Second Circuit Upholds Rules That Prevent Online Graduates From Taking N.Y. Bar Exam

In a summary order in a case called Bazadier v. McAlary, (available here) the Court of Appeals for the Second Circuit has held that the state of New York has the right to keep graduates of online law schools from taking the state's bar examination.  The court endorsed the conclusion of the district court that the admissions rules at issue do not violate applicants' rights to equal protection or freedom of association.  For more information check out the ABA/BNA Lawyers' Manual on Professional Responsbility (28 Law. Man. Prof. Conduct 117).

How not to practice law: lie to the disciplinary board in an attempt to cover your misconduct - third time this week!

Just a few days ago I posted two notes about cases in which the attorneys lied to the disciplinary board in an attempt to cover their misconduct.  As reported in the Legal Profession blog, here is a third, and it may be the "best" one yet.  In this case, called In the matter of Joan Palmer Davis, the Georgia Supreme Court disbarred the attorney primarily for neglecting a case. Among other things, the attorney failed to appear before the court for a hearing and the case was dismissed.  When questioned about the incident, the attorney claimed she did go to the hearing.  Really?  I am sorry, but how smart do you think it is to lie about whether you were present at a hearing or a meeting of some sort, where there probably is an actual written record and witnesses who could be called to corroborate the allegation - in some cases this could include the judge!  Didn't think that one though, did you!?  In fact, at the disciplinary hearing, four people testified that the lawyer never appeared at the hearing.

You can read the opinion here.

ABA Commission's proposed amendments to the Model Rules

Prof. Andrew Perlman, reporter for the ABA Commission that is preparing the next round of proposed amendments to the Model Rules, has posted a very informative note with links to lots of information on the most recent proposals here.  Some of the proposed changes are minor, others are important.  They include, among others, changes to the rules on competence, confidentiality, communication, and many issues involving new technologies.

How not to practice law: lie to the disciplinary board in an attempt to cover your misconduct -- UPDATED

We have seen this one before, but it never ceases to amaze me.  The Legal Profession blog is reporting that the Maryland Court of Appeals has disbarred an attorney, whose most serious violation was that she submitted false documents in defense of the disciplinary charges.  The case is called Attorney Grievance Commission v. Payer and it is available here.

UPDATE 2-24-12:  The Legal Profession blog is reporting yet another case of an attorney making things worse by lying during disciplinary proceedings.   In this case, the attorney engaged in misconduct in connection with a real estate transaction and compounded the problem by testifying falsely in the ensuing bar proceedings.  What ts different about this case is that the attorney was only suspended for eighteen months rather than disbarred.  The case is called Matter of Gurevich and it is available here.

Yet another opinion from Washington DC on the concept of "moral turpitude"

In a new case, reported today in the Legal Profession blog, the District of Columbia Court of Appeals has concluded that a conviction for federal witness tampering involves moral turpitude per se and thus requires disbarment.  The case is called In re Walter Blair and it is available here.

As you may remember, this is not the first time I have mentioned the DC courts' view on what constitutes moral turpitude.  Last September I discussed a case from Washington DC interpreting the notion of moral turpitude in an attempt to decide the proper punishment for misconduct.  See here.  In that case, the Disciplinary Board, Bar Counsel and the courts disagreed on the proper sanction for an attorney who had engaged in conduct that involved moral turpitude. 

ABA Commission on Ethics 20/20 Releases Nearly Final Drafts of Proposals

Prof. Andrew Perlman, one of the members of the ABA Commission on Ethics 20/20, has posted an announcement in the Legal Ethics Forum stating that the Commission has released nearly final drafts of the proposals that the ABA House of Delegates is expected to consider at its August 2012 meeting.  The drafts cover issues relating to technology and confidentiality, technology and client development, outsourcing, the establishment of an office in another jurisdiction while admission in that jurisdiction is pending, admission by motion, and the disclosure of confidential information to detect conflicts of interest.  A cover memo describing the newest drafts and how they differ from prior drafts is here. The deadline for comments on these new draft proposals is April 2, 2012.  The Commission plans to finalize these proposals shortly thereafter, so if you would like to comment, please do so before the deadline by sending an email to the Commission's Senior Research Paralegal, Natalia Vera, at natalia.vera@americanbar.org.

