Thursday, December 3, 2015
ABA files brief urging Supreme Court to review case that the ABA contends threatens the attorney work product doctrine
The ABA Journal is reporting that the ABA has filed a brief urging the U.S. Supreme Court to review a decision favoring the Federal Trade Commission in its battle to obtain attorney
documents regarding a drug company’s settlement agreement with a generic
manufacturer, arguing that the appellate decision “opens the floodgates” to disclosure of
attorney work product in government investigations. The ABA's
arguments are summarized in a press release available here. The full brief is available here.
Monday, November 2, 2015
Florida Bar adopts opinion on whether an attorney can advise a client to clean up a social media page in advance of litigation
A few days ago, the Florida Bar’s Board of Governors adopted Ethics Opinion 14-1 (which had been circulated earlier this summer) on whether an attorney may advise a client to “clean up” social media pages (Facebook, Twitter, Instagram etc.) in anticipation of litigation to “remove embarrassing information that the lawyer believes is not material to the litigation matter.” You can read the full opinion, which is very short, here.
The opinion mentions opinions from other jurisdictions on the same question and concludes "that a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence." However, if the information is removed from the social media page, "the social media information or data must be preserved if the information or data is known by the inquirer or reasonably should be known by the inquirer to be relevant to the reasonably foreseeable proceeding"
In the end, what the opinion seems to be saying is that there is a difference between "removing" the evidence from the social media page and "destroying" the evidence. Removing it is simply hiding it, but not destroying it. Also, given the added requirement to preserve the evidence after removal, presumably the evidence will continue to be discoverable.
In other words, what the opinion seems to say is that the client can take something that was public and hide it, but has to preserve it in case the other party in litigation asks for it in discovery, at which point the client may have to produce it.
It seems to me this is not different than the rules that would apply to any other kind of evidence.
The opinion mentions opinions from other jurisdictions on the same question and concludes "that a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence." However, if the information is removed from the social media page, "the social media information or data must be preserved if the information or data is known by the inquirer or reasonably should be known by the inquirer to be relevant to the reasonably foreseeable proceeding"
In the end, what the opinion seems to be saying is that there is a difference between "removing" the evidence from the social media page and "destroying" the evidence. Removing it is simply hiding it, but not destroying it. Also, given the added requirement to preserve the evidence after removal, presumably the evidence will continue to be discoverable.
In other words, what the opinion seems to say is that the client can take something that was public and hide it, but has to preserve it in case the other party in litigation asks for it in discovery, at which point the client may have to produce it.
It seems to me this is not different than the rules that would apply to any other kind of evidence.
Monday, October 26, 2015
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.
Thanks to Professional Responsibility: A Contemporary Approach for the link.
Sunday, October 18, 2015
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,
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.
Wednesday, October 14, 2015
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.
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.
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.
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