Friday, October 31, 2014

More comments on California's rejection of a proposal to adopt the Model Rules

As I reported recently (here), the California Supreme Court has decided not to adopt a proposal for new rules of professional conduct. As you would expect, the decision has generated much commentary (see here, here and here).  Adding to the discussion, over at the Legal Ethics Forum now you can find a very good discussion of the issues.

Thursday, October 30, 2014

Podcast on ethical issues about social media

Here is another podcast on ethical issues related to social media.  If you can't see the play button below, you can listen to the program here.

Monday, October 27, 2014

ND State Bar opinion finds use of medicinal marijuana is a violation of the rules of conduct even if the use is legal according to state law

Legal Ethics in Motion is reporting on an interesting Advisory Opinion issued a couple of months ago by the Ethics Committee of the State Bar Association of North Dakota that concludes that a lawyer licensed in North Dakota who uses medical marijuana in a state that authorizes its use, violates North Dakota Rule of Professional Conduct Rule 8.4(b).  You can read the short opinion  here.  (Opinion 14-02, issued August 12, 2014)

I don't agree with the opinion.  Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to…commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects[.]”  Why does this rule apply if the lawyer is participating in a legal activity?  And even if it is illegal, how does using marijuana for medicinal purposes reflect adversely on a person's honesty or fitness?  It is one thing to say that a lawyer is unfit because he or she is suffering from a the medical issue that is so debilitating it prevents the lawyer from meeting his or her duties, but that is not what the opinion says.

The basis for the conclusion is that the use of medicinal marijuana has not been legalized by federal law.  Based on this reasoning, a lawyer (indeed, anyone at all) who uses medicinal marijuana even in a state where it is legal to do so, could be found to be in violation of federal law.  And, due to that possibility, a lawyer should not engage is conduct that is potentially a violation of federal law.

I understand the logic, but I am still not convinced, particularly since I am not convinced that the "crime" is the type of crime, by itself, that reflects adversely on honesty or fitness.  According to the Committee's logic all crimes reflect adversely which makes the language of the rule superfluous.

Wednesday, October 22, 2014

Comments on possible non lawyer ownership of law firms

Whether law firm ownership should be limited to lawyers is one of the most important debates going on in the American legal profession today.  Below you will find a short comment posted in the The Legal Talk Network on the subject, which is described as follows:

Legal Talk Network producer Laurence Colletti interviews consultant George Beaton about how client buying behavior was affected by the deregulation of ownership of law firms in Australia. Beaton discusses conflicts of interest, access to justice, client satisfaction, and the range of services under an outside ownership model for a law firm. Additionally, he talks about professionalism in the legal field and the role of an oversight model such as a Bar Association. Dr. George Beaton is a partner in Beaton Capital, an associate professor at the University of Melbourne, and authored NewLaw New Rules, a ground-breaking narrative on the changes sweeping the legal services industry.

If you can't see the "play button" below, you can listen to the program here.

Monday, October 20, 2014

Puerto Rico Supreme Court invalidates statute that made Bar Association membership mandatory

Last week the Puerto Rico Supreme Court issued an opinion resolving a debate that had been hanging over the legal profession in the island for decades: whether it is constitutional for the state to mandate that attorneys join the Puerto Rico Bar Association. The case is called Rivera Schatz v. Estado Libre Asociado, and you can read the opinion (in Spanish) here.

The background story is long, but I will summarize it as best as I can. In 1932, the Puerto Rico legislature enacted a statute creating the Puerto Rico Bar Association (known in Spanish as the Colegio de Abogados) and making membership mandatory for all attorneys. Failing to pay the Bar Association's dues was, thus, a sanctionable offense. That statute was challenged at some point in the 1980s by about 100 attorneys who refused to pay the membership dues arguing that the "integrated bar" requirement was an unconstitutional infringement on the attorneys' rights to freedom of speech and association.

As a result of that long litigation in the 1980s (Schneider v. Colegio de Abogados) a system was adopted for Bar Association members to specifically designate what their fees could be used for. Once this was in place, the Bar Association could claim the members were not in a position to claim their constitutional rights to free speech and association were violated.

The saga did not end there, of course.  The next chapter began in 2009 when the legislature amended the 1932 statute to eliminate mandatory bar membership as a requirement to practice law.

Arguing that the legislature had infringed on the Supreme Court's "inherent power" to regulate the profession, the Bar Association sued to challenge the new law. This challenge was decided in 2011 when the Court denied the Bar Association's cert petition with an order holding that the legislature's decision to eliminate mandatory bar membership did not infringe on the Court's inherent power to regulate the profession and was not in violation of the principle of separation of powers.

Three years later, the legislature (now controlled by a different political party) enacted yet another law restoring mandatory Bar Association membership, and, as you would expect, that law was then challenged by opponents of an integrated bar. It is this challenge that the court decided last week.