Dos and Don’ts for Departing a Law Firm

What are some of the legal and ethical issues that arise when a lawyer leaves a firm?  The Legal Intelligencer Blog has a series on "Dos and Don’ts for Departing a Law Firm" here, here and here.

Supreme Court Justices say no to ethics rules for Supreme Court Justices

Lyle Denniston of the SCOTUS blog is reporting today that Chief Justice John G. Roberts, Jr., has told five members of the Senate Judiciary Committee that the Justices do not plan to adopt as a binding ethical code for themselves — a position that is not new.  Go here for the full report.

Justice Dept asks Court to remove the name of district attorney who engaged in misconduct from opinion, Court refuses

I have often complained that courts do not do enough to encourage proper conduct by district attorneys.  Today I am happy to report an incident that shows the opposite.

The story involves an assistant US district attorney who engaged in certain misconduct. When the Ninth Circuit's opinion named the prosecutor by name, the government filed a motion asking that the name be removed but the court refused not only deciding to retain the references to the district attorney by name but also adding criticism of his superiors. The opinion reads, in part:

We are also troubled by the government’s continuing failure to acknowledge and take responsibility for Albert’s error.  The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. . . . Their job is not just to win, but to win fairly, staying within the rules. . . . That did not happen here, and the district court swiftly and correctly declared a mistrial . . .
When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again. Yet, we cannot find a single hint of appreciation of the seriousness of the misconduct within the pages of the government’s brief on appeal. Instead, the government attempts to shift blame by stating that “the prosecutor gave the defense counsel an opportunity to stop the offending question before the prosecutor asked it,” . . . 

The full text of the opinion is here (thanks to Jonathan Turley for the link). For more on the story go here and here.

Obama proposes budget increase for Legal Services but it is still less than what the agency says it needs

A couple of weeks ago I reported that last November the federal government enacted a bill that slashed federal funding for civil legal assistance to the poor by about 14% — from $404.2 million to $348 million, which is the lowest level since 2007.

Today, the blog of the Legal Times is reporting that President Obama has urged Congress to give the Legal Services Corp. $402 million for fiscal 2013, which is a 15.5% increase from the current $348 million budget.

If approved, that would be the good news.  The bad news is that the new budget would still be $68 million under  the budget proposed by the LSC, the independent agency that provides civil legal aid to the poor.

Durham County- North Carolina DA removed for prosecutorial misconduct

Prof. Jonathan Turley is reporting today that Durham County District Attorney Tracey Cline, has been removed for serious allegations of prosecutorial misconduct — something of a pattern for that office it seems. Interestingly, Cline is the successor to Mike Nifong who was disbarred for his misconduct during the infamous Duke lacrosse team case a few years ago.

How not to practice law: use your client's money to pay gambling debts

In a new case from New Jersey, the state Supreme Court has disbarred an attorney for misappropriation which included the use of money from a clients' trust account to pay gambling debts.  Obviously, using clients' money for personal purposes is one of the worst and dumbest things a lawyer can do, and, as we know it typically leads to disbarment.  

However, since gambling can be an addiction, I am not ready to pass judgment on this particular case.  If jurisdictions have established programs for lawyers addicted to alcohol and drugs, should they also provide help to gambling lawyers who have lost control of their extracurricular activities?

Go here for more information.

How not to practice law: pull a gun on a process server when he is trying to hand you some papers

An Illinos Hearing Board has recommended a 60-day suspension of a former elected State's Attorney who was convicted of the aggravated assault of a licensed private detective. He had pulled a gun on the victim in the court parking lot when an attempt was made to serve him with process. The process involved a suit filed against him by his former secretary.  For more on the story, go to the Legal Profession blog and the Jonathan Turley blog.

Judge orders release of report on prosecutorial misconduct in the Ted Stevens case - UPDATED

How about that!?  Last night I wrote about an article in the NY Times calling for the release of the report on prosecutorial misconduct in the Ted Stevens case (here) and this morning the Blog of the Legal Times is reporting (here) that the judge has just ordered its release.

The Wall Street Journal also has the story here.

UPDATE 2/9/12: The First Amendment Center has more on the story here.

