Saturday, April 20, 2019

How to define "the practice of law"

If you are interested in professional responsibility matters, you know that courts and scholars have struggled over the years to define exactly what constitutes "the practice of law."  (Here is an old example.  An ABA commission at one point abandoned an attempt to come up with a model definition, in fact.

Whether it is to deal with issues related to unauthorized practice of law, multijurisdictional practice, practice by non lawyers, sharing of fees with non lawyers and so on, having a standard definition would be helpful.  But the attempts at defining what is practicing law usually end up being over or under inclusive, thus making it difficult to definitively say that, for example, the work of an accountant doing tax code advising for a client is or is not practicing law.

I am writing about this today because I just saw a recent post at MyShingle.com asking "What would be the effect of simply exempting matters smaller than $10k from the definition of the practice of law?"

The author's argument is that we could define the practice of law this way:  "Any matter that involves courts, contracts, wills, advice on rights or obligations that has a value of less than $10,000 is not the practice of law.  Admission to the bar is not required to represent clients in this category of matters."

As she says, this seems arbitrary, but, on the other hand, it is also practical. Why?  Because "[o]ne of the reasons that parties are often unrepresented in certain matters is because lawyers turn down cases that don’t make sense from a financial perspective."

So if people need help with work that requires advise on legal matters that most lawyers don't want to help with, why not let others who want to help do it?

You can read the article here.

As you know, a couple of jurisdictions already have programs that allow non lawyers to participate in the legal process by helping claimants, and participants in divorces, etc.    My most recent post on this subject, with links to older ones, is here.

Friday, April 19, 2019

ABA Ethics Opinion on whether it is a violation of the Code of Judicial Conduct for a judge to refuse to perform same sex marriages -- UPDATED

Earlier today, the ABA Standing Committee on Ethics and Professional Responsibility released its latest Formal Opinion (No. 485) which addresses whether it is a violation of the Code of Judicial Conduct for a judge to refuse to perform same sex marriages.  You can download or read the full opinion here.

The opinion's digest reads as follows:
A judge for whom performing marriages is a mandatory obligation of judicial office may not decline to perform marriages of same-sex couples. A judge for whom performing marriages is a discretionary judicial function may not decline to perform marriages of same-sex couples if the judge agrees to perform opposite-sex marriages. A judge’s refusal to perform same-sex marriages while performing opposite-sex marriages calls into question the judge’s integrity and impartiality and reflects bias and prejudice in violation of Rules 1.1, 2.2, 2.3(A), and 2.3(B) of the Model Code of Judicial Conduct. In a jurisdiction in which a judge is not obligated to perform marriages but has the discretion to do so, a judge may refuse to perform marriages for members of the public. A judge who declines to perform marriages for members of the public may still perform marriages for family and friends. If a judge chooses to perform marriages for family and friends, however, the judge may not decline to perform same-sex marriages for family and friends.
UPDATE 4/19/19:  The ABA Journal has a short article on the opinion in its April 2019 issue.  You can read the article here.

Saturday, April 13, 2019

Devin Nunes files second lawsuit

A few days ago I posted about Devin Nunes' lawsuit against Twitter and others and asked whether it violated the rules against frivolous litigation.

Now comes news that Nunes has filed a second lawsuit and now the question is whether it violates the rules against filing claims for an "improper motive."  Tech Dirt has made an argument that it does.  You can read it here.

Wednesday, April 10, 2019

Yet another attack to the concept of the unified bar: Wisconsin lawyers file suit alleging bar's use of mandatory dues violates their constitutional rights

In what is quickly becoming the hot issue in Professional Responsibility this year, here is yet another news item regarding an attach on the concept of a unified bar.  For my recent posts on this subject, and links to older posts go here.

As reported by Courthouse News, two Wisconsin lawyers have filed a federal civil rights suit against the state’s bar association claiming mandatory membership to the bar association constitutes compelled speech in violation of the lawyers’ First and Fourteenth Amendment rights because of the dues lawyers have to pay -- or, more precisely, because they don't agree with the way the bar association uses the money paid in dues.

The case is called Jarchow v. State Bar of Wisconsin, and you can read the complaint here.  Among other things, the plaintiffs complain that the Wisconsin Bar Association publishes magazines with articles "on matters of intense public controversy" including advocacy for criminal justice reform, juvenile justice reform, elder law reform and advocacy for restoring funding to provide legal representation to the poor.  They also specifically claim they object to the bar’s advocacy on criminal justice issues, felon voting rights, unemployment insurance fraud, free exercise of religion and immigration law.

Tuesday, April 9, 2019

How not to practice law: threaten others and tell them to kill themselves

I have not posted any entries in the ongoing "how not to practice law" series in a while, so here you go:

As reported (here) by Prof. Jonathan Turley:
A prominent real estate lawyer who once described himself in a column as “jungle street skills and a passion for justice” has been suspended for bizarre and abusive conduct. Adam Leitman Bailey told a tenant that he should commit suicide as a worthless human being and even declared “now you’re my bitch.”  The problem is that the tenant recorded the call.  
In a decision by the New York Appellate Division, Bailey was given a four-month suspension and told to get counseling.

