The Legal Profession blog is reporting on a recent report and recommendation by the Illinois Review Board. In a nutshell, the recommendation for sanctions is based on the fact that the attorney failed to take remedial measures once the attorney found out a client lied. The client told the attorney he was a sole heir and based on that information the attorney filed an affidavit and some documents asking the client to be appointed as administrator of the estate. At some point, however, the attorney realized the client had lied and that he was not the only heir. The attorney, however, failed to correct the affidavit or to take other remedial measures regarding the client's perjury.
The notion of discipline for failing to take remedial measures regarding perjury is not surprising and I don't have a problem with the recommendation. I wonder, however, if the Board cited the wrong rule in support of its decision. It seems to base its recommendation on an alleged violation of Rule 3.3(a)(1) which imposes a duty to take remedial measures when an attorney comes to know the falsity of a fact the lawyer asserted. In this case, the fact was asserted by the client.
Read the full story here and here.
Tuesday, October 7, 2014
Comments on how disciplinary system does not work to protect the interests of those it is supposed to protect
The Legal Ethics Forum has a story on (and link to) a recent report that concluded the disciplinary system in Wisconsin is inadequate in a number of ways. Mike Frisch, of the Legal Profession blog, has some thoughts on the same issue about the Washington DC system. Mike's point is very interesting because it suggests the current system is apparently based on conflicting interests. And, as I have said before in other contexts, I agree with him in that protecting the "dignity" of the profession should not be a standard used to make disciplinary decisions.
Comments on the Rules situation in California
A few days ago I reported that the Supreme Court of California rejected a proposal to adopt new rules based on the ABA Model Rules. Here are a couple of comments on the situation in the Legal Ethics Forum and KafkaEsq.
Sunday, October 5, 2014
Attorney ad: real or a parody?
Does anyone know if this ad is real or is it a parody? If you can't see the video below, you can watch the video here.
UPDATE (10/7/14): I have been informed by someone who spoke to the attorney in question that the video is not an actual ad, but "takes" and "outtakes" from a number of scenes shot in the process of putting an ad together. It was not meant to be disclosed until the ad was finished but the attorney made the mistake of sharing with others who then posted the video to YouTube.
UPDATE (10/7/14): I have been informed by someone who spoke to the attorney in question that the video is not an actual ad, but "takes" and "outtakes" from a number of scenes shot in the process of putting an ad together. It was not meant to be disclosed until the ad was finished but the attorney made the mistake of sharing with others who then posted the video to YouTube.
Wednesday, October 1, 2014
Supreme Court of Louisiana shows some common sense on what constitutes a misleading ad
In May of last year I criticized a decision by a Louisiana Hearing Committee recommending a reprimand for an attorney based on the fact that his web page stated that he specializes in maritime personal injury and death cases. Fortunately, just a few days ago, the Louisiana Supreme Court showed some common sense and rejected that recommendation.
But let's back up to the beginning of the story. As you probably know rules of professional conduct typically ban lawyers from stating, or implying, that they are "specialists" in any particular field of law unless the lawyer can show he or she has actually been certified as such, and there are very few such specialty certifications. For this reason, a number of jurisdictions have issued opinions disciplining attorneys who have stated in their ads that they "specialize in" a particular area of the law.
My problem with all this is that I see a clear distinction between claiming to be a certified specialist and simply using the English language verb "to specialize" in a sentence. The verb, which, I looked up in the dictionary, means "to concentrate one's efforts in a special activity, field, or practice." You don't have to be certified to practice bankruptcy law and if an attorney's main area of practice is bankruptcy law he or she, in fact, specializes in bankruptcy relief. Can't a lawyer advertise that they specialize in a particular area of the law anymore? How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on. Assuming it is true that this is their main area of practice, why bother spending time and money in a disciplinary process?
I made this argument back in 2011 in reaction to a case from Indiana (here) and then again to the news about the case in Louisiana (here).
Thankfully, the Louisiana Supreme Court made the right decision and reversed.
In this case, called In re Kearney Soniat Du Fossat Loughlin, the attorney created a website to promote his law firm which contained a statement saying the firm is a "litigation firm specializing in maritime personal injury and death cases.” Based on this statement, the Office of Disciplinary Counsel (“ODC”) filed one count of formal charges alleging the statement violated several rules.
