Monday, July 30, 2012

Court finds state violated attorney's constitutional rights

In an important opinion on first amendment rights of lawyers, the United States Court of Appeals for the Sixth Circuit has ruled that the Kentucky State Bar violated and attorney's rights when it sent the attorney a warning letter after he criticized the state Legislative Ethics Commission.  The case is called Berry v. Schmitt and it is available here.

The case is important because it discusses the fine line between the authority of the state to regulate attorney speech and the individual attorney's right to express his opinion about judges and the court system.  For a number of reasons, attorneys have less freedom of speech than other professionals - there are rules that limit what can be said about on going cases for example - but just as there is a limit to what attorney's can say, there has to be a limit to the power of the state to regulate speech.

For a good discussion of the ruling in Berry go here, here and here.

Podcast on the proposals to amend the ABA Model Rules

Here is a podcast of a program discussing the proposals to amend the Model Rules.

Wednesday, July 25, 2012

Another story on sanctions for conduct outside the practice of law: attorney disbarred for lying to get financial aid for daughter

Earlier today I posted a story to remind everyone of one of the first lessons I want my students to learn: that  disciplinary authorities can, and often do, discipline attorneys for conduct outside the practice of law.  Here is another one in which the lawyer gets the highest sanction.

This story is actually an update on a story I wrote about back in September of 2011.  Back then, an Illinois Hearing Board recommended disbarment for an attorney who lied to his daughter's school so that she could get financial aid for which she did not qualify. He submitted financial aid applications which included false representations and fraudulently altered documents for three separate academic years. Even though the conduct was not within the practice of law and even though the attorney had no record of prior discipline, the Board found the conduct was so dishonest that the attorney should be disbarred.  You can read that opinion here.

Now comes the update:   the Illinois Review Board has affirmed and agreed with the recommendation of disbarment.  The case is called In the Matter of Golden and the most recent opinion can be found  here.

Minnesota Supreme Court holds defendant is entitled to due process in the process of waiving right to counsel

This would seem to be obvious but here is a new case from the Minnesota Supreme Court holding that a defendant is entitled to (and in this particular case was denied) appropriate due process protections in the process of waiving the right to counsel.  The case is called Minnesota v. Krause.  For more on the story go to the Legal Profession blog.

Sanctions for conduct outside the practice of law

There is nothing particularly new in this story, but I like to remind readers from time to time that a lawyer can be sanctioned for conduct outside the practice of law.  In this new case, a lawyer in Illinois was sanctioned because he got into a fight with another person over the fact that the other person hit the lawyer's house with a golf ball.  The lawyer's property is alongside a golf course and apparently he got angry when a golfer hit a ball that bounced off the house and into his yard.  I play golf and I have to tell you that this happens all the time (balls going into people's properties, not the fighting over it).  Anyone who buys a house along a golf course assumes this risk, which is why even though I play golf I would never buy a house on a golf course.  For more on the story go to the Legal Profession blog.

Sixth Circuit enters circuit split on ineffective assitance of counsel

Last week the Sixth Circuit joined a circuit split over whether an attorney's failure to file a notice of appeal despite receiving explicit instruction to do so from their client constitutes ineffective assistance of counsel. The case, Campbell v. United States, is available here.  For more on the story go to Circuit Splits.

Who should be in charge of disciplining Department of Justice lawyers?

I have criticized the Department of Justice's actions to discipline its attorneys as a joke (here and here).  And, as I said in one of those comments, I am not alone in my criticism.  Here is a story in the blog Main Justice about the new group within the Department of Justice-- the Professional Misconduct Review Unit -- that determines disciplinary sanctions within the of Department of Justice.

Thanks to the Legal Ethics Forum for the link to this story:

Monday, July 16, 2012

Alabama State Disciplinary Commission rules attorneys can't participate in Groupon and other similar services

Contrary to opinions from several other state bars that have addressed this subject, the Alabama State Disciplinary Commission has issued an opinion concluding that a lawyer's use of websites like Groupon to sell legal services violates the ethics rule against sharing legal fees with nonlawyers, as well as the ethics rule requiring all unearned fees to be placed into a trust account and may violate rules on conflicts of interest, competence, diligence, and communication, the commission warned.  The opinion (no. RO 2012-01) is available here.

ABA seeks comments on draft re proposed changes to Model Rule 1.7 (Conflicts of interest)

The ABA Commission on Ethics 20/20 has released a Revised Draft Proposal on Model Rule 1.7: Choice of Rule Agreements for Conflicts of Interest.  Also, go here for the Cover Memo.  Please e-mail your comments by August 15, 2012, to Senior Research Paralegal Natalia Vera at 

Choice of Laws and Concurrent Conflicts

Assume a firm is asked to represent a client in a jurisdiction against another current client of the firm.  Then assume that this would be allowed under the rules of that jurisdiction but not under the rules of the jurisdiction where the other current client is represented.  Which rules govern?  Should the rules allow a firm to represent an interest adverse to a current client in a different jurisdiction absent client consent?

