Technical problems with the blog

For the second time in just a few weeks, I have been experiencing serious technical problems with the system that hosts my blogs (ie, "Blogger"). I have enjoyed using Blogger and I like many of its features but I am becoming increasingly frustrated with the problems I am experiencing. The last time I had problems, Blogger was updating some features and the problems resolved themselves after a few days. I am hoping this is the case again. Otherwise, I may not be able to post new information for a few days and I may soon be looking to move the blogs to a new system or stop blogging altogether. If you have any comments or suggestions please send them to me by email.

UPDATE: The next big thing: whether to allow non-lawyers to own shares of law firms

A few months ago, I thought that "the next big thing" in legal ethics was going to be a debate over whether to allow the use of screening to avoid concurrent conflicts of interest in some cases.  I may be wrong.  It is starting to look like the next big thing is going to be a debate about whether nonlawyers should be allow to own equity stakes in law firms.

One reason this has not been allowed up to now is to avoid the possibility that non-lawyers - essentially "investors" in the firm - or the need for investors might compromise the lawyers' independent professional judgment. 

This concern is not trivial in my opinion.  But, as the Wall Street Journal reports today (here and here), pressure is building in the business to let law firms raise capital from nonlaywers. Yesterday, plaintiffs’ firm Jacoby & Meyers filed suits in New York, New Jersey and Connecticut claiming that their state rules barring outsiders from owning stakes in firms unconstitutionally restricts interstate commerce.  For more on the story, go to the Legal Ethics Forum (here)

If successful, this case could lead to the most significant change in which law is practiced in the United States in many years.

The Commission in charge of reviewing and revising the ABA Model Rules just announced it will hold a meeting to discuss this issue during the upcoming annual meeting of the Center for Professional Responsilbity in Memphis, June 1-4.  For information (and to register) for the annual meeting, go here.

UPDATE (5/20): Blogger Eric Turkewitz has a comment on the idea of allowing non-lawyers to acquire shares in law firms here and here (hint: he is against it).

IL lawyer in trouble for deception in the process of investigating compliance with the law

An Illinois Assistant Attorney General is the subject of an interesting ethical charge after allegedly using a "ruse” to gain evidence against a condominium project for lack of handicapped access.  He is accused of entering the premises under the false pretense that he was looking for a condo for his grandmother. More on the story here.  The complaint is available here.

This is an example of an old question: whether it is ethical to engage in some level of deception in order to confirm whether someone else is discriminating.

Assuming all the facts are true, the lawyer in question was, in fact, dishonest.  But he was dishonest "with good intentions" or for a good reason -- in order to find whether the other party was violating the law.

In part, the solution to the problem might be simply to let others do the investigating or, as in this case, the "testing."  Attorneys should stay out of it and wait until the information is gathered to intervene in the prosecution.  On the other hand, an attorney can't ask someone to do something the attorney can't do himself, so I am not sure where that leaves the attorney who needs to engage in some level of deception to gather the information.

Any thoughts?

Michigan adopts waiting period rule

The Michigan Supreme Court has adopted a new version of Rule 7.3 that prohibits solicitation of accident victims within 30 days of the accident or injury. The rule will implement regulation that is permissible in light of the Supreme Court's decision in Florida Bar v. Went For It.  The decision was not unanimous, though.  There are dissents. For more on the story and a good quote from one of the dissenting opinions, go here. 

Florida Bar v. Went for It is a terrible decision.  It is illogical and inconsistent with prior precedent.  It therefore set a bad precedent and it is not encouraging to see states following it.  But it is what it is.  It is still the law of the land. 

I have not seen the new Michigan rule so I can't comment on it.  The one thing I do hope is that it, at least, applies to both plaintiffs and defendants' lawyers.  This was one of the main problems with the rule in question in Went for it.  Because of its wording, it only applied to plaintiffs' lawyers leaving victims vulnerable to personal visits by defendants' lawyers.  The rule simply did not advance the state interest in protecting the victims from intrusion.  This was a fatal flaw in the rule that the Court chose to ignore.  I hope the Michigan Court has not ignored this point.

Michigan Attorney Discipline Board finds flat fees are not earned upon agreement

Here is yet another comment on the character of flat fees.  I have commented on this issue several times before, most recently here. 

In this case (available here), the attorney and client agreed to a flat fee.  The attorney began to work on the matter but failed to follow through on it.  He then claimed that the fee had been earned on receipt.  The Board disagreed and stated that "Respondent's primary argument is that "there can be no unused [or unearned] portion of a 'flat fee' " This is simply erroneous as a matter of law. It would be absurd for the law to provide, as respondent argues, that " [t]he total fee was due (earned) the moment the attorney began any work on the file." This would enable an attorney to begin an agreed upon representation, abandon it, and retain the entire fee as if the whole of the work had been completed. For obvious reasons, this has never been the law..."

This is the logical result for the circumstances of the case.  Otherwise, as the Board correctly points out, attorneys would be free to disregard the client's matters and collect the fees anyway. 

Thanks to the Legal Profession blog for the information and link.

Lawyer’s License Revoked After Panel Finds He Hid Funds During His Divorce

Here is a good reminder of the fact that a lawyer's conduct outside the practice of law can result in professional discipline.  In this case, a lawyer’s license was revoked because he attempted to hide assest during his divorce.   Go here for the full story.

Interestingly, the attorney for the disciplined lawyer is quoted as saying that "the discipline is unusual because the facts related to the revocation are from a personal divorce, not mishandling a client's case. This had nothing to do with his performance as a lawyer."

