Report on Utah's public defense system for indigent defendants

On October 26, 2015, the Sixth Amendment Center released a report criticizing Utah’s long-standing, deep-rooted indigent defense system's deficiencies.  Among other things, the report criticizes the lack of state oversight, the fact that prosecutors are in charge of some local indigent defense budgets, and the fact that public defenders have excessive caseloads.  According to the report, more than 62% of all people facing a potential jail term for a misdemeanor charge go through proceedings without counsel. You can read the full report here, and two additional stories on it here and here.  This second story is about changes being proposed by Utah policymakers in the wake of the report.

Should non lawyers be allowed to invest in lawsuits?

Interesting article in the New York Times here.

Thanks to Professional Responsibility: A Contemporary Approach for the link.

D.C. Adopts Screening To Avoid Imputed Disqualification

The Legal Profession blog is reporting that the District of Columbia Court of Appeals has amended its Rules of Professional Conduct to permit screening to avoid imputed disqualification under Rule 1.10.  You can find the language of the new rule in the Legal Profession blog here. I never been a fan of the concept of screening, but that is a lost battle these days since the ABA adopted it for its Model Rules.

ABA and Rocket Lawyer launch on-demand legal advice pilot program

About three weeks ago, the American Bar Association and Rocket Lawyer announced the creation of a pilot program that provides on-demand legal advice for small businesses called ABA Law Connect.  It is currently being tested in Illinois, Pennsylvania and California.  Program users can access Rocket Lawyer’s system to post a legal question online which will be answered by an ABA member-lawyer for a flat rate of $4.95 (a rate that will also include a "follow up question").  According to the press release,  "[t]hose interested in additional legal advice can discuss legal matters further in a lawyer-client relationship."

This initiative is part of the ABA's efforts to improve access to legal services.  The goal is great, but I have a number of concerns about it.  I am, for example, not sure that the statement quoted above about the lawyer-client relationship reflects the basic principles about how an attorney client relationship can be formed.  It seems that it assumes that the $4.95 questions merely creates (or can only create) a prospective client type relationship (regulated under Rule 1.18), but that is not necessarily the case, as anyone who has read Togstad v Vesely or Perez v Kirk & Carrigan knows.  And, as those cases show, the consequences of not understanding this can be significant.  I am also not encouraged by the fact that Rocket Lawyer's website provides its consumers information that is not entirely accurate on the distinction between the attorney-client privilege and the duty of confidentiality. The blog IPethics and INsights was the first one to pick up on the concerns in a post listing some of the issues raised by the pilot program.

The new buzzword in Legal Ethics these days seems to be "innovation" and the ABA is trying to find ways to encourage innovation.  Yet we shouldn't rush to try to be innovative at the risk of creating other problems.  It reminds me of the Direct TV commercial that ends with "... not the way I would have gone, but it is innovative.  And that's what we want around here..."

I have no problem with innovation, or change or new initiatives and I most certainly don't have a problem in trying to find ways to provide access to legal services for people who can't afford them, but whatever is done should be done with a full understanding of the professional responsibility principles involved and of the possible consequences for possible mistakes. 

UPDATE 2-21-16:  In what is an embarrassing turn of events, the ABA has now quietly terminated its partnership with RocketLawyer and dismantled LawConnect.  Go here for the update,

Podcast on new technology

My most recent post was about technical competence.  To continue along that topic, here is a podcast (from the Legal Talk Network) on the 2015 ILTA/InsideLegal Technology Purchasing Survey and the 2015 ABA Legal Technology Survey.  In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss key results from these important legal tech surveys, highlight the most interesting trends, and discuss ways that lawyers can use these results to inform and tailor their technology plans for the coming year. Although both Tom and Dennis agree that lawyers are behind the curve of technological adoption, they see an increased interest in security, big data, information governance, cloud computing, and overall proficiency. In most of these areas, however, they mention that lawyers are not as far progressed as they should be, and both hosts believe that those in the legal profession have become technologically complacent.

Article on Technological Incompetence

A couple of days ago I posted a comment on a new study that shows a vast majority of lawyers may be incompetent when it comes to protecting confidential information sent over the internet.  Today, Lawyerist has a good short article on some of the most important or common issues related to competence related to technology.  It discusses using Google, being efficient, data security, e-discovery and the use of social media as evidence in trials, among others.  Take a look at the article here.

