Discipline for prosecutorial misconduct is relatively rare which is why I am reporting on this story, which you can find in the Legal Profession blog.
Thursday, December 31, 2020
The Arizona Supreme Court’s two-year-old Attorney Ethics Advisory Committee has issued its first four ethics opinions. They deal with significant topics lawyers routinely face: client files, termination of representation, and liens. You can read more about the story (and get links to the opinions) here.
We have seen stories like this before but it is notable that the discipline imposed is for an attempt to violate the rules of professional conduct. That is not so common, although we did see another example last year in a similar case (see here).
In this new case, the client apparently did not have enough money to pay the lawyer what he said his services would cost, so he told the client she could pay him by having sex with him. Like I said, we have seen cases like this before, but in this one we have the transcript of the actual conversation in which the lawyer explained the transaction he had in mind. Don't follow the link if you are easily offended by language of a sexual nature. Here is the link to the story which includes the transcript of the conversation. The decision of the court, which also includes the transcript, is here.
Eventually, the lawyer had his law license "annulled" which I assume is akin to a permanent disbarment.
Monday, December 28, 2020
Some of you might remember an incident caught on video about two years ago in which a lawyer went on an offensive/racist tirade at a restaurant in New York when he heard some employees speaking in Spanish among themselves. The incident was caught on video and posted on social media. See here.
Well, more than two years later, I am writing about it because just a few days ago the lawyer was publicly censured for his conduct under New York’s Rule of Professional Conduct 8.4 (h) which describes as misconduct “conduct that adversely reflects on the lawyer’s fitness as a lawyer.”
This decision raises a number of interesting issues. First, it should be noted that New York has an “anti-discrimination” rule, akin to Model Rule 8.4(g), but it did not apply in this case because the conduct was not related to the practice of law.
For that reason, this is a case of purely private conduct, or conduct “outside the practice of law” and that conduct is expressive conduct or, simply, speech.
In other words, the question here is whether it is proper for the state to impose discipline for conduct, or speech, merely because that speech is offensive.
According to the traditional analysis under the First Amendment, the answer to that question is no. But, apparently, things have changed. Apparently, in New York, expressing an offensive statement raises enough concern about a lawyer's fitness as a lawyer to warrant discipline even if the statement is protected under the First Amendment.
Evidently, New York has no tolerance for lawyers who express ideas that some might find to be racist. But, at what point does a constitutionally protected expression cross the line and becomes so offensive that a lawyer can be disciplined for it?
Is it proper for the state to conclude that someone is not fit to be a lawyer because of their racist views or expressions? Maybe the lawyer in this case has an issue related to anger management or mental illness. If that is the case, then the disciplinary agency needs to say that the discipline is imposed because the lawyer is not fit to practice for those reasons. But that is not what happened. The decision is based on what the lawyer said, not on his competence or ability to practice law.
The implication that engaging in offensive expression makes a lawyer unfit to practice law has significant consequences for First Amendment analysis, and I don’t think the decision in the case acknowledges that.
The Legal Profession blog has more information.
Sunday, December 27, 2020
The New Jersey Supreme Court in Delaney v. Sills has validated the use of retainer agreements that provide that all disputes between attorney and client shall be subject to arbitration. On the other hand, the court emphasizes that the fiduciary nature of the attorney-client tie requires candid explanation to the client of the advantages and disadvantages of the arbitral forum.
In my opinion, mandatory arbitration agreements are inherently bad for consumers and lawyers should not be allowed to impose them on their clients. I am glad that the court says lawyers have an obligation to explain the pros and cons of arbitration, but what good does that do when prospective clients are all but forced to accept it if they want the lawyer of their choice?
The court summarized its decision as follows:
For an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. . . . That information can be conveyed in an oral dialogue or in writing, or by both, depending on how the attorney chooses best to communicate it. The Court refers the issues raised in this opinion to the Advisory Committee on Professional Ethics (ACPE), which may propose further guidance on the scope of an attorney’s disclosure requirements. The new mandate will apply prospectively, except as to Delaney, who must be allowed to proceed with his malpractice action . . ..
George Conk (a member of the ACPE) has a detailed comment on the decision here. The Louisiana Legal Ethics Blog has a comment comparing the decision with the current state of the law in Louisiana.
