises have been canceled and all the major airlines have severely curtailed their flights.
We are living in an unprecedented situation.
Nevertheless, the lawyers in this case have been exchanging snippy emails over the past two weeks over the scheduling of a corporate representative deposition. Moreover, defense counsel certified that this routine discovery dust-up is so important that it merits “emergency” status.
No, it doesn’t.
Moving past the incorrect and, frankly, reckless designation of this dispute as an “emergency,” the Undersigned is shocked that counsel could not on their own resolve the issue. Given the health and economic crisis we are in, not postponing the deposition scheduled for next week is patently unreasonable.
If all the issues we are currently facing were to be organized on a ladder of importance, this deposition-scheduling dispute would not even reach the bottom rung of a 10-rung ladder.
For more on that story, go here.

Sunday, March 29, 2020

Some thoughts on practicing reasonably during a public health crisis.

Michael Kennedy, Vermont's bar counsel offers some quick and sound advice on practicing law reasonably during a public health crisis.

Does a plaintiff always need an expert in a malpractice case?

Because the practice of law is considered to be a profession, and a profession is defined, among other things by the fact that it requires special knowledge, education and training, courts usually require that plaintiffs in malpractice actions provide an expert witness to support their arguments as to duty and breach to the jury.  But what if there is no jury?  What if the case is going to be a bench trial?  Should a plaintiff be required to have an expert to explain to the judge what the standard of care of the profession is?  Or can we assume that the judge - obviously a lawyer himself or herself - knows the law that applies to the practice of the profession they belong to?

In a recent case in Delaware (Cannon v. Poliquin), the court decide no help from an expert is needed.  Go here for a short summary.

Tuesday, March 24, 2020

New ABA Formal Opinion on Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts

The ABA Standing Committee on Ethics and Professional Responsibility just released a new formal opinion (Formal Opinion 490) on the ethical obligations of judges in collecting legal financial obligations and other debts.  The summary is as follows:
This opinion addresses the ethical requirement of judges under the Model Code of Judicial Conduct, Rules 1.1 and 2.6, to undertake a meaningful inquiry into a litigant’s ability to pay court fines, fees, restitution, other charges, bail, or civil debt before using incarceration as punishment for failure to pay, as inducement to pay or appear, or as a method of purging a financial obligation whenever state or federal law so provides. Meaningful inquiry is also required by Rules 1.2, 2.2, and 2.5 as a fundamental element of procedural justice necessary to maintain the integrity, impartiality, and fairness of the administration of justice and the public’s faith in it. According to the same Rules, a judge may not set, impose, or collect legal financial obligations under circumstances that give the judge an improper incentive either to multiply legal financial obligations or to fail to inquire into a litigant’s ability to pay. The opinion also discusses innovative guidance on best practices for making ability to pay inquiries, including model bench cards, methods of notice, and techniques for efficiently eliciting relevant financial information from litigants.
You can read the opinion here.

How not to (start the) practice of law -- UPDATED

Original post: March 22, 2020

It has been a while since I posted a story to our running count of "how not to practice law" category, so I here is one.  Unfortunately, this is not the first time I have seen a case with the same or similar facts.

So you say you want to start working as a lawyer in a good firm.  Presumably a great firm, even.  But your resume is not quite up to par.  Here is what not to do:  Lie.  Cheat.  Alter your transcripts.

Yes, folks, once again, we have another winner in our ranks.  This wanna be lawyer altered the law school transcripts 26 times to make it look better. The lawyer falsified the transcript to reflect, among other things, grades that were higher than he had received, high grades in courses that he had never taken, and a cumulative GPA of 3.825, rather than the 3.269 that he had actually achieved.

For that he was charged with multiple violations of rule 8.4, and the Disciplinary Review Board recommended a two year suspension.  The New Jersey Supreme Court, however, lowered the sanction to one year.  Which penalty would you have voted for?

The case is In re Seth Asher Nadler (March 13, 2020).  The Legal Profession blog has more details.

UPDATE March 24, 2020:  Above the Law has a comment on the case here.

Sunday, March 22, 2020

Recent discipline case based on conflicts of interest

I often tell my students that disqualification is a more common consequence to conflicts issues than discipline.  Yet, every now and then we see a discipline case based on conflicts.  And here is a recent one that got some attention among Professional Responsibility blogs.  The case, In the Matter of Foster (3/16/20) involved both concurrent and successive conflicts of interest.