NY Times calls for the release of the report on prosecutorial misconduct in the Ted Stevens case

Toward the end of last year, I posted several comments on the reports on prosecutorial misconduct in the Ted Stevens case.  Go here and  here for more on that.  Part of the story back then was that a judge found evidence of widespread and intentional concealment of evidence on the part of the prosecutors.

However, the judge has not released his report yet and today the New York Times published a short editorial asking for its release and criticizing the Justice Department for not calling for its release.

Go here to read the editorial.

DC considers new rule to allow disclosure to remedy wrongful conviction

The District of Columbia Bar is considering enacting a new rule (designated as Rule 8.6) to require lawyers in the District of Columbia who possess information that raises a substantial question about the innocence of a convicted person to disclose that information to the court, unless the information is protected by the duty of confidentiality.  The rule expresses good intentions, but because it is not crafted as an exception to the duty of confidentiality, I am afraid it will prove to be of minimal value.

It is interesting to note that the ABA Model Rules impose a duty on prosecutors to disclose information that suggests a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted (Model Rule 3.8(g)), but DC has not yet adopted this section of the rule and the proposal for DC Rule 8.6 makes the point that if there is going to be a duty to disclose this type of information it should apply to all lawyers, not just to prosecutors.

DC's proposal is an approach to the issues raised a few years ago by the Alton Logan incident, made famous by a 60 minutes segment (available here).  As you probably remember, in that case two lawyers were told by one of their clients that he (the client) was guilty of the crime for which Mr. Logan was being tried separately.  The lawyers tried to get their client to allow them to disclose the information but he did not consent.  Eventually, the lawyers convinced the client to allow them to disclose the information after the client's death.  He agreed to that, and then proceeded to live for 26 more years which Mr. Logan spent in prison for a crime he did not commit. 

Shortly after the former client's death, the attorneys disclosed the information and Mr. Logan was released.  

Partly in response to this incident, the Ethics Committee of the ABA’s Criminal Justice Section ("CJS") prepared a proposal to amend Model Rule 1.6 to recognize a new exception to the duty of confidentiality which would have allowed an attorney to disclose confidential information about a deceased client that the lawyer believed necessary to prevent or rectify a wrongful conviction. However, the proposal received little support.

A second proposal was then drafted to amend paragraph six of the comment to Model Rule 1.6 to limit the new proposed discretionary disclosure even more by allowing it only in cases where an individual was sentenced to death for a crime that he did not commit and to explain the discretion should be exercised very rarely.  This second proposal was also rejected.

The proposal in DC is fundamentally different because it is actually not an exception to the duty of confidentiality.  Proposed section 8.6(b) seems to say that if the attorney has a duty to keep the information confidential, then the attorney has to abide by that duty.  Interpreted this way, the new rule really would not provide a solution to the dilemma in a case like Alton Logan's.  As it is written, the rule would only apply to a lawyer who obtains the relevant information in a way that is not covered by the duty of confidentiality and it is hard to imagine how that would be the case. 

Here is a link to the current text of the proposal.

Five myths about pro bono

Esther F. Lardent, the president and chief executive officer of the Pro Bono Institute in Washington, has published a short article called Five Myths about Pro Bono in which she discusses, well, five myths about pro bono.  It is available here.

Defendant's referral service... or a conflict?

Here is an interesting story from the Baltimore Sun about a hospital that apparently has an agreement with a number of lawyers in the area to whom it refers cases when the hospital feels they might be sued for negligence.  What's strange about this?  That the person they are referring to the lawyer is the possible plaintiff.  As described in the article, "several medical systems — including MedStar Health, LifeBridge Health and the University of Maryland Medical System, which collectively run about two dozen hospitals — keep lists of vetted lawyers who will accept patient cases for lower fees, often with the expectation that claims will be settled quickly."

On the one hand, I don't necessarily see something wrong in a person recommending a lawyer to another who will eventually be their adversary.  Lawyers who practice in a particular area of law get to litigate against each other repeatedly, get to know each other, might develop good working relationships based on respect etc.

But this usually takes place informally and it involves individuals.  What the article is describing seems to be quite different.  It sounds like a system based on a preconceived agreement with the hospital.  It sounds like the hospital will refer possible plaintiffs to lawyers who have agreed with the hospital to help the hospital get the matter resolved quickly.  Looked at this way, it sounds very problematic.  There is the risk that lawyers on the referral lists (because they want to get more cases referred to them) may not want to push for the best deal for the patients.

