Comments on California Supreme Court decision not to adopt new rules

As I reported earlier today, the California Supreme Court has decided not to adopt a proposal for new rules of professional conduct.  Kafkaesq has some comments here.  The Legal Ethics Forum has more here.

California Supreme Court rejects 14 years of work product from Rules Revision Commission; plans to start over

Very surprising!  Sounds like California wants to be the only state that does not follow the ABA Model Rules.  Go here for the story.

Texas Bar Ethics Opinion finds Texas rule on conflicts is more strict than Model Rule -- then (two years later) changes its mind (UPDATED)

In a recent opinion, the Texas bar's ethics committee found that a law firm must stop representing a litigation client if it hires a lawyer who formerly worked on the case as a law clerk at the firm representing the opposing party. Screening the tainted lawyer to prevent the sharing of any confidential information he learned in his prior employment won't enable the firm to continue representing the client.

UPDATE: 3-22-19:  However, two years later, in 2016, the opinion was withdrawn and replaced with a new one which concludes "Under the Texas Disciplinary Rules of Professional Conduct, a law firm is not required to withdraw from representing a client in a lawsuit if the law firm hires a new lawyer who, before becoming a lawyer, was employed as a law clerk for the law firm representing the opposing party in the lawsuit and in that capacity helped provide services to the opposing party with respect to the lawsuit, so long as the law firm screens the new lawyer from any personal participation in the matter to prevent the new lawyer’s communicating to others in the law firm confidential information that the new lawyer and the law firm have a legal duty to protect."

You can read the new opinion here. 

Under the Model Rules, a firm would be allowed to continue the representation of the current client if it screened the newly hired attorney.

How not to practice law: if you are a judge, show up drunk to preside over your cases

Need I say more?  The story is here.  It sounds like this was not a case of a judge being irresponsible, but of inability to control alcoholism.  In a case like that I think there is more need for help than for sanctions.  On the other hand, you can't trust a judge who can't be trusted to handle this problem.  I think a suspension and requirement to go for treatment would be an acceptable sanction.  What do you think?

UPDATE 11/10/14:  Legal Ethics in Motion has more on the story here.

Interesting oral argument before the Illinois Supreme Court on allocation of authority to make a decision and ineffective assistance of counsel

The Illinois Supreme Court heard an interesting oral argument today involving an allegation of ineffective assistance of counsel based on the fact that the attorney did not advocate for a position in favor of the client (defendant in a misdemeanor case).  One of the things that make the case interesting is the unusual circumstances that gave rise to the appeal.

At some point during the process, the prosecutor asserted a "bona fide doubt" as to the fitness of the defendant to stand trial.  Counsel for the defendant did not object.  Based on the state's statement, the court ordered an evaluation of the defendant.  On appeal, the defendant (represented by a different attorney) is now claiming that the trial counsel was ineffective because he did not object to the state's argument of unfitness.

During the oral argument, the justices ask good questions about whether the decision on what position to take as to the fitness of the defendant is one for the defendant or the attorney; whether it is strategic or substantive, etc.  In part, defense counsel argued that the decision belonged to the client because it involved more than mere "tactics."  Because this was a misdemeanor case, a finding of unfitness could result in the defendant remaining confined for a longer period of time than if found guilty.  Thus the decision on what position to take as to the fitness of the client affected the ultimate goals of the representation.  For that reason, the defendant is arguing that the attorney's failure to take her position that she was fit constituted ineffective assistance of counsel.  In contrast, the state argued that although the attorney may have had a professional responsibility duty, the failure to object did not amount to a violation of the right to effective assistance of counsel.

Another issue discussed by the parties is whether there was a need to request a guardian ad litem and whether the decision in Austin M., a case I have written about, applies to this case.

You can listen to the audio of the oral argument here or watch the video here.

Will you be replaced by a robot? or a computer program?

Lawyers are often asked by clients to review contracts prepared by others.  However, because this type of task is something for which you don't need a law degree, someone has come up with the idea to create a computer program to do it.

Enter "Legal Sifter", the computer program that aims to take your job as a contract analyst. The computer program is designed to "eyeball a contract, much in the same way that an experienced lawyer might if asked by a fellow attorney or a friend to have a quick look."  It scans documents and assigns them a score based on how favorable the terms are for the user. It also provides users with an explanation of the clauses and provisions in the document and suggests potential changes to provisions that are probably not in the user’s best interest.  Sounds promising, but will it displace lawyers?  I don't think so.  The program appears to offer some benefits for some users, but the complexity of many of the types of contracts lawyers are often asked to review is probably beyond its capabilities.  Computer code is no match for professional experience when it comes to complex legal issues and transactions.

Over at My Shingle.com, Carolyn Elefant discusses the issue in more detail.

