Saturday, April 13, 2024

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.

Monday, April 8, 2024

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.

Sunday, April 7, 2024

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

Wednesday, March 27, 2024

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


The Hill

Coutrhouse News Service



Wednesday, March 20, 2024

ABA publishes new Formal Ethics Opinion on conflicts of interest because of duties owed to prospective clients under Model Rule 1.18

 Today the ABA Standing Committee on Ethics and Professional Responsibility published Formal Opinion 510 on whether an attorney should be disqualified from representing a new client against a former prospective client.  Go here to access the full text of the opinion (you can download it too).  Here is the opinion's summary: 

Under Rule 1.18 of the Model Rules of Professional Conduct, a lawyer who was consulted about a matter by a prospective client, but not retained, is disqualified from representing another client who is adverse to the prospective client in the same or a substantially related matter if the lawyer received from the prospective client “disqualifying information”—i.e., information that could be significantly harmful to the prospective client in the matter. But, if the lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,” and the firm takes specified procedural precautions, then the lawyer’s conflict of interest is not imputed to others in the lawyer’s firm.

This opinion addresses the “reasonable measures” necessary to avoid the imputation of conflicts of interest under Rule 1.18.1 First, information that relates to “whether to represent the prospective client” includes information relating to (1) whether the lawyer may undertake or conduct the representation (e.g., whether a conflict of interest exists, whether the lawyer can conduct the work competently, whether the prospective client seeks assistance in a crime or fraud, and whether the client seeks to pursue a nonfrivolous goal), and (2) whether the engagement is one the lawyer is willing to accept. Second, to avoid imputation, even if information relates to “whether to represent the prospective client,” the information sought must be “reasonably necessary” to make this determination. Third, to avoid exposure to disqualifying information that is not reasonably necessary to determine whether to undertake the representation, the lawyer must limit the information requested from the prospective client and should caution the prospective client at the outset of the initial consultation not to volunteer information pertaining to the matter beyond what the lawyer specifically requests.

You can access all other ABA Ethics Opinions (dating back to 1984) here. The most recent ones are available to everyone, but the older ones are now available only to members.  So if you are not a member, download what you need now before it becomes unavailable.

Monday, March 18, 2024

Free Legal Research Startup Now Offers AI Generated Summaries of All State Supreme and Appellate Opinions

 LawSites is reporting (here) that a new website that provides access to legal research called is focused on using artificial intelligence to provide free and easy access to court opinions and that it recently began to offer access to AI-generated summaries of all available state supreme and appellate court opinions from throughout the United States. 

Sunday, March 17, 2024

The story you heard about a lawyer avoiding discipline because the state Supreme Court justices recused themselves is not what they are saying it is...

 The headline in Above the Law reads: "Convicted Lawyer Too Well-Connected To Face Discipline".  Elsewhere, the story was reported as "After most Illinois Supreme Court justices recuse themselves, Ed Burke keeps his law license".   The ABA Journal reported the story as "Convicted alderman keeps law license after recusals prevent state supreme court from acting."  You may have heard or or read something like that somewhere else, but the full story is not what it seems.

These headlines suggest that a convicted lawyer could not be disciplined even though he was convicted of a crime.  But that is not necessarily the case.  What happened is that the Disciplinary Agency asked the Supreme Court of the state for an interim suspension because he was convicted of a crime.  "Interim" means that the suspension would be in effect while the Agency decides the disciplinary case.  Some justices in the Court recused themselves and there were not enough justices left (following the state constitution) to grant the petition.

This does not mean that the lawyer will not be disciplined, or that he will avoid discipline.  The lawyer will avoid a suspension while it is decided whether he will be disciplined, but that is a different thing.  It may very well be that the disciplinary agency decides to impose discipline -- in fact, it is possible the agency will decide to disbar the lawyer.   

Now, what happens after that, I don't know.  If the disciplinary agency disbars the attorney, he then has the right to appeal to the state's supreme court.  If the same justices who recused themselves regarding the interim petition recuse themselves from the appeal, the court can't hear the appeal.  Does that end the case and the decision of the disciplinary agency stands?  That's my guess, but I have not looked into it.

New Training for Lay Legal Advocates in Arizona Aims to Expand Access to Justice Statewide

 LawSites has the full story here.

Monday, March 4, 2024

Two articles on the justice gap and legal tech

 LawSites recently published two articles with commentary about the justice gap and legal tech that are worth reading.

In the first one, LawSites's editor Bob Ambrogi argues that "[t]he justice gap in legal technology is a reflection of the justice gap more generally, and both reflect a capitalist society in which the balance of wealth and resources is wildly out of whack. But more can be done. "  You can read the article here.

In response, Jess Lu and Mark Chandler argue that "Justice tech — legal tech that helps low-income folks with no or some ability to pay, that assists the lawyers who serve those folks, and that makes the courts more efficient and effective — must contend with a higher hurdle than wooing Silicon Valley VCs: the civil justice system itself."  The article is available here.

Sunday, March 3, 2024

Are you ready for some pickleball?

If you are a college football fan you know about "naming rights"...  So what used to be the Fiesta Bowl suddenly became the Tostitos Fiesta Bowl, and the LA Bowl became the Jimmy Kimmel LA Bowl, and so on.  Brands and people pay a lot of money to have their brand or name associated with a big event.  

It is a form of advertising, right?  So, would it be ethical for a law firm to buy naming rights.  It has been done for law schools, of course.  Temple University Law School (where I got my Masters degree) is now the James Beasly Law School, for example.

But have you seen a sports event named after a law firm?

And then there are "official partners" associated with leagues. Different leagues have official partners, and they promote them as such.  Thus, you have "the official car of the NFL" (it's Toyota, in case you did not know), or the "official pizza of the NFL" (as of two years ago it was Little Ceasars, which is embarrassing if you like pizza!)

But one thing the NFL does not have is an official law firm.  

So, why am I babbling about this?  Because, other than naming rights on a law school, I have never seen a law firm have naming rights or an official partnership claim with a sports league or event.  

Until now.  Enter pickleball, the self proclaimed fastest growing sport in the US today and the firm of Lerner & Rowe, which was recently announced as the "official personal injury attorneys" of USA Pickleball:

USA Pickleball, the National Governing Body for pickleball in the U.S., today announced personal injury law firm Lerner & Rowe as its Official Injury Attorney in a year-round partnership that welcomes the firm into America’s fastest-growing sport, with nearly 50 million pickleball players in the United States according to the Association of Pickleball Players in 2023.

Lerner & Rowe will serve as the Presenting Partner of the USA Pickleball Golden Ticket tournament in Mesa, Arizona this April. The firm will have a strong presence throughout the event that is expected to host 1,200 of the best players from Arizona and surrounding areas competing for their spot at Nationals. Additionally, Lerner & Rowe will continue supporting USA Pickleball’s mission in the community through community clinics, introducing underserved children to the game of pickleball and providing them with equipment to continue playing upon completion of the program.

Here is the full announcement in USA Pickleball's website.

