Monday, December 6, 2021

NY Times editorial criticizes lack of accountability for prosecutorial misconduct

 About three weeks ago I reported that the organization "Accountability New York" filed a lawsuit in federal court in Manhattan arguing that the basis for the city’s pushback against the organization's work to hold prosecutors accountable for misconduct was unconstitutional.  See here

The issue has not gone unnoticed.  Two days ago, the New York Times published an editorial critical of the City's position and of the lack of accountability for prosecutorial misconduct in general.  It also suggests that the Justice Department’s office of professional responsibility needs an overhaul.  You can read the article here. It is called "How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?"

Sunday, December 5, 2021

Federal Judge reiterates (and revises) the sanctions on Trump lawyers for filing frivolous lawsuits

 Back in September I reported that a judge had imposed sanctions on several lawyers for the Trump campaign for the frivolous lawsuits filed in Michigan challenging the results of the election.  See here.

Today, I am writing to point out that the judge has affirmed the imposition of sanctions, and added an amount for attorney's fees but has reduced the amount of sanctions by a little over $28,000.  You can read the opinion here

According to the order, attorneys Sidney Powell, L. Lin Wood, Howard Kleinhendler, Gregory Rohl, Stefanie Lynn Junttila, Emily Newman, Julia Z. Haller, Brandon Johnson, and Scott Hagerstrom, must pay, jointly and severally $21,964.75 to Gretchen Whitmer and Jocelyn Benson, and $153,285.62 to the City of Detroit. 

The ABA Journal has more information and links on the story here.



Monday, November 29, 2021

Does the duty to know the benefits and risks associated with relevant technology (also known as technology competence) include a duty to watch and be aware of the news?

Long time readers of this blog know that I have posted many stories about the implications of comment [8] to Model Rule 1.1 on Competence.  According to this comment, the duty of competence includes a duty to "keep abreast of" the benefits and risks associated with relevant technology.

So, how does one "keep abreast" or anything?  Well, one way is to read and watch the news.  So, does the duty to know the benefits and risks associated with relevant technology (also known as technology competence) include a duty to watch and be aware of the news?  

My friend Lucian Pera, one of the most respected members of the Center for Professional Responsibility, recently published an article arguing that the answer is "Yes."  You can read the article here.


Thanks to Michael Kennedy for the information and link.

Sunday, November 28, 2021

How not to practice law: Text your client how to answer questions during a deposition, then try to cover it up by claiming incompetence

The Legal Profession Blog recently published a summary of a decision in Florida suspending a lawyer for 91 days for texting a client during a deposition (that was being taken through Zoom).  See here.  Interestingly, the lawyer taking the deposition corroborated the texts when the lawyer who has sent them, sent them to the other lawyer by mistake.... So, add lack of competence regarding technology to the list of examples of misconduct in the case.

Lawyer Ethics Alert Blog has more on the story here.

Sunday, November 21, 2021

Complaint filed challenging Connecticut's recently adopted version of Model Rule 8.4(g)

An organization called the New Civil Liberties Alliance recently filed a complaint in Connecticut seeking to enjoin the implementation of the state’s recently adopted version of Model Rule 8.4(g).  The NCLA’s stated mission is to protect constitutional violations by “the Administrative State,” which they describe as an unconstitutional administrative state within our U.S. government.  

As you may recall, a similar complaint was successful in Pennsylvania last year.  In that case, the court declared Pennsylvania’s version of the rule unconstitutional.  After appealing, the state dropped the appeal and amended the rule instead.  See here.

Just like the plaintiff in the Pennsylvania case, the plaintiffs in Connecticut argue that the rule imposes content-based and viewpoint-based discrimination and that the rule is so vague that lawyers are unable to tell what is prohibited and what isn’t.  

The problem with the case in Connecticut is that the text of the rule (and its comment) adopted there is not the same as the one adopted originally in Pennsylvania.  

The comment in Connecticut’s version limits the notion of “discrimination” to harmful speech or physical conduct directed at individuals and that makes an important difference.  The invalidated rule in Pennsylvania was broader and therefore could be interpreted to regulate protected speech.  The Connecticut rule is more focused and it might just survive the attack.  For example, a statement expressing bias toward a protected group in general would have been a violation of the original rule in Pennsylvania but it would not be a violation of the rule in Connecticut.  Although the notion of what is “harmful” is vague, I expect the defendants to argue that it is not much different than the type of language used in the analysis of employment cases in which courts have to determine if the working environment is “hostile.”

Evidently, the case is important and the result can be very influential in the continuing debate over Model Rule 8.4(g).

Monday, November 15, 2021

Podcast on civility in the practice of law

The podcast Reimagining Law dedicated a recent episode to discussing the difference between being a client advocate and overly aggressive, how aggressive behavior impacts legal outcomes and the bottom line, and how the Illinois disciplinary authority is addressing acts of incivility that don’t rise to the level of discipline or an ethical violation.  

Some of the topics covered include:  What is the difference between being a zealous advocate for your clients and being overly aggressive?  How can aggressive behavior impact the bottom line or case outcomes?  Are there issues related to incivility transactional matters for lawyers?  How do clients respond to overly aggressive attorneys?  How do judges respond to such attorneys? What happens when an act or the behavior of an attorney doesn’t quite reach the level of an ethical violation?   You can watch the episode below by clicking the "play button" or you can go to YouTube here.

Sunday, November 14, 2021

NY City reacts against law professors who filed complaints against prosecutors; law professors respond by filing lawsuit

Last May I wrote about a new organization in New York called "Accountability New York" created by lawyers and law professors to pursue complaints against prosecutors for misconduct. The organization started its work by filing 21 complaints to New York’s court-appointed grievance committees tasked with investigating attorney wrongdoing.  Go here to read that original post. 

