NY State Bar issues opinion on whether an attorney can disclose confidential information in order to rebut comments by a client on a website

A couple of months ago, the New York State Bar Association Committee on Professional Ethics issued an opinion on an interesting question:  “When a lawyer’s former client posts accusations about the lawyer’s services on a website, may the lawyer post a response on the website that tends to rebut the accusations by including confidential information relating to that client?”

Holding that the "self-defense" exception to the duty of confidentiality does not apply to this type of case,  the Committee answered "no."  You can read the opinion (Opinion 1032 (10/30/2014)) here. The Committee finds that the "self-defense" exception should be limited to cases involving allegations of lawyer wrongdoing in formal proceedings such as legal malpractice or other civil actions, disqualification proceedings, or sanctions motions.

The result seems sensible to me.  An ttorney would not be allowed to discuss confidential information about this matter with another person (say, someone who read the review and asks the attorney about it), so it would make sense the attorney can't disclose the information to the world at large.  In both instances, the attorney is not "defending" against an action by the client but addressing comments made by the client.  Take the website aspect out the equation and what you have is a former client talking to others and the attorney wanting to take a chance to give his/her side of the story to the same audience.  The attorney is free to do so, but can't disclose confidential information in the process.

The fact the comments are "published" (on the website) and can reach a much wider audience should not change the analysis.  The Committee suggested, however, that the answer might be different if client had somehow waived his expectation of confidentiality by posting the comments.  The Committee did not address that possibility because question was not presented by the facts before the committee. 


h/t The Lawyers Ethics Alert Blog

NY Times and ABA Journal on the interview with Robert McCulloch

Yesterday, I commented on the recent interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri, in which he seems to admit to having used perjured testimony.  Today, the New York Times and the ABA Journal picked up the story (here and here).  Both mentioned the fact that McCulloch admitted to allowing a certain witness to testify even though he "was sure" she was not telling the truth.

Again, if the prosecutor was "sure" the witness was not telling the truth, then why is allowing her to testify not a violation of the duty not to present false evidence?   Is saying that he was sure she was lying the same as saying he "knew" she was lying?  Or, is saying that he was sure simply saying that he strongly suspected that the witness was lying, but did not actually know it?

If it is the former, he admitted to violating the rules.  If it is the latter, he did not. 

Federal District judge finds that certain aspects of the Florida rules regarding advertising violate First Amendment

Almost exactly one year ago, I reported on a challenge to the advertising rules in Florida (here).  Coincidentally, just a few days ago, the Lawyers Ethics Alerts blog reported that a Federal Southern District Judge issued an opinion (apparently in a different case) granting summary judgment in favor of those challenging the rule (and against the Florida Bar) and enjoining the Bar from enforcing it. The case is Robert Rubenstein v. The Florida Bar. You can read the order/injunction here.

Did the St. Louis County prosecutor admit to a violation of the rule regarding perjury?

Below you will find a video of a radio interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri.  The interview is interesting for many reasons, but the part that really caught my attention was the discussion about the possibility that some of the witnesses committed perjury.

This discussion starts at the 9 minute mark of the recording.  The interviewer asks "Why did you allow people to testify in front of the grand jury in which you knew their information was either flat-out wrong, or flat-out lying, or just weren't telling the truth?" In response, McColluch is vague as to whether he agrees with the premise of the question (that he knew some of the witnesses were not telling the truth), but later he specifically says it was clear some of the witnesses were not telling the truth and, further, admits that he would not normally use witnesses like those - that he did that specifically for this one case. Later he adds that he was "absolutely sure" that some witnesses lied under oath, but that he would not seek perjury charges (at minute 16:15 or so).

Was that an admission that he knowingly presented false evidence/perjured testimony?

Are the rules related to grand juries so different that they allow the knowing use of false evidence in an effort to have the jury assess credibility?  That is how McCulloch tries to explain his conduct. He states that "I knew that no matter how I handled it, there would be criticism of it. So if I didn't put those witnesses on, then we'd be discussing now why I didn't put those witnesses on. Even though their statements were not accurate. So my determination was to put everybody on and let the grand jurors assess their credibility, which they did. ...I wanted to put everything on there. I thought it was much more important to present everything and everybody, and some that, yes, clearly were not telling the truth. No question about it."

If the prosecutor was so concerned with how "we'd be discussing now why I didn't put those witnesses on," let try this on for size: How about stating "because I have an ethical obligation not to put those witnesses on the stand.  Those witness are lying and the system can't function if we allow prosecutors to knowingly use false evidence."  That wouldn't be so difficult, would it?

I understand the prosecutor's decision to allow the witnesses to testify if he merely believed, but did not know, that they were lying. That essentially means he thought they had poor credibility and that it would be better to let the jury assess that credibility.  Allowing witnesses to testify when you have doubts as to whether they are telling the truth (as long as there is no knowledge) is not a violation of the rules.  But the prosecutor here used different language. He essentially said he knew they were lying. Once you have knowledge, the rule is clear.