Saturday, March 2, 2024

Wednesday, February 28, 2024

New ABA Formal Opinion on confidential government information

 The ABA Standing Committee on Ethics and Professional Responsibility just released a new Formal Opinion (Number 509).  The title is Disqualification to Prevent the Misuse Use of “Confidential Government Information” and the summary reads as follows:

Model Rule of Professional Conduct 1.11(c) protects a person from the misuse of certain information about the person that the government used its authority to acquire. The confidential information protected by Rule 1.11(c) is defined by the Rule as information obtained under government authority about a person which the government is prohibited from disclosing to the public or has a legal privilege not to disclose and is not otherwise available to the public. The Rule provides that a lawyer who acquired the information while serving as a government officer or employee is disqualified from representing a “private client” whose interests are adverse to prevent the confidential government information from being used to the material disadvantage of that person. The Rule applies regardless of whether the lawyer seeking to represent the private client has left government employ or office or maintains a private law practice (e.g., a part-time practice) while still in government employ or office. The Rule applies to a lawyer representing a “private client,” meaning a client whom the lawyer represents in private practice, regardless of whether the client is a public entity or private individual or entity. 

 For now you can access (and download) the opinion here.  After some time, it will be archived and available to members only, so go get it now.

Thursday, February 22, 2024

ABA Working Group asks for comments on possible amendments to allow more cross-border practice

 A couple of days ago I posted that I think a lawyer in good standing in a state should be allowed to practice law in any other jurisdiction.  And just a few hours after I posted that comment, I heard that a working group of the ABA Center for Professional Responsibility has requested public comments on an Issue Paper on possible amendments to the model rules which would recognize permissible cross-border practice.

You can read the notice asking for public comments here.  You can read the Issue Paper here.  You can read more about the issue here.

Wednesday, February 21, 2024

Should A License To Practice Law Be More Like A Driver's License?

 Should A License To Practice Law Be More Like A Driver's License?  In a word, YES!  I do think so.  I think that once admitted in one state lawyers should be free to practice in any other state - as long as they are in good standing and comply with the state rules of professional conduct, of course.  I understand that there are lots of state variances when it comes to local rules and procedure but all lawyers are trained in how to do research and figure out the law of any jurisdiction.  

I am mentioning this today because I just saw this post in Above the Law:

"How do you only practice law within your state boundaries when we’re in a global economy and a global world? It’s kind of a preposterous concept, right? [The Association of Professional Responsibility Lawyers]’s point is, ‘Do I stop knowing how to drive when I drive outside of Maryland? And as soon as I get to the border in Virginia, I’ve forgotten how to drive?’ It doesn’t make sense."

This is a quote by Charity Anastasio, in comments given during an ABA Techshow 2024 panel titled, “One Bar License, Will Travel—Are Changes in Multi-Jurisdictional Rules on the Way?” Anastasio, who also is the chair of the ABA Law Practice Division’s Professional Development Board, went on to encourage lawyers to “[s]ay it loud, say it proud. We should be able to practice anywhere we can drive.”

US Supreme Court rejects appeal from Trump-affiliated attorneys in Michigan sanctions case

 Not surprisingly, the US Supreme Court has denied review of the sanctions imposed on Trump attorneys in Michigan.  Jurist has the story here.  

For all my blog posts related to Trump lawyers go here.

UPDATE 2-21-2024: MSNBC has the story here.

Sunday, February 18, 2024

Yet another instance of ChatGPT hallucinating cases -- UPDATED

February 18, 2024

As reported in Courthouse News:  An appeals court in Missouri lambasted a pro se litigant for submitting multiple “fictitious cases” conjured up by the A.I. chat bot ChatGPT, which offered citations “that have potentially real case names — presumably the result of algorithmic serendipity,” that pointed to either non-existent rulings or to irrelevant ones. The litigant must pay $10,000 to opposing counsel for wasting their time with the “frivolous appeal.”  The court's ruling is here.  For other instances of similar conduct in Courthouse News go here and here.

UPDATE 2-20-2024:

Legal Ethics Lawyer has more on the story here.

The Marshall Project report on the practice of charging indigent defendants to pay for fees related to representation by state appointed counsel

 I have blogged before about the unfortunate reality that even 60 years after Gigeon v. Wainwright, there are still deficiencies in the process to get access to representation for people who can't afford it. See here, for example, and the section on right to counsel for lots more on the subject.

Today I am writing, unfortunately, to point out a new article in The Marshall Project on how many defendants are getting charged fees to pay for their "free" appointed counsel.  

According to the report, the reality is that legal representation by appointed counsel is rarely free. The Supreme Court has found the Constitution guarantees the right to counsel but allows states, in most cases, to try to recoup the costs and that more than 40 do so, according to a 2022 report by the National Legal Aid and Defender Association.  

The report focuses on the practice in Iowa, which it says takes these efforts to the extreme.  According to their investigation, not only does Iowa impose some of the highest fees in the nation — affecting tens of thousands of people each year — it also charges poor people for legal aid even if they are acquitted or the cases against them are dropped.

Wednesday, February 14, 2024

Illinois Supreme Court Amends Rule to Add ‘Sexual Harassment Prevention’ to CLE Topic Areas

Two weeks ago, the Illinois Supreme Court amended a Supreme Court Rule to add “sexual harassment prevention” to the enumerated topic areas for which lawyers may receive professional responsibility CLE (PR CLE) hours.  The amended Rule 794(d)(1) now reads as follows:

Each attorney subject to these Rules shall complete a minimum of six of the total CLE hours for each two-year reporting period in the area of professionalism, civility, legal ethics, sexual harassment prevention, diversity and inclusion, or mental health and substance abuse.

2Civility has more details and commentary here.  LexBlog has the story here

How not to practice law: falsify evidence

 Here is another "how not to practice law" story.  The lessons from these stories always seem so obvious; yet here we are.  In this one, the hearing board found that the lawyer falsified some documents.  He was suspended for six months for violating Rule 8.4(c) regarding dishonesty.  The Legal Profession blog has the story here.

Monday, February 12, 2024

Will AI make the practice of law more accessible? Not everyone agrees

Saying that AI will affect the practice of law is old news.  It already has.  The question now is whether it will affect the practice of law for the better.  And the answer to that will depend on many factors including what you consider to be "better."  With that in mind, take a look at this comment titled "AI can make law better and more accessible; it won't."  

Sunday, February 11, 2024

How not to practice law: Show up drunk

 This is not the first time we have seen this example of "how not to practice law," but there are two interesting questions.  In this particular instance, discussed in the Legal Profession Blog, the lawyer was charged with "attempting" to violate rule 1.1 on competence.  So my first question is:  why charge with attempt to violate a rule?  Can't we argue that appearing drunk before the court in and of itself constitutes incompetence?  

The second question is common to many cases: what should be the proper sanction?  Is it a mitigating factor if the lawyer has a health problem, mental health problem or issues with alcohol?  Is it an aggravating factor?  In this case, the lawyer also had a history of disciplinary sanctions; yet, the sanction was reduced from 90 days to 30 days.  

Saturday, February 3, 2024

How to reply to negative online reviews

 The issue of how to reply to negative online reviews is not new.  If you go to the "internet" section of this blog and scroll down you will find a number of stories on it.  The most recent one is from October of last year on an Arizona Ethics Opinion that concludes lawyers can disclose confidential information when replying to negative online reviews.

Today I am writing to link to a recent post over at LexBlog that again provides basic tips on the subject.  Here it is.

Wednesday, January 31, 2024

How will generative AI affect digital investigations and e-discovery?

