A panel of the 7th Circuit Court of Appeals recently ordered an attorney to show cause why he should not be disbarred (from the federal court) after finding that the lawyer repeatedly filed "unintelligible" court papers that were "riddled with errors" and full of gibberish, including a 345-word sentence.
The lawyer had been given three opportunities to correct the brief in the case but “[e]ach iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing.”
For more on the story go here, here and here. For a copy of the court's opinion go here.
Friday, September 23, 2011
On the possible liability of a lawyer for negligence in handling a settlement ... in Australia
I have commented on the issue of whether a lawyer can be found liable for negligence in a case if the client decides to settle here, here and here. Interestingly, this is now under debate in Australia. Here is a link to a short comment by the Australian Professional Liability Blog on the issue. It provides a survey of the relevant cases and the state of the law down under.
South Carolina continues to struggle with the notion of conflicts of interest
I have argued before that the South Carolina Supreme Court does not understand basic principles of conflicts of interest (see here) and a recent decision involving a lawyer who had "romantic feelings for a client" prompts me to repeat my conclusion.
In this new case (In re Poff, S.C., available here), the court held that having what the court referred to as romantic feelings for the client doesn't create a conflict of interest that rises to the level of an ethics rule violation. The court concluded that the lawyer's unrevealed romantic interest in the client, "in the absence of any evidence of its effect on his representation, does not, in our view, represent a conflict that rises to the level of a Rule violation."
In other words, the court finds that there is no conflict of interests unless the client is harmed by the conflict of interest. This view is wrong - in general and as it applies to the facts of the case itself.
As I have stated elsewhere, the court's position shows its misunderstanding of the concept of a conflict of interest in the first place. For a court to find a conflict of interest it is not required that there be a certain "effect" or "harm" to the representation. The rules regarding conflicts of interest are there precisely to prevent a lawyer from finding himself or herself in a situation where there is a risk that his representation of a client might be threatened by the lawyer's interest in, or duty to, someone or something else.
It is incorrect to think that there is a conflict only if it causes harm to the representation. On the contrary, it is the risk that the representation might be affected what shows there is a conflict of interest.
The lawyer in this case had a conflict. The conflict existed because his feelings for the client created a significant risk that the representation could be affected. Period. For example, there was a risk that the lawyer would disclose confidential information about the client to others when talking to them about his feelings toward her.... which, not surprisingly, is what happened, and which brings me to my next point. It is incredible that the court would say the representation was not affected since the court found the attorney violated his duty of confidentiality to the client!
What is the proper level of discipline for this?
Suppose a lawyer is practicing law in a state where he or she is not admitted. Regardless of whether, at least of paper, that state can impose discipline the lawyer, what the state really wants to do is inform the state where the lawyer is admitted and ask that state to take action. What level of discipline should the state where the lawyer is admitted apply to a lawyer who was caught practicing law without a license in a different state?
A new case from New York provides some light on the subject. In this case, a lawyer licensed to practice in New York was “disbarred” by the highest court in Maryland for several acts of misconduct, including the unauthorized practice of law. See, Maryland Attorney Grievance Comm'n v. Sucklal, 12 A.3d 650 (Md. 2011). Since the lawyer was never admitted in Maryland, "disbarment" in that context means permanent exclusion from eligibility for law practice in Maryland.
Back in New York, however, the attorney was only suspended for one year (with the possibility of reinstatement after only six months). The case is called In re Sucklal.
This situation poses and interesting question about the concept of reciprocal discipline. I think states should have the flexibility to decide their own disciplinary matters and that there may be reasons why a state may not want to impose exactly the same sanction imposed by another state. But I wonder what is the standard sanction in New York for the unauthorized practice of law. If it is a one year suspension, I understand the decision of the court. But if New York disbars attorneys who practice law illegally in New York, why not disbar a New York attorney who practices illegally somewhere else?