Maybe the prosecutor meant the former but said the latter.  Otherwise, I think he admitted to using false evidence. I should clarify that this is not an admission of suborning perjury because suborning suggests he encouraged the witness to lie. Here what he seems to admit to is allowing someone to testify falsely when he knew they were lying. That is not suborning perjury but it is knowingly using false evidence which is a violation of Rule 3.3.

In the end, the question is whether the comments should be interpreted to mean he knowingly violated the rules or that he merely had doubts as to the credibility of the witnesses and allowed the jury to decide, which would not be a violation of the rules.  

Here is the video:

Richard Zitrin on what's going on in California

Richard Zitrin (UC Hastings) has published a column in The Recorder on what has been happening in California.  As you know, not too long ago, the state's supreme court rejected a proposal to substantially change the state's rules of professional conduct.  This was followed by the dismissal of a member of the Board of the State Bar, who followed up with a lawsuit.  It is quite an intriguing story.  You can read the article here.

Debate on the need for special prosecutors

A couple of days ago I posted a link to an article discussing prosecutorial discretion and what The New York Times called a "prosecutor's inherent conflict of interest" in cases that involve the possible indictment of police officers.  I also posted a link to a discussion in the Legal Ethics Forum on whether the prosecutor in Ferguson, Missouri had a conflict of interest.

As part of that discussion, many are calling for the use of special prosecutors in cases involving police officers.  The New York Times' Room for Debate has published five short comments on this issue here.

On using the phrase "and associates" when in fact the attorney does not have any associates

I have mentioned in the past that the use of the phrase "and associates" in a firm name can be found to be misleading when, in fact, there are no associates.  I doubt a lawyer would be sanctioned just for that reason, but it has been discussed as a violation of the rules in cases where the attorneys violated a number of rules.  For example, see Virginia State Bar v Head.

In that same context, Eric Turkewitz of the New York Personal Injury Blog is reporting that a recent case in New York listed the use of "and associates" as a violation of NY rule 7.5, as part of a list of violations discussed in the case.  The case is Matter of Cardenas and you can read it here.

California joins Massachusetts and Georgia holding the intra firm communication is privileged in case against the firm by former client

Back in July 2013, the Massachusetts Supreme Court held that confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by one of the firm's clients are protected from disclosure to the client by the attorney-client privilege.   Shortly after that, Georgia issued an opinion agreeing with this position.  A strong debate followed (see here and here).  Oregon was next, and the debate continued.

And now, California Supreme Court has joined the list of jurisdictions recognizing the applicability of the privilege:  "The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications."  The decision is called Palmer v. Superior Court and you can read it here.   Go here for a little more information.

Attorney sues disciplinary board alleging the board has been engaging in unethical conduct

In an interesting turn of events, the Legal Profession blog is reporting that two Nashville lawyers are suing the Tennessee ethics board for what they call ethical violations and a cover-up.

Article on prosecutorial discretion

Here is an interesting article on prosecutorial discretion called Prosecutorial Discretion Under Fire: The Common Thread in the President’s Executive Action on Immigration and the Non-Indictment in the Michael Brown Case by Michael C. Dorf (Cornell). You can also listen to the article here (press the "play" triangle button). 

New York Times article on what it calls a prosecutor's "the inherent conflict of interest"

About two weeks ago, I posted a link to a comment on whether the prosecutor in Ferguson, Mo., had acted unethically because of a conflict of interest.  See here.  Yesterday, the New York Times published an editorial on the issue.  It starts as follows:

It is a long-established and basic reality of law enforcement in America: Prosecutors who want an indictment get an indictment. In 2010 alone, federal prosecutors sought indictments in 162,000 cases. All but 11 times, they succeeded.

Yet the results are entirely different when police officers kill unarmed civilians. In those cases, the officers are almost never prosecuted either because district attorneys do not pursue charges in the first place or grand juries do not indict, as happened most recently in Ferguson, Mo., and Staten Island.

There are various explanations for this, but the most obvious is the inherent conflict of interest that exists for prosecutors, who rely heavily on the police every day. Cops arrest suspects; they investigate crimes; they gather evidence; and they testify in court, working essentially in partnership with prosecutors.

Whether or not bias can be proved in a given case, the public perception of it is real and must be addressed.

The best solution would be a law that automatically transfers to an independent prosecutor all cases in which a civilian is dead at the hands of the police. This would avoid the messy politics of singling out certain district attorneys and taking cases away from them.

You can read the full article here.

Reversal of conviction because prosecutor used perjured testimony

The Indiana Court of Appeals had reversed a burglary conviction based on its conclusion that the prosecution knowingly used perjured testimony.  For more details go to the Legal Profession blog.