 How will generative AI affect digital investigations and e-discovery?  The ABA Journal has an answer here.

Tuesday, January 30, 2024

Another comment on the lawsuit by firm against departing lawyer for compensation because clients left with the lawyer

 About a week ago, I posted a link to a comment on whether employment agreements that require a departing lawyer to compensate the firm for clients that follow the lawyer would violate the Rules of Professional Conduct.  The article related to a case in which a firm sued a departing lawyer seeking compensation because a bunch of clients left with the lawyer.

Faughnan on Ethics now has added to the discussion with a post on the case. 

Monday, January 29, 2024

Guide on best practices for using AI

 A couple of days ago I reported that the Florida Bar recently issued an ethics opinion on using generative AI technology in the practice of law.  

Meanwhile, noted law blogger Carolyn Elefant has published a short guide on best practices on using AI in the practice of law.  You can see her post on it here and you can download the guide here.

Sunday, January 28, 2024

Articles on why the allegations against Fani Willis are irrelevant to the criminal case

 If you have been watching the news about the case against former president Trump in Georgia, you know that the defendant has argued the case should be dropped or that the prosecutor should be disqualified because of certain alleged inappropriate conduct. 

The conduct in question should be taken seriously but it is irrelevant to the case in question.

Here are two articles that explain why:

Why Fani Willis Is Not Disqualified Under Georgia Law, in Just Security, by Norman L. Eisen, Joyce Vance and Richard Painter

Defendants in the Georgia election case have no reason to complain — even if the Fani Willis allegations are true, in CNN, by Bruce Green

Saturday, January 27, 2024

Florida Bar issues opinion on using generative AI technology

Last December I reported that the Florida Bar was considering an opinion on the use of AI as part of the practice law.  See here.  

Today I am writing to report that the opinion was approved and published. See here. It concludes that lawyers may ethically use generative AI technologies, provided they are careful to adhere to their ethical obligations.

For the text of the opinion go here.   Read more on the story here.  The ABA Journal has more on the story here.

Saturday, January 20, 2024

How not to practice law: after having been told not to coach the witness, go ahead and coach the witness ... and make sure you do it while being recorded

 The Legal Profession blog recently published a summary of a recent case that earns the most recent entry in our "how not to practice law" series.  Here are the basic facts:

The parties are engaged in a "virtual trial" which is being recorded.  The court warns a lawyer not to coach a witness.  Technical difficulties interrupt the trial.  During the break, but while still being recorded, the lawyer coaches the witness in violation of the court's admonition.  The judge then watches the recording.  Guess what happens next.

Dismissal with prejudice.  Go here for the full story.

What should happen next?  Would you represent the client against the lawyer for malpractice?

Friday, January 19, 2024

Another year in review program

 About two week ago I posted a link to a year in review program that discussed the top ten stories of 2023 in legal ethics.  See here.

Now, here is another one. This is a link to the video of Legaltech Week’s year-end show, in which a panel of journalists and bloggers picked the year’s top stories in legal tech and innovation.  You can also find it on YouTube, here.

LegalTech Week, by the way is a weekly podcast on topics related to law practice and technology.

Wednesday, January 17, 2024

How not to practice law: invent your own rules of evidence, then try to get your own made up evidence admitted under them

Here is an interesting story about a lawyer who was recently fined over $250,000 for trying to support a claim with a fake newspaper article.  According to the story, he sought to enter the news article into the record for “demonstrative purposes.”

Now, stop!  That's not how the rules of evidence work.  If the lawyer was trying to get a newspaper article admitted, it must have been to prove the fact that the article was in fact published -- which is not likely to happen because the other side would rather concede the point in order to avoid having the jury get access to the article so they can read it -- OR to prove what the article actually said, which would be inadmissible hearsay unless one of the exceptions applied.

So what does it mean to admit an article "for demonstrative purposes"?  Well, apparently, it meant that the lawyer wanted to "prove" what could have been written in some other alternative universe in which the news was what he wanted them to be -- because the article was a fake ...  in which case the proof should be inadmissible as being fabricated or, at best, speculation.

Any way you look at it, what the lawyer tried to do did not make sense and could be interpreted as an attempt to mislead the court or the jury.  

And then, as a bonus, the lawyer didn’t show up for the sanctions hearing.  

You can read the story (with links) here.

Tuesday, January 16, 2024

Judge orders Trump to pay legal fees to opposing side for frivolousness

 A New York judge has ordered former President Donald Trump to pay nearly $400,000 in attorneys fees to the New York Times and three reporters following a frivolous lawsuit over the publication of Trump’s finances.  You can read the order here.  You can read more about the story here.

Sunday, January 7, 2024

Tennessee Court of Appeals rules that inadvertent email waives privilege

 As you probably know, the answer to the question of whether an inadvertent disclosure of privileged information constitutes a waiver of the privilege is answered differently in different states.  Here is the most recent decision I have see on the issue.

In this case, as reported in the Legal Profession blog, the Tennessee Court of Appeals affirmed a trial court finding that the inadvertent disclosure of an email waived the attorney-client privilege.  The case is called Masquerade Fundraising, Inc v Horne, and you can read the opinion here.

Monday, January 1, 2024

A lawyer’s duties when using artificial intelligence

We start the new year with a story about what is likely to be one of the most debated topics of 2024: the use of artificial intelligence in the practice of law.  Over at Ethical Grounds, Michael Kennedy has published a very short post on "a lawyer's duties when using artificial intelligence."  You can read the full story here.

Was the Army’s first-ever lead special trial counsel fired for urging lawyers to act ethically?

 I recently read a story that, if accurate, is disturbing.  According to the story, published in The Hill, Brigadier General Warren Wells was relieved of his position as the Army’s Lead Special Trial Counsel over a single decade-old email in which he encouraged army lawyers to do their jobs zealously and ethically.  The message, sent back in 2013, encouraged a group of fellow defense attorneys to uphold their duty to represent their clients zealously and read in part, “hopefully a Soldier will be able to get a fair trial. You and your teams are now the ONLY line of defense against false allegations… [y]ou literally are the personal defenders of those who no one will now defend, even when all signs indicate innocence.”

Maybe I am missing something - after all, this is a story that flew under my radar - but it seems to me that this is what we expect, and should expect, from all lawyers - particularly criminal defense lawyers, and, therefore, that getting fired over this message sends a wrong impression about what is important to the leaders of the military justice system.  

Sunday, December 31, 2023

New Year's resolution for the legal profession

 The Chicago Bar Foundation has published a short article called "2024 Resolution for the Legal Profession: Back to the Future, With a Twist."  You can read it here.

Thursday, December 28, 2023

Legal Ethics Year in Review Program

 Happy New Year, everyone!  And, as you know, this is the time of the year when we see "top ten lists" and "year in review" programs and podcasts.  

One of my favorites is the Legal Ethics Year in Review Program put together by Lucian Pera (of Adams & Reese LLC) and Trisha Rich (of Holland & Knight LLC).  They run down their top ten stories (or topics/themes) of the year and very quickly summarize the issues and provide helpful references and materials.  Their programs are always both informative and entertaining and this year's was no exception.  I actually wish they would make them a little bit longer so there could be more of a discussion at the end.  

In any case, if you missed it, go watch the program by clicking here, and put yourself on their mailing list so you can attend next year's program when it is offered live.