Sunday, December 20, 2020
Attorney Lin Wood has filed a lawsuit challenging the election results in Georgia in which he asserts that his claim is based on "plenty of perjury." Go here for the full story.
Friday, December 11, 2020
Long time readers of this blog know that I have posted many stories about Model Rule 8.4(g) since way back when it was first proposed. Go here and scroll down to see all the posts on this subject (in reverse chronological order, meaning the most recent stories will be at the top).
You might also remember that I have expressed doubts as to the validity of the rule given that it regulates speech as well as conduct.
For that and other reasons, the rule has been controversial and states have been very slow in adopting it, with only one state adopting it "as is", while only 5 or 6 other states adopting it with modifications. About ten states actually rejected proposals to adopt it.
Pennsylvania is one of the states that adopted a modified version of the rule. There, the rule was adopted with some modifications and was scheduled to go into effect this month. But almost as soon as it was adopted, the Hamilton Lincoln Law Institute filed a complaint challenging the rule's constitutionality. (See here.)
And so, a few days ago, the US District Court issued an opinion in which it denied the state's motion to dismiss holding that the new rule is unconstitutional.
The opinion is interesting and you should read it in full. The case is called Greenberg v. Haggerty. You can find the full opinion here.
Here are some of the key passages:
There is no doubt that the government is acting with beneficent intentions. However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance. Yet the government cannot set its standard by legislating diplomatic speech because although it embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished, minority viewpoint into the massive currents of suppression and repression. Our limited constitutional Government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor.
Therefore, the Court holds that the Amendments, Rule 8.4(g) and Comments 3 and 4, consist of unconstitutional viewpoint discrimination in violation of the First Amendment. . . . Defendants’ Motion to Dismiss is denied.
The court also denied defendants’ motion to dismiss as to the count in the complaint that alleged vagueness.
Tuesday, December 8, 2020
Over at Ethical Grounds, Michael Kennedy reminds us of the proper way to withdraw from representation without violating the duty of confidentiality. Go read his comment here.
Monday, December 7, 2020
New article on the role of the prosecutor and its relation to the need to regulate the discretion related to charging decisions
Long time readers of this blog know that I have posted many stories on prosecutorial misconduct and, within that broad topic, on the issue of whether it is advisable to regulate prosecutorial discretion. (Go here and scroll down to see all the posts on prosecutors)
I am writing about this today to let you know of a recently published article in which Professor Irene Joe argues that prosecutors' ethical duty should limit their discretion to pursue charges against defendants based on the systemic impact of charging decisions in producing public defender case overload.
According to this view, because prosecutors have the duty to play the role of a minister of justice Prof. Joe "makes a novel link between the ethics of prosecution and that of public defense, illuminating the “cumulative effect that . . . discretionary charging decisions have on the public defender’s ability to provide ethical and professional representation.”
Sunday, December 6, 2020
Wednesday, December 2, 2020
Back in July I reported that the ABA Standing Committee on Ethics and Professional Responsibility published a new opinion in which it tried to clarify 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 am writing about this today again because the Louisiana Legal Ethics blog has published a short comment on the new opinion here.
Saturday, November 28, 2020
More than 5,300 lawyers participated in the Gender Survey 2020 by the New York State Judicial Committee on Women in the Courts. The survey found that the treatment of women in New York courts has improved markedly since a 1986 survey found that gender bias in the courts was a pervasive problem. But significant areas of bias remain. The ABA Journal has details and links to the survey and other sources here.
Friday, November 27, 2020
How are the states answering the call to allow law school graduates to enter the profession without a bar exam because of the pandemic?
Above the Law has a short summary of the situation here. In a nutshell, some states will admit graduates without having to take the bar exam, some will allow them to start practicing pending their passing of the bar exam if they practice under the supervision of a lawyer, and some have made not changes to their current procedures. Above the Law's article has all the details.