The Legal Profession Blog has more details here; California Legal Ethics also has a story.

Florida opinion on replying to negative online reviews

A few weeks ago I wrote about an opinion from North Carolina on whether attorneys could (or should) reply to negative online reviews.  See here.

Today, I am writing to let you know that the Florida Bar’s Professional Ethics Committee (PEC) recently agreed to publish formal Ethics Advisory Opinion 20-1, which provides guidance to lawyers in responding to negative online reviews for comment by Florida Bar members. 

Lawyer Ethics Alert Blog has a comment on the opinion here

Ethical Grounds has a comment on the issue in general here.  The conclusion is simple:  “You will have many opportunities in life to keep your mouth shut: You should take advantage of every one of them.”

Saturday, March 21, 2020

Technology competence news: civil liability for incompetence involving technology; the need for technology competence during the coronavirus crisis

Long time readers of this blog know I have posted many stories related to the notion of competence related to the use of "technology" in the practice of law.  Go here and scroll down for many stories on the subject.  And, as you probably know also, many jurisdictions have adopted the notion of knowledge or understanding of technology as an element of the duty of competence under rule 1.1.

I am writing about this today because I recently saw two stories of interest related to technology and the practice of law.

The first one relates to the fact that the measures taken to address the health crisis created by the spread of the COVID-19 coronavirus has forced many lawyers to practice remotely. For many, this is a new experience that has forced them to learn how to use new technology.  The story is called Coronavirus Could Be Tipping Point For Tech Competence In Law and you can read it here

The second story discusses a related issue.  Once we recognize that the duty of competence includes competence in using technology we open the door to possible civil liability for a violation of that duty.  The Law For Lawyers Today recently discussed a decision that recognized a cause of action along those lines here.  In the case, the plaintiff alleged that the law firm failed to adequately protect his personal data from hackers.

Friday, March 20, 2020

Civility and courtesy in times of crisis

Statement by the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee:

In light of the unprecedented risks associated with the novel Coronavirus, we urge all lawyers to liberally exercise every professional courtesy and/or discretional authority vested in them to avoid placing parties, counsel, witnesses, judges or court personnel under undue or avoidable stresses, or health risk.

Accordingly, we remind lawyers that the Guidelines for Civility in Litigation (LASC Local Rules, Appendix 3A) require that lawyers grant reasonable requests for extensions and other accommodations.

Given the current circumstances, attorneys should be prepared to agree to reasonable extensions and continuances as may be necessary or advisable to avoid in-person meetings, hearings or deposition obligations. Consistent with California Rule of Professional Conduct 1.2(a), lawyers should also consult with their clients to seek authorization to extend such extensions or to stipulate to continuances in instances where the clients’ authorization or consent may be required.

While we expect further guidance from the court system will be forthcoming, lawyers must do their best to help mitigate stress and health risk to litigants, counsel and court personnel. Any sharp practices that increase risk or which seek to take advantage of the current health crisis must be avoided in every instance.

Tuesday, March 17, 2020

Most proposals for big changes in California delayed by the Board of Trustees of the California Bar

A few days ago, the Board of Trustees of the California Bar delayed deciding (until May) on most of the proposals put forth by a legal tech dominated taskforce, including one which would have allowed non-lawyers and corporations to provide legal services directly to the public.  Two modest proposals which include a change to the rule on competence and a change to the rule prohibiting fee sharing with non-lawyers (allowing non-profits to share fees not just court-ordered fees) will be forwarded to the Standing Committee on Professional Responsibility and Attorney Competence.

Another proposal that survived relates to a program similar to the Legal Technicians in other jurisdictions which allow non-lawyers to provide certain types of legal services.  On this topic, the Board of Trustees set up a separate working group charged with providing its recommendations by December 2020.

Tuesday, March 10, 2020

Florida proposal to allow paralegals to provide limited legal services

Readers of this blog will remember the current discussion within a number of jurisdictions on whether to allow trained non-lawyers to provide limited types of legal services.  See here, and here for example, I am writing today with an update on the discussion in Florida.

Last year, the Florida Supreme Court Commission on Access to Civil Justice’s approved a proposal to create an “Advanced Florida Registered Paralegal” designation as part of the Florida Registered Paralegal Program.