Florida ready to ban attorneys from accepting referrals from for profit non lawyer owned referral services

In 2011, the president of the Florida Bar appointed a special committee to review “whether and to what extent [the bar] can or should directly regulate” for-profit lawyer referral services. The study was prompted by what the bar described as the “dramatic growth” of such entities in recent years, and by “numerous complaints” about the allegedly “misleading nature of their activities.” The committee's final report recommended that the bar's board of governors petition the supreme court for rule changes that would prohibit lawyers from accepting referrals from certain types of referral services. The board eventually adopted less restrictive proposals that wouldn't forbid lawyers to accept referrals. However, at the end of last month, the Florida supreme court rejected the bar's proposals as insufficient. “The dangers that non-lawyer-owned, for-profit referral services pose to members of the public—who may be especially vulnerable after they suffer an injury, or when they face a legal matter that they never anticipated—leads us to conclude that much stricter regulations upon lawyer referral services are required than those proposed by the Bar,” it said.

The ABA/BNA Lawyers Manual on Professional Conduct has the full story at 31 Law. Man. Prof. Conduct 584.  The Legal Profession blog has more here.  Lawyer Ethics Alert Blog has more here.

Critique of Florida Access To Justice Commission's Initial Recommendations

Back in July, the Florida Supreme Court rejected a proposal to improve legal aid funding by increasing annual bar dues by $1000 which would have netted something on the order of $10 million in additional legal aid funding.  At the same time, a newly formed task force called the Florida Commission on Access to Civil Justice was working on recommendations to deal with the issue.

Those recommendations are now available and, at least according to Sam Wright of Above the Law, they are disappointing.  For example, the first one, recommends "support of the continued development of the Statewide Gateway Portal and approval of a pilot project, subject to obtaining adequate funding.”  Huh?  What the heck does that mean?  It appears it is a plea for funding to create a self help website.  Really?  You want to provide access to legal representation because there is no funding, by asking for funding so that people can represent themselves?

The second recommendation is even more precious: to approve the Commission’s adoption of an aspirational goal of 100 percent access to effective assistance for essential civil legal needs.”  Let's see, aspirational goal vs. $10 million in additional legal aid funding...  Tough one!  

Not everything is bad news, though.  One recommendation is to apply some income from class action litigation for financing legal aid. Yet, all in all, the recommendations seem to be weak. Read the details and critique of the rest at Above the Law.

Also, the recommendations do not address another issue under debate in the state.  Maybe the state could do better at providing access to legal representation, if it lowered barriers that prevent lawyers from other states from practicing there.  Yet, just this month, the Florida Bar tabled a proposal to adopt reciprocity or some other form of admission on motion. More on that here.

Follow up on the mess created by Indiana opinion on confidentiality and whether there is a duty to disclose suspected child abuse

A little over a month ago, I reported that the Indiana State Bar Association recently issued a new opinion that concludes that absent client consent an attorney may not report information about suspected child abuse learned during a representation unless the lawyer believes it necessary to prevent reasonably certain death or substantial bodily harm.   As I argued back then, the opinion is wrong because it suggests there is a duty to keep information confidential when the clear text of the applicable rule states a lawyer can disclose it.  Go here to read my original post.

Today, the Chicago Daily Law Bulletin has an article pointing out that "[s]ome child welfare officials say there could be dangerous fallout from an Indiana State Bar Association committee’s opinion that lawyers aren’t bound by a state law requiring anyone who suspects child abuse to immediately report it."  I agree.

The article quotes Sandy Runkle-DeLorme, director of programs at Prevent Child Abuse Indiana, saying "[b]ecause it’s an opinion and not a change in legislation, I hope that people do what they need to do, which is follow the law.”

Sure you always want people to "do the right thing," but here is the problem:  Because of the opinion, lawyers may fear they will be subject to sanctions if they disclose the information (as required by the law and permitted by the professional responsibility rule) because the disciplinary authorities may later determine that the lawyer should have acted according to the conclusion in the opinion.

On the other hand, if the lawyer follows the opinion, he or she could be subject to misdemeanor charges for violating the law.  Damn if you do; damn if you don't.

Thus, oddly, the opinion needlessly puts at risk the safety of both children and attorneys at the same time. 

UPDATE April, 2016:  I wrote an article about this topic and you can see the draft at SSRN.

Ronald Rotunda's most recent column: Regulating Lawyer Advertising When It Is Not Misleading

Back in July, I reported that the Association of Professional Responsibility Lawyers (APRL) had released a comprehensive report in which it argued 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, was the culmination of a two-year study of the ABA Model Rules of Professional Conduct and various state bar approaches to regulating lawyer advertising. Go here for my original post.

Today, Verdict/Justicia published Ronald Rotunda's most recent column in which he reviews the APRL report and discuses other issues related to the debate over the regulation of advertising.