Although he is correct in stating that the sanctions are not related to the lawyer's performance as a lawyer, he is wrong is claiming this is unusual.  It is pretty well known that a lawyer can be disciplined for conduct outside the practice of law, as long as the conduct in question relates to the lawyer's character or ability to practice law.  The conduct in this instance brings into question the lawyer's honesty, integrity and respect for the legal process.  Obviously, these are pretty relevant factors to consider when deciding whether a lawyer's conduct calls for discipline.

There may be an argument as to the severity of the sanction imposed, but that is a different matter.  I see no problem with the fact that a sanction was imposed.

UPDATE on the story "Bloggers get sued for expressing their opinion on conduct of another attorney"

In an interesting bit of news, a lawyer whose conduct was ctiricized by the press and bloggers over the internet has sued 74 defendants including several bloggers whose blogs I follow regularly. 

At the risk of getting added to the lawsuit, I will repeat part of the story here.  The story apparently started with an article in the Washington Post that stated that a Superior Court judge in Washington DC declared a mistrial in a murder case in which the judge thought the attorney exhibited "numerous signs that he [the attorney] lacked knowledge of proper trial procedure" and that went on to say that the judge told the attorney "during a hearing . . . that he was “astonished” at his performance and at his “not having a good grasp of legal procedures”".  Here is a link to a comment by one of the jurors in the case.  (Thanks to Simple Justice for the link.)

Following this story, a number of bloggers commented on the lawyer's conduct.  The news today is that the attorney has fired back by suing them for defamation.  Two of those bloggers have commented on the situation here and here.  This second comment, in the blog "Simple Justice", is really worth a look.  It opines that "[t]he substance of the action is not merely frivolous, but the action was brought in New York Supreme Court, and had [the plaintiff's] lawyer done some homework, he would [have] learn[ed] that New York's long arm statute expressly excludes defamation."  Simple Justice then identifies the plaintiff's attorney and quotes his ads on CraigsList and in the Pennysaver, which is pretty interesting.

UPDATE (May 18): Eric Turkewitz, one of the bloggers sued, has posted an great response (with links to more information) to the lawsuit here.  It is very much worth reading.

Go here for a list of posts on the case.

Lawyering can be dangerous

Here is an interesting headline from today's news:  "Man Who Stabbed His Lawyer With a Pencil Stabs His New Lawyer With a Pencil."  Go here for the full story.

More thoughts on the inconsistency of sanctions- UPDATED

I have often commented on inconsistencies regarding sanctions among jurisdictions and sometimes within jurisdictions.  Most recently, I mentioned (here) a recent decision by an Illinois Hearing Board that discussed the conduct of an attorney engaged in what the Board called "extremely serious" ethics violations which the Board also found were aggravated by a series of important factors, including the fact that the lawyer did not show any remorse for the impact his actions had on his clients or on the legal profession that the fact that he had been disciplined in the past.  Yet, having described the conduct as "extremely serious" and having found aggravating factors, the Board imposed a mere one year suspension. One would think that misconduct described as that serious would have resulted in a higher level of discipline.

I am glad to see now that I am not alone in my frustration with this issue.

Here is another case, courtesy of the Legal Profession blog.  In this one, a New Jersey attorney was suspended for abandoning a client in a family law matter and defaulting in the ensuing proceeding before the Bar. Although the Disciplinary Review Board found that the attorney had shown "nothing but disrespect - indeed, insolence - in his dealing with the disciplinary system", the Board said the conduct would merit merely a three month suspension.  To this, Mike Frisch, of the Legal Profession blog, replies, "[i]f abandoning a client and ignoring a bar complaint normally merits a three-month suspension, New Jersey needs a new normal."

And, today, over at the Legal Ethics Forum, Prof. Stephen Gillers expresses his frustration with the problem stating,

"In reviewing several years worth of disciplinary opinions from courts around the nation in connection with a writing project, I was struck again by a disturbing pattern. . . . 

The courts' opinions first tell a really awful story about professional or personal misconduct, sometimes sordid or tawdry, sometimes thieving, sometimes duplicitous. The opinions lay it all out and as readers we are led to expect a proportionate sanction.

 But then comes that frequent phrase "an unblemished record," a phrase one rarely sees elsewhere in life or law, sometimes accompanied by "no prior discipline" (which more often than not may mean the lawyer has not heretofore been caught), and perhaps a citation to character testimony.

And although the reader had been led to expect disbarment or a long suspension for the bad behavior so abundantly detailed . . . he or she finds instead the most modest of sanctions -- a public reprimand or a suspension the length of a nice vacation.

I sometimes wonder if we should just forget the sanctions and instead require the lawyer to give the court's opinion to all present and prospective clients. It might better protect the public."

Go here to see comments posted in the Legal Ethics Forum in response to this comment.

UPDATE (5/16):   Mike Frisch, of the Legal Profession blog, replies to Giller's last comment by stating that "[w]hat is really needed to protect (or at least forewarn) the public is ready and easily available online access to complete information about bar sanctions. Not summmaries, but the actual opinions, informal admonitions, hearing reports, review board reports, court decisions--the full package. . . . Unfortunately, the reality is that many jurisdictions make this kind of information either difficult or impossible to find. Until that situation is rectified, bar discipline will be as much about the parochial, self-interested concerns of the Bar rather than (as every opinion on the subject claims) the protection of the public."

Conviction reversed because of judge's comments

Prof. Jonathan Turley is reporting today on a case out of Oklahoma where a murder conviction was overturned due to the comments at trial by the Judge. The appeals court found the judge's comments to be “a misstatement of the law that was an inherently coercive intrusion into the jury’s deliberative process.” Interestingly, this is not the first controversy for the judge who was previously asked to step down in a criminal trial after allegedly using an offensive term to describe illegal immigrants.  Go here for the full story.