ABA considers adding anti-bias rule; is it a form of regulating "offensive" speech? Meanwhile, in New York, lawyer gets suspended for expressing offensive speech

Model Rule 8.4(d) (and most, if not all, its state equivalents) considers misconduct to engage in conduct that prejudicial to the administration of justice.  In addition, paragraph 3 of the comment to Model Rule 8.4 states that "[a] lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d)..."

This is an odd comment.  It does not say that expressing bias or prejudice while representing a client is prejudicial to the administration of justice (and thus could subject the lawyer to possible discipline).  It only states that if engaging in that conduct is against the administration of justice then the lawyer violates the ban against conduct that is against the administration of justice.  In other words, the comment really does not add much to the rule.

For this reason, the ABA Standing Committee on Ethics and Professional Responsibility is considering an amendment to the Rule itself.  The proposed amendment (and other materials in support of the proposal) are available here.  The new Rule 8.4(g) would state that it is misconduct to "knowingly harass or discriminate" against persons on the basis of the factors currently listed in the comment.

One concern over adopting "anti-bias" rules is that if the rule is not drafted carefully it may be subject to attack for regulating constitutionally protected speech, even if the state can, and already does, regulate attorneys' speech in other contexts.

Take for example a recent case in New York in which a lawyer was suspended for, among other things, having made “patently offensive racial, ethnic, homophobic, sexist, and other derogatory remarks to attorneys.”   The case is Matter of Teague and it is available here.

The opinion does not really explain the context of the statements other than saying they were uttered "to attorneys." The court suggests that the attorney in question "spewed racist, sexist, homophobic and offensive epithets against other attorneys that any reasonable person, let alone a reasonable attorney, would know are simply unacceptable in public discourse," but it is not clear, when or where, those epithets were uttered.  For example, it is not clear whether the comments were made during a legal proceeding, or during private conversations.

The court concluded that "Respondent’s conduct should not and will not be tolerated."  This conclusion is fine as to the other "conduct" involved in the case (disruptive conduct in hearings) but not necessarily as to the content of the attorney's speech.

Would it be permissible for the state to discipline a lawyer for expressing bias at a social event?  during conversation with a stranger at a bar? during a political rally?  Would it be permissible for a state to discipline an attorney because the attorney is a member of a group that expresses bias against others? or a member of a church that expresses bias against women or other religious groups? 

The broad language used by the court in New York suggests an attorney could be disciplined for offensive language regardless of context.  I am not sure that result would be valid.

Smartly, the proposed language for a new Model Rule 8.4(g) attempts to avoid the problem by trying to limit the rule to "conduct" (as opposed to speech).   However, by using the word "harass," the rule leaves open the possibility of its application to speech.

Other jurisdictions have already adopted anti bias rules. As discussed in the Legal Ethics Forum,  Indiana Rule 8.4(g) states that it is misconduct to "engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors..."

Note how this rule applies to pure speech but limits its applicability to a lawyer's professional capacity. 

In contrast, Illinois Rule 8.4(g) holds it is misconduct to violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer.

This rule limits its application to conduct that constitutes a violation of the law and that reflects adversely on the lawyer's fitness to practice law.

Are these good, or valid, ways to compromise?

Short article on issues related to unauthorized practice of law claims against non lawyer providers of legal services

If I had to pick what is the "hottest" issue in professional responsibility today, I would say it is a collection of issues all related to the notion of unauthorized practice of law, and the "threat" of competition from non lawyers in the provision of legal services.  This includes issues related to DIY legal services, such as those provides by LegalZoom and others, the regulation of non lawyers to provide legal services, artificial intelligence, and so on.  It is no accident that the ABA recently created a commission on the future of the practice of law to study these types of questions.

This is why a recently published comment in the NY Legal Ethics Reporter is so relevant.  It is called Virtually Unclear: Will Legal Tech Companies Bridge Justice Gap or Fall into UPL Abyss? and you can read it here.

Second Circuit on what constitutes "the practice of law" and its implications for issues related to unauthorized practice and more (including artificial intelligence)

The United States Court of Appeals for the Second Circuit recently issued an opinion in an interesting case with important implications for the definition of what it constitutes to practice law, which in turn is important to the broader debates on who can practice law, whether lawyers can practice in jurisdictions where they are not admitted and whether companies that provide legal services by non lawyers are practicing law illegally.

The case involved a lawyer who was hired to conduct document review by a law firm.  The lawyer was licensed in California but not in North Carolina where the document review would take place.  The lawyer, who typically worked 45-55 hours per week, sued because he was not paid overtime as required by the Fair Labor Standards Act.  However, because the FLSA does not apply to the “practice of law,” the court had to determine if he was engaged in the practice of law or was merely performing clerical or other ministerial tasks.

The court held the lawyer was not engaged in the practice of law under the circumstances, which raises the question of whether we can agree on a definition for what constitutes the practice of law.

The best discussion of the case and it implications I have seen is at the Faculty Lounge, here, and it is worth reading (including the comments).  You can read the opinion itself here.

The Legal Profession Blog has a summary here and Above the Law has a short comment here.

What does this have to do with "artificial intelligence," the subject of my two previous posts today?   Two things:  1.  part of the reasoning by the court was based on the argument that what the lawyer was doing could be performed by a machine, implying it did not require any independent professional judgment.  Whether that is true or convincing remains a matter of debate, but that was part of the reasoning.  2.  to the extent that work usually performed by lawyers can be done by a machine, then companies that provide those services either by machines or non lawyers can defend against accusations of violating rules or statutes against the unauthorized practice of law.

