Monday, September 27, 2021

Pandemic-Related Legal Ethics Opinions: A Compendium

LawSites has a short list of recent ethics opinions generated because of the pandemic and the fact that so many lawyers are practicing law remotely.  Go here for the story.  It mentions (and provides links to) opinions from Florida, New York, the District of Columbia, Pennsylvania, Wisconsin and the ABA.  

In addition the San Francisco Bar Association has issued Ethics Opinion 2021-1 on working remotely.  See here also.

Sunday, September 26, 2021

How not to practice law: alter the dates on emails

It has been a while since I added an entry to our running "how not to practice law" department, so here I am today with an easy one.

Do you want to make sure you get in trouble? Go ahead and alter the dates on emails to make it look like you did something when you were supposed to (but didn't), or for any other reason for that matter...  This is dishonest, but it is also stupid since the, obviously, the other people in the email sender or recipient list will have a copy and can prove the scam.  Dumb!  

So here is the story:  Attorney Altered The Date Of Emails To Make It Look Like He Was ‘Keep[ing] Up With Work,’ Gets Booted From Profession .

Saturday, September 18, 2021

Data regarding regulatory changes in Utah shows promise according to new report

As I am sure you know, last year Utah and Arizona adopted significant changes to their approach to the regulation of the practice of law.  Chief among these changes was the elimination of the ban on partnerships of lawyers and non-lawyers for the provision of legal services.  The debate over measures like this one and over allowing "alternative business structures" for providing legal services has been going on for years, and much of the debate was based on data obtained by studying similar programs in the UK and Australia.

Now, about a year into the new era of regulation in Utah and Arizona, it is time to start looking at the date from the US.  The Institute for the Advancement of the American Legal System (IAALS) is leading the way and in its initial report regarding Utah it says that numerous businesses and collaborations are up and running, providing a wide range of much-needed legal services.  Of the 30 entities that have been approved by the Utah Supreme Court, 13 are considered as moderate risk, and one as high risk (considering both the likelihood of harm—as well as the degree of harm—that they might pose to consumers), but the IAALS considers the overall data so far to be very positive.

According to the recent report, "Utah’s sandbox has opened up a world of possibilities when it comes to how to practice law, and demonstrates how innovation, technology, and professionals who aren’t lawyers can work alongside attorneys and ensure consumers have real access to the entire spectrum of legal needs" and the report concludes that 

We still have a long way to go and a lot of data to collect, but what we’ve seen so far does suggest that re-regulation has the potential to meaningfully increase access to justice and, importantly, the data shows that these kinds of innovations can be done safely. In just nine months, more than 2,500 people have received help with housing, immigration, healthcare, discrimination, employment, and a gamut of other issues. Lawyers are partnering up with other professionals to create new types of businesses, and technology is enabling them to do their jobs more efficiently. Instances of harm are rare—and, when they do occur, are being monitored and utilized by the Office of Legal Services Innovation to continually improve. As more states look to re-regulation as a means to increase access to legal services, the data from Utah’s sandbox—and the real people’s lives it is impacting—should be a strong push in that direction.

You can read more about the IAALS evaluation in their website

Friday, September 10, 2021

ABA issues new opinion on lawyers passive investment in law firms that include non-lawyer owners -- UPDATED

The ABA's Standing Committee on Professional Responsibility and Ethics recently issued a new Ethics Opinion on whether lawyers may invest in law firms with non-lawyer owners. The opinion's summary reads as follows:  

A lawyer may passively invest in a law firm that includes nonlawyer owners (“Alternative Business Structures” or “ABS”) operating in a jurisdiction that permits ABS entities, even if the lawyer is admitted to practice law in a jurisdiction that does not authorize nonlawyer ownership of law firms. To avoid transgressing Model Rule 5.4 or other Model Rules and to avoid imputation of conflicts under Model Rule 1.10, a passively investing lawyer must not practice law through the ABS or be held out as a lawyer associated with the ABS and cannot have access to information protected by Model Rule 1.6 without the ABS client’s informed consent or compliance with an applicable exception to Rule 1.6 adopted by the ABS jurisdiction. The fact that a conflict might arise in the future between the investing lawyer’s practice and the ABS’s work for its clients does not mean that the lawyer cannot make a passive investment in the ABS. If, however, at the time of the investment the lawyer’s investment would create a personal interest conflict under Model Rule1.7(a)(2), the lawyer must refrain from the investment or appropriately address the conflict under Model Rule 1.7(b).

You can read the full opinion (Formal Opinion 499) here

You can read more about the opinion in LawSites and the ABA Journal.

UPDATE 9-19-21:  

Faughnan on Ethics has a comment here.

The San Diego County Bar Association has a comment here.