You would think that having a group of lawyers seeking accountability prosecutorial misconduct would be a good thing; but not everyone agrees.  

When the law professors of Accountability New York filed the grievances against the prosecutors they published everything online.  But, because in New York disciplinary issues are supposed to be secret until (and if) until discipline is recommended, as reported by the New York Times, “the blowback from New York City was swift.”

In a letter sent directly to the grievance committee responsible for disciplining lawyers, a lawyer for the city accused the professors of politicizing the process and of violating the law by making the grievances public.

Accountability New York responded, though, and earlier this month, they filed a lawsuit in federal court in Manhattan in which they argue that the city’s pushback against the professors included the threat of further action if they continued to file grievances.  The lawsuit seeks declaratory and injunctive relief.  Here is a copy of the complaint.

The New York Times’ article quotes a spokesman for the city’s law department who claims that while prosecutors who committed misconduct should be held accountable, the professors’ attempted use of the grievance process was contrary to the law.  

The lawsuit asks the court to declare unconstitutional the law that forces disciplinary proceedings to be secret as a violation of the First Amendment.  The suit claims that the law is unconstitutional on its face and as applied to the law professors, whose complaints relied on allegations in judicial decisions and the public record.

The ABA Journal has more on the story here.  The Queens Daily Eagle also has more here.

Sunday, November 7, 2021

Reinventing Witness Preparation

Litigation Radio has a posted a podcast on witness preparation (sponsored by the ABA section on litigation).  You can listen to the program by clicking on the play button below or by going here.  Here is the description of the program: "Many trial lawyers believe that the less their client says to opposing counsel the better… but is that really true? Kenneth Berman, author of ‘Reinventing Witness Preparation’, joins Dave for a deep dive conversation on how you and your client can take control the narrative even during a line of deceptive questioning. Teaching your client how to answer clearly and completely can be the salvation of your case. Tune in to hear all about it."

Thursday, October 28, 2021

Florida Supreme Court finds that company that provided help with traffic tickets engaged in unauthorized practice of law -- UPDATED

October 17, 2021 (Updates at the end)

Back in 2018, I wrote about a couple of complaints filed in Florida that I argued could challenge the very notion of professional regulation.  In one of them a law firm argued that a technology company was practicing law, while in the other the company challenged the notion of the regulation of the profession under antitrust laws. This second lawsuit (the anti-trust lawsuit) was dismissed, but the Florida Supreme Court just decided the first case.  My original post about this topic is here, and I wrote an update here.

In my original post I explained that "TIKD is a company that promises consumers to take care of their traffic tickets (with a money back guarantee).  The consumer pays a fee to the company and the company takes care of everything, including hiring a lawyer to represent the consumer.   Based on this business model, a law firm in Florida filed a complaint with the Florida Bar alleging that TIKD was practicing law without a license."

At some point between then and now, the company went out of business apparently, but the case continued and in a 4 to 3 opinion issued on October 14, the Florida Supreme Court found that the company did engage in the unauthorized practice of law.  You can read the full opinion here.  The Legal Profession Blog has a good summary here.  Faughnan on Ethics has a comment here.

The court provided a number of reasons to support its conclusion, but, to me, this is the more interesting one:  "an inherent conflict and corresponding risk to the public arises whenever a nonlawyer like TIKD controls and derives its income from the provision of legal services. Like any other business entity, TIKD is motivated by a desire to maintain and increase profitability. When coupled with the provision of legal services to the public, there is a risk that such motives will eventually give rise to a conflict between the profit demands of the nonlawyer and the professional obligations of attorneys to act in the interests of a client. . . .  TIKD is not subject to the Bar’s jurisdiction and, other than Bar discipline proceedings against individual attorneys, there is no means by which to protect the public or guard against such conflicts."

As you can see, this is the "traditional" argument in favor of banning lawyers from forming partnerships with non-lawyers for the provision of legal services.  It is also the argument used against adopting new regulatory schemes such as the ones recently adopted in Utah and Arizona.  A company like the one at issue here probably would be allowed to provide legal services as an alternative business structure in those jurisdictions today.  (This is why I said back in 2018 that the issues raised by the case in Florida went to the core of the regulation of the practice of law.)

But, evidently, a slim majority of the Florida Supreme Court justices are not ready for such regulatory changes and imposed a permanent injunction.

In contrast, Justice Couriel offered a different view in dissent, arguing in part that TIKD did not practice law because it did not provide any legal services to the consumer.  It merely provided a "portal" through which consumers could get (and pay for) legal services provided by Florida lawyers.  

I understand this argument and it makes sense, but it does not quite address the issue of whether the connection between the lawyers and TIKD somehow created a relationship which allowed a non-lawyer to participate with the lawyer in the provision of legal services.  

In the end, I think the question is more complicated than what the dissenters make it sound because of the limiting regulatory scheme within which lawyers in Florida are allowed to practice.  

The question to address is not really whether this case is correctly decided -- it may very well be given the rules that apply now.  The question is whether those rules should be changed.  And the answer to THAT question is playing out in Arizona and Utah.  


UPDATE 10/27/21:  Lawyer Ethics Alert Blog has a comment here.

UPDATE 10/28/21:  The Legal Ethics Advisor Blog has a comment on the decision here.

Sunday, October 17, 2021

New Jersey finds that practicing law remotely is not unauthorized practice of law

New Jersey’s Committee on the Unauthorized Practice of Law joined with the Advisory Committee on Professional Ethics to issue Joint Opinion 59/742 which holds that lawyers who work remotely from a state in which they are not admitted do not necessarily engage in the unauthorized practice of law.  You can read the opinion here, and comments on it here and here.