New study on Brady violations

About two weeks ago, the National Press Club in Washington, DC (NACDL), released a new report, called "Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases."  According to the President of the NACDL "This groundbreaking study documents one of the major problems facing the nation's criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person."   You can download a copy of the report by clicking here.  You can find more information on the report here.

The problem of inflating billable hours

Here is a good short comment by Prof. Ronald Rotunda on the issues raised when lawyers overbill clients.

The most recent edition of The Professional Lawyer

The new issue of the ABA Professional Lawyer is available here  (for a limited time).  It includes the following articles:

Unfinished Business: The Legacy of Brown v. Board of Education
William C. Hubbard

Indie Lawyering: A New Model for Solo and Small Firm Practice
Lucille A. Jewel

The High Cost of Efficiency: Courthouse Tech and Access to Justice
Eric J. Magnuson, Nicole S. Frank

The Twenty-First Century Lawyer’s Evolving Ethical Duty of Competence
Andrew Perlman

The Law Firm Records Burden: Tips for Clearing the Warehouse
Janis M. Meyer

But I’m Just a Lawyer: Do Cloud Ethics Opinions Ask Too Much?
Stuart L. Pardau

Spectacular incompetence

I have used the phrase "spectacular incompetence" before, but this case may just be the worst.  At the time of the year when many blogs are preparing their "top ten" lists for the end of the year, I am wondering if this is the number one case in the "funny if it wasn't so sad and serious" misconduct category.

I am referring to the recently reported case in which a lawyer was disbarred for his incompetent representation of a client in a death penalty case.  The attorney had no prior experience in death penalty cases. He devoted little effort to preparing the case and had not tried a murder in twenty years. He didn’t investigate alibi witnesses and didn’t track his client’s cellphone to find his location at the time of the murders.  He was unfamiliar with ABA guidelines for trying capital murder cases. At trial, he informed the jury his client had previously been convicted of voluntary manslaughter, even though prosecutors agreed to a stipulation that the client had a prior felony conviction without further details.  Most bizarre is the fact that the attorney showed up to oral argument before the court dressed as Thomas Jefferson.

The court had little difficulty finding the attorney had provided ineffective assistance of counsel and eventually reversed the conviction.

The case is discussed in a public defender (which has photos of the attorney in his distinctive attire"), the Legal Profession blog and the ABA Journal.

Here is a video of the oral argument in question.  The attorney's argument starts at the 22:30 mark, where the attorney tries to explain the significance of the outfit.  Judge for yourself.

NY Times article on the need for a system to provide attorneys to those who can't afford one for civil law cases

I have written before about the debate on whether the state should provide attorneys to litigants who can't afford them in civil litigation.  (Go here for a note describing Illinois' approach to the issue, and here for a link to a comment on the subject.)

Recently, the issue was back in the news again because The New York Times published this article.

Failure to communicate plea bargain offer can constitute ineffective assistance of counsel

The South Carolina Court of Appeals has found ineffective assistance of counsel in a case where the defendant was not advised of a ten-year plea offer before going to trial and getting twenty.  The case is called Chico Bell v. The State of South Carolina and you can read the opinion here.

Did the prosecutor in charge of the grand jury in Ferguson act unethically?

As we watch the events in Ferguson, Missouri unfold, here is a short comment by Prof. Monroe Freedman arguing the prosecutor in charge of the grand jury acted with a conflict of interest.

In an unrelated comment, another author argues the case should have been set for trial saying..

Ferguson prosecutor Robert McCulloch delivered a long-winded, smirking speech blaming social media, journalists, Ferguson residents, and pretty much everyone else who isn't Darren Wilson, for Darren Wilson shooting and killing 18-year-old Michael Brown. It took McCulloch 10 minutes of hectoring before he revealed the grand jury had found no probable cause to indict Wilson, and the rest of the 45-minute speech, in which McCulloch seemed to be presenting evidence in Wilson's favor, felt more like defense attorney's argument than a prosecutor's. The very length of McCulloch's rambling statement, really, and the amount of evidence he felt compelled to argue against, was in and of itself a fair argument that the case should have gone to trial.

New ABA Formal Opinion on prosecutors who allow debt collection companies to pretend the prosecutors' office backs them up

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Opinion (No. 469).  You can read the full opinion here.  The summary speaks for itself:

A prosecutor who provides official letterhead of the prosecutor’s office to a debt collection company for use by that company to create a letter purporting to come from the prosecutor’s office that implicitly or explicitly threatens prosecution, when no lawyer from the prosecutor’s office reviews the case file to determine whether a crime has been committed and prosecution is warranted or reviews the letter to ensure it complies with the Rules of Professional Conduct, violates Model Rules 8.4(c) and 5.5(a).

