Wednesday, February 27, 2013

How not to (start) the practice of law: cheat during the bar exam

A couple of years ago I reported on a case in which  the Appellate Division of New York's Supreme Court  affirmed a decision nullifying the results of a candidate's bar exam because it was determined that he or she was trying to cheat during the exam.  Today, Lowering the Bar is reporting on a case in which a candidate in Ohio will have to reapply for admission because she kept writing after time expired. This is despite the fact that she passed the test even after being given a zero on the most important question as a penalty.

How not to practice law: get married when you are already married, part 3

Here is a story we have seen before.  If you are looking for another example of conduct outside the practice of law which can result in discipline, think about the cases involving bigamy.  The most recent case was reported yesterday.  A New York attorney was suspended for six months after it was determined that he married his mistress while he was still married to his wife.  I reported about similar decisions in the past here (Ohio) and here (Massachusetts).

Monday, February 25, 2013

New ISBA opinions

In its January meeting, the Illinois State Bar Association's Board of Governors approved three ethics opinions addressing probate fees, conflicts of interest in representing partnerships, and Unauthorized practice of law.

Opinion No. 13-01: Fees and Expenses; Court Obligations
It is not ethically permissible for a lawyer for a representative of a decedent's estate to enter into a fee agreement, or to collect a fee, for an amount in excess of the amount of fees allowed by a probate court as reasonable.

Opinion No. 13-02: Arbitration and Mediation; Conflict of Interest; and Multiple Representation
A lawyer ordinarily represents a partnership as an entity for conflicts of interest purposes. Where a lawyer has represented a partnership and all individual partners in various matters in a common representation, and one partner subsequently files an arbitration matter against another partner, whether the lawyer may represent the defending partner with informed consent will depend on the circumstances. Similarly, whether the lawyer can continue to represent the partnership or any of the partners in other matters with informed consent will depend on the circumstances.

Opinion No. 13-03: Arbitration and Mediation; and Unauthorized Practice of Law
A nonlawyer’s representation of parties to a FINRA arbitration generally constitutes the unauthorized practice of law.

Friday, February 22, 2013

Florida issues opinion on whether lawyers can use "the cloud" to store confidential documents

Legal Ethics in Motion is reporting (here) that last month the Florida Bar Professional Ethics Committee issued Proposed Advisory Opinion 12-3 on lawyers’ use of cloud computing to store and remotely access client files.  (The ABA Center for Professional Responsibility has information and links to all the opinions on this topic here.)  The Florida opinion emphasizes an attorney’s duty to perform due diligence in investigating a vendor’s “terms and conditions” prior to storing sensitive client information on that vendor’s cloud computing service.  It also reiterates New York’s recommendation to limit the use of cloud computing services to vendors who contractually agree to preserve confidentiality and security.  Also, the Committee adopted the view expressed by the Iowa Ethics Opinion 11-01, which states that attorneys need to have unlimited access to their own secure documents, while being able to provide only limited access to third parties.

How does a prosecutor feel when the court issues a guilty verdict?

Prosecutor Discretion has some thoughts on the subject here.

ABA issues opinion on judge's use of social media

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new opinion (here) on issues relating to a judge's use of social media.  Among other topics, the opinion address whether a judge should have to disclose electronic social media connections with lawyers or parties who appear before the judge.  Legal Ethics in Motion has a comment on the opinion here.

Monday, February 18, 2013

Top Ten International Legal Profession Stories of 2012

Go here for a great summary of last year's top stories in international legal ethics.

Wednesday, February 13, 2013

How not to practice law: charge the client six hours worth of time for the time it took you to prepare the bill

I've always thought that lawyers should not charge at all for the time it takes to prepare a bill.  That is not time spend on the client's representation.  That's time spend on office management.  But I know there are many lawyers who do include that time in their bills.  Here is the story of a lawyer who not only did what I think should not be done at all, he overdid it.  He was disciplined for, among other things, charging unreasonable fees and what made one of the bills unreasonable was that he charged the client charged the client six hours worth of time to prepare the bill itself. 

