Elected state public defender?

I must confess I did not know that in some jurisdictions the Public Defender is an elected position.  Wow!  I find that hard to believe.  The dangers to the system of justice in that idea seem apparent to me and now seem to be quite clear in Florida.  I just found out by reading a comment in A Public Defender (blog) on the situation in Florida.  You should take a look at it here.

Comment on NY opinion on "specialties" and LinkedIn

I have more than once complained about the lack of common sense when it comes to rules related to advertising lawyers' "specialties."  (See here, for example.)  Adding to this issue, the New York State Bar Association recently issued an ethics opinion on lawyer use LinkedIn’s “specialty” feature.  See Ethics Opinion (EO) 972.

The opinion concludes that listing practice areas under LinkedIn's “Specialties” section would constitute a claim that a lawyer or firm is a specialist in a particular field of law and thus, absent certification would violate New York Rule of Professional Conduct 7.4(a).  One problem with the opinion, however, is that as of March 2012, LinkedIn deleted the specialties option.

But the opinion raises a number of other issues that merit discussing.  First, again, I think it is nonsense to argue that it is improper for an attorney to advertise he or she specializes in a certain area of the law.  See my previous posts on this for more on that.

Second, it is worth asking whether states are fighting a losing battle when attempting to regulate the use of social media which changes so quickly.  And, if so, it is worth asking what is the better approach.

Carolyn Elefant has a short comment on this subject in her blog MyShingle.com here.  Her position is simple:  Lawyers’ ethical obligations when using social media may be summarized with a simple mandate:  "No deception."  Yet, she argues, "rather than invoke the simple litmus test of whether a communication is deceptive to a reasonable viewer to evaluate lawyer advertising, disciplinary committees feel compelled to spill thousands of words analyzing the ethics of each and every feature of each and every iteration of each and every social media platform."  

And her conclusion:  "I’m not suggesting that the bars relax regulation of lawyers using social media. But when it comes to the ethics of social media, one small graphic combined with a little bit of common sense is worth not just 1000 words but thousands of dollars in savings as well."

Read her full comment here.

Should a lawyer be disciplined for his conduct as a client of another lawyer?

Just a few days ago, the Missouri Supreme Court issued an opinion that raises an interesting question.  Here is the story, in a nutshell:  suppose attorney A hires attorney B to help him file a series of claims.  Now assume that the claims are frivolous.  Clearly Attorney B would be subject to discipline and sanctions under both rules of professional conduct and rules of procedure - assuming Attorney B knew the claims were frivolous.  But how about Attorney A.  He was not practicing law; he was a client. 

The court found the lawyer should be disciplined and, in fact, imposed a pretty severe sanction for the conduct.  The case is called In re Lawrence J Hess and it is available here.  (Thanks to the Legal Profession blog for the link.).  One judge wrote a concurring opinion arguing that the rule on frivolous litigation should only apply to the lawyer who acted as a lawyer not to the one acting as a client.  One judge wrote a dissenting opinion finding the conduct did not violate the rules at all.

The concurring opinion makes an interesting point.  She argues that the conduct violated rule 8.4 (conduct prejudicial to the administration of justice), but that the rule related to filing frivolous claims should apply only to the lawyer acting as an advocate.  It is this lawyer who has the duty to exercise independent professional judgment to decide whether the claim is frivolous and who has the duty to tell the client it should not be filed.

This is a close call for me.  I understand the logic of the argument in the concurring opinion, but it is not inconsistent with other rules to say that they apply to lawyers even when they are not in the practice of law.   In the end, given that the sanction would not change regardless of whether it is determined that the attorney violated one or two rules, the issue may just be academic. 

Huffington Post article about lack of accountability for prosecutorial misconduct

The Huffington Post has published a story on an issue I have written about many times: the lack of accountability for prosecutorial misconduct. The article is available here. In addition, here is an interview with the author or the article. Take a look at about the 5 minute mark, where the interviewer literally laughs at the notion of "self regulation" of the profession.

Article on issues related to social media and the practice of law

Here is a link to a recent article on issues related to social media and the practice of law.  Among other things, it comments on an ethics opinion by the New York County Bar Ethics Committee I wrote about back in July (see here). 

Thanks to the Legal Ethics Forum for the link.

You can now get the posts via RSS

For those of you who used to rely on Google Reader, or those of you who prefer to get notices of the posts as they are posted throughout the day, you can now subscribe using Feedly (for PC browsers and mobile devices) or Newsify (for mobile devices).  I am sure there are other options, but those are the ones I use to follow the blogs I read.  They both work well.  Simply add the blog's address (http://bernabepr.blogspot.com/) to your subscriptions and you should be able to follow the blog.  However, I do suggest you keep the e-mail notice system just in case...

Illinois adopts a "civil Gideon" pilot program

The Chicago Daily Law Bulletin is reporting today that Gov. Patrick J. Quinn has signed legislation that will make Illinois the second state in the nation to offer court-based legal counsel in some civil cases. The measure goes into effect immediately although the program is only in a pilot stage. For now, the program is technically in its pilot phase, so court-provided civil attorneys will be limited to one circuit court in each of the five appellate districts.

