Alabama State Disciplinary Commission rules attorneys can't participate in Groupon and other similar services

Contrary to opinions from several other state bars that have addressed this subject, the Alabama State Disciplinary Commission has issued an opinion concluding that a lawyer's use of websites like Groupon to sell legal services violates the ethics rule against sharing legal fees with nonlawyers, as well as the ethics rule requiring all unearned fees to be placed into a trust account and may violate rules on conflicts of interest, competence, diligence, and communication, the commission warned.  The opinion (no. RO 2012-01) is available here.

ABA seeks comments on draft re proposed changes to Model Rule 1.7 (Conflicts of interest)

The ABA Commission on Ethics 20/20 has released a Revised Draft Proposal on Model Rule 1.7: Choice of Rule Agreements for Conflicts of Interest.  Also, go here for the Cover Memo.  Please e-mail your comments by August 15, 2012, to Senior Research Paralegal Natalia Vera at Natalia.Vera@americanbar.org. 

Choice of Laws and Concurrent Conflicts

Assume a firm is asked to represent a client in a jurisdiction against another current client of the firm.  Then assume that this would be allowed under the rules of that jurisdiction but not under the rules of the jurisdiction where the other current client is represented.  Which rules govern?  Should the rules allow a firm to represent an interest adverse to a current client in a different jurisdiction absent client consent?

Here is a comment posted in the Legal Ethics Forum on this question:

The New York office of Law Firm represents Company A on a transactional matter involving parties and commitments in New York and London.  While that matter is pending, Company B (in London) wants to retain a lawyer in the London office of Law Firm to handle a London-based arbitration against Company A.  Assume the arbitration is completely unrelated to the work that the New York office of Law Firm is handling for Company A.

Now consider that the ethics rules in England permit law firms to be adverse to existing clients in unrelated matters.  In other words, under the Rules applicable in England, Law Firm would have no conflict of interest if it represents Company B in the arbitration.  In contrast, the Model Rules (and the New York Rules) do not permit lawyers to be adverse to current clients in unrelated matters.  Thus, Law Firm would have a conflict under the New York Rules.  So does Law Firm have a conflict of interest if it represents Company B?

A review of Rule 8.5 (Choice of Law) yields no clear answer.  For matters pending before a tribunal, Rule 8.5 instructs us to apply the rules of the jurisdiction where the tribunal sits (for the arbitration, that would be England).  But on the other hand, Rule 8.5 strongly implies that the New York Rules should govern the Law Firm's representation of Client A in the transational matter.

The ABA Commission on Ethics 20/20 has just circulated a new draft of a possible proposed amendment to Rule 1.7 that would help to address this choice of law problem.  It would allow, subject to several limitations, lawyers and clients to agree that their relationship will be governed by a particular jurisdiction’s rules of professional conduct relating to conflicts of interest.  For example, given that Law Firm's representation of Company A has a nexus to England, Company A and Law Firm could agree at the outset of the engagement that any future conflicts will be resolved under the Rules in England.  This agreement would be a kind of advance waiver similar to what is already permitted under Rule 1.7, Comment [22].  The idea is that such agreements could address the issue more clearly than is possible under Rule 8.5.

The Commission's draft proposal and report on this topic can be found here.  The cover memo is here. Comments should be submitted to Natalia.vera@americanbar.org by August 15th.  If the Commission decides to pursue this proposal, it would be presented to the ABA House of Delegates in February 2013.

ABA Commission asks for comments on Rule 5.5

The ABA Commission on Ethics 20/20 recently released a paper that asks whether Model Rule 5.5 should be revised to offer more guidance on the question of whether a lawyer may provide legal services on a temporary basis in this jurisdiction where the lawyer is not admitted.  For a discussion of the issues go to the Legal Ethics Forum and to My Shingle.com here. and here.

More reports on the slow death of the billable hour (which continue to be exaggerated)

I have reported before on the claims that the billable hour is dead or dying, always adding my opinion that reports of this death have been greatly exaggerated.  For my previous coverage on this subject see here, here, here and here.  You can also use the search function on the right side panel to look for posts on "flat fees" which discuss how the confusion on how to regulate the use of flat fees in some jurisdictions has eliminated their usefulness as alternatives to hourly fees.