A new case from New York provides some light on the subject. In this case, a lawyer licensed to practice in New York was “disbarred” by the highest court in Maryland for several acts of misconduct, including the unauthorized practice of law. See, Maryland Attorney Grievance Comm'n v. Sucklal, 12 A.3d 650 (Md. 2011). Since the lawyer was never admitted in Maryland, "disbarment" in that context means permanent exclusion from eligibility for law practice in Maryland.
Back in New York, however, the attorney was only suspended for one year (with the possibility of reinstatement after only six months). The case is called In re Sucklal.
This situation poses and interesting question about the concept of reciprocal discipline. I think states should have the flexibility to decide their own disciplinary matters and that there may be reasons why a state may not want to impose exactly the same sanction imposed by another state. But I wonder what is the standard sanction in New York for the unauthorized practice of law. If it is a one year suspension, I understand the decision of the court. But if New York disbars attorneys who practice law illegally in New York, why not disbar a New York attorney who practices illegally somewhere else?
Thursday, September 22, 2011
ABA Commission has released new proposals for amendments to the ABA Model Rules
The ABA Commission on Ethics 20/20 has released for comment revised proposals for amendments to the ABA Model Rules of Professional Conduct with regard to Outsourcing, Technology and Confidentiality, and Technology and Client Development. In addition the Commission has released updated versions of its proposals concerning foreign lawyers and the ABA Model Rule on Pro Hac Vice Admission, the ABA Model Rule for Registration of In-House Counsel, and ABA Model Rule 5.5.
Comments are due by November 30, 2011. Please check the Commission's website (here), for continued updates regarding proposals, discussion drafts, Commission meetings, and public hearings.
You may view the cover memo from Commission Co-Chairs Jamie S. Gorelick and Michael Traynor and the proposals from these links:
Cover Memo
Outsourcing
Technology and Confidentiality
Technology and Client Development
ABA Model Rule on Pro Hac Vice Admission
ABA Model Rule for Registration of In-House Counsel
ABA Model Rule 5.5
For a comment on the proposal regarding outsourcing go to the Legal Research and Writing Pro blog
Comments are due by November 30, 2011. Please check the Commission's website (here), for continued updates regarding proposals, discussion drafts, Commission meetings, and public hearings.
You may view the cover memo from Commission Co-Chairs Jamie S. Gorelick and Michael Traynor and the proposals from these links:
Cover Memo
Outsourcing
Technology and Confidentiality
Technology and Client Development
ABA Model Rule on Pro Hac Vice Admission
ABA Model Rule for Registration of In-House Counsel
ABA Model Rule 5.5
For a comment on the proposal regarding outsourcing go to the Legal Research and Writing Pro blog
Monday, September 19, 2011
Pro bono conversation questions of the week
The national pro bono celebration conversation continues this week with the following questions:
What methods have you found most effective in engaging law students in pro bono? What type of legal work have you found is most appropriate for law students? What suggestions do you have for law schools that would result in the graduation of students committed to access for all?
Go here to join the conversation.
What methods have you found most effective in engaging law students in pro bono? What type of legal work have you found is most appropriate for law students? What suggestions do you have for law schools that would result in the graduation of students committed to access for all?
Go here to join the conversation.
Friday, September 16, 2011
Pro bono conversation continues
Following up on the invitation to engage in a conversation about pro bono work during the next few weeks, here are a couple of items:
1.. In a recent speech, retired Supreme Court Justice John Paul Stevens said that for lawyers, "the greatest reward is not monetary," as he urged attorneys to take on clients in need of help on a pro bono basis. Go here for the full story.
2. Some jurisdictions are considering imposing mandatory pro bono, something that has been considered several times in the past by the drafters of the ABA Model Rules also. In response, Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute, argues that even though "[t]he U.S. legal system is facing a crisis of unparalleled proportions" and that "[t]he legal aid crisis and the courts crisis have morphed into a justice-system crisis" mandatory pro bono is not a good idea. She argues that there are other things all segments of the profession "can and should do to ease the crisis and restore the public's faith in our justice system before resorting to mandatory pro bono."
