Tuesday, February 25, 2014

How not to protect confidential information: throw your client files in boxes where anyone can find them and read them

The Legal Profession blog is reporting that the Indiana Supreme Court has imposed a suspension of not less than two years without automatic reinstatement on an attorney for, among other things, discarding client files without protecting the confidential information in them.  According to the story:     "When moving his office location in 2009, Respondent threw several client files containing confidential client information into a trash bin, where they remained for several days. A newspaper reporter found information in the files relating to paternity and divorce cases, as well as Social Security numbers and financial records."

The court found the conduct violated the duty of confidentiality because he attorney revealed confidential information in violation of rule 1.6(a).  However, it does not sound like the attorney intended to reveal the information.  He was just careless about it.  Applying 1.6(a) under the circumstances means that the attorney's negligent handling of the files is enough to support a finding of a violation of the duty.  Or, in other words, that an accidental disclosure is, by itself, evidence of a violation of the duty.

This would not necessarily be the case under the most recent version of Model Rule 1.6.  This version recognizes two different duties:  under 1.6(a) attorneys have a duty not to purposely disclose confidential information, while under 1.6(c) attorneys have a duty to take reasonable measures to prevent inadvertent or unauthorized disclosures.  This means that an accidental disclosure, by itself, does not mean the attorney violated the duty of confidentiality.  

Applied to the facts of the Indiana case, however, I think the result would be the same because the attorney could not even argue he meets the lower standard.  Clearly, he did not take reasonable measures to protect the confidential information in the files.

Saturday, February 22, 2014

How not to practice law: tell your client what to say when testifying

As all litigators know, there is an important difference between helping a witness prepare in advance of their testimony and telling the witness what to say.  The first is not only allowed, not doing it may be considered a violation of the duty of diligence and an example of malpractice.  The second, however, is improper and can subject a lawyer to discipline.  A recently reported case in the Legal Profession blog illustrates the difference (here).  In this case, the lawyer was disbarred after it was revealed he told a witness what to say prior to a hearing.

Thursday, February 6, 2014

As if we need any more stories of prosecutors who do not abide by their obligations

As if we need any more stories of prosecutors who do not abide by their obligations, here is a particularly troubling one.

Still talking about the decision to refuse admission to Stephen Glass

I recently posted a link to comments about the California Supreme Court's decision to deny admission to Stephen Glass.  Here's more:  Over at the Legal Ethics Forum, two renowned scholars have published short comments.  In the first one, Mitchell Simon (University of New Hampshire) argues that although  the court had ample legal basis to reach the decision it reached, the opinion emphasized the wrong analysis.  You can read his comments here.  In the other comment, Brad Wendell (Cornell) discusses social psychology issues presented by the case and the approach to the evidence presented and the question of whether the decision should have been based on the notion that past conduct is a good way to predict future conduct.  You can read his comment here.

Still talking about the Super Bowl... the commercial, that is...

When attorney Jamie Casino spent who knows how much money on a 2 minute commercial spot during the Super Bowl, I am sure he was looking for publicity.  And, say what you want about the commercial itself, publicity is just what he has gotten.  Everyone seems to be talking about it.  I have seen it mentioned in news blogs, legal blogs, academic blogs, you name it.  I talked about it in class yesterday, and here I am again today to give you a link to yet another comment about it...  So, he wanted publicity and he got it... but, unlike the saying goes, not all publicity is good publicity.   Over at Res Ipsa Loquitur, comparing the lawyer to a car salesman and an informercial pitchman, Prof. Jonathan Turley writes: "I found the commercial ... to be unprofessional and self-serving and just a bit creepy" and "I found the video to be uncomfortable to watch as Casino seems to live out his fantasy of being some action figure with tight jeans and a flaming sledgehammer with a cross on it. Sort of Nicholas Cage meets Clarence Darrow meets El Mariachi. "  You can read the full post (and the many comments below it) here.

Tuesday, February 4, 2014

Are law firm blogs governed by advertising rules?

Real Lawyers Have Blogs is asking whether law firm blogs are governed by advertising rules: "...why throw blogs in with things that are closer to buying billboards and television ads? Am I the only one who sees blogging as a form of networking? Networking not unlike that done by lawyers before the Internet. Networking that really has nothing to do with advertising."

These are valid questions, and the easier one to answer is "why throw blogs with the billboards?"  I'll tell you why:  because some blogs are just like billboards.

Take a look at the blogs of the law firm in the Super Bowl ad I wrote about earlier tonight.  The first story in one of them is about a verdict the firm obtained.  I then glanced at a few posts in the other blogs.  Every single one of them ends with a paragraph that, in one way or another, advertises the firm.  For example:  "If you’ve been injured by a DUI driver, call ... for help.   We offer free consultations to review your claim, and our services are free unless we win your case." or "If you need to hire an experienced DUI injury lawyer, call .... Our attorneys will fight hard to get you maximum compensation for your case while making the process less stressful for you and your family."  or "If you have suffered injuries caused by a defective pharmaceutical product, please give us a call. Our team is prepared to answer any questions you may have, and we will evaluate the facts of your case to determine if it qualifies for a potential claim."...  You get the idea.  These blog posts are, in my opinion, clearly a form of advertising and I have no problem thinking that, if we are going to have rules related to advertising, they should apply to those blogs.

