Over 900 lawyers sign letter opposing Emil Bove's nomination

 The full story is here.

DOJ's Ex-Ethics Lawyer Speaks Out After Being Fired by Pam Bondi

 DOJ's Ex-Ethics Lawyer Speaks Out After Being Fired by Pam Bondi.  Read the story here.

h/t Renee Knake Jefferson's Legal Ethics Roundup.

More on Pam Bondi

Two new items on Pam Bondi:

First, a new article by Nick Akerman, a former assistant special Watergate prosecutor and a former assistant U.S. attorney in the Southern District of New York:  "Judge Boasberg should appoint a special counsel to investigate Bondi and her DOJ"

Second, here is a copy of an ethics complaint filed in Florida against Bondi.  It is signed by about 70 lawyers, law professors and former judges.  The Florida bar refused to act on it saying the disciplinary agency "does not investigate or prosecute sitting officers appointed under the U.S. Constitution while they are in office."  The Miami Herald has a story on this here.

Attorney General Pam Bondi fires top Justice Department ethics official

Given her track record, it should not surprise anyone that Attorney General Pam Bondi just fired one of the top career officials tasked with advising her and other senior Justice Department officials of their ethical obligations.  Go here for more on the story.

Tips on the rule that prohibits communication with a represented person

 Michael Kennedy, bar counsel for Vermont, has published some helpful tips on the rule that prohibits communication with a represented person here.

Short Guide To Trust Accounting And Three-Way Reconciliation

 Above the Law has a very short reminder of the basis related to trust accounting here.  Go read it for a quick refresher course.

Yet another case of sanctions for relying on AI to write briefs (resulting in cites to cases that do not exist)

Two attorneys who were representing MyPillow CEO Mike Lindell in a defamation case in Denver have been fined $3,000 each as sanctions for submitting an inaccurate, AI-generated brief to the court in April.  Go here for the story.  

Above the Law has more on the story here, arguing the sanction was too low.

NPR has a comment here arguing that the case serves as a stark warning.

ABA Committee releases new Formal Opinion on discrimination in the jury selection process

 The ABA Standing Committee on Ethics and Professional Responsibility has issued  a new Formal Opinion: ABA Formal Ethics Opinion 517 - Discrimination in the Jury Selection Process.  

If you recall, paragraph [5] of the comment to Rule 8.4 states that "[a] trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g)."  For this reason, the opinion attempts to address the following questions: 

Rule 8.4(g) presents two principal questions regarding discriminatory challenges. First, in light of Comment [5], when does a lawyer’s unlawful exercise of peremptory challenges on a discriminatory basis violate Rule 8.4(g)? Second, given the statement that lawyers may engage in legitimate advocacy consistent with the Model Rules, does a lawyer violate Rule 8.4(g) by exercising peremptory challenges on discriminatory bases where not forbidden by other law? 

The opinion then proceeds to address the questions and concludes that Rule 8.4(g) does NOT prohibit a lawyer’s discriminatory but lawful exercises of peremptory challenges, but also that 

A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g). It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. 

You can read the full opinion here. 

How not to practice law, Trump lawyers edition - UPDATED

 It has been a long time since I posted an entry into the long running series of "how not to practice law" featuring stories illustrating dumb things lawyers do that they should know better not to do...  So here we are today with a Trump edition, courtesy of the team of lawyers representing [sic] Trump in a case in Iowa against a pollster.  

In a nutshell, aside from the fact that the case is almost certainly frivolous, the story of the litigation reads like a script for a law related blooper reel.  You can read the details of the story in Above the Law here.

UPDATE, July 6: TechDirt has an update on the lastest details on this developing story here.

How not to practice law: AI edition

After a long absence from the blog today we have the second day in a row with a "how not to practice law' entry!  Today's story features a lawyer using AI hallucinated cases in support of a claim who, when called out on it, then cited more hallucinated cases.  That is bad enough, but the article also focuses on the fact that the trial judge issued an order based on the hallucinated cases... You can read the full story here,

Comment on Puerto Rico's newly adopted rule on technological competence

 As you probably know, paragraph 8 of the comment to Model Rule 1.1 (Competence) states, among other things, that "to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology."  This statement has since been adopted and integrated into the comments of the rules in about 40 states.

Puerto Rico, however, recently adopted new rules (based on a translation of the Model Rules) and the notion of technological competence appears in a specific rule rather than in a comment to the rule on competence.  

In a comment posted in Above the Law, the author argues that "the Puerto Rico Supreme Court came out with a much more realistic and impactful definition of a lawyer’s technological competence obligations than that promulgated by some 40 states" and that "the Puerto Rican rules are a stronger statement about competence and suggest why it is so important."

You can read the full comment here.

Comment on Puerto Rico's newly adopted rule that allows non-lawyers to partially own law firms

 Bob Ambrogi has posted a comment on Puerto Rico's newly adopted rule allowing non-lawyers to partially own Law Firms here.

Trump lawyer Kenneth Chesebro disbarred in NY while John Eastman recommended for disbarment in California

 It has been a while since we have had news about Trump lawyers getting in trouble, but here we are again.  

This week the ABA Journal reported that a panel in California has recommended disbarment for John Eastman: "Ex-Trump lawyer John Eastman has moved another step closer to disbarment, as a unanimous three-judge panel of the State Bar Court of California’s review department affirmed earlier findings that he was culpable of 10 counts of misconduct relating to his representation of President Donald Trump during and after the 2020 election."  For the full story go here.  

Meanwhile, today the Legal Profession Blog and The Hill are reporting that the New York Appellate Division for the Third Judicial Department has disbarred Kenneth Chesebro.  As The Hill reports:

Ex-Trump lawyer Kenneth Chesebro, who helped devise President Trump’s alternate electors strategy in 2020, has been disbarred in New York.

A panel of judges on the Appellate Division — New York’s midlevel appeals court — ruled Thursday that Chesebro’s guilty plea in Georgia’s probe of efforts to subvert the state’s 2020 election results qualifies as a “serious crime,” a finding that begets disciplinary action. 

The panel wrote that Chesebro’s guilty plea on one felony count of conspiracy to commit filing false documents is “unquestionably serious.” 

“On that basis alone, respondent’s conduct brings into question his integrity and fitness to continue engaging in the practice of law in New York,” the decision reads. 

Puerto Rico adopts the Model Rules of Professional Conduct - UPDATED

UPDATE (June 22):  After reading the Puerto Rico Supreme Court's resolution and most of the new rules, I am revising my post from June 19.  The updated version appears below.  I was wrong about one of my initial comments, which I eliminated here, and substituted that (wrong) first impression with a couple of new ones.  I also added a few links.

Here is the updated post:

After decades of work on a new Code of Professional Conduct, two days ago the Puerto Rico Supreme Court announced the adoption of a complete new code to be known as "Reglas de Conducta Profesional de Puerto Rico" (or Puerto Rico Rules of Professional Conduct) based on the ABA Model Rules.

The rules were adopted as a resolution issued by the Supreme Court, which reflects the fact that not all Justices agreed on everything.  One justice issued a lengthy opinion in which he actually dissented on the approval of certain provisions.  Others issued separate opinions in which they also objected to some aspects of the approved rules.  Yet, even though they did not all agree on everything, they all voted to approve the project, so the rules will go into effect in January 2026.  You can read the Court's resolution and the Justices' opinions here.  You can read the new rules in full here.

The rules are indeed a completely new approach to the regulation of the profession in the island which up to now had been mostly based on an antiquated code based on the ABA Canons of 1908.  The rules are a translated version of the Model Rules but they are also are unique in some ways.