South Carolina Supreme Court recognizes the right of a beneficiary of a will or trust to sue a lawyer for malpractice

About ten days ago, in a case called Fabian v. Lindsay, the South Carolina Supreme Court recognized a cause of action, in both tort and contract, by a third-party beneficiary of an existing will or estate planning document against a lawyer whose drafting error defeats or diminishes the client's intent. The Court added that "[r]ecovery under either cause of action is limited to persons who are named in the estate planning document or otherwise identified in the instrument by their status. Where the claim sounds in both tort and contract, the plaintiff may elect a recovery."  You can read the opinion here.

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.

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.

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.

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.

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....

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.

Lawyers behaving badly

The headlines in today's ABA Journal online include the following stories:

Ex-judge gets 60 days and 6 months of house arrest for falsifying court records and prostitution

Lawyer who robbed 3 banks and shot state trooper gets 24 years

Ex-partner of law firm indicted, accused of aiding unlawful use of energy tax credits by clients

Judge apologizes for more than 200 sexually explicit emails sent from office

Disbarred lawyer who stole from his own mother and others gets 44 months in federal prison

What's going on?!

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."

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. 

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."

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.

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.

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.

Texas Bar Ethics Opinion finds Texas rule on conflicts is more strict than Model Rule -- then (two years later) changes its mind (UPDATED)

In a recent opinion, the Texas bar's ethics committee found that a law firm must stop representing a litigation client if it hires a lawyer who formerly worked on the case as a law clerk at the firm representing the opposing party. Screening the tainted lawyer to prevent the sharing of any confidential information he learned in his prior employment won't enable the firm to continue representing the client.

UPDATE: 3-22-19:  However, two years later, in 2016, the opinion was withdrawn and replaced with a new one which concludes "Under the Texas Disciplinary Rules of Professional Conduct, a law firm is not required to withdraw from representing a client in a lawsuit if the law firm hires a new lawyer who, before becoming a lawyer, was employed as a law clerk for the law firm representing the opposing party in the lawsuit and in that capacity helped provide services to the opposing party with respect to the lawsuit, so long as the law firm screens the new lawyer from any personal participation in the matter to prevent the new lawyer’s communicating to others in the law firm confidential information that the new lawyer and the law firm have a legal duty to protect."

You can read the new opinion here. 

Under the Model Rules, a firm would be allowed to continue the representation of the current client if it screened the newly hired attorney.

How not to practice law: if you are a judge, show up drunk to preside over your cases

Need I say more?  The story is here.  It sounds like this was not a case of a judge being irresponsible, but of inability to control alcoholism.  In a case like that I think there is more need for help than for sanctions.  On the other hand, you can't trust a judge who can't be trusted to handle this problem.  I think a suspension and requirement to go for treatment would be an acceptable sanction.  What do you think?

UPDATE 11/10/14:  Legal Ethics in Motion has more on the story here.

Interesting oral argument before the Illinois Supreme Court on allocation of authority to make a decision and ineffective assistance of counsel

The Illinois Supreme Court heard an interesting oral argument today involving an allegation of ineffective assistance of counsel based on the fact that the attorney did not advocate for a position in favor of the client (defendant in a misdemeanor case).  One of the things that make the case interesting is the unusual circumstances that gave rise to the appeal.

At some point during the process, the prosecutor asserted a "bona fide doubt" as to the fitness of the defendant to stand trial.  Counsel for the defendant did not object.  Based on the state's statement, the court ordered an evaluation of the defendant.  On appeal, the defendant (represented by a different attorney) is now claiming that the trial counsel was ineffective because he did not object to the state's argument of unfitness.

During the oral argument, the justices ask good questions about whether the decision on what position to take as to the fitness of the defendant is one for the defendant or the attorney; whether it is strategic or substantive, etc.  In part, defense counsel argued that the decision belonged to the client because it involved more than mere "tactics."  Because this was a misdemeanor case, a finding of unfitness could result in the defendant remaining confined for a longer period of time than if found guilty.  Thus the decision on what position to take as to the fitness of the client affected the ultimate goals of the representation.  For that reason, the defendant is arguing that the attorney's failure to take her position that she was fit constituted ineffective assistance of counsel.  In contrast, the state argued that although the attorney may have had a professional responsibility duty, the failure to object did not amount to a violation of the right to effective assistance of counsel.

Another issue discussed by the parties is whether there was a need to request a guardian ad litem and whether the decision in Austin M., a case I have written about, applies to this case.

You can listen to the audio of the oral argument here or watch the video here.

Will you be replaced by a robot? or a computer program?

Lawyers are often asked by clients to review contracts prepared by others.  However, because this type of task is something for which you don't need a law degree, someone has come up with the idea to create a computer program to do it.

Enter "Legal Sifter", the computer program that aims to take your job as a contract analyst. The computer program is designed to "eyeball a contract, much in the same way that an experienced lawyer might if asked by a fellow attorney or a friend to have a quick look."  It scans documents and assigns them a score based on how favorable the terms are for the user. It also provides users with an explanation of the clauses and provisions in the document and suggests potential changes to provisions that are probably not in the user’s best interest.  Sounds promising, but will it displace lawyers?  I don't think so.  The program appears to offer some benefits for some users, but the complexity of many of the types of contracts lawyers are often asked to review is probably beyond its capabilities.  Computer code is no match for professional experience when it comes to complex legal issues and transactions.