Kansas Supreme Court holds flat fee agreement in murder case is sufficient evidence of conflict to support a finding of ineffective assistance of counsel

In a very surprising move the Kansas Supreme Court recently ruled that an overworked and inexperienced defense lawyer's flat-fee arrangement in a capital murder case created a conflict of interest that deprived the client of his Sixth Amendment right to effective assistance of counsel.  The case is called State of Kansas v. Cheatham.

I have not read the opinion itself which is fairly long, but according to a report in the ABA/BNA Lawyers' Manual on Professional Responsibility, the court found that "the fee structure gave the lawyer, a solo practitioner with a high-volume practice, little incentive to put any significant effort into the case" and that "this conflict so fundamentally undermined the representation that the defendant did not need to prove how the lack of effort actually prejudiced his defense."  (See 29 Law. Man. Prof. Conduct 89)

I find this to be surprising for a few reasons.  First, courts are usually reluctant to grant motions based on allegations of ineffective assistance of counsel.  Second, all fee agreements, in one way or another, create some level of conflict of interest between attorneys and their clients.  Third, it seems to me that even if one concludes that the agreement itself was sufficient evidence of a conflict, the standard analysis for ineffective assistance of counsel requires that the defendant show the conflict resulted in deficient representation and prejudice.  Here the court assumed the first and excused the defendant from proving the second.

Given all this, I have to believe that what was important here was not the fee agreement but the conduct of the lawyer.  The emphasis on the fact that the lawyer charged a flat fee is misplaced.  The court should emphasize the inadequacy of the representation.  Otherwise, other lawyers who use flat fee agreements but who provide excellent representation may be discouraged from continuing to offer their services for a flat fee.  This, in turn, could make it more difficult for some defendants to afford quality legal services.

Attorney fired for refusing to help a client commit fraud does not have a claim for wrongful discharge

About ten days ago, the Washington Court of Appeals issued a decision on whether an attorney can sue for wrongful discharge.  The court held that the attorney, who allegedly had been fired after she refused to perpetuate a fraud in a client's case, cannot assert the tort of wrongful discharge against the law firm that fired her. Instead, the court held the lawyer's sole remedy is to file an ethics complaint with disciplinary authorities. The case is called Weiss v. Lonnquist and it is available here.  

Like other court opinions that have taken this approach to the issue, the problem is that the result does nothing to deter wrongful conduct by law firms and goes a long way to discourage attorneys from doing the right thing.

Prison commander testifies that government hid microphones in Guantanamo, but no one listened

Yesterday I reported that defense attorneys in the case against the alleged 9/11 mastermind have argued that the US government have been listening in on privileged attorney-client conversations (see here).  Today, reports are coming in that it is true the FBI had hidden microphones inside his compound where lawyers meet prisoners.  However, the army officer in charge of the prison testified that he was unaware of it.   The Miami Herald has the story here.  The Jurist also has a report here.

Tuesday, February 12, 2013

ABA approves resolution on unbundling legal services

The ABA Journal is reporting today that an ABA House of Delegates has approved a resolution encouraging lawyers to consider providing unbundled legal services when appropriate.  Resolution 108 supports unbundled services, also known as limited-scope representation, in which lawyers provide some but not all the work involved in a legal matter. According to a report accompanying the resolution, such representation can increase access to legal services. Go here for the story and for readers' comments on it.

ABA adopts new proposals to amend the Model Rules and more

Professor Andrew Perlman, the Chief Reporter for the ABA's "Commission on Ethics 20/20," is reporting that just a few days ago, the ABA House of Delegates approved four remaining proposals from Commission:

Resolution 107A amended Model Rule 5.5 so that it expressly permits qualified foreign lawyers to serve as in-house counsel while based at their employers’ U.S. offices. (The accompanying report is here.)

Resolution 107B amended the 2008 ABA Model Rule for Registration of In-House Counsel to bring foreign lawyers within the scope of that Rule.  (The accompanying report is here.)