According to the proposal, Advanced Registered Paralegals would be required to have additional education and work experience than is required to become a Florida Registered Paralegal in order to engage in the limited practice of law under a lawyer’s supervision in family law, landlord tenant law, guardianship law, wills, advance directives, and debt collection defense.

The proposed rule revisions also set forth a licensing and disciplinary process and states that the Advanced Registered Paralegals must be supervised by a lawyer who “maintains a direct relationship with the client and maintains control of all client matters.”

The proposal was sent to the Florida Bar’s Board of Governors for review and Bar President John Stewart announced at the Board’s January 31, 2020 meeting that he had referred the proposed program to the Florida Bar’s Rules Committee to consider objections that were made by the Bar’s Family Law, Real Property, Probate and Trust Law, Elder, and Public Interest Law sections.

Monday, March 9, 2020

Michael Flynn waives privilege

Lawfare is reporting that Donald Trump’s former national security adviser Michael Flynn has waived attorney-client privilege, allowing prosecutors to interview his former attorneys at Covington & Burling LLP. Flynn withdrew his guilty plea on Jan. 14, 2020, claiming that he received ineffective assistance from his lawyers at Covington. The U.S. Attorney’s Office stated that Flynn’s claims would require information from those attorneys.  You can read the filings here.

Sunday, March 8, 2020

Discipline System Changes Proposed In Ohio

The Ohio Supreme Court is asking for public comments on proposed amendments to address the process for investigating and prosecuting allegations of professional misconduct by Ohio judges and attorneys.  The report includes a variety of recommendations to the Court aimed at improving and promoting trust in the disciplinary system.  Proposals include:

- Expanding the role and responsibilities of local bar counsel in certified grievance committee investigations and prosecutions

- Streamlining and improving the process for investigating, prosecuting, and adjudicating grievances against Supreme Court justices

- Creating procedures to address lawyer and judicial fitness questions that arise during a disciplinary investigation

- Expediting disciplinary cases, through measures such as service by electronical mail and the use of disciplinary orders in lieu of full opinions in certain cases

- Increasing the time limit for filing a claim for reimbursement with the Lawyers’ Fund for Client

- Increasing the maximum reimbursement amount to $100,000.

Comments should be submitted in writing by letter or via email by March 26 to or to John VanNorman, Chief Legal Counsel, Ohio Supreme Court 65 S. Front St., Seventh Floor, Columbus, OH 43215-3431.

Wednesday, March 4, 2020

Florida Supreme Court to hear oral arguments in case on whether company that provides help through an app is engaging in the practice of law

Almost a year ago, I wrote about a couple of complaints filed in Florida that I argued could challenge the very notion of professional regulation.  In one of them a law firm argued that a technology company was practicing law, while in the other the company challenged the notion of the regulation of the profession under antitrust laws. 

You can read my original post here, which begins with this background information:  "TIKD is a company that promises consumers to take care of their traffic tickets (with a money back guarantee).  The consumer pays a fee to the company and the company takes care of everything, including hiring a lawyer to represent the consumer.   Based on this business model, a law firm in Florida filed a complaint with the Florida Bar alleging that TIKD was practicing law without a license.  . . . . Meanwhile, TIKD went on the offensive and filed a federal lawsuit against the Florida Bar, the law firm, and others alleging, among other things, antitrust violations and that the Florida Bar and the law firm are engaged in a “concerted effort” to put TIKD out of business."

This second lawsuit (the anti-trust lawsuit) was dismissed, but the Florida Supreme Court will hear oral arguments today to consider whether TIKD's business model constitutes practicing law.

Bloomberg law has more details on the story here.

Tuesday, March 3, 2020

Georgia Supreme Court holds that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation

In a recent case summarized in the Legal Profession blog, the Georgia Supreme Court held that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation.  Go here for more details and links.

Monday, March 2, 2020

Illinois Supreme Court Commission on Professionalism launches free online CLE program on lawyer wellness

I have written about the notion of "wellness" before, including about a report on the negative effects of the practice of law and the fact that Vermont has adopted a comment [9] to its rule on competence which states that maintaining mental, emotional, and physical well-being necessary for practice is important aspect of competence.

Today I want to let you know that the Illinois Supreme Court Commission on Professionalism has created a free online CLE program on lawyer well-being that you can access by going here.

According to the website, attorneys who complete the CLE are eligible to receive 0.5 hours of mental health and substance abuse CLE credit in Illinois. During the 30-minute interactive eLearning attorneys will (1) understand the extent of the well-being crisis in the legal profession, (2) identify potential symptoms of stress, and (3) learn strategies to help maintain their well-being.