Sunday, November 22, 2020
Louisiana Supreme Court holds that plaintiffs do not need to show that they would have been able to collect the judgment in the "case within the case" to support malpractice claim
As you know, when a plaintiff sues a lawyer for malpractice in a litigation matter alleging that the defendant's representation caused the plaintiff to lose a claim, the plaintiff has to show that they would have won the case had it not been for the negligence of the defendant (the lawyer). In torts terms, this is what the plaintiff has to argue and prove in order to establish the element of cause in fact. Typically, however, courts hold that showing that the plaintiff would have won the original case (sometimes referred to as "the case within the case") is not enough because if the plaintiff would not have been able to recover anything in that case then the plaintiff can't establish an actual "loss" (the element of injury, in torts terms).
This means that typically, the plaintiff has to show not only that the plaintiff would have won the original case but for the negligence of the lawyer, but also that the plaintiff would have been able to collect the judgment (or at least part of it) as a result.
I am writing about this today because the Legal Profession blog reported a few days ago that the Louisiana Supreme Court recently decided a case that appears to be the first time a court has held that the plaintiff in a legal malpractice suit need not prove that the underlying lost judgment was collectible.
The case is called Ewing v. Westport Insurance and you can read it here.
Saturday, November 21, 2020
How not to practice law: go ahead and open a law office even though you flunked the bar exam, ...twice
The ABA Journal is reporting that a law school graduate (class of 2014) has been sentenced to prison for practicing law even though she flunked the bar exam twice. Yeah, you should not do that! Just in case you forgot: you need to be admitted to practice to be able to practice legally. Go here for the full story.
Over at Ethical Grounds, Michael Kennedy (Vermont's Bar Counsel, and a friend) has a short but insightful post on whether competitive keyword advertising should be considered to be unethical. In case you don't know, "competitive keyword advertising" refers to the practice of paying search engines so that your ad appears before others when users search for certain keywords. The topic is interesting and Michael's post is worth reading. You can do so here.
Tuesday, November 10, 2020
Monday, November 9, 2020
Tuesday, November 3, 2020
Sunday, November 1, 2020
Over at The Law for Lawyers Today, Karen Rubin has published a comment on a recent ethics opinion on whether an attorney can withdraw from representing a client based on alleged fear of contracting COVID-19 as a result of some aspect of the representation.
In the opinion, the New York State Bar Association answers yes, provided that the lawyer gets permission from a tribunal.
You should read the comment here.
Sunday, October 11, 2020
Model Rule 1.7(a)(2) prohibits a lawyer from representing a client without informed consent if there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer. A personal interest conflict may arise out of a lawyer’srelationship with opposing counsel. Lawyers must examine the nature of the relationship to determine if it creates a Rule 1.7(a)(2) conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.To assist lawyers in applying Rule 1.7(a)(2), this opinion identifies three categories of personal relationships that might affect a lawyer’s representation of a client: (i) intimate relationships, (ii) friendships, and (iii) acquaintances. Intimate relationships with opposing counsel involve, e.g. cohabiting, engagement to, or an exclusive intimate relationship. These relationships must be disclosed to clients, and the lawyers ordinarily may not represent opposing clients in the matter, unless each client gives informed consent confirmed in writing. Because friendships exist in a wide variety of contexts, friendships need to be examined carefully. Close friendships with opposing counsel should be disclosed to clients, and, where required as described in this opinion, their informed consent obtained. By contrast, some friendships and most relationships that fall into the category of acquaintances need not be disclosed, nor must clients’ informed consent be obtained. Regardless of whether disclosure is required, however, the lawyer may choose to disclose the relationship to maintain good client relations.
Tuesday, October 6, 2020
As you probably know, earlier this year Utah and Arizona approved new regulatory systems that allows for some non-lawyers to provide some legal services (see here, here, here and here), while Washington, the first state to do so, ended its program. See here and here.
Now, Minnesota is joining the states allowing nonlawyers to handle some legal tasks in hopes of providing greater access to legal representation. According to a new rule adopted by the Minnesota Supreme Court, “legal paraprofessionals” will be allowed to provide legal services in landlord-tenant disputes and family law as long as the legal paraprofessionals enter into an agreement with a licensed Minnesota lawyer who agrees to serve as the paraprofessional’s supervisory attorney.
The paraprofessionals will be able to provide advice and make court appearances on behalf of tenants in housing disputes in certain jurisdictions. They will also be able to appear in court in some family law matters and handle family law mediations that are “limited to less complex matters.”
