The Chicago Daily Law Bulletin is reporting today that a former member of the Attorney Registration and Disciplinary Commission Review Board and chairman of the Judicial Inquiry Board has filed a petition before the Illinois Supreme Court asking it to revoke its rules requiring minimum continuing legal education for the state's lawyers.
The petition argues that mandatory participation in CLE programs is a costly and ineffective exercise not shown to enhance professional competence and that there is no evidence that mandatory participation in CLE provides any public or professional benefit.
A pre-hearing conference before an ARDC Hearing Board panel member is set for May 6.
Thursday, February 3, 2011
Monday, January 31, 2011
Fifth Circuit issues opinion on constitutionality of advertising rules
The Court of Appeals for the Fifth Circuit has issued an opinon (available here) on the constitutionality of lawyer advertising rules in Louisiana. Here is a list of the rules that were challenged on appeal:
Rule 7.2(c)(1)(D) prohibiting communications that “contain[] a reference or testimonial to past successes or results obtained, except as allowed in the Rule regulating information about a lawyer’s services provided upon request;”
Rule 7.2(c)(1)(E) prohibiting communications that “promise[] results;”
Rule 7.2(c)(1)(I) prohibiting communications that “include[] a portrayal of a client by a non-client without disclaimer of such, as required by Rule 7.2(c)(10), or the depiction of any events or scenes or pictures that are not actual or authentic without disclaimer of such, as required by Rule 7.2(c)(10);”
Rule 7.2(c)(1)(J) prohibiting communications that “include[] the portrayal of a judge or a jury;”
Rule 7.2(c)(1)(L) prohibiting communications that “utilize[] a nickname, moniker, motto or trade name that states or implies an ability to obtain results in a matter;”
Rule 7.2(c)(10) requiring “[a]ny words or statements required by these Rules to appear in an advertisement or unsolicited written communication must be clearly legible if written or intelligible if spoken aloud. All disclosures and disclaimers required by these Rules shall be clear and conspicuous. Written disclosures and disclaimers shall use a print size at least as large as the largest print size used in the advertisement or unsolicited written communication, and, if televised or displayed electronically, shall be displayed for a sufficient time to enable the viewer to easily see and read the disclosure or disclaimer. Spoken disclosures and disclaimers shall be plainly audible and spoken at the same or slower rate of speed as the other spoken content of the advertisement. All disclosures and disclaimers used in advertisements that are televised or displayed electronically shall be both spoken aloud and written legibly.”
Thanks to the Legal Ethics Forum for the update and links.
Rule 7.2(c)(1)(D) prohibiting communications that “contain[] a reference or testimonial to past successes or results obtained, except as allowed in the Rule regulating information about a lawyer’s services provided upon request;”
Rule 7.2(c)(1)(E) prohibiting communications that “promise[] results;”
Rule 7.2(c)(1)(I) prohibiting communications that “include[] a portrayal of a client by a non-client without disclaimer of such, as required by Rule 7.2(c)(10), or the depiction of any events or scenes or pictures that are not actual or authentic without disclaimer of such, as required by Rule 7.2(c)(10);”
Rule 7.2(c)(1)(J) prohibiting communications that “include[] the portrayal of a judge or a jury;”
Rule 7.2(c)(1)(L) prohibiting communications that “utilize[] a nickname, moniker, motto or trade name that states or implies an ability to obtain results in a matter;”
Rule 7.2(c)(10) requiring “[a]ny words or statements required by these Rules to appear in an advertisement or unsolicited written communication must be clearly legible if written or intelligible if spoken aloud. All disclosures and disclaimers required by these Rules shall be clear and conspicuous. Written disclosures and disclaimers shall use a print size at least as large as the largest print size used in the advertisement or unsolicited written communication, and, if televised or displayed electronically, shall be displayed for a sufficient time to enable the viewer to easily see and read the disclosure or disclaimer. Spoken disclosures and disclaimers shall be plainly audible and spoken at the same or slower rate of speed as the other spoken content of the advertisement. All disclosures and disclaimers used in advertisements that are televised or displayed electronically shall be both spoken aloud and written legibly.”
Thanks to the Legal Ethics Forum for the update and links.
Sunday, January 30, 2011
Supreme Court Update
Prof. Renee Newman Knake has posted an update on the Supreme Court's 2010 term cases on the law of lawyering here. She provides links to the opinions of the the cases that have been decided already and links to more information on those that are pending. For all relevant documents, including briefs and lower court opinion on all the cases you can go to the ScotUS blog here (where you can use the search function or click on "case files").