But not all blogs are created equal.  Compare those mentioned above with Litigation and Trial, the New York Personal Injury Law BlogDay on Torts and Abnormal Use all of which are published by, and the posts are authored by, practicing lawyers.  But they write about the law, not about their cases, not about how you should hire them, etc.  Those blogs, in my opinion, should not fall within the category of advertising. They provide news and commentary on the law and other matters of interest to their authors and their readers.

Which brings us back to the original question.  Are all blogs subject to the rules on advertising?   For now, the closest we have to an answer is "it depends." Perhaps until it is universally understood that a blog is something other than advertising, it depends on the content of the blog.  As the court decided in Hunter v. Virginia, if the case can be made that the content of the blog is disguised advertising, then a court can easily find that the blog is subject to the rules related to advertising.  (Go here to see my first post about Hunter, published before it was decided.)

In other words, I guess the answer to whether blogs are subject to rules on advertising is yes if the rules say they are, until someone challenges it and wins.

Unfortunately, I am not sure this answer is satisfactory for a law firm considering adding a blog to its website.  What if the state adopts a rule that says that law firm blogs will be subject to advertising rules (as it appears to be the case in Florida)?  The firm would have two options; the same two options Hunter had: to comply with the rules or to challenge them.   Hunter challenged them and lost.  The challenge in Florida is pending.

Stay tuned.

UPDATE 6/18/17:  The Professional Committee of the California Bar has issued an opinion on whether blogs are subject to advertising rules.  Go here for the details and links.

Illinois disciplinary authority seeks sanctions against prosecutor for improper comments during opening statement

I have reported on many cases where courts reverse convictions because of improper arguments by prosecutors.  Herehere and here are three recent examples.  In many of those cases, however, the prosecutor is not disciplined for the conduct.  Today, however, the Legal Profession blog is reporting that the Administrator of the Illinois Attorney Registration and Disciplinary Commission has filed a formal complaint against a prosecutor for comments made during a murder trial's opening arguments.  According to the complaint, the argument was improper "because it served no purpose other than to appeal to racial prejudice."   You can read the complaint here.

Troubling Super Bowl ad

There is a new contender in the worst attorney ad category.  Take a look below at a commercial aired during the Super Bowl by an attorney in Georgia.  It has gathered some attention in a number of legal blogs...

John Steele, at the Legal Ethics Forum, does not hate the commercial, but he correctly points out that slighting your former clients is not OK.

Similarly, at the New York Personal Injury Law Blog, Eric Turkewitz points out that "[i]f he will diss his former criminal defense clients today, ... what will he say about his current clients tomorrow? How do you trust someone who will rip into his prior clients?"

Professor Jonathan Turley has more comments here.  He found the commercial to be unprofessional and creepy.

Finally, in a longer comment that is worth reading, over at Litigation and Trial, Max Kennerly correctly points out that the underlying story of "redemption" by switching over from criminal law defense to personal injury is "troubling" (to say the least):
"Much as I can relate to the promotion of my own field of work (representing plaintiffs, which Casino just started doing in 2012) as a noble calling . . .  I’m dismayed by his negative portrayal of his former field, criminal-defense. In his prior work as a criminal-defense lawyer, did he break ethical rules? Did he conspire with clients to commit crimes? If not, then what’s the problem? What is he ashamed of? The ethical practice of criminal defense? He’s of course allowed to have whatever opinion he wants, and to practice in whatever field he wants, but when he starts implying that criminal-defense representation is inherently immoral or repugnant in an advertisement watched by millions of non-lawyers, he does a terrible disservice to our whole justice system, from the Constitution to the public defenders."   [The comment is longer and goes into other issues.  It is worth reading here.]
Judge for yourself.

Saturday, February 1, 2014

Concurrent or Joint representation in adoption cases

The District of Columbia Bar Legal Ethics Committee has just issued a new Opinion in which it addresses ethical issues that commonly arise in private adoption matters.  The summary of the opinion states:
... Private adoptions frequently give rise to a number of significant ethical obligations, not the least of which are duties arising under conflict of interest rules, that the lawyer must squarely address with his or her client or clients, often at the onset of the representation. In many instances, a lawyer will be required to obtain the informed consent of one or more clients, and in some circumstances that of former clients, regarding certain aspects of the representation, in order to commence or continue representation. Private adoption practitioners should be particularly mindful of ethical duties attendant to communications with unrepresented persons, as well as duties of confidentiality owed to both current and former clients.
You can find the opinion here.

(In my class, we discuss some of these issues by discussing a case from Arizona called In re Petrie in which an attorney attempts to negotiate a private adoption.)  

Thanks to the Legal Profession Blog for the link.