Over at My Shingle.com, Carolyn Elefant discusses the issue in more detail.

ABA publishes Formal Opinion on duties of supervisory prosecutors

As you probably remember, in Connick v. Thompson and in Smith v. Cain the US Supreme Court was faced with allegations of misconduct by the District Attorney's Office in New Orleans including allegations that the DA had failed to train prosecutors about their duty to disclose exculpatory evidence.  Meanwhile, many other courts continue to overturn convictions due to prosecutorial misconduct.  (Go to the prosecutors label on this blog and scroll down for more.)  You would think that prosecutors would know their duties, but either because they don't or because they don't care, prosecutorial misconduct continues to be an epidemic.

In an attempt to provide some guidance, the ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 467, addressing the managerial and supervisory responsibilities of prosecutors.  The summary of the opinion is as follows:

Model Rules 5.1 and 5.3 require lawyers with managerial authority and supervisory lawyers, including prosecutors, to make “reasonable efforts to ensure” that all lawyers and nonlawyers in their offices conform to the Model Rules. Prosecutors with managerial authority must adopt reasonable policies and procedures to achieve these goals. Prosecutors with direct supervisory authority must make reasonable efforts to ensure that the lawyers and nonlawyers they supervise comply with the Rules. Where prosecutors have both managerial and direct supervisory authority, they may, depending on the circumstances, be required to fulfill both sets of obligations. The particular measures that managerial and supervisory prosecutors must implement to comply with these rules will depend on a variety of factors, including the size and structure of their offices.

Of particular interest, the opinion states that supervisors in prosecutors' offices should create a “culture of compliance” by emphasizing ethical values and obligations during the hiring process, providing incentives such as positive reviews, promotions and raises for ethical behavior, protecting and rewarding lawyers who report misconduct up the ladder within the office and by internally disciplining those who violate professional conduct rules.

I have nothing against all these suggestions and I should not be surprised by them since the reason we need to stress a need to "create" a culture of compliance with ethical rules is that there seems to be a history of disregard for them.  But it always bugs me to know there is a need to remind prosecutors and their supervisors that they have a duty to be ethical.

Is "dignity" a proper standard for judicial office campaigns?

The Legal Profession blog has a story here.  In short, the South Dakota Special Committee on Judicial Ethics Campaign Intervention has issued an opinion that concludes that a judicial candidate can advertise in a movie theater as long as it is done "with dignity," a reference that apparently would apply to both the ad and the movie itself.  I posted a comment to the story and got some replies.  Go here to check it out.

My comment is that I am always troubled by the use of "dignity" in any decision judging speech by attorneys. It seems to me the use of "dignity" as a standard goes against the principle that the First Amendment stands to protect speakers against the state imposing sanctions based on the fact that some might find the speech offensive.  Granted, that principle was significantly weakened by the US Supreme Court's decision in Florida Bar v. Went for it, but the other cases in the long line of attorney speech cases still stand, including Zauderer, where the court said that regulating the dignity of the illustration of the IUD was not a good enough state interest.

New York State Bar Association report on social media ethics guidelines

As you know, the Model Rules were amended recently to recognize that an element of competence is knowledge about "technology" which includes computer programs and the use of social media. In addition, some bar groups have also issued reports or opinions on social media.  For example, I recently reported that the Philadelphia Bar Association’s Professional Guidance Committee issued an opinion on the ethics of advising clients on the use of social media.

But "social media" includes so many different things and its use can have so many implications that more guidelines are needed.  Fortunately (at least for lawyers in New York), earlier this year, the New York State Bar Association issued a report called "Social Media Ethics Guidelines" (available here.)  The guidelines discuss topics ranging from attorney advertising and furnishing legal advice through social media to ethically communicating with clients and researching prospective and sitting jurors.  Needless to say, these and other guidelines will continue to evolve in order to keep pace with technological developments.

Kentucky Supreme Court finds that it is unethical to require a defendant to waive right to claim of ineffective assistance of counsel as part of plea bargaining

As you probably know, it is not uncommon for convicted criminal defendants to challenge their convictions alleging that their lawyers did not provide effective assistance of counsel, and that sometimes the ineffective assistance related to the attorneys' inadequate counseling on whether the defendant should agree to a plea offer.  However, apparently prosecutors in federal court often require defendants to give up that right in order to have a favorable plea bargain.  In other words, it has been reported that often the plea offer is conditioned on the defendant waiving the right to challenge the attorney's performance as ineffective as part of attempts to seek post conviction relief.

Yesterday, 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."