I tend to agree. Mandatory pro bono is not necessarily a good idea. Forcing people to do work they don't want to do usually does not yield good results. For those who don't want to do the work, I would rather urge them to contribute financially to organizations who do want to do the work and can use the resources. If we do institute mandatory pro bono, this financial contribution option should be an alternative to meet the requirement.
In her short article, available here, Lardent names seven other things that can be done. Let me comment on a couple.
She suggests that ABA Model Rule 6.1 should be revised stating that "As one of the co-authors of the ABA's model rule on pro bono adopted in the early 1990s, I can candidly state that it is seriously out of date. Given the scope of the crisis we are facing, the rule's overly broad definition of pro bono — which currently includes discounted fees and bar association service — cannot and should not stand. Pro bono should mean free legal work done on behalf of low-income or disadvantaged clients, period." I agree that there can be a better way to define pro bono and also that lawyers should be encouraged to do more than simply offer "discounted fees" for clients who can pay regular fees and who have easy access to legal representation. I do think, however, as I said before, that contributing financially to legal aid or other organizations created for the purpose of providing legal aid to those who wouldn't otherwise have access to legal representation should be considered a valid way to meet pro bono obligations.
Lardent also suggests that states should make pro bono reporting meaningful. I couldn't agree more. Some years ago, Illinois adopted a mandatory reporting system. Lawyers are not required to provide pro bono services but if they do provide it, they have to report it. When I ask my students how this would work to encourage more people to do pro bono work, they usually say that other lawyers would be "shamed into" doing it when they saw how many other people were doing it, or when they saw other "competing" firms using their pro bono commitment as a marketing tool, and so on. This is true, and not necessarily a bad thing, but it only works if the reporting results in publicity. Only if the results of the reporting are publicized, and celebrated, will the information have a positive effect on others. I will post a separate comment on this at some point in the future.
1.. In a recent speech, retired Supreme Court Justice John Paul Stevens said that for lawyers, "the greatest reward is not monetary," as he urged attorneys to take on clients in need of help on a pro bono basis. Go here for the full story.
2. Some jurisdictions are considering imposing mandatory pro bono, something that has been considered several times in the past by the drafters of the ABA Model Rules also. In response, Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute, argues that even though "[t]he U.S. legal system is facing a crisis of unparalleled proportions" and that "[t]he legal aid crisis and the courts crisis have morphed into a justice-system crisis" mandatory pro bono is not a good idea. She argues that there are other things all segments of the profession "can and should do to ease the crisis and restore the public's faith in our justice system before resorting to mandatory pro bono."
I tend to agree. Mandatory pro bono is not necessarily a good idea. Forcing people to do work they don't want to do usually does not yield good results. For those who don't want to do the work, I would rather urge them to contribute financially to organizations who do want to do the work and can use the resources. If we do institute mandatory pro bono, this financial contribution option should be an alternative to meet the requirement.
In her short article, available here, Lardent names seven other things that can be done. Let me comment on a couple.
She suggests that ABA Model Rule 6.1 should be revised stating that "As one of the co-authors of the ABA's model rule on pro bono adopted in the early 1990s, I can candidly state that it is seriously out of date. Given the scope of the crisis we are facing, the rule's overly broad definition of pro bono — which currently includes discounted fees and bar association service — cannot and should not stand. Pro bono should mean free legal work done on behalf of low-income or disadvantaged clients, period." I agree that there can be a better way to define pro bono and also that lawyers should be encouraged to do more than simply offer "discounted fees" for clients who can pay regular fees and who have easy access to legal representation. I do think, however, as I said before, that contributing financially to legal aid or other organizations created for the purpose of providing legal aid to those who wouldn't otherwise have access to legal representation should be considered a valid way to meet pro bono obligations.