Here are my top ten first impressions, in no particular order.  

1.  Rules unique to the practice of law in the island

Because Puerto Rico's legal system is the result of a combination of the Spanish Civil Law tradition and the American Common Law system, there are some peculiarities to the practice of law in the island and these are reflected in the new rules.  In fact, in the Supreme Court resolution adopting the new rules, some of the justices disagreed on how these peculiarities should have been addressed.  The main peculiarity is that, following the Spanish law tradition, only lawyers can be notaries so being a notary is actually a common element of the practice of law.  However, the function of a notary is different than that of a lawyer in that the notary does not really "represent" anyone.  For that reason, the justices were divided on the general question of whether the rules of professional conduct should have included the regulation of the functions of notaries.  At least two of them opined that this topic should have been addressed in a separate set of rules designed specifically to regulate that aspect of the practice of law.  After all, many lawyers choose not to become notaries.  

2. "Lost in Translation"

Although there are some unique rules, and some discrepancies with the original ABA Model Rules, the newly adopted rules are for the most part a literal translation of the ABA Model Rules.  From my first quick reading, I have to say that, for the most part, the translation is accurate, but there are a few instances where it might cause some issues.  For example, the adopted rules often translated the word "shall" in the Model Rules (which was carefully chosen to denote a mandatory duty) with a word in Spanish which is more like "should" which does not necessarily have the same connotation.  I don't think this will be an issue given the clear history of the Model Rules, but the drafters could have been more careful about it.  Also, there is a Model Rule that refers to "material evidence" while the translation refers to "relevant evidence."  These two concepts do not mean the same thing and, again, may or may not result in some confusion.

3. Subtle changes that may or may not have been intended

Maybe because of translation discrepancies -- or maybe not -- there are other instances where the chosen translation results in more significant changes.  For example, Model Rule 1.8(i) is limited to litigation, while the adopted translation omits the word litigation, creating the impression that the rule could apply to any type of representation.  That would make the rule in Puerto Rico much more broad in application than anywhere else.  I suspect this was an inadvertent mistake.  Likewise, while the Model Rule regarding pro bono services suggests a minumum of 50 hours of pro bono sevices per year, the adopted translation simply says "a reasonable number of hours."  It is fair to assume this was a deliberate/intended change and not a mere mistake in translation.  

4.  Civility as a rule

The rules adopt a standard for civility in certain aspects of the practice of the profession that is not present in the Model Rules. See Rule 8.2, for example.

5.  Technological competence

The rules adopt a new rule specifically mandating technological competence.  This is a concept that has been adopted in now a majority of American jurisdictions but it has mostly (if not exclusively) been done as part of the comment to rule 1.1.  In Puerto Rico, it is now an actual rule and it is a mandatory rule. (See Rule 1.19).  For comments on the new rule go here (in Spanish by a UPR Law School Professor) and, in English, to LawSites and Above the Law, here.

6.  Non-lawyer ownership in law firms

Although the new rules copy the Model Rules' ban on sharing fees with non-lawyers, they allow for non lawyers to invest in and, thus, partially "own" shares in law firms as long as that ownershhip does not exceed 49%.  At least one Justice of the Supreme Court dissented on this point and another expressed serious reservations about it.  I might expand on this topic in a separate post, but for a short comment on the new rule (in English), go to LawSites.

7.  The new rules do not fix the problems with Model Rule 8.4(g)

In translating the text of Model Rule 8.4(g), the drafters of the new Puerto Rico rules do not appear to have considered the debate on, and recent cases challenging, the constitutionality of the text of the Model Rule (after it was adopted in several states).  Long time readers of this blog know that I think that, as drafted, the Model Rule is of questionable constitutional validity and that a similar rule has been found to be unsonstitional by at least one court already, while there are cases with similar challenges still pending in other states.  Yet, some states have adopted better versions of the rule that appear to be much better drafted.  The best is probably the version adopted in New York, with the one adopted in Illinois coming in as a close second.  But, in any case, the point here is that the Model Rule is actually not a good model for this rule and that it could have been fixed with some re-drafting as part of the translation.  That was not done and it leaves the door open to a constitutional attack.

8. Missed opportunities

The drafters of the new Puerto Rico rules missed another opportunity to correct poor drafting in the Model Rules in Rule 1.7 regarding conflicts of interest.  Again, given the long hisotry of the Model Rules, I don't think the poor draftmanship will cause a major issue, but I wish it had been corrected.  The problem is that the text of the Model Rule confuses the concepts of a concurrent conflict of interest and a successive conflict of interest.  Model Rule 1.7 should eliminate the words "former client" from section (2), or the words "current clients" from its title and the word "concurrent" from the first paragraph.

9.  The rules finally clarify issues related to lawyer advertising

Although the Puerto Rico Code of Conduct was amended at some point after the US Supreme Court decided Bates, the case law interpreting this area of the law has always been confusing which resulted in a chilling effect on lawyer advertising in the island for many years.  With the adoption of the new rules, this confusion should be clarified.

10. Debate on whether to adopt Model Rule 3.8

While the justice who wrote the long opinion expressing his views on many of the rules stated that a rule to specifically regulate the conduct of prosecutors was "particularly beneficial," another judge argued that the rule should have been rejected because it was an intrusion on the function of the Department of Justice.  I was surprised by this opinion. 

BONUS: The new rules (thankfully) finally abandon the notion of "appearance of impropriety" as a possible basis for discipline.

A lawyer’s duties in response to a data breach

 Over at Ethical Grounds, the unofficial blog of Vermont's bar counsel, Michael Kennedy reminds us of a lawyer’s duties in response to a data breach.

Report on regulatory reform in Arizona and Utah after five years

LawSites has just published a detailed summary of a new report by Stanford Law School’s Deborah L. Rhode Center on the Legal Profession on the state of regulatory reform five years after Arizona and Utah launched groundbreaking reforms to liberalize legal services regulation.  

You can download or read the full report as a pdf document here or you can read LawSites summary here.

Update on the status of the blog

 If you are a long time reader of this blog you will have noticed that I have not posted anything in almost six months and that I posted less frequently than usual in the past couple of years.  The reason for this is that I have been slowly moving toward retirement and that I have started to spend more time on other courses I teach and on projects that I want to pay attention to in the near future.

I have been posting my comments here for more than 15 years which is longer than the average lifespan of most blogs.  Now it is time for me to start to cut back a little and manage my time more efficiently.  I will continue to post commentary from time to time but, more than likely, not very frequently.  

I started this blog as a way to provide my students access to stories from the news related to what we cover in class, but which we did not have time to discuss in the classroom.  Essentially, it was meant to provide supplementary readings.  Slowly but surely, however, people other than my students started to pay attention and eventually I had more “outside” readers than students following the posts.  

I want to thank each and every one of you for following the blog, reading the stories, and for sending me materials to comment on and messages of support and criticism. 

New article on SSRN

Professor Stacie Strong recently posted an article on SSRN which may be of interest to some of you.  It is called Pro Bono Publico Versus Pro Bono Presidential. Its abstract reads 

In March and April 2025, the Trump administration issued a series of executive orders directed at various law firms that had represented clients or undertaken actions with which the president disagreed. Those executive orders imposed various sanctions capable of destroying the firms financially. The administration also threatened a number of other law firms with similar types of executive orders.

While a few law firms chose to challenge the executive orders in court, the majority of firms targeted by the president entered into informal settlement agreements whereby the firms promised to provide between $40 million and $125 million worth of free “pro bono legal services” to causes supported by the president. In return, the president either revoked any sanction-containing executive orders or withheld from issuing such orders.