The opinion was the result of a request by the prosecutors of the office of the United States Attorneys for the Eastern and Western Districts of Kentucky to review the merits of an advisory ethics opinion by the Kentucky Bar Association (Ethics Opinion E-435), an ethics advisory which held that the use of ineffective-assistance-of-counsel (IAC) waivers in plea agreements violates Kentucky's Rules of Professional Conduct.  After a very well reasoned discussion of the opinion, the Court concluded that it agrees with the Bar Association and that it is unethical for prosecutors to include a waiver as a condition to a plea agreement and for defense lawyers to advise clients about it.

The case is called US v Kentucky Bar Association and the opinion is available here.  For comments go to The Legal Ethics Forum, Behavioral Legal Ethics, The Legal Profession Blog, and a ;ublic defender.

Thank you very much to Grace Giesel (Univ of Lousville) for sending me the news!

Court of Appeals for the Third Circuit finds that NJ rule regarding advertising is unconstitutional

In a case called Dwyer v. Cappell, the Court of Appeals for the Third Circuit has found that a certain rule adopted in New Jersey to ban attorneys from quoting judges (saying good things about the lawyers) in the lawyers' ads violates the First Amendment.  The opinion is available here.

In this case, a lawyer had posted on his website quotes from judicial opinions in which judges praised the lawyer's work. After the lawyer refused a request by a judge to remove a quote from his website, the state adopted a new rule that prohibits quotes from judges, but that allowed posting a full opinion.

As I understand it, the new rules was based on several arguments:  (1) that statements in an opinion discussing a lawyer’s work do not constitute an endorsement; (2) that the use of the quotes could make judges could appear biased in favor of certain attorneys and (3) that quotes taken from opinions could be taken out of context.  For this reason, and to avoid operating as a complete ban on speech, the rule allowed the use of the full opinion.

In sum, the three arguments are just expressions of the most common argument used by states that want to limit attorneys' speech: that the speech is "misleading."  And this is the most common argument because misleading speech is not protected speech.

Yet, the Court was not persuaded.  Because the use of the quotes is at worst "potentially misleading," the validity of the rule should be analyzed under the standard used for commercial speech as developed by the Supreme Court starting in Bates and Zauderer.  And using that analysis, the rule fails.  

On the other hand, the Court did not leave the state empty handed.  It suggested that because the information could be potentially misleading, the state could impose the use of a disclaimer to explain the origin of the quote and to state that the quote does not necessarily constitute an endorsement by a particular judge.

Movies with pivotal lessons for lawyers

As many of you know, I keep a list of recommended movies for lawyers and law students.  It does not includes all the law related movies out there; only ones I have seen and would recommend.   Now for those of you interested in movies, here is a link to an article in the ABA Journal.com listing twelve movie scenes that offer important lessons for lawyers.  You can click on each movie title for a short description of the relevant scene and the lesson the authors think it helps teach.

Legal Zoom?

As you probably know, there are a number of decisions out there addressing the issue of whether Legal Zoom engages in "unauthorized practice of law."  (For previous posts on this go here, here, here, here, here, here, and here.)  I think this is an important debate because it relates to broader questions of lack of access to legal representation and whether non lawyers should be allowed to provide some legal services.   Here is a recent short article in the ABA Journal.com on the subject and some comments in The Legal Ethics Forum (with links to more).

Philadelphia Bar Association Committee opinion on attorney's advice on client's use of social media

The Philadelphia Bar Association’s Professional Guidance Committee recently addressed the following questions: (1) Whether a lawyer may advise a client to change the privacy settings on a social medial page from public access to a private setting; (2) Whether a lawyer may instruct a client to remove a photo or other content that may be damaging to the client’s case; (3) Whether a lawyer responding to document requests must produce copies of photographs posted by the client, which the lawyer previously viewed, but did not print or download; and (4) Whether a lawyer responding to document requests must produce a copy of a photograph posted by someone other than the client to the client’s social media page, which the lawyer previously viewed, but did not print or download.

The Committee concluded that that an attorney may advise a client to change privacy settings and may also advise the client to remove content, as long as the content is preserved so that it may be produced during litigation. The Committee also concluded that it is not an ethical violation to advise the client to take action that renders the content more difficult to locate if the content is readily available to be produced in the event that the information is relevant and responsive to a discovery request.

You can read the opinion here.

For comments you can go to Legal Ethics in Motion and Professional Liability Matters.

Webimar on ethical issues related to cloud computing

Here is a webimar by the ABA's Legal Technology Resource Center on ethical issues related to cloud computing.


 

Will you vote for this blog?

The voting for the ABA top 100 legal blogs is now open.  If you like this blog, I would appreciate your vote! To vote go to this link and fill our the form.