Monday, October 5, 2020
Long time readers of this blog know that I have posted many stories over the years on prosecutorial misconduct including many in which convictions have been reversed simply because of improper comments by prosecutors. Here is another one.
The US Court of Appeals for the Ninth Circuit recently overturned a first-degree murder conviction the prosecutor said that the jury could dispense with notions of the presumption of innocence. Go here for the story.
Reversal of convictions for inappropriate comments is by no means rare, so why does it keep happening? Because other than reversing the conviction, courts usually don't impose any sanctions on the prosecutors themselves. Maybe if there was more attention paid to sanctions, there would be less misconduct. Isn't that the point of saying the deterrence is one of the goals of the disciplinary system?
The case is called Ford v Perry and you can read the opinion here.
Sunday, October 4, 2020
Sunday, September 27, 2020
Pennsylvania's newly adopted anti-discrimination rule (based on Model Rule 8.4(g)) won't go into effect until December but a lawsuit has already been filed claiming it is unconstitutional - UPDATED
Back in June, the Pennsylvania Supreme Court adopted a revised version of the controversial anti-discrimination Model Rule (ABA Model Rule 8.4(g)). Last week a lawyer sued the state disciplinary authorities, saying the new rule (scheduled to go into effect in December) violates his free speech rights.
You can read the text of the rule here and a critique of if here, which explains that over the last four years, the Disciplinary Board of the Supreme Court of Pennsylvania proposed three different versions of an anti-harassment. According to this author, the approved version disregards earlier concerns about whether the rule may violate the First Amendment.
And now it is possible the courts will have to address that precise question because in early August an attorney with a non-profit legal group, filed a lawsuit in federal district court seeking an injunction to block enforcement of the rule. The complaint alleges that Pennsylvania’s Rule 8.4(g) will force the lawyer “to censor himself to steer clear of an ultimately unknown line so that his speech is not at risk of being incorrectly perceived as manifesting bias or prejudice.”
UPDATE 9/27/20: You can read the complaint here. The complaint alleges, among many other things that "the fear of misuse of Rule 8.4(g) is far from hypothetical. Activists have frequently used anti-discrimination rules and accusations of bigotry to harass speakers for political reasons" and that the plaintiff will have to self censor as a result. The complaint also lists instances in which judges, including justices of the US Supreme Court, have been criticized for expression that some might have found offensive and that arguably might subject them to discipline under the newly approved rule.
Saturday, September 19, 2020
Back in 2016, the Puerto Rico legislature adopted by statute a statute of limitations for disciplinary proceedings. See here. I felt so strongly against this that I actually wrote a letter to the Governor urging him not to sign the bill into law. He didn't listen. Then, after the bill became law, I published a short article arguing many reasons why the bill should have been rejected. See here. But nothing happened. Then I published a law review article explaining everything I thought was wrong with the bill. See here. But nothing happened. Until last month.
On August 11, the Puerto Rico Supreme Court issued an opinion in a case called In Re Pellot Córdova, in which it invalided the statute of limitations for violating the principle of separation of powers.
So I guess it took four years, but finally someone got it right in the end.
Tuesday, September 15, 2020
Third Circuit issues opinion on whether a prosecutor can be sued for conduct that resulted in wrongful conviction
Prosecutors are usually protected from possible civil liability because they can claim immunity. However, immunity only applies to their conduct as litigators, not as investigators and defining the line between one and the other is a matter of much debate.
There are many cases out there that discuss the issue and now the Court of Appeals for the Third Circuit has added a new one. In a case Weimer v. County of Fayette, Pennsylvania, the court examines the claim of plaintiff Crystal Dawn Weimer who spent more than eleven years in prison, and then, after her convictions were vacated, filed suit under 42 U.S.C. § 1983, alleging that the County of Fayette, Pennsylvania; its former District Attorney, Nancy Vernon; the City of Connellsville; and several city and state police officers violated her rights under the U.S. Constitution and Pennsylvania law.
The Court found that certain aspects of the prosecutors conduct were protected by immunity, but many others were not and remanded the case for further proceedings.
You can read more about the case here, where you can also find an embedded copy of the opinion.