ABA publishes Formal Opinion on duties of supervisory prosecutors

As you probably remember, in Connick v. Thompson and in Smith v. Cain the US Supreme Court was faced with allegations of misconduct by the District Attorney's Office in New Orleans including allegations that the DA had failed to train prosecutors about their duty to disclose exculpatory evidence.  Meanwhile, many other courts continue to overturn convictions due to prosecutorial misconduct.  (Go to the prosecutors label on this blog and scroll down for more.)  You would think that prosecutors would know their duties, but either because they don't or because they don't care, prosecutorial misconduct continues to be an epidemic.

In an attempt to provide some guidance, the ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 467, addressing the managerial and supervisory responsibilities of prosecutors.  The summary of the opinion is as follows:

Model Rules 5.1 and 5.3 require lawyers with managerial authority and supervisory lawyers, including prosecutors, to make “reasonable efforts to ensure” that all lawyers and nonlawyers in their offices conform to the Model Rules. Prosecutors with managerial authority must adopt reasonable policies and procedures to achieve these goals. Prosecutors with direct supervisory authority must make reasonable efforts to ensure that the lawyers and nonlawyers they supervise comply with the Rules. Where prosecutors have both managerial and direct supervisory authority, they may, depending on the circumstances, be required to fulfill both sets of obligations. The particular measures that managerial and supervisory prosecutors must implement to comply with these rules will depend on a variety of factors, including the size and structure of their offices.

Of particular interest, the opinion states that supervisors in prosecutors' offices should create a “culture of compliance” by emphasizing ethical values and obligations during the hiring process, providing incentives such as positive reviews, promotions and raises for ethical behavior, protecting and rewarding lawyers who report misconduct up the ladder within the office and by internally disciplining those who violate professional conduct rules.

I have nothing against all these suggestions and I should not be surprised by them since the reason we need to stress a need to "create" a culture of compliance with ethical rules is that there seems to be a history of disregard for them.  But it always bugs me to know there is a need to remind prosecutors and their supervisors that they have a duty to be ethical.

Is "dignity" a proper standard for judicial office campaigns?

The Legal Profession blog has a story here.  In short, the South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that a judicial candidate can advertise in a movie theater as long as it is done "with dignity," a reference that apparently would apply to both the ad and the movie itself.  I posted a comment to the story and got some replies.  Go here to check it out.

My comment is that I am always troubled by the use of "dignity" in any decision judging speech by attorneys. It seems to me the use of "dignity" as a standard goes against the principle that the First Amendment stands to protect speakers against the state imposing sanctions based on the fact that some might find the speech offensive.  Granted, that principle was significantly weakened by the US Supreme Court's decision in Florida Bar v. Went for it, but the other cases in the long line of attorney speech cases still stand, including Zauderer, where the court said that regulating the dignity of the illustration of the IUD was not a good enough state interest.

New York State Bar Association report on social media ethics guidelines

As you know, the Model Rules were amended recently to recognize that an element of competence is knowledge about "technology" which includes computer programs and the use of social media. In addition, some bar groups have also issued reports or opinions on social media.  For example, I recently reported that the Philadelphia Bar Association’s Professional Guidance Committee issued an opinion on the ethics of advising clients on the use of social media.

But "social media" includes so many different things and its use can have so many implications that more guidelines are needed.  Fortunately (at least for lawyers in New York), earlier this year, the New York State Bar Association issued a report called "Social Media Ethics Guidelines" (available here.)  The guidelines discuss topics ranging from attorney advertising and furnishing legal advice through social media to ethically communicating with clients and researching prospective and sitting jurors.  Needless to say, these and other guidelines will continue to evolve in order to keep pace with technological developments.

Kentucky Supreme Court finds that it is unethical to require a defendant to waive right to claim of ineffective assistance of counsel as part of plea bargaining

As you probably know, it is not uncommon for convicted criminal defendants to challenge their convictions alleging that their lawyers did not provide effective assistance of counsel, and that sometimes the ineffective assistance related to the attorneys' inadequate counseling on whether the defendant should agree to a plea offer.  However, apparently prosecutors in federal court often require defendants to give up that right in order to have a favorable plea bargain.  In other words, it has been reported that often the plea offer is conditioned on the defendant waiving the right to challenge the attorney's performance as ineffective as part of attempts to seek post conviction relief.

Yesterday, the Kentucky Supreme Court issued a very important opinion concluding that the use of ineffective assistance of counsel waivers in plea bargain agreements "(1) creates a non- waivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."

The opinion was the result of a request by the prosecutors of the office of the United States Attorneys for the Eastern and Western Districts of Kentucky to review the merits of an advisory ethics opinion by the Kentucky Bar Association (Ethics Opinion E-435), an ethics advisory which held that the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.  After a very well reasoned discussion of the opinion, the Court concluded that it agrees with the Bar Association and that it is unethical for prosecutors to include a waiver as a condition to a plea agreement and for defense lawyers to advise clients about it.

The case is called US v Kentucky Bar Association and the opinion is available here.  For comments go to The Legal Ethics Forum, Behavioral Legal Ethics, The Legal Profession Blog, and a ;ublic defender.

Thank you very much to Grace Giesel (Univ of Lousville) for sending me the news!