Given its decision against the Bar Association in 2011, it is not surprising that the Court again decided against a mandatory integrated bar. What is surprising, though, is that it does so by adopting the position it rejected back then. In the new opinion, the Court concludes that the adoption of a statute constituted an infringement on its "inherent power" to regulate the profession and a violation of separation of powers.

Of course, the question of the constitutionality of an integrated bar is not unique to Puerto Rico. In 1961, the US Supreme Court rejected a constitutional attack of mandatory membership in state bar associations in a case called Lathrop v. Donahue, 367 US 820 (1961). Also, in Cuyahoga Cty. Bar. Assn. v. Supeme Court of Ohio, 430 US 901 (1977), the Court summarily affirmed a lower court ruling on the constitutionality of a mandatory annual fee to support a state bar and disciplinary system. However, the free speech and free association arguments advanced in Lathrop were not rejected by the prevailing opinion. The Court simply found that more facts were needed for them to be considered. Other courts, however, have found that mandatory fees need to be related to bar organization matters.

This last point is important for the Puerto Rico situation because the underlying fight has always been about the Bar Association's use of its funds to support causes some of the members find objectionable.

For much of its history, the Puerto Rico Bar Association has been thought of as a "liberal" organization which has supported causes like women's rights, environmental protection, access to legal services and which has expressed opposition to the United States use of parts of the island for military operations, and so on. Lawyers who have opposed the integrated bar concept have long objected to the Bar Association's involvement in what they consider to be political questions, arguing it uses dues money to advance positions the members do not necessarily agree with.

Interestingly, how to deal with the opposition to the use of the funds was one of the questions that the Schneider case in the 1980s actually decided.

But the story ends, for now at least, last week when the Supreme Court should be free to choose whether to join the Bar Association.

I wonder if the Bar Association will take the chance to go to the US Supreme Court and ask it to consider what it left undecided in Lathrop.

Stay tuned....

Saturday, October 18, 2014

Supreme Court of Puerto Rico rejects proposal to adopt ABA Model Rules

After writing about the recent decision by the California Supreme Court to reject a proposal to adopt the ABA Model Rules, I realized that I had not commented on the fact that the Supreme Court of Puerto Rico had recently decided to do the same thing.

Even though it was approved in 1970, the current Code of Professional Conduct in Puerto Rico is essentially a translated and amended version of the ABA Canons of 1908 with some influence from the ABA Model Code.  And, even though the ABA abandoned the Model Code in favor of the Model Rules in 1983, Puerto Rico has not made any changes to its Code since it approved one amendment in 1980 (to update the canon regarding advertising).

In 2005, a Commission appointed by the Puerto Rico Bar Association to draft a new Code presented its proposal to adopt a new set of rules based on the ABA Model Rules.  However, for some unknown reason, the Puerto Rico Supreme Court sat on the proposal for eight years and then, without explanation, announced in an order last December that it rejected the proposal in its entirety. You can find the Court's order here (in Spanish).

Surprisingly, at the same time the Court also announced that there was another project that had already been prepared by the Judicial Conference.  You can find that project here.  The Court said it would consider the project this year, but given that it took it eight years to consider the previous one, it is difficult to know what to expect.

The new project is a very odd combination of materials based on sources from the ABA Model Code, the Model Rules and Codes from other countries.  It has sections called "canons" which read like they are meant to provide inspiration rather than regulation (like the "ethical considerations" of the Model Code) and sections called "rules" that attempt to provide more guidance for disciplinary matters.  In my opinion, the rejected project based on the Model Rules was much better, but it appears that one will not be revised now.

It remains to be seen what will happen.  There is a debate as to whether the new proposal is better than keeping the obviously inadequate current Code or whether the new proposal is so bad it should be rejected until a better one can be drafted.  When I first saw the documents, I felt that anything would be better than the current system, but the reporter of the recently rejected proposal to adopt the Model Rules almost has me convinced that it would be better to start from scratch.  The University of Puerto Rico Law School is considering putting together a conference on the subject and I have already agreed to be one of the speakers.  Get in touch with me if you want more information on this.

U.S. Department of Justice prohibits ineffective assistance of counsel waivers as part of plea bargains in federal criminal prosecutions

About two months ago I reported (here) that the Kentucky Supreme Court issued a very important opinion concluding that the use of ineffective assistance of counsel waivers in plea bargain agreements "(1) creates a non- waivable conflict of interest between the defendant and his attorney, (2) operates effectively to limit the attorney's liability for malpractice, and (3) induces, by the prosecutor's insertion of the waiver into plea agreements, an ethical breach by defense counsel."

Now comes news that four days ago the Justice Department officially decided that federal prosecutors are prohibited from requiring criminal defendants to waive their right to claim ineffective assistance of counsel a condition of a plea. Attorney General Eric H. Holder said the “policy is an attempt to ensure that all individuals who face criminal charges are ably represented. ‘Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel…(u)nder this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.’”