Resolution 107C amended the ABA Model Rule on Pro Hac Vice Admission so that it provides guidance to judges who may be asked to grant pro hac vice admission to qualified foreign lawyers.  (The accompanying report is here.)

 Resolution 107D amended Comment [5] to Rule 8.5 of the Model Rules of Professional Conduct so that it expressly allows a lawyer and client to specify a particular jurisdiction as the jurisdiction where the “predominant effect” of the lawyer’s conduct will occur for purposes of a choice of law analysis under Model Rule 8.5. (The accompanying report is here.)

An overview report describing each of these Resolutions is here

The ABA Journal has short reports on some of these here, here and here.

For all the latest information and more links go to the ABA's Commission's website (here).

Defense attorney questions wether US government is disregarding client's right to confidentiality in 9/11 prosecution

On of the defense attorneys in the case against alleged 9/11 mastermind Khalid Sheik Mohammed and four accused co-conspirators in the murder of nearly 3,000 people in the Sept. 11, 2001 attacks argued an emergency motion in a pre trial hearing arguing that unidentified intelligence agencies have channels to listen in on privileged attorney-client conversations. The chief prosecutors denied the allegation.  Go here for more on the story.

Thanks to the Legal Ethics Forum for the link.

Saturday, February 9, 2013

Update on advertising rules

The Association of Professional Responsibility Lawyers is currently holding a national meeting and today they had a discussion on recent developments regarding advertising rules.  Nicole Hyland was there and she posted this short report on the Legal Ethics Forum.  For other posts on recent developments in Florida and Tennessee go here and here.

Wednesday, February 6, 2013

Article: "America's broken criminal justice system"

Blogger has published a long but interesting article on what he calls "America's broken criminal justice system." In it, he discusses certain aspects of our legal system that he argues "serve to destroy the notion of a Criminal Justice System that operates fairly towards each citizen and make that system into an instrument of oppression." The items he discusses include (using his words): unfairness of representation, under-funding of the court system, plea bargaining as an insult to justice, the political nature of judges, prosecution as a career stepping stone, the corruption of law enforcement and public ignorance of our criminal justice system. Go here to read the full article.

More comments on allegations against former prosecutor in Texas for concealing evidence

Back in March of last year I posted a comment on a case in Texas in which a judge was under investigation for misconduct when he was a prosecutor.  My original post, which includes a segment from the tv show 60 minutes on the case, is available here.  A few months later, Professor Jonathan Turley published his own comment on the case here. Today, he published an update and more comments here.

Saturday, February 2, 2013

Florida Supreme Court amends, and some say "loosens," lawyers’ advertising rules

A divided Florida Supreme Court yesterday eliminated a number of existing limits in the state's regulations on advertising by lawyers but also extended the rules to websites.

A majority of the seven justices agreed to permit previously prohibited ads that characterize the quality of legal services being offered, information about past results and testimonials, but held that all advertising must be “objectively verifiable,” whether distributed over the Internet or through traditional media such as print, outdoor and broadcast.  Thus, lawyers will be allowed to refer to verifiable facts about their past cases, but not to simply assert that they are one of "the best trial lawyer in Florida.”  The court held this would be misleading and prohibited.  Two justices filed dissenting opinions.  You can read the opinions here and a short summary here.

New report on contingency fees

The Center for Justice & Democracy has published a new study called Courthouse Cornerstone: Contingency Fees and Their Importance for Everyday Americans in which it discusses the debate over the use of contingency fees and the efforts by tort reformers to limit or eliminate the use of contingency fees in the US.  You can download a copy of the report here.  For a summary Fact Sheet click here.  For the Press Release announcing the report click here.

How not to conduct a hearing: leave a woman requesting a protective order with the guy she wants protection from in a room with no security personnel

By now you may have heard of this story or seen the video; but in case you haven't here it is.  The video shows how a judge left a woman with her ex-boyfriend in a room despite her saying that she was fearful of him and seeking protection.  Once alone, the man attacks the woman.  (The other woman in the room was the attacker's grandmother).