Tuesday, October 4, 2022

New report on the effects of regulatory reforms in Utah and Arizona

Long time readers of this blog know that one of the most debated issues in the past few years involves the question of whether the regulation of the profession should be reformed to allow lawyers to provide services in alternative business structures and whether to allow non-lawyers to provide some types of legal services.  

You also know that the ABA continues to hold the position that lawyers should not be allowed to partner with non lawyers for the provision of legal services and that Utah and Arizona recently decided to take measures to depart from this traditional view.

What we do not yet know very well, however, is what effect have the regulatory changes in those states have had as it relates to the goal of providing more, better and more affordable access to legal representation.

Well, for those of you interested on the topic, more information is now available.  Stanford Law School’s Rhode Center on the Legal Profession has drafted a report on the issue.  The report, Legal Innovation After Reform: Evidence From Regulatory Change, is available here

The report concludes, among other things, that the regulatory changes in Utah and Arizona is generating innovation in the ownership structure of legal services providers, which is not surprising since that was the idea to begin with.  

This is a good thing, but on whether the other important goal has been met, the information is not so clear, nor consistent between the two states.  

The main argument for broad regulatory reform is always that it will lead to more and better "access to justice", by which we really mean access to legal representation.  But the experience in other states has shown that for varied reasons, the economics of the matter don't always lead to this result.  Regulation that has opened the door to more service providers does not always result in lowering costs, and by extension, to more access to representation for those who can't afford it.

The new report has some data that suggests that the regulatory changes in Utah has resulted in more access than the changes in Arizona, and it is not clear (to me at least) that either has resulted in significantly more access to poor individuals.  

None of this is to say that the regulatory changes should be rejected; I am only saying that we may need to think more about ways to achieve the goal of access to affordable representation.

You can read a comment on the report here.

Sunday, October 2, 2022

New ABA Ethics opinion on whether pro-se lawyers can communicate with represented person

 The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Ethics Opinion (No. 502), on communications with a represented person by a pro-se lawyer.  You can read (and download) the full text here.  The summary is as follows: 

Under Model Rule 4.2, if a person is represented in a matter, lawyers for others in the matter may not communicate with that represented person about the subject of the representation but instead must communicate about the matter through the person’s lawyer, unless the communication is authorized by law or court order or consented to by the person’s lawyer.

When a lawyer is self-representing, i.e., pro se, that lawyer may wish to communicate directly with another represented person about the subject of the representation and may believe that, because they are not representing another in the matter, the prohibition of Model Rule 4.2 does not apply. In fact, both the language of the Rule and its established purposes support the conclusion that the Rule applies to a pro se lawyer because pro se individuals represent themselves and lawyers are no exception to this principle.

Accordingly, unless the pro se lawyer has the consent of the represented person’s lawyer or is authorized by law or court order to communicate directly with the other represented person about the subject of the representation, such communication is prohibited. In this context, if direct pro se lawyer-to-represented person communication about the subject of the representation is desired, the pro se lawyer and counsel for the represented person should reach advance agreement on the permissibility and scope of any direct communications.

For a comment on the Opinion, go to Ethical Grounds, the blog of the Bar Counsel for Vermont. 

The ABA Journal also has a short post on the opinion, here.

Tuesday, September 27, 2022

How not to practice law: lie to your client and to the court to try to get out of representing a client

 Here is another installment on the "how not to practice law" series...

In today's story, the lawyer lied to the client and the court claiming to be suffering from cancer in order to have the court agree to let the lawyer withdraw from representation.  

And for this the lawyer is now agreeing to getting disbarred.

Moral of the story:  don't lie.  And especially, don't lie to the court.  Simple.  

Monday, September 26, 2022

Vermont approves multiple amendments to its Rules of Professional Conduct

Mike Kennedy, Vermont's Bar Counsel, reports that about two weeks ago, the Vermont Supreme Court approved several amendments to the Vermont Rules of Professional Conduct.  The Court’s order is here.  Some of the amendments are pretty significant.  They include:

Paragraph (c) of Rule 1.2 has been amended to require a lawyer who assists a person to prepare documents that the lawyer knows the person will file in court to comply with any court rules that might require a seemingly self-represented litigant to disclose having received legal assistance.  

Rule 1.6 has been amended to create exceptions to the duty of confidentiality that allow disclosure of information to secure guidance from bar counsel and to detect conflicts of interest when changing jobs.