Many of the sources of information cited in those older links come from the Wall Street Journal, which is why interestingly, today the WSJ law blog is finally accepting my view in a short article (available here) in which it states that "[d]espite all the hoopla about hourly billing going the way of the Edsel, law firms and their corporate clients have been much slower to adopt alternative billing arrangements than many had predicted..."

West Virginia decides not to file charges against judge for outburst

Yesterday I posted a note about the video showing a judge losing his temper in court (here) and a link to an article highly critical of the judge.  Today, Prof. Jonathan Turley is reporting that the West Virginia Supreme Court has announced that no charges will be filed against the judge in the case at least in part because "the judge is embarrassed and certainly contrite about his outburst."  Prof. Turley then argues that this "leaves some confusion over what it would take to get a charge out of the high court."  He also argues that "I have no doubt that [the judge] is embarrassed after becoming an Internet sensation. However, the video reveals conduct that is shocking and raises serious questions about Watkins’ suitability as a judge."  You can read Prof. Turley's latest comment on the case here.  The ABA Journal has more on the story here.

Video: How not to conduct a hearing

Yesterday, the ABA Journal posted a copy of a video (apparently a big hit on You Tube) in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties.  The judge was complete out of control because, according to him, the husband in the case had posted a story about the judge (which included a photo of the judge's house) on a website.  Since the hearing, the husband has filed a complaint against the judge before the Judicial Investigation Commission.  It will be interesting to see what is decided.

Assuming the accusation made by the judge is true, I think he had reason to be upset, but that does not excuse his behavior.

Professor Jonathan Turley has published a short comment on the story here in which he concludes that "[t]he ethics charge has obvious merit given the judge’s personal interest and anger — not to mention his loss of composure and demeanor. Regardless of the merits of the allegations, [the judge] was no longer a disinterested or neutral party."  You should read the readers' comments too.
 

How not to practice law: if you are a judge, go ahead and preside over a criminal hearing in a case in which you are the victim

Once again let's add another incredible but true story to our long list of things you should NOT do if you want to continue to practice law.  As usual, this list involves conduct that is so basic you'd think anyone would know what they are doing is improper.  Nothing complicated here.  It would be funny, if it weren't so serious.... 

So here is today's entry:  a judge is the victim of a crime and then finds himself presiding over the hearing to set bond for the person accused of that crime.  Apparently it did not occur to the judge that it would be a good idea to let a different judge take over... 

Interestingly, the judge just got a reprimand, maybe because, after all, he allowed the defendant to be released without bond. The actual letter of reprimand is available here. The Legal Profession blog has more here.

Oregon Supreme Court imposes discipline but refuses to explain why

Here is a link to a strange opinion by the Oregon Supreme Court in which the Court imposes an 18 month suspension.  What makes the opinion strange in my view is the fact that the Court explicitly refuses to explain its reasoning.  It simply says that  "We . . . conclude that an 18-month suspension is the appropriate sanction. An explanation of the extensive facts related to the four matters underlying this proceeding and of the appropriateness of the sanction would not benefit the bench, bar, or public."

I don't know but it seems to me that a little guidance so that other lawyers can learn from this one's mistakes and misconduct wouldn't hurt....

The case is called In re Goff and it is available here.

Thanks to the Legal Profession blog for the link.

Supreme Court decides a case on possible prosecutorial misconduct

While there are other cases capturing the attention of the public over at the Supreme Court, about two weeks ago, the Court handed down an interesting (and short) opinion on whether, as part of a closing argument, a prosecutor can suggest that the defendant, his attorney, and an expert witness (psychiatrist) colluded to fabricate a defense if the prosecutor subsequently states that it was not unethical for the defense attorney to do so.  In response, the Court found that the prosecutor's statements taken together did not rise to the level of violating the defendant's due process rights. The case is called Parker v. Matthews and it is available here.   The Legal Ethics Forum has more details and a short debate in the comments section (here).  I think the decision is wrong and that the conviction should have been reversed because of the prosecutor's comments. If you search here for "prosecutor's comments" you will find a number of cases in which court's have reversed convictions in similar cases.