Sunday, October 12, 2014
The story behind the California Supreme Court's rejection of the model rules
As I reported recently (here), the California Supreme Court has decided not to adopt a proposal for new rules of professional conduct. As you would expect, the decision has generated much commentary including a short comment by my friend Richard Zitrin (UC Hastings) in which he describes the background history of the Court and the Commission which helps understand the recently announced decision. You can read the article online now here (subscription may be required) or in print tomorrow at The Recorder. For more commentary on the situation go here and here.
Wednesday, October 8, 2014
Connecticut Appellate Court holds that there is no duty to disclose exculpatory evidence
About a week ago, the Connecticut Appellate Court addressed a very interesting question that I have to confess I had not thought about before. Now I want to do some research to see how it has been approached in other jurisdictions.
The question is whether the state has an obligation to disclose exculpatory evidence to an attorney as part of a disciplinary proceeding. In this case, an attorney was disciplined, but he later argued that he was entitled to a new trial because bar counsel allegedly suppressed evidence that may have disproved the charge. The court however held that Brady v. Maryland does not apply in bar disciplinary cases, stressing that Brady‘s applicability is limited to criminal prosecutions. However, the court also hints that the argument was irrelevant in any case because the attorney in the case had knowledge of the evidence that he accused bar counsel of suppressing.
The case is Smigelski v. Dubois and you can read the decision here.
The question is whether the state has an obligation to disclose exculpatory evidence to an attorney as part of a disciplinary proceeding. In this case, an attorney was disciplined, but he later argued that he was entitled to a new trial because bar counsel allegedly suppressed evidence that may have disproved the charge. The court however held that Brady v. Maryland does not apply in bar disciplinary cases, stressing that Brady‘s applicability is limited to criminal prosecutions. However, the court also hints that the argument was irrelevant in any case because the attorney in the case had knowledge of the evidence that he accused bar counsel of suppressing.
The case is Smigelski v. Dubois and you can read the decision here.
New ABA Ethics Opinion on sale of practice
The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 468 – Facilitating the Sale of a Law Practice. Here's the summary:
When a lawyer or law firm sells a law practice or an area of law practice under Rule 1.17, the seller must cease to engage in the private practice of law, or in the area of practice that has been sold, in the relevant jurisdiction or geographic area. But the selling lawyer or law firm may assist the buyer or buyers in the orderly transition of active client matters for a reasonable period after the closing of the sale. Neither the selling lawyer or law firm nor the purchasing lawyer or law firm may bill clients for time spent only on the transition of matters.You can read the full opinion here.
Better Call Saul!
In case you are not familiar with Saul Goodman, here is his website. Check it out. My favorite ad is the one called "Sue 'em now."
Tuesday, October 7, 2014
Machine intelligence and legal services
Some time ago I asked whether it was likely that attorneys could be replaced by machines or computer programs. Here is another post (with links to more) on that subject.
Discipline for failing to correct client's affidavit when attorney finds out the client lied
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.
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.
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.
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