The Oregon Bar has published an ethics opinion addressing the following specific questions:
1. May Lawyer review a person’s publicly available information on a social networking website?
2. May Lawyer, or an agent on behalf of Lawyer, request
access to a person’s non-public information?
3. May Lawyer, or an agent on behalf of Lawyer, use a
computer username or other alias that does not identify Lawyer when
requesting permission from the account holder to view non-public
information?
The opinion is available here. Go here for more information and links to opinions from other jurisdictions on the same or similar topics.
Sunday, March 24, 2013
Tuesday, March 19, 2013
Even more comments on the right to counsel
A few days ago I posted a few links to articles commenting on the 50th anniversary of the case that recognized the
right to counsel in criminal cases and the state of access to counsel by indigent defendants. Unfortunately, as I said in my previous post, much coverage focuses on the unfulfilled promise of access to representation. Here are a few more links:
ReligiousLeftLaw: The 50th Anniversary of Gideon v. Wainwright
The PopTort: Gideon, Legal Aid and Contingency Fees
Blog of the Legal Times: Kagan, Holder Address the Five Decades Since Historic Gideon Decision
The Huffington Post: Gideon v. Wainright 50th Anniversary: Serious Problems Persist In Indigent Legal Defense
ReligiousLeftLaw: The 50th Anniversary of Gideon v. Wainwright
The PopTort: Gideon, Legal Aid and Contingency Fees
Blog of the Legal Times: Kagan, Holder Address the Five Decades Since Historic Gideon Decision
The Huffington Post: Gideon v. Wainright 50th Anniversary: Serious Problems Persist In Indigent Legal Defense
Friday, March 15, 2013
More comments on the state of the right to counsel
A few days ago I posted a link to an editorial in the NY Times on the state of the right to counsel (here). As we celebrate the 50th anniversary of the case that recognized the right to counsel in criminal cases, a few other comments on the subject have been published. Sadly, the common theme in all of them is that even though there is a right to counsel, poor defendants still have inadequate access to representation. The New York Times published an article called Right to Lawyer Can Be Empty Promise for the Poor. Meanwhile, NPR featured a segment called 50 Years After Key Case, Problems Defending The Poor Persist.
Thursday, March 14, 2013
Claiming the client made you do it will not save your license
The Legal Profession blog is reporting on a case that reiterates an important lesson for all lawyers. Lawyers can't blame their clients for misconduct. Lawyers have a duty to exercise independent professional judgment which, in some cases, may require the lawyer to quit, get rid of a client, talk the client out of a proposed course of action or taking other preventive or remedial measures.
In this new case, the disciplinary authorities believed the attorney when he testified that he was "used" or "led down the wrong path" by his employer, which the lawyer characterized as an unscrupulous real estate development company. The lawyer testified that, among other things, the client forged his name on checks. The lawyer testified to his remorse, his efforts to make his victims whole, and the fact that he did not misappropriate any funds for his personal use and realized no monetary gain from the subject transactions.
That was all fine, but the attorney was still suspended for two years by the New York Appellate Division for the Second Judicial Department. The court noted that the lawyer knew that his conduct was improper but took no action to blow the whistle or to step down from his position as in-house counsel with the company. Rather, he knowingly allowed his services to be used by another to perpetrate a fraud.
In this new case, the disciplinary authorities believed the attorney when he testified that he was "used" or "led down the wrong path" by his employer, which the lawyer characterized as an unscrupulous real estate development company. The lawyer testified that, among other things, the client forged his name on checks. The lawyer testified to his remorse, his efforts to make his victims whole, and the fact that he did not misappropriate any funds for his personal use and realized no monetary gain from the subject transactions.
That was all fine, but the attorney was still suspended for two years by the New York Appellate Division for the Second Judicial Department. The court noted that the lawyer knew that his conduct was improper but took no action to blow the whistle or to step down from his position as in-house counsel with the company. Rather, he knowingly allowed his services to be used by another to perpetrate a fraud.
New case holding it is improper to represent buyer and seller in same transaction
Here is a link to another case holding it is improper to represent the buyer and seller in the same transaction.
Washington DC to decide whether there is a civil liability duty to non clients
Under what circumstances should an attorney have a duty in tort toward the affiliates of an entity client?
The question is now before the District of Columbia Court of Appeals. The case involves a claim by Boston-Maine Airways Corp. against a law firm that represented its sibling companies and a shared owner. After a District of Columbia Superior Court judge granted the law firm's motion for summary judgment, finding that Boston-Maine failed to prove that Sheppard owed them any care, it appealed arguing that the firm's representation of its sibling companies meant the firm couldn't take actions that would harm members of the corporate family. For a more detailed summary of the case and the issues go here.