North Dakota Supreme Court opinion on non refundable "minimum fees"

I have written many times before on the concept of flat fees and whether they can be non refundable. See here, here and here, for example. In one of those posts I summarized what appeared to be the state of the law (at least in one jurisdiction) this way: "A flat fee can be non-refundable as long as there is nothing to refund; but if there is something to refund, it must be, unless there is a good reason not to. Easy." Sounds confusing? It is confusing! I understand the concern behind some of the decisions but the decisions have not been very clear.

Now comes the North Dakota Supreme Court with a new decision on the subject in a case called In re Hoffman, N.D., No. 20120290, 7/23/13. It explains some things well but for others we are still left with same of the problems we have seen before. Let's take it step by step.

In this case, the lawyer charged a $30,000 non-refundable “minimum fee” for his work in a criminal matter. After working on the case for about 26 billable hours he was discharged and then refused to refund any part of the fee. Bar counsel argued that the fee was “unreasonable”, that the lawyer violated the rules by putting the fees into an operating account rather than a client's trust account, and that he violated the rules by not providing a refund.

The court disagreed with the first two allegations but agreed with the last one.

The court found that the fee was not per se unreasonable because the jurisdiction “has not yet adopted a rule barring the use of non-refundable fee agreements.”

As to the second allegation, the court also held the law in the jurisdiction does not prevent a lawyer from negotiating that advance fees will be the lawyer's property upon payment.

So far so good. But then, citing sources from different jurisdictions, the court agrees that “Even if advance fees are by agreement not being held in trust for a client, they may still be subject to refund if later determined not to have been unearned.”

This is what I don't understand. If it is agreed that the fee is earned upon payment, then how can it be considered to be unearned? (If on the other hand, was was agreed was that an unearned fee will be deposited in the lawyer's operating account, the court is saying that a lawyer and client can agree to allow the lawyer to commingle funds.)

So, in sum, the court says the fee is not unreasonable and the lawyer is free to negotiate that it is earned, only that the client can later claim it wasn't earned. That does not make sense to me.

The court is concerned with the fact that an attorney could end up keeping a huge fee for little work and that a client may be tied to an attorney they would rather fire. As the court says "the retainer in circumstances of termination of representation may represent a windfall".

All that is fine, but if the court wants the fee to be refundable, then it should hold that fees can't be non refundable. Period. Instead, what the court ended up saying is that fees can be non refundable and earned, unless the client wants a refund or thinks they were not earned. And that is confusing, to say the least.

More criticism of the DC Bar Counsel decision to recommend an admonition for prosecutor with history of repeated violations

I recently posted a comment critical of a decision from Washington DC in which the Office of Bar Counsel recommended only an admonition for a federal prosecutor with a “history of repeated, blatant Brady violations” (as determined by a judge's findings) and who was found to have made false statements to a judge.   See here.  Seeking Justice was also critical of the decision and the Legal Profession blog has a number of posts critical of the DC disciplinary system. Now Jonathan Turley has added his voice to the criticism.  His comments starts as follows:  "It has long been maintained by defense counsel that the Justice Department not only protected unethical prosecutors but has a culture encouraging unethical conduct in litigation. This problem is magnified by the tendency of courts and bar committees to look the other way in the face of violations or to confine sanctions to admonitions or verbal criticism"  You can read the full comment here.

Wisconsin Supreme Court finds ethical obligation to disclose exculpatory evidence is not broader than the obligation under Brady v. Maryland

The Wisconsin Supreme Court recently held in a disciplinary proceeding (In re Riek) that prosecutors' ethical obligation to disclose exculpatory evidence is not broader than the constitutional standards that apply under Brady v. Maryland.  

The accepted interpretation of the ABA Model Rules, and an ABA Formal Opinion, take the view that the ethical obligation is broader.  See  ABA Formal Ethics Op. 09-454.  But not all jurisdictions agree.  For example, the Ohio Supreme Court rejected the ABA's position in Disciplinary Counsel v. Kellogg-Martin, 923 N.E.2d 125 (Ohio 2010), while North Dakota has embraced it (In re Feland, 820 N.W.2d 672 (N.D. 2012)).  Louisiana and Colorado have also ruled on the subject before the ABA's Opinion in In re Jordan, 913 So. 2d 775 (La. 2005 and In re Attorney C, 47 P.3d 1167 (Colo. 2002).

Also, the professional responsibility rules in at least two jurisdictions state, or can be fairly understood to say, that a prosecutors' duty is not broader under the rules than under Brady.  See D.C. R. Prof'l Conduct 3.8 cmt. 1 (2012) and  N.C. R. Prof'l Conduct 3.8(d) (2012).

Most jurisdictions, however, have yet to decide the issue directly.  It will be interesting to see the case law that develops.

Thanks to the ABA/BNA Laywers' Manual on Professional Conduct for the update and link.