What do you have to do to get disbarred in Wisconsin?! Court rejects request to disbar attorney who misappropriated money from a client with diminished capacity while serving as guardian

Misappropriation of clients' funds is often considered to be one of the worst types of misconduct and usually results in disbarment.  In fact, it should result in disbarment.  If you steal money from your client, you should be disbarred.  Period; end of story.  That's always been my position and, typically, courts agree with it.  But every now and then there are exceptions.  Recently I wrote about an Illinois Review Board decision that suggested an attorney should not be disbarred for stealing client's money because the client did not know the lawyer had stolen the money and because the attorney had a good reason to steal the money.  As I said in my original post, that's absurd.

Not to be outdone, now comes an opinion by the Wisconsin Supreme Court rejecting the Office of Lawyer Regulation's recommendation to disbar an attorney who misappropriated almost $50,000 from a client with diminished capacity while serving as a guardian.  

One big problem in this case was that the attorney did not set a separate account to manage the money in guardianship.  He simply deposited the money in his trust account, which is a problem in and of itself.  Then, on top of that, as in many of these cases, the attorney claimed he had poor accounting or record keeping, and thus that he did not keep good records of the money going in and coming out of his trust account.

The attorney's claims are designed to suggest that he was merely negligent and that the fact he ended up misappropriating client money was not intentional.  Making the distinction between negligence and intent can be critical to avoid disbarment, of course; and here the court apparently bought the lawyer's argument.

I guess I understand there can be a distinction between negligence and intent, but at some point we have to decide how serious we are about misappropriation.  For me, the distinction is irrelevant.  If an attorney is so negligent that he or she can't figure out they are stealing client money, they should not be allowed to represent clients.  

The Wisconsin case is even worse because the attorney had been disciplined in the past for trust account violations.  So here we are dealing with an attorney who claims he was negligent when, in fact, he had been disciplined in the past.  I don't buy it.  Although I tend to be a hard-liner on this issue, I will not discard the possibility that I can be convinced to not disbar an attorney for a first offense if I am convinced the problem was caused by pure negligence.  But here we are dealing with an attorney who knew, or should have known, what he was supposed to do and decided not to change his practices.  I agree with the OLR's recommendation.  The attorney should have been disbarred.

Investigation based on complaint about anonymous criticism closed

Back in January I commented on a complaint filed by a law professor against a blogger for what the professor called cyber-bullying or harassment.  The ProfsBlawg and Legal Ethics Forum are now reporting (here and here) that the state disciplinary authorities have decided not to pursue an action against the blogger.  Even though, I found many of the comments by the blogger to be offensive, I think the decision is correct (for the reasons I explained in my original post) as long as the basis of the complaint was merely speech that expressed opinions.  If the complaint was based on conduct, or on speech that could be construed as actual threats, the story would be different.  However, it seems like the issue is now closed.

Are lawyers meeting the standard of competence related to knowledge about "technology"?

A recently adopted amendment to the comment of Model Rule 1.1 (on competence) explains that being "competent" requires lawyers to understand "the benefits and risks associated with relevant technology."  Presumably, therefore, lawyers who do not understand the technology they are currently using in their practice can be found to be incompetent and, thus be subject to sanctions for a violation of the rules of professional conduct.  Also, as everyone probably knows, another rule requires lawyers to use reasonable care in protecting the confidentiality of client data.

Because client data is often stored and shared using "technology", it is interesting to ask whether lawyers truly understand the implications of using that technology to handle the data.  Are lawyers really competent in this area of the practice of law?  Are lawyers really using reasonable care when attempting to protect the information?

The results of a recent Lexis/Nexis survey suggest that the answers to both questions is no.  The survey asked about the tools lawyers and legal professionals are using to protect their clients’ privileged information and according to some commentators, 77% of the lawyers surveyed did not have adequate security for their confidential client data.  Here is a podcast on the subject featuring two experts on digital security and a lawyer/journalist who has written about the implications of the survey.

Podcast on ethical issues related to the dissolution of law firms

The Legal Talk Network recently posted a podcast on the ethical issues related to the dissolution of law firms.  Go here to listen to it.

More comments on the role of lawyers in the GM debacle and the connection with the need for less secrecy in litigation

News and comments regarding General Motors keep piling up and none of it is good for the automaker. You can go to my Torts blog fore more information and links, but the important aspect of the debate here relates to the role of the lawyers involved and the on-going debate about the need to control secrecy in litigation.  Here are a few links.

June 14: Richard Zitrin (UC Hastings):  Secret settlements fueled GM's latest ethical inferno

June 16: Richard Painter (Minnesota):  Down the ladder due diligence is just as important as up the ladder reporting

June 18: NY Times: GM CEO faces criticism in House hearings (includes short video)

June 19:  Painter and Zitrin:  GM's general counsel and CEO should resign or be fired

June 24:  John Steele (Legal Ethics Forum): Update on the proposed sunshine in litigation act 

Update on the story of the judge and prosecutor who were disciplined for engaging in a personal relationship during trial

About two weeks ago I posted a note about a judge in Florida who was disbarred because, while serving as the presiding judge in a capital first-degree murder case, the judge commenced a significant emotional relationship with the lead prosecutor in the case. The prosecutor, on the other hand, was only suspended for two years.  There is more information on the story here and here.

