Recent opinion of the California State Bar Standing Committee on Professional Responsibility reaffirms old principle: confidentiality can include publicly available information

Professional Responsibility students often have a hard time understanding that the duty of confidentiality includes a duty to keep confidential information that is publicly available.  "If it is publicly available," they often wonder, "there is no confidentiality to protect."  But the general principle has always been that there is a difference between information that is publicly available and information that is "generally known."  If the information is generally known then you can say there is nothing to protect - the information is known already.  But not all publicly available information is generally known.

These principles have always been generally accepted and understood until the Virginia Supreme Court decided Hunter v Virginia in 2013, in which the court surprisingly held otherwise.  But this aspect of the decision has been heavily criticized and, to my knowledge, not followed anywhere else.

To that point, the California State Bar Standing Committee on Professional Responsibility has proposed a new ethics opinion reaffirming the old principle.  The opinion concludes that "[a] lawyer may not disclose his  client’s secrets, which include not only confidential information communicated by the client  to the  lawyer, but also publicly available information  that the  lawyer obtained  during or related to the professional relationship which the client has requested to be  kept  secret or the  disclosure of which  might be embarrassing or detrimental to the client."

The opinion is available here.  The California Bar is asking for comments on the proposed opinion through August 27, 2015.  I think this is the correct view of the issue and should be supported.  To learn how to submit comments go here.

Call for comments on possible changes to DC rules

The District of Columbia Court of Appeals is soliciting public comment on proposed amendments to the D.C. Rules of Professional Conduct that include revisions to Rules 1.10 and 7.1 and comments thereto, and the addition of a new comment to Rule 1.15.  For more information go here.

Association of Professional Responsibiity Lawyers issues report on advertising; calls for changes in the rules

The Association of Professional Responsibility Lawyers (APRL) recently released a comprehensive report in which it argues that “It is long past time for rationality and uniformity to be brought to the regulation of lawyer advertising,” The report, which was authored by the APRL’s Regulation of Lawyer Advertising Committee, is the culmination of a two-year study of the ABA Model Rules of Professional Conduct and various state bar approaches to regulating lawyer advertising.
The report states that the balance between the “core values” of professional responsibility and effective lawyer advertising must be “realigned” to ensure that consumers of legal services have access to accurate information about legal services.  The report also concludes that

Simply stated, current regulations of lawyer advertising are unworkable and fail to achieve their stated objectives.  Survey results show that there are too many state deviations from the ABA Model Rules, actual formal lawyer discipline imposed for advertising violations is rare, lawyers are disheartened by the burden of attempting to determine which regulations apply to the ever-changing technological options for advertising, and consumers of legal services want more, not less, information about legal services.  The basic problem with the current state patchwork of lawyer advertising regulations lies with the increasingly complex array of inconsistent and divergent state rules that fail to deal with evolving technology and innovations in the delivery and marketing of legal service  The state hodge-podge of detailed regulations also present First Amendment and antitrust concerns in restricting the communication of accurate and useful information to consumers of legal services.

 For more on the report go here and here.

Discipline for moral turpitude. What is moral turpitude?

I have commented before how the concept of "moral turpitude" is used inconsistently and how I am still confused as to what it really means.  About two weeks ago, Prof. Ronal Rotunda (Chapman) wrote an excellent short comment on the issue here.  He concludes that "the law may reject “moral turpitude” as a standard too vague to apply, yet some courts continue to apply it, even though those courts have adopted new rules that reject “moral turpitude” as the standard. Go figure." 

Short comment on the NY social media guidelines

In my last two posts I mentioned the recently discussed social media guidelines in New York.  Are this guidelines really needed or are existing rules sufficient?  Do we really need new rules every time new technology becomes available, or at least popular?  These are some of the questions addressed in a short comment in the blog Real Lawyers Have Blogs.

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.