Saturday, September 12, 2020
As you probably know, contrary to popular belief, in most states disbarment is not permanent. In most jurisdictions disbarred lawyers can ask to be reinstated after a specified period of time, and, in fact, many are.
This used to be the case in Tennessee until back in January when the Supreme Court amended the disciplinary rules to state that attorneys who are disbarred are not longer eligible for reinstatement, or, simply stated that they can no longer ask the Court to reinstate their law license. Ever. Disbarred lawyers in Tennessee will never again practice law in the State. Period.
This new rule went into effect on July 1 and just a few days ago, the Court announced the name of the lawyer (now former lawyer) who was "honored" to be the first permanently disbarred lawyer in the state. The Legal Profession blog has the story here.
The Utah Supreme Court announced that it has approved five entities to enter the legal market under its new regulatory scheme. The Lawyer Ethics Alert Blog has more on the story here.These entities are:
LawHQ: A Salt Lake City law firm which plans to offer equity ownership to certain software developers in the firm and a software application called CallerHQ, which is designed to allow consumers to report spam telephone calls, text messages and voicemails. Consumers who sign up may then be included in a mass tort litigation brought by LawHQ against the spammers.
1Law: An entity which plans to provide no-cost and low-cost legal services to assist clients in completing court documents and also offer related legal advice using chatbots, instant messaging, automated interviews, nonlawyer staff and technology-assisted lawyers. 1Law plans to have more than 50% nonlawyer ownership.
LawPal: An entity which plans to provide a TurboTax-like technology platform to generate legal documents in contested and uncontested divorce and custody cases, eviction cases and debt-related property seizure cases. It expects to feature 50% nonlawyer ownership.
Blue Bee Bankruptcy Law: The sole owner of this law firm states that he will give his paralegal employee a 10% ownership interest in the firm as an incentive to remain with the firm.
The last entity is better known. It is Rocket Lawyer, a company that does not seem to understand (or at least does a very bad job of explaining) the difference between the notion of confidentiality and the attorney client privilege (see here), which offers to connect clients with available lawyers. The ABA Journal has the story.
The Court's full order is available here.
Tuesday, September 8, 2020
As predicted, the recently approved changes to regulation in Arizona continue to generate very good commentary. Here is another good short comment.
In it, the author expresses cautious optimism. He explains the benefits that the new approach to regulation can lead to, but also admits that it is not guaranteed to work and that there is reason to be concerned it won't. The article concludes, that the new regulatory approach
. . . will make it easier for lawyers and law firms to attract investors to their practices, allow technology companies to collaborate better with lawyers in introducing new products, and allow lawyers and nonlawyers alike to explore new ways to collaborate and provide affordable, enhanced legal services to members of the public. If most people currently cannot afford a lawyer, let’s find a way to use technology to provide them with affordable legal services. If most people can’t find a lawyer, let’s encourage technology companies to invest in referral services to match lawyers and clients. If law firms want to give valued non-legal employees like office managers and comptrollers a stake in their businesses so they won’t leave, let’s allow them to do it.
None of this is sure to work. There is more than enough bad history, from non-lawyers who operated cut-rate “legal corporations” which prized volume over quality, to “runners and cappers” attracting personal injury clients in hospital rooms, to Avvo’s infamous “pay-to-play” legal referral model. . . . But all of these problems can be addressed by other Rules and careful regulation. As lawyers, we are justifiably concerned about giving away our control to those who are not bound by our professional responsibility rules – rules designed to protect the public. Yet the numbers don’t lie: by keeping our current regulatory structure in place, we are losing ground. The folks in Arizona recognize that, and have taken leadership, with their eyes wide open to the risks. The rest of us should watch, learn and, as soon as possible, follow.
Monday, September 7, 2020
August 27, 2020
The Arizona Supreme Court announced today that it has voted to approve far-reaching changes that it claims "could transform the public’s access to legal services."
The changes come soon after a similar move by the Supreme Court in Utah and may be a sign of things to come around the country.