This Essay considers the propriety of these pro bono agreements from several perspectives. First, this Essay considers the voluntary nature of pro bono and examines the propriety of the executive branch coercing private lawyers to accede to particular pro bono obligations. Second, this Essay discusses the nature of pro bono activities as a means of assisting indigent individuals and considers whether presidential efforts to direct how private law firms fulfill their pro bono obligations constitute an improper privatization of the executive branch’s policy goals, particularly given presidential cuts to and curtailment of conventional public means of fulfilling those policy goals. Third, this Essay considers whether and to what extent the executive orders and settlement agreements discussed herein violate hard or soft principles of international law. The Essay concludes with brief suggestions about how to proceed going forward.

Court of Appeals for Second Circuit holds lawyers have standing to challenge Connecticut's version of Rule 8.4(g)

 In a highly anticipated decision, the Court of Appeals for the Second Circuit recently ruled that the plaintiffs-lawyers have standing to challenge the constitutionality of a state rule similar to Model Rule 8.4(g).  The case is called Cerame v. Slack and you can read the opinion here. 

As you probably know, the opinion originated in a challenge to the rule in Connecticut which was dismissed on standing grounds by the lower court.  This opinion reverses that ruling which means that the case will be remanded.

The opinion reaches the opposite position reached by the Court of Appeals for the 3rd Circuit in 2023 in Greenberg v. Lehocky, in which the court held the plaintiff did not have standing to challenge the rule in Pennsylvania.  In that case, the lower court had declared the rule unconstitutional.  

The only other case I know of on the subject is called In the Matter of Adams, in which the Colorado Supreme Court decided on the merits that Colorado's version of the rule is constitutional.  

Long time readers of this blog know that I have argued repeatedly that, as drafted, the Model Rule is of questionable constitutional validity; but also that at least a couple of states have done a good job of rewriting the rule to fix the most glaring problems -- New York and Illinois among them.

If you are interested in this topic, click on this link and you will see my posts on this topic in reverse chronological order (ie, the most recent on top).  

For more on Cerame v Slack go to The Legal Profession Blog, The Volokh Conspiracy, and Courthouse News Service.

One year suspension for tax evasion

 Cases involving discipline for attorneys engaged in tax evasion or tax fraud are not uncommon.  However, the decisions vary considerably when it comes to the sanctions imposed.  So, in case you are doing some research on the inconsistent treatment of this issue among jurisdictions, here is the latest I have seen on it.  The Legal Profession Blog is reporting on a case from New York in which the court imposed a one year suspension for, among other things, failiong to file state and federal income tax returns for the preceding eight years and to pay his state and federal tax liabilities.  You can read more about it here.

Comment on recent ABA Opinion on generative AI

 Back in July I posted that the ABA had recently issued an ethics opinion on generative Ai and the practice of law. I am writing about it again today to let you know that just recently The Law for Lawyers Today published a comment on the opinion here.

Ex-Wisconsin supreme court justice who led investigation into 2020 election slapped with professional misconduct charges

 Read the full story here.

Rudy Giuliani's lawyers call it quits

 Well that took longer than I expected but it is not surprising.  Rudy Giuliani's lawyers have been trying to cover for his obvious attempts to avoid complying with court orders for a while and now that the judge finally threatened issuing an order for contempt of court, the lawyers apparently decided it was not worth to stick their necks out for their delinquent client.  

The specific reason or reasons for the two lawyers’ requested withdrawals aren’t fully clear because the court filing asking for withdrawal is partially redacted, but the lawyer's cited a rule equivalent to Model Rule 1.16(b)(4) which states that a lawyer may withdraw when the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement and another local rule that states that the lawyer can withdraw when the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively.  

I assume these allegations are based on the fact that Giuliani tried to hide assets and kept avoiding complying with court orders. And let's not forget that he lost the defamation case because he refused to comply with discovery in the first place...

You can read more about the adventure it is to represent a client like Rudy and why it is better to step away from him here: 

The Hill

Law & Crime

MSNBC

Above the Law

By the end of the week, Giuliani had found a new lawyer and relinquished some of his property as obligated by the court's order.  The Guardian has that part of the story here.

Utah considers plan to allow law graduates to practice without having to take the bar exam

Above the Law is reporting (here) that the Utah Supreme Court recently released a plan to allow graduates of American Bar Association-accredited law schools to practice in the state after completing 240 hours of practice under the supervision of an experienced attorney, along with other requirements.  This would open the door for graduates to avoid taking the bar exam.  The ABA Journal has more on the story (and some links) here.

Another Trump lawyer is suspended for conduct related to attempt to interfere with 2020 election

A panel of judges on the New York Appellate Division — New York’s midlevel appeals court — ruled Thursday that Ken Chesebro is barred from practicing law in the state, “effective immediately,” following his guilty plea in Georgia’s 2020 election interference case against former President Trump and his allies.

For more on the story go to The Hill. Law & Crime, Courthouse News Service and MSNBC.

Indiana Supreme Court follows Utah's example and approves funding for regulatory sandbox program to allow alternative business structures

 Earlier this month, the Indiana Supreme Court approved funding for a regulatory sandbox program to develop alternative legal services models.  The Court’s order is based on a recommendation from the Commission on Indiana’s Legal Future which the Indiana Supreme Court had created in April 2024.

The Commission recommended that Indiana’s regulatory sandbox be structured like Utah’s Office of Legal Services Innovation (Innovation Office). Utah’s Innovation Office was established by the Utah Supreme Court in 2020 to ensure consumers have access to modern and affordable legal services in a competitive marketplace.

New Jersey to allow disbarred lawyers to apply for reinstatement after five years

What is the worst type of (or highest level of) discipline?   If you thought "disbarment" you would be wrong.  The correct answer is permanent disbarment, because in most jurisdictions disbarred lawyers can be reinstated after a period of time.  

And last week, New Jersey decided to join that majority of jurisdictions.  As reported in the ABA Journal, according to a recent order of the state's supreme court "New Jersey lawyers who are disbarred will in most cases be allowed to apply for reinstatement after five years."  New Jersey now joins 41 other states and the District of Columbia in allowing disbarred attorneys to seek readmission. 

Having said that, the NJ supreme court retained the authority to impose permanent disbarment in future egregious cases and to block successive applications for reinstatement for particular attorneys on a case by case basis.  

How not to practice law: store 1000 pounds of marijuana In your law office

 Do I need to explain?  I hope not.  For more on the story, go here and here.

Michael Kennedy, Vermont Bar Counsel, has a comment on the story here.

Illinois Commission on Professionalism Releases Study on Bullying in the Legal Profession

The Illinois Supreme Court's Commission on Professionalism has released a study on bullying within the profession.  Not surprisingly (since the study is about bullying), the study concludes that bullying disproportionately affects female attorneys, attorneys with disabilities, attorneys of color, younger attorneys, and LGBTQ+ attorneys.

Illinois Lawyer Now has a short summary of the study here, and you can read the full study here.

DoNotPay now has to pay because of its claims about its non-existent AI lawyer

 Do you remember last year's stories about "DoNotPay," a company that claimed to have the "world's first robot lawyer"?   In case you don't, this was a company that claimed to offer legal services using a "robot lawyer" (aka "AI technology).  It made a lot of claims about the services it could provide, only it was revealed to be all smoke and mirrors.  I reported on the story throughout 2023 on  January 29, February 14, February 16, March 4, March 10, and March 17.

The story has made it back to the headlines of the week because on Wednesday, the FTC announced actions taken against five different companies making misleading claims about AI, including DoNotPay.  