Rule 1.6 was also amended to adopt an affirmative duty to make reasonable efforts to prevent the inadvertent disclosure of or unauthorized access to client information.  This provision is in Model Rule 1.6(c).

The duty (in Rule 4.4) to notify the sender upon receiving information that the lawyer knows or should know was inadvertently sent has been expanded to “information” from “document.”

A paragraph was added to the comment to Rule 5.5 to clarify that lawyers who are not admitted to practice law in Vermont do not necessarily engage in the unauthorized practice of law by working remotely from Vermont. 

Rule 8.4(b) prohibits lawyers from engaging in conduct that involves a “serious crime.”  The amendment broadens the definition of “serious crime.”

For the complete run down, go to Mike's post or watch this video in which he discusses amendments (which had not yet been adopted at the time of the video).

Sunday, September 25, 2022

Federal judge dismisses Trump's suit vs Hillary Clinton for being frivolous but does not impose sanctions

 If you have been watching the news lately you know that former President Trump has been having a terrible week in terms of legal matters.  Most the attention has focused on the reversal of part of the lower court's ruling in the Mar-a-Lago search case and on the civil claim filed in New York.  But there is another story that is more interesting to PR nerds like me and that has been mostly overlooked by the general media.

On September 8, a federal judge dismissed a lawsuit brought by Trump against Hillary Clinton, former FBI Director James Comey, Rep. Adam Schiff, and others that alleged that the defendants conspired to spread disinformation about his campaign during the 2016 presidential election. 

In the opinion (available here), the judge explicitly finds that many of the complaint’s allegations and claims lack factual support and that having filed the case was a violation of rules of civil procedure (which in turn would make it a violation of rules of professional conduct).

Citing Rule 11 of the Federal Rules of Civil Procedure, the court states that “[i]n presenting a pleading, an attorney certifies that it is not being presented for any improper purpose; that the claims are warranted under the law; and that the factual contentions have evidentiary support.”  

The judge then concludes that  “[b]y filing the Amended Complaint, Plaintiff’s lawyers certified to the Court that, to the best of their knowledge, “the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying or reversing existing law or for establishing new law.” and that “the factual contentions have evidentiary support[.]”...  I have serious doubts about whether that standard is met here.”

Having concluded this, however, the judge did not impose sanctions.  Instead, at the very end of the opinion he asserts "I reserve jurisdiction to adjudicate issues pertaining to sanctions."

I have not heard whether the judge has made a decision on sanctions, nor whether the conduct of the lawyers, has been or will be referred to disciplinary agencies.  I hope the judge decides to do both.


Wednesday, September 7, 2022

New Mexico will no longer deny licenses to lawyers based on lack of citizenship or based on immigration status

 New Mexico will no longer deny licenses to practice law solely because of an applicant’s citizenship or immigration status, including some aspiring law students who arrived in the U.S. as children and don’t have a clear path to citizenship. Go here for the full story.

Sunday, August 7, 2022

Oregon will allow licensed paralegals to provide limited legal services

As you probably know, in an attempt to provide better access to legal services, a few jurisdictions have allowed paralegals and other people not admitted to the profession (aka "non-lawyers") to provide limited legal services under certain conditions.  Washington state was the first one, although it later abandoned the program.  

Today I am writing about this to report that the Oregon Supreme Court recently approved a program that allows licensed paralegals to provide limited legal services in family law and landlord-tenant cases.

You can read the full story here or check this short "fact sheet" that lists the types of services that licensed paralegals will be allowed to provide.   The ABA Journal has more on the story here.

Tuesday, July 26, 2022

The Argument For Why Counsel Have An Ethical Duty To Inform Clients About Litigation Finance

Do lawyers have a duty to inform clients about litigation finance?  You can find an argument in favor of answering the question in the affirmative here.

Tuesday, July 19, 2022

The type of conduct that would be subject to discipline under Model Rule 8.4(g)

Two different stories from California illustrate the type of conduct that could be subject to discipline under Model Rule 8.4(g) (or similar state versions).  (Go here for my comments on the debate about this rule.)  The first one, however, would not require the adoption of such a rule because it would be subject to discipline anyway.

The first story (here) involves an attorney making a sexist comment in court, which could be subject to discipline under a rule barring conduct that is prejudicial to the administration of justice (see MR 8.4(d)).

The second story (here) involves conduct outside the practice of law but "related to the practice of law" as defined by rules like MR 8.4(g).  It involved conduct by an attorney at a law firm party/event which resulted in a sexual harassment suit filed against the lawyer.