Another post on Artificial Intelligence

The Law Technology Today blog has just posted a panel discussion on artificial intelligence (the subject of my most recent post, below).  In it, the panelists discuss five questions about AI and lawyers.  You can read the roundtable discussion here.

Podcast on lawyers and articificial intelligence

Have you seen the newest commercial for LegalZoom in which lawyers say "I am definitely not a robot!"?   This line is a reference to recent debates as to whether lawyers can (or will be) replaced by robots or computers in the future.

Interestingly, some lawyers have been replaced by computers already by a computer program that allows parties to resolve disputes without the need for lawyers, mediators or arbitrators.  But I don't think we need to worry about all lawyers being replaced ....yet, at least.

 In a recent episode of The Kennedy-Mighell Report, the hosts discuss issues related to artificial intelligence and lawyers, try to eparate myth from reality, and ponder whether AI can take over the work of lawyers. They discuss the definition of AI, robotics, Technology Assisted Review, driverless cars, document assembly software, LegalZoom and how lawyers are assisted or threatened by these technologies.

You can access the podcast by clicking on the play button below.  If you don't see the button below, you can go here.

Podcast on the ABA Commission on the Future of Legal Services

As everyone knows, the legal service industry has been changing rapidly. Some jurisdictions allow non lawyers to provide some legal services, companies provide access to legal documents and forms and many potential clients are now looking online for solutions to legal problems.  On the other hand, there is still a large percentage of the population without access to the legal services they need. In order to deal with this emerging legal marketplace shift, American Bar Association President William Hubbard formed the ABA Commission on the Future of Legal Services.

The Digital Edge has posted a podcast discussing the Commission on the Future of Legal Services and its specific plans for looking into solutions.  You can listen to the podcast by pressing on the play button below.  If you can't see the button you can go here.

Court orders new trial, holding former prosecutor, now TV personality engaged in unethical conduct

Jonathan Turley's Res Ipsa Loquitur is reporting that a state court has ordered a new trial for a man convicted in 2007 due to unethical conduct of former prosecutor television personality Kelly Siegler, the star of the reality series Cold Justice on TNT.   The judge detailed an astonishing 36 instances of unethical conduct by Siegler, including withholding exculpatory evidence.  The judge explained that the prosecutor testified at a habeas hearing that favorable evidence did not need to be disclosed if the state did not believe it was true.  This is interesting because if she really believed that then you may be able to argue she did not "knowingly" violate the law.  Yet, you can also argue she is incompetent since that is obviously not the standard.  So, either way, there is basis to argue unethical conduct.

Siegler, not surprisingly, has denied she engaged in misconduct and has asserted she never withheld evidence.  Reportedly, attorneys are now re-investigating all the murder cases she was involved in.

Sadly, this is not the first "TV prosecutor" with a history of allegations of unethical conduct.  The other, of course, is Nancy Grace, who has been accused of being an unethical prosecutor who violated the rights of accused persons.

Court of Appeals for the DC Circuit decides lower courts must address possible conflict of interest before deciding the merits of a case

 The Legal Profession blog is reporting today on an interesting case out of the United States Court of Appeals for the District of Columbia Circuit in which the court held that a trial court erred in granting summary judgment and then holding that a motion to disqualify counsel was moot.  According to the Court's opinion

The district court erred in the sequence in which it rendered its decisions. Because a claim of counsel’s conflict of interest calls into question the integrity of the process in which the allegedly conflicted counsel participates, the court should resolve a motion to disqualify counsel before it turns to the merits of any dispositive motion. That procedure was not followed here. We therefore vacate the district court’s grant of summary judgment and its denial of the motion to disqualify and remand this case for further proceedings. Because the district court will decide in the first instance whether there was a conflict of interest or an appearance of such a conflict in violation of applicable ethics rules and, if so, will determine the appropriate remedy, we offer only limited guidance on the remaining issues the parties briefed and leave to the district court to decide them in view of its ruling on the merits of the motion to disqualify.

I don't have a problem with this, except for the statement "or an appearance of such a conflict."  This appearance of impropriety standard has been abandoned and criticized by other courts; and for good reasons. See here.

For more on the case, go here.

Please help a friend with her research

My colleague Prof. Cynthia Bond is working on a article and she needs your help.  Here is her request:

I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).

To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:

https://www.surveymonkey.com/s/QH3GBZK

Thanks in advance for your time and have a wonderful rest of summer!

Cynthia Bond

The John Marshall Law School

Chicago, IL

Comment on Celgard v. LG Chem, an unusual disqualification case

Over at Justicia.com, Prof. Ronald Rotunda has posted a short comment on Celgard, LLC v. LG Chem, LTD., which he calls "a most unusual lawyer disqualification case" out of the Federal Circuit. 

In Celgard, the Federal Circuit disqualified law firm Jones Day because it was representing Celgard in a patent dispute while it continued to represent Apple in other matters, even though Apple's connection to the case was that it had a business relationship with one of the parties.  

As Prof. Rotunda explains, if one reads Celgard too broadly, it is a potentially dangerous opinion, but there is no need to do that because there is no conflict simply because a law firm represents a client and the result in the case would make it more difficult or more expensive for another client to purchase goods or services.