In reply, DoNotPay as agreed to pay $193,000 to settle Federal Trade Commission allegations.  Besides paying the $193,000, DoNotPay agreed to refrain from making claims about its ability to substitute for legal services without evidence to support them.  

TechDirt has more details on this latest chapter on the DoNotPay saga here.  The ABA Journal has more on the settlement here.

Legal Rebels podcast on "the future of licensed paraprofessionals"

Long time readers of this blog are familiar with the trend in some jurisdictions to allow certain legal professionals who are not admitted lawyers to provide limited legal services.  A recent podcast of the ABA "legal rebels" page addressed the subject.  Its introduction reads as follows:

Much has been made of the gigantic access-to-justice gap in this country. According to a 2022 study by the Legal Services Corp., 92% of Americans do not receive any or enough help for a civil legal need. There are many reasons for this.

Lawyers can be expensive. People might not realize that they need lawyers. And let’s face it, lawyers are not the most likable or trustworthy people out there. We may not be used car salesmen or members of Congress, but we’re definitely in the neighborhood.

One possible way to help bridge the gap is to expand the pool of people eligible to practice law. Some states have experimented with licensing paralegals or paraprofessionals to handle limited legal matters. In recent years, states including Arizona, Utah, Minnesota and Oregon have started programs allowing paraprofessionals to practice limited areas of law under supervision or after many hours of training.

Of course, that raises age-old concerns about unauthorized practice of law. Those concerns have already helped derail one paraprofessional licensing program in Washington. Could they help take down some more?

In this episode the Legal Rebels Podcast, Eda Rosa talks about licensing paraprofessionals to perform legal tasks, as well as the importance of paralegals and paraprofessionals to the legal profession, with the ABA Journal’s Victor Li. She runs Eda Rosa LLC, a paralegal service and legal professional development training company and hosts the Let’s Talk Paralegal podcast.

You can listen to the full podcast here.  It is about 40 minutes long.

Rudy Giuliani is now officially disbarred in Washington DC

 In a move that was very slow in coming, but that could not possible have surprised anyone, Rudy Giuliani has been officially and permanently disbarred in Washington DC. You can read the one page decision here.  For more on the story, here are a few sources:

Courthouse News Service

Politico

The Legal Profession Blog

Law & Crime

The Hill

MSNBC

TechDirt

Above the Law has a good, short, account of how Giuliani ended up here (from his failed presidential run, to his unfulfilled hopes of joining the Trump administration, to becoming Trump's personal attorney, to his downfall, and, more than likely, upcoming bankruptcy) and explains the DC result as follows:

Yesterday, Rudy Giuliani got disbarred. Again. And in the most Rudy Giuliani way possible.

In a one-page order, the DC Court of Appeals noted that it had ordered him on July 25 “to show cause why reciprocal discipline should not be imposed” after America’s erstwhile Mayor was relieved of his license to practice law in the state of New York. Giuliani was apparently preoccupied stumbling into and out of bankruptcy and generally flopping around the federal docket like a beached orca as he desperately attempts to fend off the $148 million judgment in favor of Ruby Freeman and Shaye Moss, the Atlanta poll workers he defamed. And so Rudy just didn’t bother to respond to the show cause order.

Under local precedent, “The imposition of identical discipline when the respondent fails to object should be close to automatic, with minimum review by both the Board and this court.”

And so, not having replied to the order, the court proceeded to disbar him.   

Nevada Supreme Court Approves Plan to Develop Alternative Attorney Licensing Path

Recently, the Nevada Supreme Court approved plans to proceed with the development of an alternative pathway for attorney licensing in the state that does not include the traditional national bar exam.  Go here for the full story.

ABA Ethics in 10 Podcast on Model Rule 8.4(g)

 A few weeks ago I discovered the ABA podcast "Ethics in 10" which features 10 minutes (or so) reviews of specific concepts in Professional Responsibility.  The most recent program was a review of Model Rule 8.4(g).  Long time readers of this blog know that I have posted a lot about MR 8.4(g), and that I have expressed my doubts about its text for many reasons.  This podcast simply explains what the rule says, what its goal was when adopted and goes over its background and history.  The speaker does not go into the debate over the rule's content or its possible unconstitutionality when applied to speech. For some of that discussion, go to the section on Model Rule 8.4(g) on this blog and read the many stories and comments I have posted over the years.  

Washington State Bar proposal to allow non-lawyer owned entities to provide some legal services in the state

The Washington State Bar Association and a board created by the Washington Supreme Court have presented a proposal that, if approved by the Washington Supreme Court, would allow nonlawyer-owned entities to deliver legal services.

If the Washington Supreme Court gives its approval, nonlawyer entities could apply to offer legal services temporarily under an exemption to rules banning the unlicensed practice of law, according to a summary (here) on the Washington State Bar Association’s website.

The ABA Journal has more on the story here.

ABA Podcasts "Ethics in 10" on representing entity clients

 Every now and then, the ABA Center for Professional Responsibility releases a podcast called "Ethics in 10" in which a moderator discusses a specific Model Rule for about 10 minutes.  These podcasts provide a short basic review of the content of the rules and a short reminder of common issues that arise in their interpretation.  

The most recent instalment is on Model Rule 1.13 on representation of entity clients.  The discussion is very basic, but it is is what it is.  You can listen to the presentation here.

ABA issues new opinion on duty to investigate circumstances related to the representation

 Yesterday - August 23, 2024 - the ABA’s Standing Committee on Ethics and Professional Responsibility issued a new Formal Ethics Opinion (number 513) on an attorney’s duty to inquire into and assess the facts and circumstances of the representation.  The summary reads as follows

As recently revised, Model Rule 1.16(a) provides that: “A lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation.” To reduce the risk of counseling or assisting a crime or fraud, some level of inquiry and assessment is required before undertaking each representation. Further inquiry and assessment is required when the lawyer becomes aware of a change in the facts and circumstances relating to the representation that raises questions about whether the client is using the lawyer’s services to commit or further a crime or fraud.  The lawyer’s inquiry and assessment will be informed by the nature and extent of the risk that the current or prospective client seeks to use, or persists in using, the lawyer’s services to commit or further a crime or fraud. If after having conducted a reasonable, risk-based inquiry, the lawyer determines that the representation is unlikely to involve assisting in a crime or fraud, the lawyer may undertake or continue the representation. If the lawyer has “actual knowledge” that the lawyer’s services will be used to commit or further criminal or fraudulent activity, the lawyer must decline or withdraw from the representation.  When the lawyer’s initial inquiry leaves the lawyer with unresolved questions of fact about whether the current or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, the lawyer must make additional efforts to resolve those questions through further reasonable inquiry before accepting or continuing the representation. The lawyer need not resolve all doubts. Rather, if some doubt remains even after the lawyer has conducted a reasonable inquiry, the lawyer may proceed with the representation as long as the lawyer concludes that doing so is unlikely to involve assisting or furthering a crime or fraud. 

You can read the full opinion here.

Breaking Down the ABA’s Guidance on Using Generative AI in Legal Practice

A recent article breaking Down the ABA’s guidance on using generative AI in legal practice is available here.

Two recent decisions reiterate the ABA's approach to flat fees paid in advance

 Last May I wrote a comment on an ABA Formal Ethics Opinion on flat fees which concluded that flat fees paid in advance should be considered client funds and, therefore, should be held in a trust account until earned.  In my comment I explained why I think this is the correct view even though there is some debate about it among some jurisdictions.  You can read my comment here. 

I am writing about this topic again today because of two interesting recent opinions, one from California and one from the District of Columbia.  