Lardent also suggests that states should make pro bono reporting meaningful. I couldn't agree more. Some years ago, Illinois adopted a mandatory reporting system. Lawyers are not required to provide pro bono services but if they do provide it, they have to report it. When I ask my students how this would work to encourage more people to do pro bono work, they usually say that other lawyers would be "shamed into" doing it when they saw how many other people were doing it, or when they saw other "competing" firms using their pro bono commitment as a marketing tool, and so on. This is true, and not necessarily a bad thing, but it only works if the reporting results in publicity. Only if the results of the reporting are publicized, and celebrated, will the information have a positive effect on others. I will post a separate comment on this at some point in the future.
Wednesday, September 14, 2011
Commission on Legal Ethics 20/20 presentation at the ABA annual meeting
The ABA Commission 20/20 is working on new amendments to the Model Rules of Professional Responsibility. Here is a video of a presentation to the ABA at the recent annual meeting discussing the work of the Commission. It provides a very good summary of the work of the Commission so far.
Monday, September 12, 2011
Pro bono conversation question of the week
Here are this week's national pro bono celebration questions: What are the best ways for the public interest and private bars to work together to provide high quality legal services to poor and marginalized people? How can we increase collaboration between all segments of the legal community? What innovative, creative models already do or would result in increased legal services for low income individuals and communities? Are there new ways of thinking about the delivery of legal services that would result in meeting more need?
Go here to join the conversation.
Go here to join the conversation.
Sunday, September 11, 2011
National Pro Bono Celebration
Building on the success of the annual National Pro Bono Celebrations in 2009 and 2010, the ABA Standing Committee on Pro Bono and Public Service is sponsoring the Celebration again this year October 23 through 29, 2011. Go here for more information.
The Celebration is a coordinated national effort to meet the ever-growing needs of this country's most vulnerable citizens by encouraging and supporting local efforts to expand the delivery of pro bono legal services, and by showcasing the great difference that pro bono lawyers make to the nation, its system of justice, its communities and, most of all, to the clients they serve.
As part of the Celebration, the Committee is encouraging a national conversation about pro bono. How can we frame a new way of thinking about and delivering pro bono legal services?
Please contribute to a stimulating national conversation about the future of pro bono work and the delivery of quality legal services. Help shape this approach by sharing your inspired ideas and comments. What has worked for you? What are your best ideas and experiences? What changes are needed and how might they be accomplished? What are the most effective collaborations and partnerships? How can the private and public interest bars work together most effectively to provide access to justice for all?
Twice weekly, on Mondays and Wednesdays, a new question will be posted for your reflection and comments. Please participate often and invite your colleagues to do the same. You can see the list of questions here.
A national conversation can seed new initiatives and new approaches throughout the country; please join in this dynamic exchange of insights and ideas. Your voice needs to be heard. Join the discussion now.
The Celebration is a coordinated national effort to meet the ever-growing needs of this country's most vulnerable citizens by encouraging and supporting local efforts to expand the delivery of pro bono legal services, and by showcasing the great difference that pro bono lawyers make to the nation, its system of justice, its communities and, most of all, to the clients they serve.
As part of the Celebration, the Committee is encouraging a national conversation about pro bono. How can we frame a new way of thinking about and delivering pro bono legal services?
Please contribute to a stimulating national conversation about the future of pro bono work and the delivery of quality legal services. Help shape this approach by sharing your inspired ideas and comments. What has worked for you? What are your best ideas and experiences? What changes are needed and how might they be accomplished? What are the most effective collaborations and partnerships? How can the private and public interest bars work together most effectively to provide access to justice for all?
Twice weekly, on Mondays and Wednesdays, a new question will be posted for your reflection and comments. Please participate often and invite your colleagues to do the same. You can see the list of questions here.
A national conversation can seed new initiatives and new approaches throughout the country; please join in this dynamic exchange of insights and ideas. Your voice needs to be heard. Join the discussion now.
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