How not to practice law: pretend to be a doctor

About a year ago, I reported on an unusual case where a lawyer tried to offer an expert opinion as a doctor in one of his cases.  Today, the Legal Profession blog is reporting on a case in which an attorney got a two year suspension for falsely claiming to be a doctor.  The case is In re Susan Friery and the order of the court is available here.

Practicing law before passing the bar or appearing pro-se?

The other day, I posted a note about whether a suspended lawyer can represent others in a setting where private individuals are allowed to do it (here).  Now comes this short transcript of an actual proceeding from "On the record in Cook County" which is a blog that provides humorous transcripts from proceedings in Cook County courts.  Today's entry is as follows:

Judge: Did you write this motion yourself, or do you have counsel present?

Defendant: Yes, I was aided by counsel who is here.

Judge: Counsel, would you care to stand up and tell me about this motion?

(no response for 20 seconds)

Judge: Counsel? Are you a lawyer?

Counsel: Well, I haven't passed the bar your honor.

Judge: Motion is denied.

New Jersey governor refuses to sign bill expanding waiting period rule

According to a recent report in the ABA/BNA Lawyers' Manual on Professional Conduct, an anti-solicitation bill (S 2316), which the New Jersey legislature approved January 9, died when Governor Christie opted not to sign it.  The bill stated that lawyers would have faced the prospect of going to jail if they sent written solicitations to accident victims—including people identified in motor vehicle accident reports—within 30 days of the incident.  The current waiting period provision in New Jersey (N.J. Stat. §2C:40A-4), which was enacted in 1999, makes it a crime for professionals to solicit accident victims via in-person, telephone, or electronic contact during the first 30 days following an accident.  The new bill would have extended that prohibition in two key ways. First, it would have applied the provision to written solicitation and, second, it would have outlawed solicitation of people identified in motor vehicle accident reports.

The choice of banning solicitation other than in writing is interesting and consistent with the proper analysis.  As you probably recall, in Florida Bar v. Went For It, the US Supreme Court decided that it would be constitutional for a state to impose a waiting period on written communication.  But the opinion was unconvincing and could not be reconciled with applicable precedent.

By limiting the waiting period provision to circumstances that present the so-called "Ohralik dangers" and refusing to extend it to cases of written communication, in which the Supreme Court has decided those dangers are minimal, New Jersey has adopted the correct view on the issue.

Be careful when setting up a website

Here is a good example of the many things that can go wrong when using a firm website.  The Legal Profession blog is reporting on a case in which an attorney was publicly reprimanded by the South Carolina Supreme Court for misconduct related to the use of a website. Go here for the story and here for the court's opinion.

Among other problems, the website contained the following rule violations:

1. material misrepresentations of fact and materially misleading statements

2. statements likely to create unjustified expectations about the results respondent could achieve

3. statements comparing respondent's services with other lawyers' services in ways which could not be factually substantiated

4. descriptions and characterizations of the quality of respondent's services

5. statements overstating and exaggerating respondent's reputation, skill, experience, and past results; and

6. statements using the word "specialist" even though respondent is not certified by this Court as a specialist.

New York State Bar may revisit its position on nonlawyer ownership of firms

Although the New York State Bar Association remains opposed to nonlawyer ownership of law firms, its president recently stated that the organization will study whether nonlawyers should be allowed to own a stake in law firms.  For more on the story, go to the Wall Street Journal law blog, which has a link to the remarks by the president of the NYSBA (here)

The last time the issue was discussed by the full ABA (in 2000), a proposal to allow for nonlawyer ownership in law firms was defeated.  The New York State Bar Association, along with several other state bar associations, argued against the proposal, warning that it could compromise core values of the profession such as loyalty, independence and confidentiality. 

The current ABA Commission working on possible new amendments to the Model Rules (the 20/20 Commission) is considering a new proposal on the subject - available here.  Under this version, non-lawyers could own stakes in law firms, but lawyers would still have to maintain a controlling financial interest and voting rights in the firm.  For more information on the work of the Commission go here.