The matter proceeded to a formal hearing at the conclusion of which the hearing committee determined that the language on respondent’s website stated or implied that his firm was a “specialist” in maritime personal injury and death cases, although such a specialization has not been recognized or approved in accordance with the rules and procedures established by the Louisiana Board of Legal Specialization. Accordingly, although the committee found that there was no evidence of actual injury caused by respondent’s violation, and little potential for injury was shown, it recommended that the attorney be publicly reprimanded, and that he be required to attend a continuing legal education program on lawyer advertising. This recommendation was later affirmed by the disciplinary board.
On appeal, the Louisiana Supreme Court reversed, however, finding that the attorney's actions caused no harm to the public and that the attorney did not have a culpable state of mind. Thus, the Court found that his actions did not rise to the level of sanctionable misconduct and dismissed the charges. You can read the full opinion here.
This is the right result, although I wish the Court had clarified the notion of the "culpable state of mind" necessary for the conduct to constitute a violation of the rules. I interpret the ruling to mean that claiming that one specializes in a certain area of the law is not sanctionable conduct unless it is shown that it was done with the intent to make people believe one has a specific "title", "degree" or "certification" of some sort. In other words, with the intent to deceive or mislead the public. Since simply stating a true statement using the verb "to specialize" as part of a sentence, without more, does not support that conclusion, the allegation in the case is not enough to support the imposition of discipline. That's how I would have resolved the case, and how I hope the decision is interpreted in the future.
But let's back up to the beginning of the story. As you probably know rules of professional conduct typically ban lawyers from stating, or implying, that they are "specialists" in any particular field of law unless the lawyer can show he or she has actually been certified as such, and there are very few such specialty certifications. For this reason, a number of jurisdictions have issued opinions disciplining attorneys who have stated in their ads that they "specialize in" a particular area of the law.
My problem with all this is that I see a clear distinction between claiming to be a certified specialist and simply using the English language verb "to specialize" in a sentence. The verb, which, I looked up in the dictionary, means "to concentrate one's efforts in a special activity, field, or practice." You don't have to be certified to practice bankruptcy law and if an attorney's main area of practice is bankruptcy law he or she, in fact, specializes in bankruptcy relief. Can't a lawyer advertise that they specialize in a particular area of the law anymore? How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on. Assuming it is true that this is their main area of practice, why bother spending time and money in a disciplinary process?
I made this argument back in 2011 in reaction to a case from Indiana (here) and then again to the news about the case in Louisiana (here).
Thankfully, the Louisiana Supreme Court made the right decision and reversed.
In this case, called In re Kearney Soniat Du Fossat Loughlin, the attorney created a website to promote his law firm which contained a statement saying the firm is a "litigation firm specializing in maritime personal injury and death cases.” Based on this statement, the Office of Disciplinary Counsel (“ODC”) filed one count of formal charges alleging the statement violated several rules.
The matter proceeded to a formal hearing at the conclusion of which the hearing committee determined that the language on respondent’s website stated or implied that his firm was a “specialist” in maritime personal injury and death cases, although such a specialization has not been recognized or approved in accordance with the rules and procedures established by the Louisiana Board of Legal Specialization. Accordingly, although the committee found that there was no evidence of actual injury caused by respondent’s violation, and little potential for injury was shown, it recommended that the attorney be publicly reprimanded, and that he be required to attend a continuing legal education program on lawyer advertising. This recommendation was later affirmed by the disciplinary board.
On appeal, the Louisiana Supreme Court reversed, however, finding that the attorney's actions caused no harm to the public and that the attorney did not have a culpable state of mind. Thus, the Court found that his actions did not rise to the level of sanctionable misconduct and dismissed the charges. You can read the full opinion here.
This is the right result, although I wish the Court had clarified the notion of the "culpable state of mind" necessary for the conduct to constitute a violation of the rules. I interpret the ruling to mean that claiming that one specializes in a certain area of the law is not sanctionable conduct unless it is shown that it was done with the intent to make people believe one has a specific "title", "degree" or "certification" of some sort. In other words, with the intent to deceive or mislead the public. Since simply stating a true statement using the verb "to specialize" as part of a sentence, without more, does not support that conclusion, the allegation in the case is not enough to support the imposition of discipline. That's how I would have resolved the case, and how I hope the decision is interpreted in the future.
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.
Sunday, September 28, 2014
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.
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.
Friday, September 12, 2014
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.
UPDATE 11/10/14: Legal Ethics in Motion has more on the story here.
Wednesday, September 10, 2014
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.
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.
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