Wednesday, December 27, 2023

California’s New Duty to Report Treason, Insurrection and Sedition

 Earlier this year, I reported that California adopted a version of Model Rule 8.3 which, subject to some exceptions, requires disclosure of misconduct by other attorneys.  (See my posts here and here.)

But I did not know until now that California also adopted, by statute, another duty to disclose.  Thus, again subject to some exceptions, Bus. & Prof. Code section 6090.8, effective January 1, 2024 imposes a duty on lawyers to disclose if another lawyer has conspired to engage in or has engaged in "seditious conspiracy," "treason" or "rebellion or insurrection."

The new provision is obviously a reaction to the criminal and disciplinary cases brought around the country against lawyers who assisted former President Trump in his efforts to overturn the 2020 election.  In California, for example, John Eastman is currently facing disciplinary charges for his role in this effort. 

Over at California Legal Ethics, ethics lawyer David C. Carr discusses the implications of the new provision.  You can read the article here.

Tuesday, December 26, 2023

Florida Bar’s Board of Governors votes to remove the word “zealous” and its derivatives from the Florida Bar Rules

 The Lawyer Ethics Alert Blog is reporting that the Board of Governors (BOG) voted at its December 2023 meeting to remove the words zealous, and its derivatives from the Florida Bar Rules.  

As you know, lawyers often "cite" the principle that there is a duty to represent clients zealously.  However, it is interesting to note that the word "zealously" or any variation of it is not found anywhere in the text of the ABA Model Rules (maybe there is a reference to it in a comment somewhere, but not in the text of the rules).  Some states have incorporated it in their own rules, but it is not in the Model Rules. 

So, it is interesting to see that Florida is taking it out of its rules.  And why, you may ask?  The answer should not be surprising:  because lawyers often used the argument of a duty of zealous representation as an excuse to push the envelope and engage in questionable, and often improper, conduct, particularly in litigation.  

And that is exactly what the Florida resolution states. It proposes a new comment to be placed in the Preamble of the rules that states, in part, that "[z]ealous advocacy has been invoked in the legal profession as an excuse for unprofessional behavior.” The comment would also refer to a 2000 Supreme Court decision, The Florida Bar v. Buckle, which states, “we must never permit a cloak of purported zealous advocacy to conceal unethical behavior.”

In the end, if the proposed revisions are approved by the Florida Supreme Court, Florida lawyers will be put on notice that unethical conduct under the guise of “zealousness” is a potential violation of the Florida Bar Rules.

Monday, December 25, 2023

Sixty years After Gideon v. Wainwright, there still a need to bridge the gap in access to justice

 This year marks six decades since the landmark Supreme Court ruling in Gideon v. Wainwright, in which the Supreme Court held that states must provide counsel to people who cannot afford an attorney in criminal cases.  The principle was later extended to cover misdemeanor charges and delinquency proceedings.  Yet, as discussed in a recently published short article in The Hill, there is no question that access to public defense in the United States remains elusive and unequal.  You should read the article here.

Sadly, this is not the first time I post this exact same sentiment.  Ten years ago the same issue was discussed in various articles "celebrating" the 50th anniversary of the decision in Gideon.  I posted comments here, and here.

Sunday, December 24, 2023

NPR program on recent cases that raise questions about the ethics of using AI in the legal system

 To listen to the program, go here, where you can find a written transcript of it also.

How not to practice law: use of AI to prepare a document, then (and this is the important part) don't check it -- UPDATED

Sunday, December 24, 2023

This is old news by now, but in case you missed it.  Michael Cohen's lawyer was all over the news recently because he made the same mistake as the other lawyers in New York that everyone was talking about a few weeks ago.   They used AI to prepare a legal argument - which is not wrong per se - but then they failed to check the finished product - which is.  They all neglected to check their work!  

Whatever program they used to prepare the work, it generated (or as they now say, "hallucinated") cases that did not exist, complete with made up citations and quotes.  Big mistake!  The story was picked up by many different sources.  Here are just a few:

Lex Blog

Above the Law


The Hill

UPDATE 12-30-23

Several news sources are now reporting that the original mistake of citing "hallucinated" cases was Michael Cohen's and not his lawyer's.  Apparently, he supplied the information to the lawyers who then used it.  But that does not excuse the work of the lawyers in not checking it, which is the key part of the story.  Double check your work!!    For the latest, you can check: 

Courthouse News Service



Saturday, December 23, 2023

Court imposes sanctions for instructing client not to answer questions during deposition

 Long time readers of this blog have heard (or have read, rather) me complain often that courts do not do enough to discourage misconduct during discovery in civil trials.  But every now and then I am happy to report a case that comes along and shows some judges are doing their part.  Today is such a day.  The Legal Profession blog is reporting on a case out of the District of Columbia Court of Appeals in which the judge reprimanded a lawyer for wrongfully instructing a client to refuse to answer questions during a deposition -- a practice that is not uncommon but that often goes unchallenged allowing lawyers to get away with it.  I am glad to see that did not happen in this case.  You can read more about it here.

Friday, December 22, 2023

Recent study in Ohio finds nearly 100 prosecutors who were found to have violated their duties, but none were sanctioned

NPR has published a long, disturbing article, titled "Ohio prosecutors broke rules to win convictions and got away with it" (see here) detailing the results of a study that found that state courts determined that about 100 prosecutors across Ohio had violated standards meant to preserve a defendant's civil rights in criminal trials and yet the state Supreme Court has not imposed sanctions on any of them.  The study also found, among other things, that (1) most misconduct resulted from failing to disclose evidence and making inappropriate comments in closing arguments, (2) in nearly 80% of the cases, the misconduct was ruled not egregious enough to warrant a reversal, (3) none of the prosecutors involved in repeated improper-conduct cases was sanctioned by the Ohio Supreme Court and (4) all of the prosecutors found to have repeatedly acted improperly have continued to practice as attorneys, with some moving into more powerful positions, including two who became judges tasked with ensuring fair trials.

You should read the full article here.  

Lawyers for Kari Lake may face discipline for frivolous cases challenging election results

The Hill recently reported (here) that a committee overseeing attorneys in Arizona has found probable cause that lawyers who represented Kari Lake in election cases should face discipline.  Each one of the lawyers has been already been sanctioned by Arizona judges for cases where Lake challenged the election results after she lost to Democratic Gov. Katie Hobbs in 2022.  The Attorney Discipline probable cause order now allows the state bar to formally file complaints against the lawyers and pursue further actions. 

Monday, December 11, 2023

Proposed Florida Bar Advisory Opinion 24-1 provides guidance regarding lawyers’ use of artificial intelligence

 Proposed Florida Bar Advisory Opinion 24-1 provides guidance regarding lawyers’ use of artificial intelligence.  Lawyer Ethics Alert Blogs has the story (and the opinion) here.

Sunday, December 3, 2023

Court of Appeals for the Fifth Circuit considers adopting rule to regulate use of AI in generating legal documents

Yesterday I reported that the Colorado Supreme Court suspended a lawyer for using artificial intelligence.  Also, back in June I reported that a Texas federal judge began to require attorneys to pledge they did not use artificial intelligence to draft their documents.  See here.