The most significant changes are the approval of a program to allow some non-lawyers to provide some legal services (similar to the program recently abandoned in Washington) and the elimination of rule 5.4 which bans lawyers from partnering with non-lawyers. This will allow non-lawyers to invest in, and own part of, law firms. A Press Release announcing the changes explains that
The Court approved modifications to the court rules regulating the practice of law, which allows for two significant changes. One change is a licensure process that will allow nonlawyers, called “Legal Paraprofessionals” (LPs), to provide limited legal services to the public, including being able to go into court with their client. The other change is the elimination of the rule prohibiting fee sharing and prohibiting nonlawyers from having economic interests in law firms. With these modifications, Arizona is set to implement the most far-reaching changes to the regulation of the practice of law of any state thus far.
This last statement is definitely true. The debate on whether to allow nonlawyers to invest or partially own law firms has been around for a long time, but this is only the second time any jurisdiction has acted on it. The other was also recently, in Utah. See here.
Of course, the big question is whether the effects of the adopted changes will be positive. The same press release affirms that the new approach adopted by the Court "will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help" and "will promote business innovation in providing legal services at affordable prices." Evidently, that was not the case in Washington state where the state's supreme court decided to eliminate its legal paraprofessionals program after it decided it did not have the desired results.
Needless to say, not everyone agreed with the decision to eliminate the program in Washington, and not everyone agrees with the decision in Arizona, so the debate will continue. I am sure there will be multiple updates to this story in the next few days.
You can read the full news release announcing and briefly explaining the recent changes here.
For more information on the new rules adopted in Arizona go the Arizona.gov page on access to legal services.
UPDATE (9/7/20): As expected, there have been a few comments published since the announcement that Arizona will do away with the ban on partnerships with non-lawyers or the provision of legal services. Here are a few links:
Legal Evolution (in which the author considers whether allowing Walmart to offer legal services is an improvement over the way the legal market is currently regulated.)
Thursday, August 20, 2020
The Legal Profession blog is reporting that the Ohio Board of Professional Conduct issued four opinions to replace or modify opinions previously issued by the board under the former Code of Professional Responsibility.
The opinions cover the following topics:
1. Ethical obligations of a lawyer and his or her law firm when the lawyer decides to depart the firm (Advisory Opinion 2020-06)
2. The use of a lawyer’s name in a law firm name or on letterhead after the lawyer registers with the Supreme Court as “retired”, “inactive”, or becomes “of counsel” to the firm. (Advisory Opinion 2020-07)
3. Whether lawyers can provide financial planning services through their law firm on a fixed fee, flat, or hourly rate basis (Advisory Opinion 2020-08), and
4. Whether a law firm may enter into an arrangement with a real estate agency to promote the law firm as a discounted service provider to its real estate clients in exchange for an annual fee paid by the firm to the agency. (Advisory Opinion 2020-09).
The Legal Profession blog has a short summary of each opinion here.
Saturday, August 15, 2020
Last week the Utah Supreme Court unanimously approved a number of reforms that allow for non-lawyer ownership or investment in law firms and permit legal services providers to try new ways of serving clients. One commentator has called the reforms "the most sweeping changes in a generation to the regulation of law practice and the delivery of legal services." See here.
This is a significant change to the regulation of the practice of law in the US. Other countries allow what is usually referred to as "alternative business structures" for the practice of law; but the profession in the US has long resisted opening the practice of law to investors or non-lawyers.
Utah has decided to give it a try for a couple of years to see what happens. See the Utah Courts press release here.
The ABA Journal has more on the story here.
Monday, August 10, 2020
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!
Thursday, August 6, 2020
Wednesday, August 5, 2020
Sunday, July 26, 2020
Chicago Bar Association and Chicago Bar Foundation publish report and recommendations on the future of the practice of law
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
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
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
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
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 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
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
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
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 two states that currently recognize such an exception (Massachusetts, and Alaska). Soon there may be three. (North Carolina has a rule imposing a duty to disclose information but, oddly, it does not operate as an exception to the duty of confidentiality because it does not allow disclosure if the disclosure is against the interest of a client or former client.)
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. As stated above, the rules does not allow disclosure if it is against the interest of a client or former client, which means that the disclosure is not allowed as an exception to the duty of confidentiality.
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
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
Tuesday, June 16, 2020
Monday, June 15, 2020
Sunday, June 14, 2020
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
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
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)
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
Tuesday, May 19, 2020
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 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 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 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
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
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
...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
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.
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?
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
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.