California Bar Pioneers Pre-Admission Competency Training for New Lawyers

About a year ago, the State Bar of California’s Board of Trustees charged the Task Force on Admissions Regulation Reform with “[e]xamin[ing] whether the State Bar of California should develop a regulatory requirement for a pre-admission competency training program, and if so, proposing such a program” for submission to the Supreme Court.” After studying this issue for a year, the Task Force on Admissions Regulation Reform released a report on June 24, 2013.  Legal Ethics in Motion has the full story here.  The report is available here.

Lawyers behaving badly

The headlines in today's ABA Journal online include the following stories:

Ex-judge gets 60 days and 6 months of house arrest for falsifying court records and prostitution

Lawyer who robbed 3 banks and shot state trooper gets 24 years

Ex-partner of law firm indicted, accused of aiding unlawful use of energy tax credits by clients

Judge apologizes for more than 200 sexually explicit emails sent from office

Disbarred lawyer who stole from his own mother and others gets 44 months in federal prison

What's going on?!

Better to ask for forgiveness or permission?

You may have heard the expression "better (easier?) to ask for forgiveness than to request permission" (or something to that effect), right?  Well, think again, if the question involves a disciplinary authority.  As reported by the Legal Profession blog:

An attorney who had been reinstated to practice on conditions admitted to violation of the conditions by handling criminal cases without supervision or malpractice insurance. He then sought to amend the conditions to allow for what he had already done. The Delaware Supreme Court denied the petition stating "The Court is troubled that the petitioner returned to private practice in a manner that violated the Court's Order in substantial, myriad ways without first seeking leave of the Court to modify the conditions of his reinstatement."

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. 

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.

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."

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.

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.