I am writing about this again today because Law Sites is reporting that "[i]n what it appears would be a first for a federal circuit court, the 5th U.S. Circuit Court of Appeals is considering adoption of a rule change that would require lawyers and unrepresented litigants to provide a certification regarding their use of artificial intelligence in preparing court filings.  Lawyers and other filers would be required to certify either that they had not used AI in drafting the document or that, if they did, “a human” had reviewed the document for accuracy."

Go to LawSites for the full story.

Saturday, December 2, 2023

Colorado imposes sanctions for use of AI

Last summer I posted a few times about a case in New York in which two lawyers got in trouble for using AI to write a brief which the court later determined included invented cases and cites.  See here and here. The lawyers ended up having to pay fines of $5,000 each.

Now comes news that the Colorado Supreme Court has suspended a lawyer for 90 days for his use of Chat GPT in composing a brief which contained fictitious caselaw.  Go here for the full story.

For all my posts on artificial intelligence go here and scroll down.

Friday, December 1, 2023

Federal Court Dismisses Law Firm’s Suit Against DoNotPay for Unauthorized Law Practice - UPDATED

November 23, 2023

Long term readers of this blog will remember the saga of the company "Do Not Pay" which at one point claimed to provide the services of the first robot lawyer, but was later the subject of an investigation that exposed it did not live up to many of its claims.  Eventually, a law firm filed a class action claim against the company claiming that it was providing legal services in violation of the Illinois statute on the unauthorized practice of law.

If you want to refresh your memory on the details of the original story, and to review how we got to this point, go back and check out my posts from January 29February 14February 16March 4March 10March 17 and October 21.

Today I am writing to report that, as the title of this post points out, the court in the case alleging unauthorized practice of law agreed with DoNotPay, holding that the plaintiff law firm had failed to establish standing because it had failed to allege that it has suffered any concrete injury.

For more details on the story and links to the court's order and more, go to LawSites, here.

UPDATE 12/1/23: The decision has generated some commentary.  Here are a few links

In Case of ‘Real Lawyers Against A Robot Lawyer,’ Federal Court Dismisses Law Firm’s Suit Against DoNotPay for Unauthorized Law Practice (Law Sites)

Judge tosses UPL suit against 'robot lawyer' DoNotPay, saying law firm plaintiff was not harmed (ABA Journal)

Saturday, November 25, 2023

Short article on why criticizing judges can be dangerous

 The New York Legal Ethics Reporter has published a good short article called "Criticizing Judges Can Be Hazardous to Your Professional Health."  You can read it in full here

Friday, November 24, 2023

Upsolve wins in NY; Court opens door to non lawyer providing some legal services

 Back in March of this year, I posted a comment on an Op-ed piece in the New York Times arguing that it is important to ease "unauthorized practice of law" statutes in favor of access to legal services.  The piece was published in reaction to a case before the courts in New York at the time involving a not-for-profit organization called Upsolve which trains non-lawyers to provide limited legal advice to lower-income New Yorkers who face debt collection actions. 

The company was accused on engaging in the unathorized practice of law, but last May the court found in its favor.  [I just found out about the result this week!]

The issue in the case revolved around the company's claim that it had a first amendment protected right to do what it was doing, and the court agreed with the argument.  

I just found out about the result in the case because I read a comment in the New York Legal Ethics Reporter in which the author argues that the court reaches the correct result but for the wrong reasons, and suggests other approaches that would be better in order to address the problem that Upsolve seeks to help with.

The author of the comment concludes that "I am no First Amendment scholar, but even I can see that the Court’s argument is rather labored, as the Court dances around concededly contrary precedent to achieve what it perceives as the correct result"   and then suggests that "there has to be a better way for a program like Upsolve to exist than fighting dodgy constitutional battles."

To read the full comment, and particularly the recommendations on how to address the issue, go here.

Tuesday, November 21, 2023

Did Illinois Hearing Board recommend a six month suspension for violation of Rule 8.4(d) because there is no other rule and this one seems to work as a "catch-all"?

 That's a long title above, but hear me out.  Last July, I reported on a complaint filed in Illinois against a lawyer for his conduct toward courthouse personnel.  The conduct included making inappropriate comments, and advances on female court employees, which could have been defined as harassment.   

However, because Illinois has not adopted a rule like Model Rule 8.4(g), and the current rule related to harassment is ineffective, the disciplinary agency did not really have a rule to support the complaint.  So they did what disciplinary agencies sometimes do when there is no specific rule: they looked for a generic catch-all provision to try to frame the complaint around it.  And they found it in Rule 8.4(d) which relates to conduct prejudicial to the administration of justice.  

In my original post, I argued that this section of the rule was not meant to apply to the conduct at issue in the case.  But, because the Illinois Supreme Court has made it clear that all disciplinary charges must be based on a specific rule, the disciplinary agency was in a bind.  

I recently reported and provided a link to a hearing on whether Illinois should to adopt a rule like Model Rule 8.4(g).  (Go here for my comment on the proposal before the hearing; go here for my report of the hearing.)  Adopting a good version of that rule would provide a rule that would allow for the imposition of discipline in a case like the one of the lawyer harassing court personnel.  

But opponents of such a rule, ironically, will point to the fact that the case was prosecuted under an existing rule as proof that a new rule on harassment is not needed.  

Which brings me to today's post.  The Illinois Hearing Board heard the case as argued under Illinois Rule 8.4(d) and recommended a six month suspension.  Here is the Board's report.

As I have discussed previously (see my posts linked above), the proposed new rule can be improved significantly but it would be more on-point than trying to stretch the reach of the definition of "prejudicial to the administration of justice."

So what do you think?  What is the better choice:  (1) to adopt a new rule (which should be an improved version of Model Rule 8.4(g)), or (2) to reject such a proposal and stretch the meaning of conduct prejudicial to the administration of justice to include pretty much anything a lawyer does that the disciplinary agency can claim affects any aspect of the practice of law?

Saturday, November 18, 2023

Court of Appeals for the Fifth Circuit holds that certain social media posts by the Louisiana Bar Association violated the First Amendment

Last week, the US Court of Appeals for the Fifth Circuit ruled that the Louisiana State Bar Association (LSBA) violated the US Constitution’s First Amendment when it tweeted several posts that were not “germane” to the legal profession. Since membership in the state bar is required for US lawyers to practice within the state, the court held that the bar’s communications must be related to the legal profession.  Jurist has more on this story here.

This ruling is consistent with older cases on the subject and with recent decisions in a number of jurisdictions that go even further holding that mandatory bar membership is, itself, unconstitutional.  I have reported on this subject before many times.  Go here and scroll down for the latest.

Friday, November 17, 2023

More commentary on the Supreme Court's code of conduct - UPDATED

 A few days ago I reported that the US Supreme Court adopted a code of conduct and that it was immediately generally criticized as inadequate.  See here.  I also posted links to the story and many of those critical reviews.

As expected, the criticism kept coming.  Here are a few more links: 

Supreme Court fails to quiet ethics critiques with new code of conduct (Courthouse News Service)

The Supreme Court’s new ethics code is a joke (Vox)

US Supreme Court adopts new ethics code (Jurist)

SCOTUS Ethics Code Is Just PR (Bloomberg audio podcast)

Código de Conducta del Tribunal Supremo federal es inútil (Microjuris)

Reaction from the Legal Profession to the U.S. Supreme Court’s Code of Conduct (2Civility)

Reaction from the Legal Profession to the U.S. Supreme Court’s Code of Conduct (Lex Blog)

UPDATE 11/20/23:  The Supreme Court’s new ‘code’ does nothing to enhance ethics (The Hill)

UPDATE 11/21/23:  Today I saw an article that "defends" the new code.  It is the only article I have seen that describes the code positive terms.  It is called The Supreme Court’s new ethics rules affirm the rule of law and you can find it here.