North Carolina ethics opinion on whether lawyers can reply to negative online reviews -- UPDATED

Original post 3/1/20

The North Carolina State Bar has issued a proposed ethics opinion on whether it is ethical for attorneys to reply to negative online reviews of their services.  Any interested person or group may submit a written comment – including comments in support of or against the proposed opinion – or request to be heard concerning a proposed opinion. The Ethics Committee welcomes and encourages the submission of comments, and all comments are considered by the committee at the next quarterly meeting. Any comment or request should be directed to the Ethics Committee c/o Lanice Heidbrink at no later than March 30, 2020.

The opinion does not really add much to what other similar opinions have concluded in other jurisdictions.  Essentially, it concludes that attorneys can reply to negative reviews but that they need to be careful not to disclose confidential information in the process.  As Brian Faughnan states in his blog, "Given the broad scope of confidentiality under the ethics rules, this outcome offers little room for lawyers to offer much of a response."

In his comment to the opinion, Faughnan also questions whether a lawyer can disclose confidential information in a response to a review prior to filing a lawsuit against the reviewer arguing based on the exception to the rule that allows disclosure in support of a claim by the lawyer against the client.  He concludes, and I agree, that this would still be a violation of the rules.

I am not familiar with the specific rule in North Carolina, but for a disclosure to be valid as an exception to the rule under Model Rule 1.6, the disclosure has to be only "to the extent reasonably necessary" to achieve the goal of the exception to the rule.  And a public disclosure is not necessary to support a lawsuit, let alone a lawsuit that is yet to be filed.

You can read the opinion here.   You can read Brian Faughnan's comment here.

UPDATE (3/8/2020)

Lawyer Ethics Alerts Blog has a comment here.

Legal Ethics Lawyer has a comment here.

Wednesday, February 26, 2020

Character and fitness question

Assume that an adult man was convicted of 3 counts of attempting to have sex with girls under the age of 15.  Now, almost 20 years later, the man graduated from law school and passed the bar.  Should he be admitted to practice?

Ohio has decided that the answer is not now, not ever.  There are more details to the story, which you read here.

Sunday, February 23, 2020

Illinois launches pilot pro bono program to help State Appellate Defenders Office

The Illinois Supreme Court has launched a pro bono pilot program to reduce the backlog of criminal appeals in the state. During the six-month pilot, which was announced on Feb. 11, volunteer pro bono attorneys will substitute as counsel for lawyers in the Office of the State Appellate Defender (OSAD) in certain criminal appeals.

Illinois Lawyer Now and 2 Civility have the story.

ABA Journal article on malpractice claims against former criminal defense lawyers

As you probably know, jurisdictions are divided on whether a convicted criminal defendant has to argue and prove actual innocence as a requirement to maintain a legal malpractice action against his or her former lawyer.  In the past few years, I have reported that Utah, Iowa, (also here), Indiana, Idaho, and Kansas (here and here) have abandoned the requirement of showing actual innocence.

I am writing about this today because I just saw that the most recent issue of the ABA Journal has a short article on the debate on this issue.

You can access the article here.  Legal Ethics in Motion has a comment here.

Wednesday, February 19, 2020

ABA adopts resolution urging states to reconsider certain aspects of the regulation of the profession after it is amended to eliminate reference to the possibility of non-lawyers participating as owners in law firms -- UPDATED

A few days ago I reported on the opposition to a proposal by the the ABA’s Center for Innovation and four standing committees seeking to promote the provision of legal services by non-lawyers and on the response by the proponents of the proposal.  Go here for that post and for links to the proposal and the letter explaining the position of those who opposed it.

I am writing today to report that two days ago, the ABA House of Delegates approved the resolution by a voice vote at the ABA Midyear Meeting after the resolution was amended to state that "nothing in this Resolution should be construed as altering any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to non-lawyer ownership of law firms, the unauthorized practice of law, or any other subject."  (The report that supported the resolution was also substantially revised, most notably to eliminate any reference to Rule 5.4 and to the delivery of legal services by anyone other than a lawyer.)