My guess is that the court will follow the analysis suggested in the comment to Model Rule 1.7 on conflicts of interest. Even though the issue is different, the analysis is helpful. According to the Rule's approach, lawyers who represent entities do not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary of the entity. For this reason, an attorney for an entity is not barred from accepting a client whose interests are adverse to an affiliate of the entity client in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, or there is an understanding between the lawyer & the entity client that the lawyer will avoid accepting new clients in those circumstances, or if the lawyer’s obligations to either the entity client or to the new client are likely to materially limit the representation of the other client.
The question is now before the District of Columbia Court of Appeals. The case involves a claim by Boston-Maine Airways Corp. against a law firm that represented its sibling companies and a shared owner. After a District of Columbia Superior Court judge granted the law firm's motion for summary judgment, finding that Boston-Maine failed to prove that Sheppard owed them any care, it appealed arguing that the firm's representation of its sibling companies meant the firm couldn't take actions that would harm members of the corporate family. For a more detailed summary of the case and the issues go here.
My guess is that the court will follow the analysis suggested in the comment to Model Rule 1.7 on conflicts of interest. Even though the issue is different, the analysis is helpful. According to the Rule's approach, lawyers who represent entities do not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary of the entity. For this reason, an attorney for an entity is not barred from accepting a client whose interests are adverse to an affiliate of the entity client in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, or there is an understanding between the lawyer & the entity client that the lawyer will avoid accepting new clients in those circumstances, or if the lawyer’s obligations to either the entity client or to the new client are likely to materially limit the representation of the other client.
Tuesday, March 12, 2013
NY Times: The Right to Counsel, Badly Battered at 50
A couple of days ago, The New York Times published a good editorial on the state of the right to counsel. It starts:
You can read the full article here.A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge. The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.” The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases. This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.
Should the International Criminal Court adopt a code of ethics for prosecutors?
For a short comment on this question, go here.
In case of first impression, Kentucky Supreme Court to decide whether fee arrangement violates rule vs contingency fees in criminal defense cases
Tomorrow, the Kentucky Supreme Court will hear an interesting case that asks the court to determine whether an attorney entered into an invalid fee agreement and a conflict of interest when representing a criminal defendant.
In this case, the defendant was accused of murdering his adoptive father. Because he did not have money to pay for his representation, the attorney agreed to represent him for a fee based on assets from the defendant's family’s 160-acre farm, which the defendant was due to inherit. The problem, though, is that under Kentucky law, you can’t inherit property from someone you are convicted of killing which meant the attorney could only collect her fee if she was able to secure an acquittal.
Does this make the agreement a contingency fee, which is banned by the rules of professional conduct in criminal defense cases?
Yes, according to a disciplinary hearing officer. One reason the rules ban contingency fees in criminal defense cases is to avoid circumstances in which the lawyer — needing an acquittal to win a fee — would urge a client to reject a guilty plea bargain that would be in the best interest of the client. And, according to the disciplinary officer, this is precisely what happened in this case. Apparently, a prosecutor offered a good deal to the defendant but the attorney didn’t advise him to take it.
Interestingly, however, the Kentucky Bar Association’s board of governors reversed most of the findings of the hearing officer and unanimously exonerated the attorney from the alleged violation of the contingent-fee rule.
The Kentucky Supreme Court could reinstate any of the charges or none of them. It is the first case in which the court has ever considered a violation of the contingent contract rule in criminal cases.
You can read a detailed report on the case here.
In this case, the defendant was accused of murdering his adoptive father. Because he did not have money to pay for his representation, the attorney agreed to represent him for a fee based on assets from the defendant's family’s 160-acre farm, which the defendant was due to inherit. The problem, though, is that under Kentucky law, you can’t inherit property from someone you are convicted of killing which meant the attorney could only collect her fee if she was able to secure an acquittal.
Does this make the agreement a contingency fee, which is banned by the rules of professional conduct in criminal defense cases?
Yes, according to a disciplinary hearing officer. One reason the rules ban contingency fees in criminal defense cases is to avoid circumstances in which the lawyer — needing an acquittal to win a fee — would urge a client to reject a guilty plea bargain that would be in the best interest of the client. And, according to the disciplinary officer, this is precisely what happened in this case. Apparently, a prosecutor offered a good deal to the defendant but the attorney didn’t advise him to take it.
Interestingly, however, the Kentucky Bar Association’s board of governors reversed most of the findings of the hearing officer and unanimously exonerated the attorney from the alleged violation of the contingent-fee rule.
The Kentucky Supreme Court could reinstate any of the charges or none of them. It is the first case in which the court has ever considered a violation of the contingent contract rule in criminal cases.
You can read a detailed report on the case here.
Sunday, March 10, 2013
New Hampshire issues opinion on cloud computing
The New Hampshire Bar Association has issued an opinion on the use of cloud computing. It joins a number of other jurisdictions holding that lawyer may use cloud computing consistent with his or her ethical obligations, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential. You can read the opinion here. You can read more about it here.
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