UPDATE 11/23/23:  The Supreme Court is not necessary (The Hill), which starts saying "The Supreme Court’s new ethics code shows that the Court values its power more than its integrity. The justices don’t even hide it."

UPDATE 11/24/23:  The SCOTUS blog has a comment here.

Wednesday, November 15, 2023

Illinois Hearing on proposal to adopt a rule like Model Rule 8.4(g)

 Last week I reported that the Illinois Supreme Court Rules Committee was going to hold a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g).  I posted my comments on it here, and if you did not read that post, you probably should go there are read it before watching the hearing.  At the time, I had missed the deadline to participate but I expected others to do so, and I knew that at least the proponents of the proposal would present their position.

You should watch the hearing to reach your own conclusions, but here are my quick thoughts.  First, if you read my previous post you will remember that I am not a huge fan of the proposal but I can live with it because it clearly states in the comment that the rule does not regulate Constitutionally protected speech.  That is a key to me.  Today at the hearing I found out that the original proposal included that statement in the text of the rule itself, which I have argued is a better approach and, thus, would be my preference.  The rule recently adopted in New York, which I think is the best yet, takes that approach.  However, even though the original proposal in Illinois included that provision in the rule, somewhere along the line (apparently by the Rules Committee) it got moved to the comment.  Not great, but I can live with it.

Now, the hearing did not go as I expected.  I thought there would be more comments in favor of the rule.  Instead, the only person who spoke in favor of the rule was a representative of the Illinois Bar Association, which is the main sponsor of the proposal, so of course they would speak in favor of it.  Other than that, nothing.  

The speaker did a good job arguing in favor of adopting the rule and I found myself agreeing with most of it, except that she tried to argue that the rule does not reach as far as the Model Rule by making a distinction based on the fact that the Model Rule applies to conduct "related to" the practice of law, while the ISBA proposal applies to conduct "in" the practice of law.  That argument fell flat on its face and was totally unconvincing.  The explanation of how the phrase "in the practice of law" should be interpreted was exactly the same used by the ABA when referring to conduct "related to the practice of law."  If approved, the Illinois rule will have the same effect at the ABA Model Rule despite the difference in language.  If that is the intent, I wish they would simply leave it as "related to" to avoid confusion.  If that is not the intent, then they need to make the distinction clear.  

Thus, the proposal still has weaknesses, so the question is whether the weaknesses are enough to reject the proposal altogether.  As you watch the arguments consider which side you think has more support.  One thing I will note is that the speakers against the rule argued repeatedly that the rule would violate the Constitutional protections for free speech, but they did not address how that would be the case if the comment to the rule would explicitly state that rule should not be interpreted that way and that speech would be protected.  

As I said, the proposal has some weaknesses and some of the speakers who argued against its adoption exposed some of them.  

I was surprised that only one person spoke in favor of the rule.  Obviously, there were written comments submitted to the Committee, but every other speaker spoke against it.  Not one of them argued for changes to the proposal to make it more acceptable to them.  They were all or nothing.  The speakers who were opposed to the proposal saw nothing in it of value and all argued it should be rejected in its entirety.  Full stop.  And, just like it was during the commentary period for the ABA's Model Rule, it felt the opposition was a concerted effort by Christian organizations arguing that they should not be subject to discipline for discriminating based on their religious beliefs, that the proposal would violate the Constitution (even though the proposal explicitly states it should not be interpreted that way) and that the current rule is adequate.  (Although it is clear that it is "adequate" because it is actually inadequate at addressing the problem since it depends on the adjudication of claims by other government agencies, which does not happen often.)

I was also surprised that there was no attempt at compromise.  Speakers either wanted the full proposal rejected or adopted.  Nothing in between.  The only thing that came close, and with which I agree too, was a comment by the speaker for the ISBA who said they supported moving the statement about constitutionally protected speech back to the text of the rule.  Other than that, all I heard was either support for the proposal as is, or opposition to it in its entirety.  

Tuesday, November 14, 2023

Supreme Court adopts code of conduct, which is immediately widely criticized as inadequate

In response to mounting criticism over the conduct of some justices, the Supreme Court announced that it has adopted an ethics code.  Yet, now the criticism has turned to the content of the new code, which many have concluded is simply irrelevant because it has no enforcement mechanism, because it actually does not impose any duties and because it creates what one commentator called "an entirely toothless standard for disqualification".  Rather it is an aspirational document that essentially amounts to saying that the justices should try to do the right thing.

Of note is the fact that the code does not use the typical language used in codes of professional conduct when describing duties.  The drafters of the Model Rules of Professional Conduct, for example, avoided using the word "should" when describing duties because that word is ambiguous.  As you probably know, when describing a mandatory duty, the drafters use the word "shall" and when the duty is discretionary, the drafters use the word "may."  Yet, in the Supreme Court's code, the word "should" is the word constantly used to describe the expected conduct, while the word "shall" is used exactly zero times.  So, are the provisions in the code mandatory or simply suggested?  Given how all other codes of conduct are written, it is fair to assume, this one is merely suggested.  

So what does the new code add to what we had before?  Words on a piece of paper.  That's all, apparently.  The "unwritten rules" are now written.  But don't just take my word for it, take a look at the introduction to the code which states that it "largely represents a codification of principles that we have long regarded as governing our conduct."

Some are calling that a good first step, or some progress. Senate Judiciary Committee Chairman Dick Durbin said it "falls short."  

You can read the text of the code itself here or here.

There is news and commentary all over, but here are some links, in order of publication.

Courthouse News Service

The Hill




The Guardian

Faughnan on Ethics

The Guardian, again

Howe on the Court


NPR (audio), also here

Above the Law

Law Dork

Legal Ethics Roundup

Politico, again


Bloomberg law (audio)

The Nation ("The Supreme Court’s New Ethics Code Won’t Stop the Corruption")

MSNBC ("Why the Supreme Court’s new ethics code falls far short")

Monday, November 13, 2023

Oregon brings back "apprenticeships" as a pathway to admission to practice, sort of... -- UPDATED

 Oregon made history last week by introducing a new pathway for attorney licensing reminiscent of an apprenticeship system.  Law school graduates who choose this pathway could be admitted without having to take the bar exam.

The new system will allow law school graduates to become licensed lawyers without the need for the traditional bar exam or graduating from an in-state law school if they complete 675 hours of legal work under the guidance of experienced attorneys.  Graduates will create a portfolio of legal work including a minimum of eight samples of legal writing, lead at least two initial client interviews or counseling sessions, and oversee two negotiation processes.  The Oregon State Board of Bar Examiners will grade the portfolios and those with qualifying scores will be admitted to the state bar. 

For more information on the new program, go here and here.  The full rules of the program are available here.

UPDATE 11/21/23:  LexBlog has a story here.

Sunday, November 12, 2023

Amazon is offering Prime members low-cost primary health care access; can legal services be too far behind?