In In re Alexei, ___ A.3d ___ (D.C. Ct. of Appeals 2024), 2024 WL 3611154, (available here) the court held that flat fees paid in advance are unearned until the legal services they are supposed to pay for are completed.  As such, even though the attorney may have possession of the fees, the attorney does not have ownership and, thus, the fees property of the client until the fees are actually earned.  If an attorney removes the unearned fees from their trust account, the attorney may violate Rule 1.15(a).  The court also held that the fees are actually earned only upon completion of the entirety of the solicited services unless the fee agreement specifies otherwise.

Importantly, the court rejected the notion that a flat fee paid in advance should be considered earned upon payment because if a client consent could change when a fee is actually earned, it would not be true that a lawyer can’t earn a fee for doing nothing because a client could consent to an arrangement whereby the lawyer earns a fee upfront before actually performing any work for the client.  Also, allowing a lawyers and clients to “deem earned” fees that are not earned yet goes against the intent of the rules that mandate safekeeping of property.   

Having said that however, the court recognized that attorneys could depart from the default rule by either (1) specifying in the agreement for services when and how portions of the flat fee are earned or (2) obtaining informed consent from the client to treat unearned fees as their attorney property.

Notice how this second option contradicts the policy upon which the court based its decision to reject the notion that a flat fee paid in advance should be considered to be earned upon payment.  In fact, the court essentially says that the attorney can negotiate with the client to have the client agree to do something the court has decided could result in a violation of the rules.  This makes little sense, and I explore that topic in a forthcoming article called Advanced Magic in Illinois: Amendments to the Illinois Rules of Professional Conduct and the Confusion Over How to Handle Flat Fees Paid in Advance, 56 Loy. U. Chi. L.J. ___ (2024).

The second recent case addresses the question of whether a client’s creditor may seize funds held in trust pursuant to a flat fee agreement and concludes that, logically, the answer is yes if the fee held in trust has not been earned yet.  The case is Dickson v. Mann, Super Ct. No. 37-2021-00042299-PR-TR-CTL (July 16, 2024), available here.  

The court held, correctly, that “a flat fee paid by a client to a lawyer for future legal services does not belong to the lawyer until the fee is earned through the actual provision of legal services” and since the firm presented no evidence that it had performed any legal services yet the flat fee funds still belonged to the client at the time the creditor filed the notice of seizure. Accordingly, the court ordered the firm to produce the funds for seizure by the creditor.

Harvard Law Review blog essay on judicial ethics for the Supreme Court

The Harvard Law Review has published a very short blog essay titled "Enforceable Ethics for the Supreme Court" on the recent discussion about the need for an, you guessed it, enforceable code of ethics for the Justices of the Supreme Court.  You can read it here. 

Texas Supreme Court Preliminarily Approves Delivery of Legal Services by Licensed Paraprofessionals and Court-Access Assistants

 A couple of days ago I posted that Washington is considering a proposal to allow alternative business structures for the practice of law.  In a related matter, now comes news that the Texas Supreme Court has preliminarily approved the delivery of legal services by licensed paralegals and other non-lawyer approved professionals.  This is part of a trend that has been (very slowly) developing among various jurisdictions.  Recently, New Hampshire expanded its program.  See here.

Go here for more on the story.

A DC Hearing Committee proposes a two year suspension for Jeffrey Clark

Back in April I reported that a disciplinary panel in Washington DC had held that Jeffrey Clark had violated the rules of professional conduct.  See here.  

Now comes news that the Hearing Committee Report in the Jeffrey Clark District of Columbia bar discipline matter matter has been released and that it proposes a two year suspension.  You can read more about the story here, here and here.  You can read the 213 page opinion here.

Reportedly, Clark is seeking to review the decision.  See here.

Washington considering following Utah and Arizona in allowing "alternative business structures" for the practice of law

As posted in the Washington Bar Association's website:  

As proposed, the pilot program on entity regulation would allow entities to provide legal and law-related services in Washington under time-bound, limited exemptions from the otherwise applicable rules and statutes governing entities practicing law. If approved by the Court, among U.S. jurisdictions, Washington would follow only Utah and Arizona in executing a plan to determine how the delivery of legal services by entities can be regulated in a manner that protects consumers and promotes broader access to legal services. Under the proposal, participating entities would be required to abide by a Supreme Court authorizing order detailing conditions on their participation, including adherence to rules of ethics and regular reporting of data and information relating to their delivery of services to the public.

You can provide feedback to the WSBA and Practice of Law Board during the next Board of Governors meeting Sept. 6-7 or via email at entityregulationpilot@wsba.org.

Go here for more information.

Hunter Biden’s law license suspended in DC following gun conviction -- UPDATED

June 29, 2024

 It is never surprising to hear that a lawyer's license is suspended following a conviction, but that usually happens as a decision on the merits in a case for discipline.  As reported by The Hill, however, Hunter Biden's license has been suspended pending the proceeding.  This means that the suspension is an interim suspension, until it is decided whether he will be disciplined.  Although interim suspensions of this type are not unheard of (that is what was imposed on Rudy Giuliani in New York, for example), they are not that common.  Usually, lawyers are allowed to continue to practice until a disciplinary proceeding is decided.  The Hill has to full story here.

UPDATE 8/5/24: Hunter Biden's lawyers reply to the court's order to show cause.  Here is the full story.

ABA issues Formal Opinion on Generative Artificial Intelligence Tools -- UPDATED

July 29, 2024

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new formal ethics opinion (ABA Formal Ethics Opinion 512) on ethical duties related to the use of generative artificial intelligence tools.  The summary states: 

To ensure clients are protected, lawyers using generative artificial intelligence tools must fully consider their applicable ethical obligations, including their duties to provide competent legal representation, to protect client information, to communicate with clients, to supervise their employees and agents, to advance only meritorious claims and contentions, to ensure candor toward the tribunal, and to charge reasonable fees.

You can access the full opinion here. 

UPDATE 8/5/24:  Here are a couple of comments on the new Ethics Opinion:

LawSites

Ethical Grounds

Judge threatens to sanction Hunter Biden’s attorneys for what the judge called "false statements"

The Hill is reporting that a federal judge threatened to sanction Hunter Biden’s attorneys for making “false statements” in their motion asking to dismiss his criminal charges in California.  Go here for the full story.

Illinois Supreme Court Amends Rules 8.4(j) and 5.1 Addressing Harassment and Discrimination

About a month and a half ago I reported that Illinois had finally adopted a version of Model Rule 8.4(g).  See here.  Illinois Lawyer Now has more on the story here.

Federal prosecutor accused of withholding evidence in Trump protest cases

The Washington D.C. Office of Disciplinary Counsel (ODC) has accused a former federal prosecutor who oversaw more than 200 cases related to protests of former President Trump’s 2017 inauguration of withholding evidence and of attempting to edit or obscure video evidence used against the defendants that otherwise could have been used to clear them of criminal charges.  The Hill has more on the case here.

New trial ordered for criminal defendant after attorney failed to provide effective assistance of counsel and failed to seek to suppress evidence

 Here is an interesting fact scenario.  A criminal defense lawyer does not effectively represent a suspect during a police interview, and the police obtains information useful to the prosecution.  The lawyer then realizes that he should try to fix the problem but doing so would require him to file to suppress evidence from that interview on grounds of ineffective assistance of counsel.  But this would mean the lawyer has to admit their own ineffective assistance which would be self-incriminating (and would probably require the lawyer to testify in a fact finding hearing).  So the lawyer does not file to suppress the evidence and continues to represent the defendant.  After the defendant is convicted, represented by a different lawyer, the defendant asks for the conviction to be overturned.  What should the court do?