Friday, January 28, 2011
Article on ethical issues regarding use of "social media"
The most recent edition of the ABA Journal has an article on ethical issues regarding the use of social media. You can read it online by going here.
Wednesday, January 26, 2011
How not to practice law: pretend to be a doctor
Popular New York blogger Eric Turkewitz brings us an interesting story of a lawyer in a workers' compensation case who tried to play doctor in one of his cases. See here. In this case, a worker suffered an accident and his leg needed to be amputated. In order to defend against a claim, the lawyer for the defendant argued that the amputation was "elective." What is impressive is that the lawyer did this by filing an affidavit in which the lawyer, not a doctor or medical expert, argued under oath the amputation was not necessary. As the court explained, the affidavit "lacked any competent medical evidence and contained only unsupported allegations in an attempt to create issues of fact."
How not to practice law: try to influence a judge
The St Louis Post Dispatch is reporting (here) that a prosecutor has been reprimanded for causing a mistrial in a case he was not involved. He caused the mistrial by sending the judge in the case a note that stated "Judge, you need to convict this guy. I'll explain later." The judge did not appreciate it. He declared a mistrial and reported the prosecutor to the disciplinary authorities.
Can the state disbar an attorney who was not admitted to practice in the first place?
The Legal Profession Blog is reporting today that the Maryland Court of Appeals disbarred an attorney who had never been admitted in that jurisdiction.
This may sound a bit odd -after all, what authority or "jurisdiction" can a state have over someone who was never admitted? - but I don't think it is that uncommon to hear about states imposing discipline on attorneys who are not admitted in the state. This happens, of course, when a person is trying to practice law in a state without a license. But it does raise an interesting question, assuming the state has, in addition, to the rules of conduct, a specific statute that makes it illegal to practice law without a license, why bother imposing sanctions?
In the Maryland case, the court answers the question this way: "It is of no consequence that [the attorney] has never been admitted to the Maryland Bar." The order "operates as an immediate directive that [the attprney] 'promptly notify the disciplinary authority in each jurisdiction in which [she] is admitted to practice of the disciplinary sanction imposed by [this Court].'"
This may sound a bit odd -after all, what authority or "jurisdiction" can a state have over someone who was never admitted? - but I don't think it is that uncommon to hear about states imposing discipline on attorneys who are not admitted in the state. This happens, of course, when a person is trying to practice law in a state without a license. But it does raise an interesting question, assuming the state has, in addition, to the rules of conduct, a specific statute that makes it illegal to practice law without a license, why bother imposing sanctions?
In the Maryland case, the court answers the question this way: "It is of no consequence that [the attorney] has never been admitted to the Maryland Bar." The order "operates as an immediate directive that [the attprney] 'promptly notify the disciplinary authority in each jurisdiction in which [she] is admitted to practice of the disciplinary sanction imposed by [this Court].'"
Friday, January 21, 2011
Dept of Justice Creates Professional Misconduct Review Unit
Long time readers of this blog may remember that I argued that the number one professional responsibility story of 2009 (and to a certain extent 2010 also) was prosecutorial misconduct. There seemed to be an unusually high number of important cases and news accounts of prosecutorial misconduct during the past year and a half. As a consequence, early in 2010 the Federal Dept. of Justice issued some guidance memos for all federal prosecutors regarding their obligations when it comes to sharing information with criminal defense lawyers. Go here for my old posts on this and here for all my posts on prosecutorial misconduct.
Continuing the U.S. Justice Department's efforts, Attorney General Eric Holder announced today the creation of a team of lawyers that will review cases of attorney misconduct. The Professional Misconduct Review Unit will examine misconduct findings made by the department's Office of Professional Responsibility. Holder said the new unit will be responsible for all disciplinary and state bar referral actions tied to OPR findings of professional misconduct.
Go here for the full story.
Not everyone agrees this development is good news, though. Over at the Legal Ethics Forum, Professor Stephen Gillers argues: "I see the change as making discipline harder by introducing an additional layer of (veto power) review above OPR. The change does centralize reporting of serious misconduct, which is good, but the rest of it is not good. Why not just strengthen OPR and give it the same referral authority to state disciplinary bodies? Indeed, why not bring an independent voice into OPR, perhaps removing the AG's authority? Further, the new unit cannot review an OPR finding of no intentional or reckless misconduct, only findings that there was such misconduct. So a weak OPR can block state reporting. And when OPR find intentional wrongdoing, the new unit can override that decision."
Go here to see the full discussion at the Legal Ethics Forum.