Do you remember the first wave of debates about allowing alternative business structures and partnerships with non-lawyers?  Back then, a strong opposition within the ABA was based on an argument that I remember as the fear that "Sears" (used generically to refer to any "department store") would start offering legal services.  

A few years later that same argument was raised but this time the feared predator was Walmart and the horror of having Walmart offer Optical Services right along with legal services.  

And now comes the obvious new version of the same argument, this time with Amazon as the villain.  

Amazon recently announced that it would offer low-cost health benefits for Prime members through a partnership with One Medical, a health care business Amazon purchased last year.  And I think it is just a matter of time before Amazon tries to find a way to offer legal services.  I have been saying this to my students for a while and I do believe it will be an issue some time soon.  

But, as you probably know, as long as states still have a rule like Model Rule 5.4 this possible business model is a non-starter.  This is the rule that bans lawyers from partnering with non-lawyers if any part of the partnership will provide legal services.

Model Rule 5.4 would ban Amazon and law firms from creating an arrangement similar to the one Amazon has announced for providing health care services, but I foresee the debate will come around again and, who knows, maybe the ABA will decide to follow the footsteps of the few states that are trying new regulatory mechanisms and we will see the rise of Amazon Legal Services....

Thursday, November 9, 2023

Best Practices For Texting With Clients?

 The Louisiana Ethics Blog has posted a short comment on best practices for texting with clients.  Though short, the post is longer than mine would have been on the same subject.  This was a subject of conversation recently among members of the Association of Professional Responsibility Lawyers and the consensus, with which I agree, seemed to be that the best practice for texting with client is this one:  DON'T.  

But, if you are going to communicate with clients by texting, you might be interested in the post which has more suggestions than that.  You can read it here.

Wednesday, November 8, 2023

California judge issues "preliminary finding" of misconduct against John Eastman for his role in Trump's effort to interfere with the transfer of power after his loss in the 2020 election

Last week, a California judge made a “preliminary finding” that attorney John Eastman breached professional ethics rules when he aided Donald Trump’s attempt to overturn the 2020 election, a significant milestone in the lengthy proceedings over whether Eastman should lose his license to practice law.  The finding of culpability is a procedural requirement that now allows the case to move forward to the next phase, where aggravating and mitigating evidence can be introduced.   

Read more on the story here and here (this article also address the connection with the RICO case in Georgia).

Illinois to consider proposal to adopt a version of Model Rule 8.4(g)

November 8, 2023

The Illinois Supreme Court Rules Committee will hold a public hearing on November 15 to address public comments on five proposals, including a proposal to amend Illinois Rule of Professional Conduct 8.4 in order to largely adopt ABA Model Rule 8.4(g).  You can find the proposal here.  For more information on the hearing and the other proposals, go here.

Long time readers of this blog know that I have been following the saga of Model Rule 8.4(g) since back when it was just a proposal before the ABA and, since its adoption by the ABA, through the process of adoption and rejection by individual states. And, you might also recall, I am not a fan of the text of the Model Rule.  I have argued many times that it is vulnerable to an attack as violating the First Amendment to the US Constitution.  (To read my comments, go here and scroll through several pages of posts.)  

I have not checked recently what the current “box score” of adoption among jurisdictions is, but the last time I checked (in late 2022) the Model Rule had been adopted without changes in only one jurisdiction (Vermont) and with modifications in seven, while it had been rejected in eight states,   Two states have apparently abandoned proposals to adopt the Model Rule while three states and the District of Columbia are still considering adopting it.  

The most recent state to adopt a version of the Model Rule was New York, and the most recent one to specifically reject it was Idaho (see my post here). (And, by the way, I think the version adopted in New York is the best one yet. See my comment here.

But today’s post is about Illinois.

Illinois had a professional conduct rule on discrimination before the ABA adopted MR 8.4(g), and for that reason resisted adopting the Model Rule when it was first suggested.  You can find the, as of now, current Illinois rule (8.4(j)), here.  Yet, the effort to adopt the Model Rule did not abate and the Illinois State Bar Association (ISBA) continued to work on a proposal. 

That effort resulted in a formal proposal to amend the current rule and substitute it for a version of the ABA Model Rule.  The proposal is not as good as the version of the rule adopted in New York but it is better than the current rule and better than some of the versions adopted in other jurisdictions including the one adopted in Pennsylvania which was declared unconstitutional in a case later vacated for lack of standing.  [Note that, contrary to what has been reported elsewhere, the case vacating the lower court’s decision did not uphold the constitutionality of the rule; it merely held that the lawyer who brought the case did not have standing.  The court left the question on the constitutionality of the rule to a future day when a lawyer with standing would challenge it.  For my comment on this case go here.]  A case challenging the Constitutionality of the rule adopted in Connecticut is pending.

So, what are the highlights of the proposal in Illinois?

The current rule only considers misconduct conduct that has been adjudicated to violate a federal, state or local statute or ordinance that prohibits discrimination and only if that conduct is determined to reflect adversely on the lawyer’s fitness as a lawyer.  That makes the rule very limited in scope and available in very limited circumstances.  It also forces the disciplinary agencies to have to wait until the conduct is adjudicated as discrimination by other government agencies, which can take a long time, if it happens at all to begin with.

In contrast, the new proposal largely mirrors the scope and availability of Model Rule 8.4(g), which includes the fact that the rule would apply to conduct outside the practice of law, as long as it is related to the practice of law.  By comparison, other jurisdictions have limited the application of similar rules to conduct in the actual practice of law.  Obviously, if you think that the Model Rule is too expansive, then you won’t like the ISBA proposal either.  

The ISBA proposal also adopts the view expressed in the Model Rule that suggests that lawyers should be able to choose clients freely, presumably even if doing to looks like they are discriminating.  For example, presumably lawyers could, without violating the rule, offer to provide services only to women or to men, as some divorce firms do now.  

Unfortunately, the proposal (in its comment) continues to use the euphemism “verbal conduct” in an attempt to make an unworkable distinction with the concept of “speech,” but at least it also includes an explicit statement affirming that Constitutionally protected speech will be protected from prosecution under the rule.  

To me, this is the most important aspect of the whole proposal – and it bothers me that it is relegated to the comment rather than placed in the text of the rule itself.  But something is better than nothing, and it is an improvement over the ABA Model Rule which does not address the issue at all.  

Thus, the proposal states in a new suggested paragraph in the comment to the rule that “Conduct protected by the Constitutions of the United States or the State of Illinois, including a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy, does not violate this paragraph.”   

Aside from the fact that the reference to “this paragraph” is misleading (since it reads like it refers to the comment rather than to the rule), this is a key aspect of the proposal without which I would not support it. And for that reason, I think this statement should be part of the text of the rule itself, as it is in the recently adopted rule in New York.  

Also, oddly, if there was a place to use the phrase "verbal conduct" it would be here, but the drafters decided to simply say "conduct."  A better way to draft this statement would have been 

"Conduct or speech protected by the Constitutions of the United States or the State of Illinois does not violate the rule.  This includes, but is not limited to, a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy."

Finally, I noticed that the proposal (again, in the comment) includes the obligatory silly reference to the claim that “[t]he Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.”