In a recent case with similar facts, the Massachusetts Supreme Court upheld an order for a new trial. Go here to read about the case and access a link to the opinion.  The Legal Profession Blog has a summary and some key passages here.

How not to practice law: commit voter fraud

A Trump supporter lawyer who was convicted of two counts of election fraud, based upon evidence establishing that he had voted in both Florida and in Ohio in the 2020 presidential election as well as in the 2022 general election and who was later suspended from the practice of law in both Ohio and Florida, was more recently disbarred in New York.  For more on the case, go to the Legal Profession Blog here.

Judge dismisses Rudy Giuliani’s bankruptcy proceeding

July 12, 2024

Bankruptcy Judge Sean Lane has dismissed Rudy Giuliani’s Chapter 11 bankruptcy, removing a shield that for six months froze two Georgia election workers’ efforts to collect their $148 million defamation judgment. In the ruling (available here), the judge commented on Giuliani’s “continued failure” to provide financial transparency. 

Giuliani's case involves the interests of the two Georgia election workers who won a defamation claim against him, in addition to those of Dominion Voting Systems, and Giuliani’s former assistant Noelle Dunphy. The latter two have pending lawsuits, while the Georgia workers have an enforceable judgment for many times the value of Giuliani’s assets. 

Because they’re not all going to get the money they seek from Giuliani, the ones with perfected claims would like to attach all his assets now.  Dominion and Dunphy have argued that the case should remain as a Chapter 11 bankruptcy claim, while the Freeman plaintiffs urged the court to dismiss the case entirely.

And that is exactly what the judge did, leaving [for the moment] nothing for Dominion, whose defamation suit is still in discovery, or for Dunphy, who is suing Giuliani in state court for assault and various labor violations. Of course those parties would prefer that the court retain jurisdiction and adjudicate their claims while a Chapter 11 trustee babysits the debtor to ensure he doesn’t loot the estate.  I imagine appeals will follow.

For more on the story you can check:

The Hill 

Above the Law

MSNBC

Law & Crime (‘Continued failure’: Rudy Giuliani has bankruptcy case dismissed by angry judge who points out numerous ‘troubling’ discovery violations)

Courthouse News Service (Judge chides Rudy Giuliani for ‘troubling’ conduct, tosses NY bankruptcy case)

The Guardian

Above the Law (Rudy Giuliani Falls Ass Backwards Out Of Bankruptcy)

Jurist

Brady violation allegation leads to dismissal in case against Alec Baldwin

As reported in The Guardian (here), "Alec Baldwin’s involuntary manslaughter trial came to a dramatic end on Friday, after a New Mexico judge dismissed the case against the actor and found that the state had improperly withheld evidence related to how live rounds of ammunition ended up on the film set where the cinematographer Halyna Hutchins was fatally shot.  Just days after courtroom proceedings had begun, Judge Mary Marlowe Sommer ruled in favor of the defense and agreed that the charges against Baldwin should be dropped, finding that the state had concealed evidence that would have been favorable to the actor. The dismissal, made with prejudice, puts an end to the involuntary manslaughter case against Baldwin."

Law & Crime has more on the story here.  According to this account, the motions hearing "eventually spiraled into something like a Russian nesting doll of discovery violations" and near the end of the hearing it was revealed that the "first chair" prosecutor — the one who gave the prosecution’s opening statement during the trial — had resigned.

Now the question is whether the prosecutor(s) will have to face discipline for their conduct.  I guess we will have to wait and see.  

MSNBC has more on the story here.

New Hampshire expands the program that allows non-laywers paraprofessionals to provide some legal services

 Long time readers of this blog may remember old posts about how some states have slowly approved regulation to allow “non-lawyer professionals” to provide legal services.  The terminology used to describe the professionals and the types of services varies quite a bit, but the idea is to allow certain trained professionals who are not admitted to the practice of law to provide some services that would otherwise be considered to be exclusively reserved for lawyers.  Obviously, the idea is to provide more (and perhaps less expensive) access to legal representation given that studies have always shown that there is a need for such access.

The success of these programs has also varied, with at least one eventually being abandoned, but that would be the subject of a different conversation.

I am writing today to report that, as of last month, New Hampshire extended such a program for another five years and expanded the “jurisdiction” of the professionals allowed to participate in it to include all state Circuit Courts.  Eligible paralegals under the program may appear in cases related to family law, domestic violence, stalking orders of protection, and landlord-tenant cases.  The new statutory language can be found in the New Hampshire Statutes, Title XXX: Occupations and Professions, Chapter 311 (Attorneys and Counselors), Section 311:2a (Legal Services by Paraprofessionals).  You can find a link to the section here, although as of the time of this post, the section’s language has not been updated with the newly approved statute.  The original statute (as of now) is here.  It is possible that some time soon you will be able to use this same link to see the new language, but as of now this link takes you to the statute that went into effect in 2023.  If you want the new version, look for the language adopted in June 2024.

Thank you very much to Jonathan Teller-Elsberg for the update!

Rudy Giuliani is, finally and officially, disbarred in New York

In a move that I suspect surprised no one, Rudy Giuliani was been disbarred in New York.  You can read the full order here.  It concludes, in part that, 

Contrary to respondent’s allegations, there is nothing on the record before us that would permit the conclusion that respondent lacked knowledge of the falsehood of the numerous statements that he made, and that he had a good faith basis to believe them to be true. On the contrary, as the Referee properly found, the 16 acts of falsehoods carried out by respondent were deliberate and constituted a transparent pattern of conduct intended and designed to deceive. More specifically, as the Referee aptly described, respondent “told numerous lies in the numerous forums all designed to create distrust of the elective system of our country in the minds of the citizens and to destroy their confidence in the legitimacy of our government.” Undeterred, respondent went as far as to attempt to deceive this tribunal by his numerous inconsistent statements before the Referee and the AGC.

 As you probably recall, Giuliani was suspended from practice in New York in 2021 pending his disciplinary proceeding (see here) and later recommended for disbarment in Washington Dc (see here).  The proceeding took a long time to unfold in New York but the decision was finally announced this week.  

For all my posts about the claims against Giuliani, go here.

You can read coverage and commentary about the disbarment in New York, here:

The Hill, Politico, Law & Crime, Courthouse News Service, MSNBC, The Legal Profession Blog

UPDATE July 12, 2024:  Giuliani's hearing to determine if he should be disbarred in Washington DC was held recently.  For a report, go to Law & Crime, here.

Emerging Trends in Legal Tech

 The Legal Talk Network has a new article with links to podcasts on emerging trends in legal tech here.

New article on the changing landscape of the regulation of the profession

Over at Jotwell, Nora Freeman Engstrom has posted a short review of a new article by Lucian Pera called Ethics, Lawyering, and Regulation in a Time of Great Change: Field Notes from the (R)evolution, 74 S.C. L. Rev. 801 (2023).  As she points out, the article 

"depicts a profession caught in a storm of transformation, both driven by—and driving—the “twin factors” of economic and regulatory change. In the midst of this rapidly shifting environment, and as some states (most notably, Utah and Arizona) relax their legal practice regulations while most others cling to the traditional rules, the two modes of regulation will invariably collide. In a timely and accessible piece, Pera maps this collision, unearths under-explored complexities, and offers tentative thoughts on a possible path forward."

You can read the review here.

You can read the full article here.

New Legal Ethics Opinion Cautions Lawyers: You ‘Must Be Proficient’ In the Use of Generative AI

 As I am sure you know by now, the ABA amended the comment to Model Rule 1.1 some years ago to include a new paragraph [8] that says "To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject."

And thus the duty to be competent about "technology" was born.  Now adopted by a majority of jurisdictions, as the comment says, lawyers have a duty to learn about and to stay up to date with developments in "technology" that relates to the practice of law.  

