Correction!

Yesterday I reported that the New York State Bar Association was going to discuss whether to adopt new rules on social media later this week.  It turns out that the official agenda for the meeting of the NYSBA states the discussion will be "informational" only.   Apparently there will be no vote on the issue at this point. 

Thanks to Art Garwin, the Director of the ABA Center for Professional Responsibility for letting me know.

New York to consider social media rules

Since the ABA adopted a comment to Model Rule 1.1 on competence as it relates to "technology" there has been a lot of discussion (and literature) on the new meaning of the concept of competence.  See here, here, and here for some podcasts on the subject.

Now, the New York State Bar Association is taking action.  The ABA Journal is reporting today that, later this week, the NYSB house of delegates will discuss whether to adopt new legal ethics rules addressing appropriate social media practices by lawyers. The proposed rules would require lawyers to keep copies of communications with clients on social media, would hold lawyers responsible for correcting inaccurate or misleading information and would allow lawyers to do online research on public portions of social media profiles. 

Applying the gist of the comment added to the Model Rules, the guidelines reportedly state that “[a] lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media.”

Short comment on technology and the practice of law

Here is a short comment on whether using technology can constitute unauthorized practice of law.  It starts "[a]s technology becomes smarter and automation more prevalent, lawyers and bar associations have grappled with the question of whether the use of technology constitutes as the unauthorized practice of law (UPL). Layperson legal advocates and paralegals also are often accused of UPL. So what exactly is UPL? And how do lawyers fight against it?"

Prosecutor disbarred for his role in capital murder conviction of innocent man

It is often said, and I have discussed it here many times, that prosecutors rarely face accountability for prosecutorial misconduct.  Yet, every now and then courts do take action.  In 2013, I wrote a number of posts about the ex-prosecutor (later judge) in Texas who was disbarred for having lied during an investigation on whether he withheld exculpatory evidence in a case that resulted in the conviction of an innocent man.  See here for the most recent post on that case, with links to others.

Similarly, another former Texas prosecutor was disbarred this week for withholding evidence and presenting false evidence in a case that resulted in the conviction of an innocent man.   The defendant in that case served 18 years and twice was scheduled for execution before he was exonerated and released four years ago. Go here for an article with more information.

Florida Supreme Court opinion makes significant revisions to Florida Bar Rules

Lawyer Ethics Alerts Blog has the full story here.

Podcast on the ABA Commission on the Future of Legal Services

The Legal Talk Network has posted a podcast of an interview with Judy Perry Martinez, chair of the ABA Commission on the Future of Legal Services. Martinez discusses specific actions the commission is taking to address the changing landscape of legal services in the US.  You can listen to the podcast by pressing the play button below.  If you don't see the button, you can listen to the podcast by going here.

NY Legal Ethics Reporter

The most recent edition of the New York Legal Ethics Reporter is now available here.  It includes three articles: 

Tinker, Tailor, Lawyer, P.I.: Are Your Workplace Investigations Complying with the Law?

Understanding & Securing the LLP Shield in New York (Part 1)

Summaries of Recent New York Ethics Opinions

DQed on the effect of a disqualification order

When a court orders disqualification, the court obviously has authority to enjoin the attorney or law firm from appearing before the court on behalf of a party.  It is also fairly uncontroversial that the court’s authority extends to so-called ancillary proceedings, such as depositions, in the same matter (even if the judge is not physically present).  But does this disqualification authority extend to bar the lawyer from, for example, counseling (but not appearing for) the client?  I would think so, but apparently there are differences of opinion on this.  DQed has a short comment on the issue here.

Another case on whether the appearance of impropriety can be used as a standard in conflicts cases

A few days ago I wrote about a case in which the Kentucky Supreme Court criticized the use of the notion of "appearance of impropriety" as a standard in conflicts cases.  See here.

In contrast, in a case decided in New York about a month later, the court relied on appearance of impropriety in a routine former client conflict of interest case.  See  Avigdor v. Rosenstock (N.Y. Sup. Ct. May 12, 2015).  The court held that if a party seeking to disqualify a lawyer meets the elements required to support the motion to disqualify, the order to disqualify should be issued in order to "free the former client from any apprehension that matters disclosed to an attorney will subsequently be used against it in related litigation" and to avoid "the appearance of impropriety' on the part of the attorney or the law firm."

Thanks to Bill Freivogel of Freigovel on Conflicts for the update.

Improper comments during trial result in reversal of judgment in civil case

Over the years I have posted lots of links to recent cases in which courts reverse convictions because of improper comments by prosecutors.   This is, unfortunately, not an uncommon occurrence.  Yet, I don't remember a case reversing a judgment in a civil case.  Until now. 

Earlier this month, the appellate division of the New Jersey Superior Court issued an opinion vacating a multi-million dollar judgment because of the cumulative effect of comments made during trial by the plaintiff’s lawyer.  In my opinion, some of the comments would have been acceptable rhetoric, but when put together with those others which crossed the line, the effect was too damaging.   The comments included a statement during the opening statement telling the jury that it was their job to hold the defendant responsible, statements referring to facts not in evidence, expressions of opinion on the defendant's arguments and on defendant's lawyer's questioning of witnesses, attacks on the credibility of the defendant's lawyer and a request on the jury to "send a message" by finding for the plaintiff.  Some of these would have violated Model Rule 3.4, and I know that "send a message" type argument has been held to be improper in another jurisdiction.

The case is called Burkert v. Holcomb Bus Service Inc.

Professional Liability Matters has more here.