Violating the duty of confidentiality when replying to an online review

The Legal Profession Blog is reporting that the Illinois Administrator has filed a complaint alleging that an attorney violated her duty of confidentiality by responding to a client's unfavorable review of her services.  There is nothing inherently wrong in replying to an online review, but just like anywhere else, you have to be careful about what you say.  The attorney in this case allegedly disclosed more information that was necessary (in fact, more information that was relevant) and thus is now facing the complaint for disclosing confidential information. 

Oral argument on whether undocumented immigrant should be admitted to practice

Last year I posted a few links to articles on the debate on whether undocumented immigrant should be allowed to practice law (in California).  See here, here, here and here.  The case was finally heard by the Supreme Court of California and here is a link to the oral argument.  Also, take a look at the comments on the argument (and some predictions) at the Legal Ethics Forum.  There are more links there too.

Teacher gets disciplined for threatening to kill people

Here is the story. Could a lawyer be disciplined for similar conduct? 

Debate about intra-firm privilege continues

Last month I posted a few links to other blogs and an op-ed piece on the issue of intra-firm privilege.  See here.  The Legal Ethics Forum now has more links here.

Newspaper and TV reports on the Florida public defender I mentioned earlier

Here is a report on the elected public defender in Florida I mentioned in my previous post.  Also here is a clip from Action News:

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.