Accordingly, there are a number of ethics opinions out there on this matter and LawSites is now reporting (here) on a new one specifically on the use of generative AI.  

The opinion was issued by the Pennsylvania Bar Association and Philadelphia Bar Association and it makes one point very clear: lawyers are required to maintain competence across all technological means relevant to their practices, and that includes the use of generative AI.

You can read the opinion here.

How not to practice law: Show up drunk to your hearing on drunk driving

 Here is the latest in our "how not to practice law" series.  As reported in Law & Crime, the Colorado disciplinary board recently suspended an attorney’s law license for six months after she pleaded guilty to her third DUI charge in 18 months — and she reportedly showed up drunk to her sentencing.  You can read more about the story here.

New Podcast and Video Vignettes

 The ABA recently posted a new podcast on issues related to Model Rule 1.9 (on duties owed to former clients.  You can listen to it here.

Meanwhile, for those of you who like to use video "vignettes" when teaching Professional Responsibility, there is a new collection produced by Scalia Law School.  If you are interested, here is some information about the project.  You can access the vignettes here.

Former Trump campaign lawyer Jenna Ellis is back in the news, this time for facing charges in Arizona

 The last time we heard from former Trump campaign lawyer Jenna Ellis she had just been suspended for 3 years for conviction related to her role in the attempt to overturn the 2020 presidential election.  See here.

She is back in the news today, this time for pleading not-guilty to forgery, fraud and conspiracy charges related to alleged efforts to overturn the 2020 election results in Arizona.  See here.

On the duty to inform another party of the fact that the other party inadvertently disclosed documents... and more

 Suppose Lawyer A is in litigation and, in response to a request for documents, opposing counsel (Lawyer B) sends a link to a file stored in a service like Dropbox.*  When Lawyer A opens the file using the link, he or she discovers the link provides access to B's client's documents which were not expected to be disclosed and are likely to be considered confidential.

This is what happened in a recent case in New York called Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC (May 30, 2024), in which the lower court determined that Lawyer A was required to notify Lawyer B that the link contained folders that "counsel knew or should have known were confidential or privileged."  The court imposed a sanction on defendants and their counsel for accessing and downloading the folders from Dropbox.

The order was affirmed in an opinion (available here) that is about seven sentences long.  It cites, among other things, NY's rule 4.4(b) which is based on the equivalent Model Rule which states that "[a] lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender."  

So, going back to our initial question:  in those circumstances, Lawyer A had a duty to inform Lawyer B that Lawyer B had inadvertently disclosed documents.  That much is clear.  But nothing else is, and the incident raises a number of interesting question not addressed by the court.

First of all, why does the court refer to the documents as privileged?  The court refers to the documents in question as "corporate files."  What were these documents?  If they were corporate records that the client gave the lawyer to store, there is no reason to believe that they are protected by the attorney-client privilege, so calling them so would be a mistake.  But I am willing to proceed on the assumption that even if not privileged, they could be considered confidential.

Next, in addition to the duty to inform the other side of their mistake, did Lawyer A have a duty to delete the link immediately or could Lawyer A have looked at the documents to confirm they were privileged before doing anything else?  The rule does not address that, and the comment to the Model Rule explicitly states that the rule does attempt to decide whether the lawyer who receives the information has a duty to return (or in this case delete) the document (or link to it). 

The court's opinion suggests that the lawyer had a duty "to sequester the inadvertently disclosed files" (which I guess means the lawyer could keep them but not look at them) but the court does not cite anything in support of this suggestion.

And then there are the questions related to the conduct of the lawyer who sent the link to begin with, which the court does not discuss.  It can be argued that this lawyer violated their duty of confidentiality and their duty of competence by disclosing protected information by mistake.  Could the lawyer be subject to discipline for this?  In theory, Yes; absolutely.  But. as you know, the reality is that an isolated act of negligence will not likely lead to discipline.  

Could the lawyer be liable in tort for negligence?  Again, in theory yes since the conduct is clearly a breach of duty, but whether there is an actionable cause of action depends on whether the conduct caused an injury and it does not sound that that was the case in this instance.  Lucky for the lawyer!

 I am willing to bet that the ABA has issued an ethics opinion exploring some of the issues that arise out of a situation like this and the application of a rule like Model Rule 4.4(b) but I have not searched for it.

________________

* If you don't know what Dropbox is, this post is for you because you may be in violation of the rule regarding competence since competence requires you to at least "keep abreast of . . . the benefits and risks associated with relevant technology" and Dropbox is pretty old technology.

Illinois adopts a version of Model Rule 8.4(g)

Back in November 2023 I reported that the Illinois Supreme Court Rules Committee held a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g).  You can read my comments about the hearing and the proposal here.

Yet, I had not seen anything about the proposal since then.  So, I was very surprised when I read in Faughnan on Ethics that the proposed amendment was officially adopted and that the new rule would go into effect in July.  See here.

I say I was surprised not because I was surprised to hear that the new rule was adopted but because I have not seen it reported anywhere here in Illinois! 

If you are a long time reader of this blog you know that I have criticized the Model Rule and the versions of the rule adopted in some other jurisdictions for being vulnerable to attack under First Amendment principles.  The adopted language in both the rule and its comment in Illinois is not as robust as the rule adopted in New York, but it is not bad. 

The original proposal included explicit language in the text of the rule itself stating that the rule would not apply to Constitutionally protected speech or conduct.  Unfortunately, that language was deleted from the rule and moved to the comment.  

Another issue with the adopted language is that while the text of the rule states that it is limited to conduct "in the practice of law", the explanation of what "in the practice of law" means included in the comment is the same used in the ABA Model Rule's comment to describe conduct "related to the practice of law" which is a broader concept.

We will have to wait and see how the rule is applied and interpreted, and whether it will get challenged as others have in other jurisdictions. 

The new Illinois Rule appears in Rule 8.4(j).  You can see a redline version here, and a clean version here.

As expected, the District of Columbia Board on Professional Responsibility has recommended disbarment for Rudy Giuliani

If you are a long term reader of this blog you know that I have been following the cases against many of the lawyers for the Trump administration, the most famous of whom is probably Rudy Giuliani.  And, you also probably know that his license was suspended in both New York and the District of Columbia while his disciplinary proceedings are pending.

Today I am here to report that, as expected, the District of Columbia Board on Professional Responsibility has recommended disbarment.  The Legal Profession blog has a summary and a link to the decision here.  

More coverage in The Hill, MSNBC and The Conversation.

Jenna Ellis suspended for 3 years for her role in the attempt to overturn the 2020 election

 Do you remember Jenna Ellis, a relatively insignificant member of the "Kraken team" of lawyers for the Trump campaign who paraded around lying about the 2020 election?  Back in March 2023, to avoid a harsher sanction, she agreed to a censure (with no suspension) in Colorado for her lying, only to proceed to lie about it in the media later on.  Some time later she was indicted in Georgian and, true to form, she also pled guilty to avoid a harsher sentence.  

After the settlement in Colorado, I wondered here why the Colorado authorities thought she deserved such a light sanction when Rudy Giuliani was likely to get disbarred for the same conduct.  After her guilty plea agreement in Georgia, I wondered here if she could be sanctioned in Colorado even if her plea agreement had been worded precisely to try to avoid sanctions.

Well, my questions have been answered.  A few days ago it was reported that Ellis has been suspended for three years in Colorado.  The Hill has the story and a link to the order itself here.  