Here is a comment posted in the Legal Ethics Forum on this question:

The New York office of Law Firm represents Company A on a transactional matter involving parties and commitments in New York and London.  While that matter is pending, Company B (in London) wants to retain a lawyer in the London office of Law Firm to handle a London-based arbitration against Company A.  Assume the arbitration is completely unrelated to the work that the New York office of Law Firm is handling for Company A.

Now consider that the ethics rules in England permit law firms to be adverse to existing clients in unrelated matters.  In other words, under the Rules applicable in England, Law Firm would have no conflict of interest if it represents Company B in the arbitration.  In contrast, the Model Rules (and the New York Rules) do not permit lawyers to be adverse to current clients in unrelated matters.  Thus, Law Firm would have a conflict under the New York Rules.  So does Law Firm have a conflict of interest if it represents Company B?

A review of Rule 8.5 (Choice of Law) yields no clear answer.  For matters pending before a tribunal, Rule 8.5 instructs us to apply the rules of the jurisdiction where the tribunal sits (for the arbitration, that would be England).  But on the other hand, Rule 8.5 strongly implies that the New York Rules should govern the Law Firm's representation of Client A in the transational matter.

The ABA Commission on Ethics 20/20 has just circulated a new draft of a possible proposed amendment to Rule 1.7 that would help to address this choice of law problem.  It would allow, subject to several limitations, lawyers and clients to agree that their relationship will be governed by a particular jurisdiction’s rules of professional conduct relating to conflicts of interest.  For example, given that Law Firm's representation of Company A has a nexus to England, Company A and Law Firm could agree at the outset of the engagement that any future conflicts will be resolved under the Rules in England.  This agreement would be a kind of advance waiver similar to what is already permitted under Rule 1.7, Comment [22].  The idea is that such agreements could address the issue more clearly than is possible under Rule 8.5.

The Commission's draft proposal and report on this topic can be found here.  The cover memo is here. Comments should be submitted to by August 15th.  If the Commission decides to pursue this proposal, it would be presented to the ABA House of Delegates in February 2013.

ABA Commission asks for comments on Rule 5.5

The ABA Commission on Ethics 20/20 recently released a paper that asks whether Model Rule 5.5 should be revised to offer more guidance on the question of whether a lawyer may provide legal services on a temporary basis in this jurisdiction where the lawyer is not admitted.  For a discussion of the issues go to the Legal Ethics Forum and to My here. and here.

Wednesday, July 11, 2012

More reports on the slow death of the billable hour (which continue to be exaggerated)

I have reported before on the claims that the billable hour is dead or dying, always adding my opinion that reports of this death have been greatly exaggerated.  For my previous coverage on this subject see here, here, here and here.  You can also use the search function on the right side panel to look for posts on "flat fees" which discuss how the confusion on how to regulate the use of flat fees in some jurisdictions has eliminated their usefulness as alternatives to hourly fees.

Many of the sources of information cited in those older links come from the Wall Street Journal, which is why interestingly, today the WSJ law blog is finally accepting my view in a short article (available here) in which it states that "[d]espite all the hoopla about hourly billing going the way of the Edsel, law firms and their corporate clients have been much slower to adopt alternative billing arrangements than many had predicted..."

Wednesday, July 4, 2012

West Virginia decides not to file charges against judge for outburst

Yesterday I posted a note about the video showing a judge losing his temper in court (here) and a link to an article highly critical of the judge.  Today, Prof. Jonathan Turley is reporting that the West Virginia Supreme Court has announced that no charges will be filed against the judge in the case at least in part because "the judge is embarrassed and certainly contrite about his outburst."  Prof. Turley then argues that this "leaves some confusion over what it would take to get a charge out of the high court."  He also argues that "I have no doubt that [the judge] is embarrassed after becoming an Internet sensation. However, the video reveals conduct that is shocking and raises serious questions about Watkins’ suitability as a judge."  You can read Prof. Turley's latest comment on the case here.  The ABA Journal has more on the story here.

Tuesday, July 3, 2012

Video: How not to conduct a hearing

Yesterday, the ABA Journal posted a copy of a video (apparently a big hit on You Tube) in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties.  The judge was complete out of control because, according to him, the husband in the case had posted a story about the judge (which included a photo of the judge's house) on a website.  Since the hearing, the husband has filed a complaint against the judge before the Judicial Investigation Commission.  It will be interesting to see what is decided.

Assuming the accusation made by the judge is true, I think he had reason to be upset, but that does not excuse his behavior.

Professor Jonathan Turley has published a short comment on the story here in which he concludes that "[t]he ethics charge has obvious merit given the judge’s personal interest and anger — not to mention his loss of composure and demeanor. Regardless of the merits of the allegations, [the judge] was no longer a disinterested or neutral party."  You should read the readers' comments too.