Wednesday, September 8, 2021

Recently exonerated man sues prosecutor

 A recently exonerated man who spent 23 years in prison has filed a complaint against a longtime Mississippi district attorney alleging various violations of the U.S. and Mississippi state constitutions.  The plaintiff was tried six times for the 1996 murders of four people.  The defendant prosecuted all six trials, none of which resulted in a legally valid conviction.  Four of those murder trials resulted in convictions and death sentences but all convictions were vacated due to prosecutorial misconduct.  One of the opinions reversing one of those convictions was written by now Supreme Court Justice Brett Kavanaugh who wrote that “The state’s relentless, determined effort to rid the jury of black individuals strongly suggests that the state wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” 

The background story is very compelling but the case will be an uphill battle.  I expect that the prosecutor will argue qualified immunity and will cite Supreme Court precedent which makes it very difficult if not almost impossible for exonerated plaintiffs to win claims against former prosecutors.  For this reason, cases like this often settle out of court, which provides some level of compensation.

For more information on the case go to Law&Crime, NPR, and Courthouse News Service.

Tuesday, September 7, 2021

More coverage on sanctions on Sydney Powell and other lawyers in Michigan

 I recently reported on the sanctions imposed on the lawyers for the Trump campaign in Michigan (more recently here; but for all the coverage on Trump's lawyers go here and scroll down.)

Today I am just here to give you a couple of links to some analysis on the sanctions imposed in the case originally filed in Michigan. The first one is at Tech Dirt and then there is more at ethicking.com.

Monday, September 6, 2021

More Trump lawyers sanctioned

I have been following the reports on sanctions imposed on lawyers for the Trump campaign recently (go here and scroll down for those stories), and today I am reporting on sanctions imposed on lawyers who filed a case in Colorado.

The sanctions order describes the case: "The original Complaint purported to be a class action lawsuit on behalf of all American registered voters, alleging a vast conspiracy between four governors, secretaries of state, and various election officials of Michigan, Wisconsin, Pennsylvania and Georgia; along with Dominion, a private supplier of election and voting technology; the social media company Facebook; CTCL, a non-profit organization dedicated to making elections more secure and inclusive; as well as Facebook founder Mark Zuckerberg and his wife Priscilla Chan."

Well, to make a long story short, you know where this is heading...  A federal court recently decided to impose sanctions holding that "[i]t should have been as obvious to Plaintiffs’ counsel as it would be to a first-year civil procedure student that there was no legal or factual basis to assert personal jurisdiction in Colorado for actions taken by sister states’ governors, secretaries of state, or other election officials, in those officials’ home states." and that "[f]iling a lawsuit against an out-of-state defendant with no plausible good faith justification for the assertion of personal jurisdiction or venue is sanctionable conduct."

The judge also comments on the affidavits filed "in support" of the complaint and about the conduct of the lawyers involved.  About the affidavits, the judge states:   "Despite the numerous additional plaintiffs and the addition of RICO conspiracy claims, nothing about the proposed Amended Complaint addressed one critical deficiency emphasized in all Defendants’ dismissal motions: Plaintiffs’ lack of standing to bring suit under Article III of the Constitution. Also absent from the proposed Amended Complaint was any effort to address the conspicuous personal jurisdictional problems raised by suing, in federal court in Colorado, state government officials from Pennsylvania, Wisconsin, Georgia, and Michigan, for acts taken in connection with their official duties in those respective states."

So, the judge imposes sanctions based on the lawyers' "woeful lack of investigation into the law and (under the circumstances) the facts"  which the judge called  "recklessness."

You can read the full order here to get the full story, including the specific things the judge says the lawyers should have done before filing the complaint, including hiring an expert or three to assess and verify the truth of the information contained in the materials from other lawsuits which were copied into the Complaint, rather than copying inflammatory and damaging allegations from failed lawsuits and media reports.

For more information and a copy of the order you can go to TechDirt.  

Sunday, September 5, 2021

Texas state bar faces new challenge over membership requirement to state bar association

The ABA Journal is reporting that the State Bar of Texas is facing a new lawsuit claiming that it has continued to require lawyers to join and pay dues, despite a recent federal appeals court ruling finding that the practice violated their First Amendment rights.  You can read the ABA Journal article here.  You can read the complaint here.  In it, the plaintiffs allege that the State Bar Association has ignored a ruling of the Court of Appeals for the 5th Circuit.  I wrote about that ruling here and the ABA has a story on it here.

Tennessee adopts rules amending rules on attorney advertising

Just a few days ago, the Tennessee Supreme Court adopted proposed revisions to the lawyer advertising rules. You can read all about the amendments here.

Arizona rejects requirement for diversity and inclusion CLE

 On August 30, the Arizona Supreme Court rejected a petition that proposed to require Arizona licensed attorneys, who are not otherwise exempt, to dedicate one hour of continuing legal education (“CLE”) to training on diversity and inclusion, as part of the current requirement that attorneys receive three hours of education in professional responsibility each year. 

The Court rejected the petition stating that ...

The Court supports legal education addressing diversity and inclusion issues, just as it supports education concerning other important topics, such as mental health, sex trafficking, and victim’s rights. But it has historically refrained from setting a curriculum for attorneys to achieve their educational goals, believing it preferable for them to do so. The Court continues to take this approach.  

Mandatory Continuing Legal Education Regulation 101(L) provides that “Professional Responsibility (Ethics) Hours” maybe satisfied by attending programs that “address diversity and inclusion in the legal system of all persons regardless of race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities, as well as, the elimination of bias.” Such content has been, and continues to be, available. The Court invites State Bar members to take advantage of these educational opportunities.