Obviously, this is a well intended attempt to suggest that we should not worry about the rule because we can trust that regulators are not going to try to enforce it randomly or in violation of people’s rights.  As I have argued before, this is naive at best (see here) since history proves otherwise. But in this particular case it does not bother me as much since the suggested text in the comment makes it explicit that Constitutionally protected speech will continue to be protected.  (Again, I wish that statement had been placed in the text of the rule itself, but I guess I’ll get over it.)

So, all in all, the proposal is a good effort and I expect it will be approved.  I would make a few changes but I can live with it.  

Would this proposed new version of the rule make a difference?  How would it be used to regulate the practice of law?  I am not sure we know exactly how, but here is a quick example.  In a recent post I discussed a complaint filed against a lawyer charging him with a violation of Illinois Rule 8.4(d) which refers to conduct prejudicial to the administration of justice under circumstances in which I argued were "a stretch" because the conduct was more along the lines of the type of conduct a rule like Model Rule 8.4(g) seeks to address.  I suspect that the disciplinary agency charged the lawyer using Rule 8.4(d) because they did not feel there was another rule they could use.  If the new ISBA proposal is approved, they would have a new, and more adequate, rule to use in cases like those.  For my comment on that case go here.

UPDATE 11-15-23:  The hearing was held today and you can watch it below or, if you can't see the player, you can go here.  The discussion of the proposal starts at about the 29 minute mark.  There was only one speaker in favor of the proposal (a spokesperson for the proponent ISBA), and several speakers against it.  As it happened with the ABA proposal way back when it was discussing approving what later became MR 8.4(g), the opposition appeared to be a concerted effort by Christian groups that argued, essentially, that they should be allowed to discriminate based on their faith/values, and that to the extent that there was other objectionable discrimination going on, the current rule is enough to deal with the problem.  

Here is the video.  Remember that you can click on the square icon in the bottom right corner to resize the window to full screen.

Tuesday, November 7, 2023

Happy 15th Birthday to the Blog!!!

 On this date, fifteen years ago I posted for the first time on this blog.  

Originally, I thought I would use the blog as a place to post stories to supplement my students’ reading assignments, but I quickly realized that I could do more and slowly began to use the platform to post commentary and news that I thought lawyers and judges would find interesting.  Slowly but surely, the audience for the blog started to grow.

It is not easy to keep a blog going for fifteen years and at this point, this blog may be, in fact, the longest running blog on professional responsibility out there.  I don’t know.  (The ABA Center for Professional Responsibility lists four blogs in its list of recommended resources and this one is the only one that is still active.) 

What I do know is that the blog would not be the success it is without you, the readers.  


Monday, November 6, 2023

New article on Rudy Giuliani's possible disbarment and other legal troubles

 Courthouse News Service has a new article on Rudy Giuliani's possible disbarment and other legal troubles.  Read it here.

Sunday, November 5, 2023

Illinois doubles its compensation for lawyers appointed to represent indigent parties

Citing its commitment to improving access to justice for all and especially indigent parties, the Illinois Supreme Court announced last week an amendment to Supreme Court Rule 299 regarding compensation for attorneys appointed to represent indigent parties. Amended Rule 299 doubles compensation for an attorney appointed by a court to represent an indigent party to $150 per hour (from its previous minimum of $75 per hour) and $150 per hour for time reasonably expended out of court (from its previous minimum of $50 per hour).  More on the story here, here and here.

Saturday, November 4, 2023

Does Georgia not have a rule about prospective clients? -- CORRECTION!

 Does Georgia not have a rule equivalent to Model Rule 1.18 on the duties owed to prospective clients?  ...  That's a rhetorical question because I looked it up and they do.  But you wouldn't know it if you read the news about a recent case decided by the state Supreme Court.

According to the story, published in the ABA Journal online, the Georgia Supreme Court recently tossed a disciplinary case against a lawyer who had been charged with using information revealed by a potential client in a consultation. 

What I find interesting about this story is that the court apparently ruled that the lawyer could not be disciplined because the rule at issue in the case only applies to actual clients.  In other words, the court apparently said that the duty against using confidential information (in rule 1.8) does not apply to prospective clients.

That's fine and dandy but what about rule 1.18?  If the conduct was improper use of confidential information obtained from a prospective client, that would have been the proper rule to apply, and it sounds like the lawyer did violate it. 

So, who made a mistake here?  Did the disciplinary agency charge under the wrong rule?  Did someone forget rule 1.18 exists or what it says?  Was there a typo (1.8 instead of 1.18)?  

I don't know.  But the result of the case does not make sense to me.

UPDATE 11/7/23:   As I said above, my comment was based on the story about the decision, not on the decision itself, which I had not located (and therefore had not read).  Now I have heard from a friend how did just that and he reports that there is a footnote in the opinion that explains that Rule 1.18 was adopted in Georgia after the conduct in question happened.  Now that helps make more sense of the story.

Thanks to Bill Freivogel for the update!

Friday, October 27, 2023

Arizona Ethics Opinion concludes lawyers can disclose confidential information when replying to negative online reviews

Long time readers of this blog might remember a few posts on whether an attorney can reply to negative online reviews.  All sources I have seen agree that lawyers can respond to negative reviews but that they can not disclose confidential information about a client in the process.  (Go here for a recent post which includes links to the older ones.  Here is link to an ABA Opinion.)

I am writing about this today again because I just found out that at the end of last year, the Supreme Court of Arizona Attorney Ethics Advisory Committee issued an ethics opinion that contradicts what all those sources have opined on the issue.

This new opinion concludes that 

In the context of an unfavorable online comment or review by a former client, informed consent is unlikely, meaning that disclosure of confidential information will be improper unless permitted by the only exception potentially applicable to this scenario, which is found under Rule 1.6(d)(4). Under Rule 1.6(d)(4), a lawyer may reveal confidential information relating to the representation of a client to the extent the lawyer reasonably believes necessary "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." Comment 12 to Rule 1.6 further provides that, where a legal claim or disciplinary charge alleges complicity of the lawyer in a former client's conduct or other misconduct involving representation of the former client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. Comment 12 also states that the lawyer's right to respond arises when an assertion of such complicity has been made; section (d)(4) does not require the lawyer to wait for an action that charges such complicity to commence. Rather, the defense may be established by responding directly to a third party who has made such an assertion.

The question thus becomes whether negative online comments establish a "controversy," and, if so, whether disclosure of confidential information can ever be considered reasonably necessary to establish a defense. Negative online comments do establish a controversy between a lawyer and client the informality of an online critique is not relevant. Furthermore, disclosure of confidential information may be considered reasonably necessary to establish a defense. A client may not use confidentiality as both a sword and a shield in a formal legal or disciplinary proceeding. Similarly, the client should not be able to make public accusation of serious misconduct against their former lawyer and then invoke the lawyer's duty of confidentiality to prevent the lawyer from making an effective response or to punish the lawyer for having done so. An individual who elects to try their former lawyer in the court of public opinion rather than before a tribunal and makes serious accusations that put confidential information at issue assumes the risk that such information will be disclosed in the lawyer's response. Thus, untrue accusations of misconduct should be countered.

Go here and scroll down to read Supreme Court of Arizona Attorney Ethics Advisory Committee Ethics Opinion File No. EO-19-0010 (December, 2022).

Thank you to Victor Salas for sending me a copy of the opinion!