Saturday, January 16, 2021

ABA issues new formal opinion on lawyers practicing law remotely -- UPDATED x2

Original post: 12/6/20

The ABA Standing Committee on Ethics and Professional Responsibility announced today a new formal ethics opinion on issues related to practicing law "remotely," by which they mean practicing law in a jurisdiction while being located in a different jurisdiction in which the lawyer is not admitted.  You can read the opinion here.

Here is the summary:  

"Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules."


(12/17/20):  Given that the ABA's opinion only interprets the Model Rule, as opposed to the law of any one jurisdiction, it is important to consider how the rules of each jurisdiction have been interpreted so far and how the opinion might influence future cases.  Here is a comment on how the opinion might apply to cases in California. Ethical Grounds has a short comment on the opinion here concluding that the opinion "makes sense" and "reflects common sense."

(1/16/21):  Law 360 has analysis of the opinion in an article called ABA Approves Remote Practice, But Questions Remain.

In predictable turn of events Trump is reportedly refusing to pay Giuliani's legal fees

 You can't make this stuff up.  The Washington Post has the story here.  Also see Above the Law.

And, there is a bit more to the story.  First, there is the fact that some according to some stories, Giuliani asked to be paid $20,000 a day, a fee that would most likely be held to be unreasonable under the rules of professional conduct.  

When asked about that story, Giuliani supposedly said that he had not asked for that amount.  Instead, he told the New York Times, he had not entered into a formal agreement with Trump but that they would "work it out in the end."

Agreeing to provide legal services without an agreement and expecting to work it out in the end with a client notorious for not paying his bills...  well, that's not very smart...  which raises the issue of Giuliani's competence, but that is yet another story for another day.

Trump lawyer Lin Wood disqualified because of his mendacity

A Delaware Superior Court judge ruled Monday that attorney L. Lin Wood, who filed a number of complaints challenging the results of the election, can't represent former Trump campaign adviser Carter Page in a state defamation case, saying it would be inappropriate to let Wood practice before the court because he has recently exhibited a "toxic stew of mendacity, prevarication and surprising incompetence."

In essence the judge is saying that Wood's reputation is so bad, he is either incompetent or unfit to practice law.  The judge's memo cited, among other things, recent social media posts attributed to Wood, including a tweet suggesting that Vice President Mike Pence should be arrested and executed for alleged treason.

Also remember, this is the lawyer who filed a complaint seeking to reverse the election and signed it "under plenty of perjury."

It sounds strange for a judge to disqualify an attorney like this, but Wood's appearance before the court was going to be by admission pro hac vice.  What the judge concluded was that a lawyer from a different jurisdiction should not be allowed to come to the judge's jurisdiction and practice given the attorney's history elsewhere.  In other words, the judge was denying Wood's petition to practice in just this one case, not his ability to practice law in general. 

 "I acknowledge that I preside over a small part of the legal world in a small state. However, we take pride in our bar," the judge said.

You can read more on the story here:  Law360, the Legal Profession Blog, Law & Crime, The ABA Law Journal, and Above the Law.

Over 7,000 Lawyers Sign Petition To Have Josh Hawley And Ted Cruz Disbarred

When Ted Cruz and Josh Hawley supported the effort to object to the electoral college, Yale and Harvard alums started internet petitions to have them disciplined.  Now, after their expressions related to the attack on the capitol have been exposed, a new petition has been published asking for their disbarment.  

The petitions are really an expression of frustration and political statements more than ethics arguments.  Whether the conduct deserves discipline depends, of course, on whether it violated the rules of professional conduct and the answer to that question is more complicated than the petitions make it appear.

First of all, if the argument is based on expressions made during the legislative process, I believe lawmakers are immune from liability and I don't know if there is any case law that explains whether that includes immunity from disciplinary sanctions.

Second, the arguments are based mostly, if not entirely, on speech which raises the question of whether the expressions are protected speech, which depends on the expressions on a case by case basis.

Having said that, let's assume that the expressions are considered not protected because they constitute incitement to violence or, worse incitement to overthrow the government.  If that is the case, do the expressions violate rules like Model Rule 8.4(b) which hold that it is professional misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects?

The petitions also argue that Hawley and Cruz violated rules like 8,4(c) which holds that it is misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation by repeating unsubstantiated statements regarding the election.

You can read one of the petitions against Cruz and Hawley here.  Jurist also has the story here.

New York State Bar Association considers expelling Rudy Giuliani

 The New York State Bar Association is launching an inquiry into expelling Rudy Giuliani from its membership over his comments ahead of the attack on the U.S. Capitol, and his efforts to cast doubt on the results on the presidential election.  The NYSBA is not a regulatory agency, however, so expulsion from the association would not affect Giuliani's ability to practice law in the state.

You can read more about the story here: NPRPolitico, Law & Crime, Above the Law, and the ABA Law Journal.

Article by the plaintiff in the case that declared that Pennsylvania's recently adopted anti discrimination rule (modeled after Model Rule 8.4(g) is unconstitutional

 About a month ago I reported that a Federal Court in Pennsylvania declared the state's recently adopted version of Model Rule 8.4(g) unconstitutional.  See here.

As a follow up to that story, here is a short article by the named plaintiff in that case in which he comments on the case and explains his reasons for bringing the claim.

Monday, January 4, 2021

Federal Judge considers referring lawyer behind Trump election lawsuit to disciplinary agency

A lot has been written and said in the past few weeks about the incompetence and improper conduct of lawyers working for Trump, but none of them have been disciplined for their conduct. 

It is possible that will change soon.  Law & Crime is reporting that "[a] federal judge was so dismayed by a . . . lawsuit that bizarrely attempted to sue the Electoral College and Vice President Mike Pence—among many others—that he wrote in a memorandum opinion . . . that he’s considering referring the attorney behind it for “potential discipline.”  Go here for the full story and more quotes from the opinion.

It will be interesting to see if the judge follows through.  I would not hold my breath.  

Thursday, December 31, 2020

New York Suspends Prosecutor For Discovery Violations

 Discipline for prosecutorial misconduct is relatively rare which is why I am reporting on this story, which you can find in the Legal Profession blog.

Arizona's recently created Ethics Advisory Committee issues its first few opinions

 The Arizona Supreme Court’s two-year-old Attorney Ethics Advisory Committee has issued its first four ethics opinions. They deal with significant topics lawyers routinely face: client files, termination of representation, and liens.  You can read more about the story (and get links to the opinions) here.

How not to practice law: try to get your client to pay a fee by providing sexual services

We have seen stories like this before but it is notable that the discipline imposed is for an attempt to violate the rules of professional conduct.  That is not so common, although we did see another example last year in a similar case (see here).

In this new case, the client apparently did not have enough money to pay the lawyer what he said his services would cost, so he told the client she could pay him by having sex with him.  Like I said, we have seen cases like this before, but in this one we have the transcript of the actual conversation in which the lawyer explained the transaction he had in mind.  Don't follow the link if you are easily offended by language of a sexual nature.  Here is the link to the story which includes the transcript of the conversation. The decision of the court, which also includes the transcript, is here.

Eventually, the lawyer had his law license "annulled" which I assume is akin to a permanent disbarment.