Continuing the U.S. Justice Department's efforts, Attorney General Eric Holder announced today the creation of a team of lawyers that will review cases of attorney misconduct. The Professional Misconduct Review Unit will examine misconduct findings made by the department's Office of Professional Responsibility. Holder said the new unit will be responsible for all disciplinary and state bar referral actions tied to OPR findings of professional misconduct.
Go here for the full story.
Not everyone agrees this development is good news, though. Over at the Legal Ethics Forum, Professor Stephen Gillers argues: "I see the change as making discipline harder by introducing an additional layer of (veto power) review above OPR. The change does centralize reporting of serious misconduct, which is good, but the rest of it is not good. Why not just strengthen OPR and give it the same referral authority to state disciplinary bodies? Indeed, why not bring an independent voice into OPR, perhaps removing the AG's authority? Further, the new unit cannot review an OPR finding of no intentional or reckless misconduct, only findings that there was such misconduct. So a weak OPR can block state reporting. And when OPR find intentional wrongdoing, the new unit can override that decision."
Go here to see the full discussion at the Legal Ethics Forum.
Monday, January 17, 2011
Why are lawyers who are convicted of tax evasion treated more leniently than lawyers who steal?
I have often discussed my concerns regarding inconsistencies in sanctions imposed for different types of conduct and for the same conduct among different jurisdictions (go here and scroll down for examples). When I discuss this issue during the first week of classes, I sometimes assign a case of a lawyer who was convicted of tax evasion and a case of a lawyer who was found to have misappropriated client funds. The lawyer convicted of tax evasion was treated much more leniently.
Over at the Legal Ethics Forum, Prof. Stephen Gillers is asking why this is the case. Go here to read his comment and the responses to it.
Over at the Legal Ethics Forum, Prof. Stephen Gillers is asking why this is the case. Go here to read his comment and the responses to it.
New NY Times article on litigation lending
As I reported a couple of days ago, last November the New York Times published an article (available here) on entities that lend money to litigants in exchange for an assignment of an amount of the potential proceeds of the litigants' legal action. The article generated an interesting discussion. Go here for links.
Today, the New York Times published a new article on the issue (available here). It states, in part,
The business of lending to plaintiffs arose over the last decade, part of a trend in which banks, hedge funds and private investors are putting money into other people’s lawsuits. But the industry, which now lends plaintiffs more than $100 million a year, remains unregulated in most states, free to ignore laws that protect people who borrow from most other kinds of lenders. Unrestrained by laws that cap interest rates, the rates charged by lawsuit lenders often exceed 100 percent a year, according to a review by The New York Times and the Center for Public Integrity. Furthermore, companies are not required to provide clear and complete pricing information — and the details they do give are often misleading. A growing number of lawyers, judges and regulators say that the regulatory vacuum is allowing lawsuit lenders to siphon away too much of the money won by plaintiffs.
Unfortunately, as I reported a couple of days ago, the Illinois legislature defeated a proposal to regulate the industry. See here.
For a comment on today's NYT article go to Legal Ethics Forum, where Prof. Stephen Gillers argues that "[m]issing from the article is recognition that that today, without LFCs, we still have an unregulated market in which the needy plaintiff can sell her claim at a discount. It is called settlement and the claim can only be sold to one buyer, the defendant, who will also want a big discount, bigger if the plaintiff is especially in need." For his full comment and replies by others go here.
Today, the New York Times published a new article on the issue (available here). It states, in part,
The business of lending to plaintiffs arose over the last decade, part of a trend in which banks, hedge funds and private investors are putting money into other people’s lawsuits. But the industry, which now lends plaintiffs more than $100 million a year, remains unregulated in most states, free to ignore laws that protect people who borrow from most other kinds of lenders. Unrestrained by laws that cap interest rates, the rates charged by lawsuit lenders often exceed 100 percent a year, according to a review by The New York Times and the Center for Public Integrity. Furthermore, companies are not required to provide clear and complete pricing information — and the details they do give are often misleading. A growing number of lawyers, judges and regulators say that the regulatory vacuum is allowing lawsuit lenders to siphon away too much of the money won by plaintiffs.
Unfortunately, as I reported a couple of days ago, the Illinois legislature defeated a proposal to regulate the industry. See here.
For a comment on today's NYT article go to Legal Ethics Forum, where Prof. Stephen Gillers argues that "[m]issing from the article is recognition that that today, without LFCs, we still have an unregulated market in which the needy plaintiff can sell her claim at a discount. It is called settlement and the claim can only be sold to one buyer, the defendant, who will also want a big discount, bigger if the plaintiff is especially in need." For his full comment and replies by others go here.
Subscribe to:
Posts (Atom)