The main opposition to the proposal originates in the fact that although the resolution claims to be an attempt to deal with a real lack of accessibility to affordable legal services for many people in the U.S., there is no evidence that the only "innovations" the resolution seems to support would work to enhance access to services or that it would lead to lower their costs.   These types of initiatives might lead to the creation of multi-professional operations, in which accounting and financial firms will offer a "one shop experience" including legal services to clients who can afford services; but may not do much, if anything, to create more access to those who can't afford legal services.

Some have also expressed that the big proponents for “access to justice” are entities with interests in the tech fields who are interested in commoditizing legal work so the tech companies can make money at the expense of the lawyers.  This was one of the reasons why back in 2012, a Commission of the American Bar Association considered but later abandoned a proposal to allow non-lawyers to own shares in law firms.

Interestingly, California, Arizona, and Utah are currently considering changes to their versions of Model Rule 5.4 to perhaps allow non-lawyers to participate as owners in law firms.

Law Sites has a comment on the effect of the amendments to the proposal here (including the fact that the revision seems to suggest that certain legal needs should be met only by lawyers, and that the reference to Rule 5.4 can be seen as a roadblock to many of the innovations currently being considered in Utah, Arizona and California) and a comment on the proposal as a whole, here.

Faughnan On Ethics also has a comment here, which includes an update on the efforts in Utah, California and Arizona.

UPDATE 2/23/20:  2Civility has a comment here.

Sunday, February 16, 2020

Arizona joins other jurisdictions in recognizing limited legal technicians to provide some legal services

The Innovation for Justice Program at the University of Arizona James E. Rogers College of Law, in partnership with the Arizona Supreme Court and Emerge! Center Against Domestic Abuse has announced a new program for survivors of domestic violence in Arizona.

From fall 2020 to fall 2021, the pilot program will evaluate civil legal assistance provided by Licensed Legal Advocates. Licensed Legal Advocates are a new tier of legal professionals who are not licensed attorneys but who will be equipped to provide legal advice to domestic violence survivors with respect to critical domestic-violence-related legal issues, such as the need for a protective order, divorce, child custody, consumer protection or housing assistance.

Prior to the creation of this pilot, only licensed attorneys could provide legal advice to domestic violence survivors. The pilot will be authorized by an Arizona Supreme Court administrative order, so that the LLAs can provide legal advice within unauthorized practice of law regulations.

Lawyer Ethics Alert Blogs has more information and links here

Illinois considers regulation for private lawyer/client "matchmaking" services

The Illinois Attorney Registration and Disciplinary Commission (ARDC) has adopted a proposal to amend a number of rules related to the practice of law to better regulate the practices of what it calls "intermediary connecting services," which is another way of saying services that (for a fee) provide customers with ways to find a lawyer for the customers needs.  In other words, services like LegalZoom, Rocket Lawyer and others like them.

Some of these services have been operating in Illinois for some time, but without specific oversight by the ARDC.  The proposed changes would create specific requirements to provide oversight.  In its introduction, the proposal explains that with it, the ARDC’s proposal seeks to:

(1) Amend Rule of Professional Conduct 7.2. Proposed amendments to Rule 7.2 would guide Illinois lawyers in their participation and payments to intermediary connecting services. Lawyers would be permitted to participate only in those services that maintain an active registration with the ARDC, provided that certain conditions are met, including that the fees of the service and the lawyer are not contingent on the outcome of matter, the lawyer makes certain disclosures to the client, and the lawyer does not permit the intermediary connecting service to interfere with the lawyer-client relationship or with the lawyer’s professional judgment.
(2) Amend Supreme Court Rule 730. Proposed amendments to Rule 730 would create a registration and regulatory framework to protect the legal profession and the public. Intermediary connecting services would have to satisfy certain eligibility requirements in registering with the ARDC. In light of the longstanding concern of for-profit nonlawyer interference with or control over lawyers, registered intermediary connecting services would have to adhere to certain minimum ethical and business standards. These would include not interfering with or controlling a lawyer’s representation or judgment, not charging or collecting a fee that is calculated or expressed as a percentage of the lawyer’s anticipated or actual legal fees, and not holding or placing restrictions on a lawyer’s legal fee.
(3) Add Supreme Court Rule 220. This new rule would extend the attorney-client privilege and Rule of Professional Conduct 1.6(a) protection to communications between potential clients and a broad swath of lawyer-client connecting services for the purposes of seeking legal representation or legal services.
You can read the full proposal here.  for more information go here and here.

The ARDC invites you to provide comments on its proposal by email to