Here is a copy of the memo sent to all federal prosecutors.  The Lawyer Ethics Alert blog has more details here.

California Bar Pioneers Pre-Admission Competency Training for New Lawyers

About a year ago, the State Bar of California’s Board of Trustees charged the Task Force on Admissions Regulation Reform with “[e]xamin[ing] whether the State Bar of California should develop a regulatory requirement for a pre-admission competency training program, and if so, proposing such a program” for submission to the Supreme Court.” After studying this issue for a year, the Task Force on Admissions Regulation Reform released a report on June 24, 2013.  Legal Ethics in Motion has the full story here.  The report is available here.

Wednesday, October 15, 2014

Better to ask for forgiveness or permission?

You may have heard the expression "better (easier?) to ask for forgiveness than to request permission" (or something to that effect), right?  Well, think again, if the question involves a disciplinary authority.  As reported by the Legal Profession blog:
An attorney who had been reinstated to practice on conditions admitted to violation of the conditions by handling criminal cases without supervision or malpractice insurance. He then sought to amend the conditions to allow for what he had already done. The Delaware Supreme Court denied the petition stating "The Court is troubled that the petitioner returned to private practice in a manner that violated the Court's Order in substantial, myriad ways without first seeking leave of the Court to modify the conditions of his reinstatement."

Sunday, October 12, 2014

The story behind the California Supreme Court's rejection of the model rules

As I reported recently (here), the California Supreme Court has decided not to adopt a proposal for new rules of professional conduct. As you would expect, the decision has generated much commentary including a short comment by my friend Richard Zitrin (UC Hastings) in which he describes the background history of the Court and the Commission which helps understand the recently announced decision.  You can read the article online now here (subscription may be required) or in print tomorrow at The Recorder.   For more commentary on the situation go here and here

Wednesday, October 8, 2014

Connecticut Appellate Court holds that there is no duty to disclose exculpatory evidence

About a week ago, the Connecticut Appellate Court addressed a very interesting question that I have to confess I had not thought about before.  Now I want to do some research to see how it has been approached in other jurisdictions.

The question is whether the state has an obligation to disclose exculpatory evidence to an attorney as part of a disciplinary proceeding.  In this case, an attorney was disciplined, but he later argued that he was entitled to a new trial because bar counsel allegedly suppressed evidence that may have disproved the charge.  The court however held that Brady v. Maryland does not apply in bar disciplinary cases, stressing that Brady‘s applicability is limited to criminal prosecutions.  However, the court also hints that the argument was irrelevant in any case because the attorney in the case had knowledge of the evidence that he accused bar counsel of suppressing.

The case is Smigelski v. Dubois and you can read the decision here.

New ABA Ethics Opinion on sale of practice

The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 468 – Facilitating the Sale of a Law Practice. Here's the summary:
When a lawyer or law firm sells a law practice or an area of law practice under Rule 1.17, the seller must cease to engage in the private practice of law, or in the area of practice that has been sold, in the relevant jurisdiction or geographic area. But the selling lawyer or law firm may assist the buyer or buyers in the orderly transition of active client matters for a reasonable period after the closing of the sale. Neither the selling lawyer or law firm nor the purchasing lawyer or law firm may bill clients for time spent only on the transition of matters.
You can read the full opinion here.

Better Call Saul!

In case you are not familiar with Saul Goodman, here is his website.  Check it out.  My favorite ad is the one called "Sue 'em now."

Tuesday, October 7, 2014

Machine intelligence and legal services

Some time ago I asked whether it was likely that attorneys could be replaced by machines or computer programs.  Here is another post (with links to more) on that subject.

Discipline for failing to correct client's affidavit when attorney finds out the client lied

The Legal Profession blog is reporting on a recent report and recommendation by the Illinois Review Board.  In a nutshell, the recommendation for sanctions is based on the fact that the attorney failed to take remedial measures once the attorney found out a client lied.  The client told the attorney he was a sole heir and based on that information the attorney filed an affidavit and some documents asking the client to be appointed as administrator of the estate.  At some point, however, the attorney realized the client had lied and that he was not the only heir.  The attorney, however, failed to correct the affidavit or to take other remedial measures regarding the client's perjury.

The notion of discipline for failing to take remedial measures regarding perjury is not surprising and I don't have a problem with the recommendation.  I wonder, however, if the Board cited the wrong rule in support of its decision.  It seems to base its recommendation on an alleged violation of Rule 3.3(a)(1) which imposes a duty to take remedial measures when an attorney comes to know the falsity of a fact the lawyer asserted.  In this case, the fact was asserted by the client.  

Read the full story here and here.