Monday, April 8, 2019

Article on Maine's system for providing counsel to indigent criminal defendants

The Sixth Amendment Center has published a short article criticizing the system used in Maine to provide counsel to indigent defendants.  According to the article, Maine is the only state in the country that provides all indigent defense services through private attorneys which makes it difficult to predict and contain costs and to supervise private attorneys to ensure they can and do provide effective representation. The article concludes that Maine struggles with both, as the Maine Commission on Indigent Legal Services is expected to oversee the representation by and cost of nearly 600 attorneys, handling more than 30,000 cases each year in 47 courthouses presided over by approximately 90 justices, judges, and magistrates, with a staff of just three people. 

You can read the full article here.

Sunday, April 7, 2019

What if a client asks lawyer to destroy the client's file or some of its contents?

Over at Ethical Grounds (the unofficial blog of Vermont's bar counsel), Michael Kennedy discusses a recent NY opinion on whether an attorney has to destroy the client's file upon request.

As Michael explains, ordinarily, upon the termination of a representation, Rule 1.16(d) requires a lawyer to surrender to the client all papers and property to which the client is entitled, which, of course, includes the client's file.  But, the lawyer is also entitled to keep a copy of the file, which, in fact, the lawyer may be required to do according to the lawyer’s malpractice.

The interesting question then becomes, what to do if a client directs a lawyer not to keep to a copy of a the file?

You can read the comment here.

Friday, April 5, 2019

Another challenge to the notion of a "unified bar" -- this one in Oklahoma -- UPDATED

A few days ago I posted a story about a challenge to the constitutionality of the unified bar system in Texas.  See here.

Today's news is that a similar lawsuit has been filed in Oklahoma.

The lawsuit, in a case called Schell v. Williams, filed on March 26, alleges that Oklahoma's requirement that attorneys join the state bar association to practice in the state is unconstitutional because by forcing attorneys to join the Oklahoma Bar Association, the state violates their First Amendment rights to free speech and association

As I discussed in my previous posts on this, this is not a new argument but it is not a frivolous argument.  The question really goes to the core of whether such a requirement is necessary to regulate the legal profession or improve the quality of legal services.  As of right now, there are similar challenges pending in, at least, Texas and North Dakota and the results in these cases will have national implications.

UPDATE 4/5/19:   As I have said elsewhere, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback. In addition to the cases I reported recently, I was recently reminded by a reader of the blog that there are two separate lawsuits filed on similar grounds in Oregon as well as ongoing longstanding litigation against the Washington State Bar. 

In Oregon, at least one of the lawsuits contends that the fact the state bar published a statement condemning White Nationalism and, what it called the "normalization of violence" was "blatantly political" and unconstitutional.

Sunday, March 31, 2019

New statute in New York creates a commission to review prosecutorial misconduct

Long time readers of this blog know that I have posted a lot of stories about prosecutorial misconduct over the years (go here and scroll down).  And in many of those stories, I have often complained that courts do not do enough to confront the problem.

Today, for a change, I am reporting that one state is at least trying.  As reported in Jurist:
New York Governor Andrew Cuomo signed a bill Wednesday to create a commission to review prosecutorial misconduct by District Attorneys.  This is the second version of the bill that the governor has signed. The first version of the bill was challenged by a coalition of district attorneys under separation of powers concerns between the judiciary and legislature, but was halted among promises to revise the bill. The governor and state legislature made changes regarding the 11 appointments to the commission. The original version allowed the legislature to appoint all members of the Commission, and the bill signed on Wednesday allows for appointments from the governor, legislative party members, and Chief Judge Janet DiFiore. The commission will review potential misconduct of state prosecutors and impose necessary sanctions. The panel can subpoena witnesses and ask for relevant records to conduct its investigation. Upon a finding of misconduct, prosecutors can be sanctioned ranging from public censure to being removed by the governor. Prosecutors will also be able to challenge the panel’s decisions on an appeal to the Appellate Division of the NY’s Supreme Court.  The new version of the bill is still expected to face due process and equal protection challenges for expanding the power and authority of the state judiciary.
You can read the text of the bill here.

Saturday, March 30, 2019

Devin Nunes files lawsuit for $250 million against Twitter; does it violate the rules against frivolous suits?

By now, I am sure you have heard all the jokes about the lawsuit filed by Rep. Devin Nunes.  If not, here is the bottom line: Rep. Devin Nunes has sued Twitter, some satire Twitter accounts, and a real political commentator for a variety of "offenses" including defamation based on allegations that anyone with a basic understanding of the law should know would not support a claim for defamation.  He is asking for $250 million in compensation.  The defamation claim is frivolous.

Of course, frivolous lawsuits are not new, but this is the same Devin Nunes who co-sponsored the Discouraging Frivolous Lawsuits Act and who once voted for a House Amendment "to express a sense of Congress that free speech should be protected."

But, my question for the readers of this blog is this:  if the claims are so obviously frivolous, what was the lawyer who filed the complaint thinking?  Are the rules (both in civil procedure and professional responsibility codes) not enough to discourage filing of frivolous complaints?

For a detailed analysis of the complaint, go to TechDirt.

You can read more comments in ABA Journal, and The Daily Beast.

For the jokes I mentioned above, you can go here, and here for some examples.