In commenting on the story, Above the Law has a profile of Ellis here recounting her employment history and her embellishing of her resume.  (spoiler alert: she apparently lost her job as a traffic court prosecutor for incompetence, which won her unemployment benefits after an appeal held that she had “perform[ed her] duties to the best of her ability” given the “deficiencies in her education and experience” and that she had committed irreparable egregious acts in just a few of her cases. You know, not all of them; just a few...)  It is worth a quick read.

MSNBC also has the news here.

Another article on A-I and the practice of law

 In my previous post I mentioned a couple of recent posts regarding AI and the practice of law.  Here is another one:  "Is The Legal Industry Ready For AI?; It's crucial to consider these questions" published in Above the Law.  You can read the full article hereread the full article here.

Generative AI and the practice of law

As reported by Ethical Grounds, last month, the D.C. Bar issued Ethics Opinion 388: Attorneys’ Use of Generative Artificial Intelligence in Client Matters, which discusses many different issues and the Rules of Professional Conduct most likely implicated by a legal professional’s use of generative AI (GAI).  You can read the opinion here.

Based on this opinion, Michael Kennedy (of Ethical Grounds), has posted two new comments on issues related to generative AI and the practice of law.  In the first one, available here, he discusses why it is not necessary to amend or change current rules of professional conduct in response to the effects of generative AI in the practice of law.  In the second one, available here, he begins to address issues related to the professional duties most likely to be implicated by a legal professional’s use of GAI by discussing the duty of confidentiality.  I expect he will address other duties in future posts, so stay tuned.  

Is it justified to impose disciplinary sanctions if the lawyer has received a presidential pardon?

 Is it justified to impose disciplinary sanctions if the lawyer has received a presidential pardon?  New Jersey thinks so.  Here is the story, as reported in the Legal Profession Blog.  

ABA Issues Formal Opinion cautioning lawyers to be careful not to disclose confidential information when talking about the representation of clients

As all of you know, the ABA's Standing Committee on Ethics and Professional Responsibility frequently issues Formal Opinions to help answer questions and clarify aspects related to the interpretation and application of the ABA Model Rules.  Last week, the Committee issued a new opinion on confidentiality.  Its summary reads as follows:

Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved. A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation. 

Whether the conclusion is limited to listsevs is actually not that relevant since the same can be said of any instance in which a lawyer discusses a client's representation in a public setting (when addressing a group discussion, as an example in a meeting, when teaching a class, when participating in a CLE program, etc, etc.)  But the focus of the opinion seems to be on lawyers who turn to listservs to seek help on a matter they are working on for a client, a practice I can safely say is very common in at least one of the listservs I follow.

Lawyers like talking about their work, their clients and often share war stories or use their experiences as examples to illustrate issues, or to ask questions.  Often, they also ask others for help in finding support for an argument or to find sources of information on how to handle a particular issue.  The problem is that, in doing so, it is possible to disclose confidential information, which, of course, could be a problem.

Yet, although the opinion follows the logic of the broad approach to confidentiality reflected in the rules, it was quickly criticized by some, ironically, in a listserv I follow.  Likewise, Bob Ambrogi, who writes about legal technology in the website LawSites, wrote a good article in which concludes that the opinion "takes an overly heavy-handed approach to an issue it should have addressed, if at all, maybe 20 years ago. In other words it is too much, too late."  You should read his opinion here.

Micheal Kennedy also has a comment on the opinion here.

Following California, DC Court of Appeals temporarily suspends John Eastman's license pending the resolution of his disciplinary case

As reported by The Hill, the D.C. Court of Appeals has temporarily suspended the law license of former President Trump’s ex-lawyer following a similar order made in late March by a California State Bar Court.  You can read the court's order here.  Go the The Hill for the full story.

Judge rejects John Eastman's motion to lift interim suspension

 A judge in California turned down an urgent plea Wednesday from John Eastman to allow him to keep practicing law while he fights an effort to permanently revoke his license.  The judge ruled that Eastman’s motion failed to show that he no longer presents a threat to the public.

Politico has the full story here.

How not to practice law: when caught, try to alter the evidence in your computer

 April 27. 2024

As reported in Above the Law:  Confronted with an ethics investigation zeroing in on a number of different types of conduct that justified discipline, a lawyer in New Hampshire apparently thought he could get out of his troubles by destroying or altering evidence stored in his computer.  He could not; and got disbarred.  

Above the Law has the full story here. 

UPDATE 5/1/2024:  The ABA Journal has the story here.

Washington's Supreme Court Approves Three Ways To Skip The Bar Exam - Updated

March 20, 2024

The ABA Journal and Above the Law are reporting that the Washington Supreme Court has adopted alternative pathways to a law license, becoming the second state to do so in a little more than four months. The court approved three ways to bypass a bar exam, with different standards for law school graduates, law students and law clerks participating in a lawyer-tutoring program already in existence. All involve apprenticeships or internships.

You can read the different standards in the court's press release here.  The ABA Journal has more details here.  Above the Law has the story here.

UPDATE (April 13, 2024): Lex Blog has published a comment on the story here.

Disciplinary panel finds that Jeffrey Clark violated ethics rules

A disciplinary panel in Washington has found that Jeffrey Clark, a former high-ranking Justice Department official, violated ethics rules for lawyers in his attempt to aid Donald Trump’s bid to subvert the 2020 election.  This is only a preliminary ruling that starts a process that could lead to the suspension or even permanent revocation of Clark’s license to practice law.  So, stay tuned....

The Legal Profession Blog describes the process as follows:  

"The Jeffrey Clark bar disciplinary hearing in the District of Columbia has now concluded its evidentiary phase.  The Hearing Committee announced a non-binding conclusion that a disciplinary rule violation has been proved by clear and convincing evidence. It will make formal findings after receiving briefs from the parties.Those findings and conclusions will be reviewed by the Board on Professional Responsibility, which (unless it dismisses, which Disciplinary Counsel can appeal) will in turn be reviewed by the Court of Appeals."

Politico and The Hill have more details.

More on AI: recent articles

1. Jenny Brobst (Memphis Law) recently posted an article offering a look at the role of technology and ethical competency rules, vis-a-vis how tech has rolled out unevenly in the United States. You can take a look at it here.

2. Above the Law: Maybe We've Got The Artificial Intelligence In Law 'Problem' All Wrong

Several Stories about AI and the Practice of Law from this week's headlines

I think that issues related to the use of AI in the practice of law are the number 1 topic of the year and I see stories on it almost every day.  Here is a list of links from the past few days:

Exploring the Impact of AI on the legal profession (podcast) 

How Generative AI Will Improve Legal Service Delivery (Above the Law)

Judges To Generative AI: You're Out Of Order! (Above the Law)

AI Won’t Replace Lawyers -- But It Will Change How They Work (Above the Law)

AI Smarts For The Legal Sector: Preparing Your People And Content For AI (Above the Law)

California Judge recommends disbarment for John Eastman

 A California judge has formally recommended that attorney John Eastman be disbarred for his role in Donald Trump's legal effort to remain in power after losing the 2020 presidential election.  You can read the decision and order here.  The judge concluded that 

While attorneys have a duty to advocate zealously for their clients, they must do so within the bounds of ethical and legal constraints. Eastman’s actions transgressed those ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support. Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law. While his actions are mitigated by his many years of discipline-free practice, cooperation, and prior good character, his wrongdoing is substantially aggravated by his multiple offenses, lack of candor and indifference. Given the serious and extensive nature of Eastman’s unethical actions, the most severe available professional sanction is warranted to protect the public and preserve the public confidence in the legal system.

More details and commentary here:

The Legal Profession blog

Politico

The Hill

Coutrhouse News Service

NPR

MSNBC