Comments on how disciplinary system does not work to protect the interests of those it is supposed to protect

The Legal Ethics Forum has a story on (and link to) a recent report that concluded the disciplinary system in Wisconsin is inadequate in a number of ways.  Mike Frisch, of the Legal Profession blog, has some thoughts on the same issue about the Washington DC system.  Mike's point is very interesting because it suggests the current system is apparently based on conflicting interests.  And, as I have said before in other contexts, I agree with him in that protecting the "dignity" of the profession should not be a standard used to make disciplinary decisions.

Comments on the Rules situation in California

A few days ago I reported that the Supreme Court of California rejected a proposal to adopt new rules based on the ABA Model Rules.  Here are a couple of comments on the situation in the Legal Ethics Forum and KafkaEsq.

Sunday, October 5, 2014

Attorney ad: real or a parody?

Does anyone know if this ad is real or is it a parody?  If you can't see the video below, you can watch the video here.

UPDATE (10/7/14): I have been informed by someone who spoke to the attorney in question that the video is not an actual ad, but "takes" and "outtakes" from a number of scenes shot in the process of putting an ad together. It was not meant to be disclosed until the ad was finished but the attorney made the mistake of sharing with others who then posted the video to YouTube.

Wednesday, October 1, 2014

Supreme Court of Louisiana shows some common sense on what constitutes a misleading ad

In May of last year I criticized a decision by a Louisiana Hearing Committee recommending a reprimand for an attorney based on the fact that his web page stated that he specializes in maritime personal injury and death cases.  Fortunately, just a few days ago, the Louisiana Supreme Court showed some common sense and rejected that recommendation.

But let's back up to the beginning of the story.  As you probably know rules of professional conduct typically ban lawyers from stating, or implying, that they are "specialists" in any particular field of law unless the lawyer can show he or she has actually been certified as such, and there are very few such specialty certifications.  For this reason, a number of jurisdictions have issued opinions disciplining attorneys who have stated in their ads that they "specialize in" a particular area of the law.

My problem with all this is that I see a clear distinction between claiming to be a certified specialist and simply using the English language verb "to specialize" in a sentence.  The verb, which, I looked up in the dictionary, means "to concentrate one's efforts in a special activity, field, or practice." You don't have to be certified to practice bankruptcy law and if an attorney's main area of practice is bankruptcy law he or she, in fact, specializes in bankruptcy relief. Can't a lawyer advertise that they specialize in a particular area of the law anymore? How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on.  Assuming it is true that this is their main area of practice, why bother spending time and money in a disciplinary process?

I made this argument back in 2011 in reaction to a case from Indiana (here) and then again to the news about the case in Louisiana (here).

Thankfully, the Louisiana Supreme Court made the right decision and reversed.

In this case, called In re Kearney Soniat Du Fossat Loughlin, the attorney created a website to promote his law firm which contained a statement saying the firm is a "litigation firm specializing in maritime personal injury and death cases.” Based on this statement, the Office of Disciplinary Counsel (“ODC”) filed one count of formal charges alleging the statement violated several rules.

The matter proceeded to a formal hearing at the conclusion of which the hearing committee determined that the language on respondent’s website stated or implied that his firm was a “specialist” in maritime personal injury and death cases, although such a specialization has not been recognized or approved in accordance with the rules and procedures established by the Louisiana Board of Legal Specialization. Accordingly, although the committee found that there was no evidence of actual injury caused by respondent’s violation, and little potential for injury was shown, it recommended that the attorney be publicly reprimanded, and that he be required to attend a continuing legal education program on lawyer advertising. This recommendation was later affirmed by the disciplinary board.

On appeal, the Louisiana Supreme Court reversed, however, finding that the attorney's actions caused no harm to the public and that the attorney did not have a culpable state of mind.  Thus, the Court found that his actions did not rise to the level of sanctionable misconduct and dismissed the charges.  You can read the full opinion here.

This is the right result, although I wish the Court had clarified the notion of the "culpable state of mind" necessary for the conduct to constitute a violation of the rules.  I interpret the ruling to mean that claiming that one specializes in a certain area of the law is not sanctionable conduct unless it is shown that it was done with the intent to make people believe one has a specific "title", "degree" or "certification" of some sort.  In other words, with the intent to deceive or mislead the public.  Since simply stating a true statement using the verb "to specialize" as part of a sentence, without more, does not support that conclusion, the allegation in the case is not enough to support the imposition of discipline.  That's how I would have resolved the case, and how I hope the decision is interpreted in the future.

Comments on California Supreme Court decision not to adopt new rules

As I reported earlier today, the California Supreme Court has decided not to adopt a proposal for new rules of professional conduct.  Kafkaesq has some comments here.  The Legal Ethics Forum has more here.

California Supreme Court rejects 14 years of work product from Rules Revision Commission; plans to start over

Very surprising!  Sounds like California wants to be the only state that does not follow the ABA Model Rules.  Go here for the story.