New York City Bar Association issues opinion on virtual offices

The New York City Bar Association’s Committee on Professional Ethics has issued an opinion (2014-02) on the use of virtual law offices. The Legal Ethics Forum has more.

Calls To Reform Wisconsin Attorney Discipline

The Legal Profession blog has an article on calls to reform the disciplinary system in Wisconsin.

The role of lawyers in the GM debacle

The debacle surrounding GM's car recalls, lawsuits and corporate culture has generated a great debate on issues related to torts, safety, litigation, the use of bankruptcy protection, alternative compensation funds and the role of lawyers.  Sadly, much of the debate shows we (whatever you interpret "we" to mean - society, lawyers, judges, regulatory agencies) have not learned important lessons from the past.   You really should take a few minutes and go to the following sites to read up on the issues (and make sure you read the comments too):

The Legal Ethics Forum reports (with links) that GM has fired lawyers as a result of an investigation.

Link to the report prepared by a lawfirm for GM.

"Shades of Enron: the Legal Ethics Implications of the General Motors Scandal"

New York Times article:  "G.M. Lawyers Hid Fatal Flaw, From Critics and One Another"

Richard Zitrin explains the connection between secrecy in litigation and the current issues

The PopTort on GM corporate culture

How not to practice law: if you are a judge, start a relationship with the prosecutor in the case; if you are cited to a disciplinary proceeding, show up in shorts and a t-shirt; if you like someone you interviewed, send her "sexting" messages.

Here are three recent stories to add to the on-going list of "how not to practice law" posts:

1. While serving as the presiding judge in a capital first-degree murder case, Gardiner commenced a significant emotional relationship with the lead prosecutor in the case.  Story here and here.   Interestingly, the prosecutor was only suspended for two years.  Why disbar the judge but not the prosecutor?

2.  Show Up For Your Disciplinary Hearing In Shorts, T-Shirt And Running Shoes.  Story here.

3.  Sext.

Illinois Review Board issues opinion that suggests minor sanction is in order for misappropriation if there was a good reason to misappropriate

Although there are always exceptions, misappropriation of client's funds will almost always result in disbarment.  This is certainly true in Illinois, where almost every year misappropriation ranks as one of the top types of misconduct that results in disbarment.  And this is a not a bad thing.  If you steal money from your client you should be disbarred. Period; end of story.  That is what I teach my students.  But, like I said, there are always exceptions.  The hard question is what are the reasons for which we should make an exception.

This is why I was surprised to read about this decision of the Illinois Review Board recommending a mere 30-day suspension for a case of misappropriation because the Board apparently thought the misappropriation was done for "sympathetic reasons."

I understand that every case is different and that the Board should consider arguments in favor of mitigation, but it always troubles me when a decision seems to suggest that there are good reasons to steal and bad reasons to steal and that you will not get in serious trouble if you steal for a good reason. Aside from going against the vast majority of the cases on the issue, this type of reasoning sets a bad policy.

In particular, the court considered as a mitigating factor the fact that the client was not aware that the lawyer had misappropriated the funds.  Again, I understand that the Board is essentially saying that the client was not harmed by the misconduct, but what it says can also be interpreted to mean that the better the lawyer is in hiding the misconduct from the client, the lesser the sanctions should be.  This does not make much sense to me.

I think the opinion should be reversed and a stronger sanction should be imposed.  

Podcast: Has the Promise of Gideon v. Wainwright Been Fulfilled?

Last year we celebrated the 50th anniversary of Gideon v. Wainwright and there was a lot of discussion on the state of access to legal representation in criminal cases.  I posted a series of links to many of the articles and debates around the internet here, here, here, here and here. Now, about a year after the first of those posts, the Legal Talk Network's podcast channel Lawyer2Lawyer has posted this a new podcast on the subject.

Update on the story regarding Oregon's decision to consider intra-firm consultation protected under attorney-client privilege

Bernard A. Burk, Assistant Professor of Law Faculty Fellow, Parr Center for Ethics University of North Carolina School of Law, wrote to me in response to my original post with a couple of important points:

1.  There is a line of federal district and bankruptcy court decisions in the 90s and 2000s denying or limiting the privilege under similar circumstances. The cases reason, more or less, that internal consultation with firm counsel regarding the firm's rights and duties vis-à-vis a client, at least while the engagement continues, violates the firm's fiduciary duty of loyalty and thus should not be shielded by the attorney-client privilege. They cases include (among others) In re Sunrise Sec. Litig., 130 F.R.D. 560, 595 (E.D. Pa. 1989); Koen Book Distributors v. Powell, Trachtman, Logan, Carrie, Bowman & Lombardo P.C., 212 F.R.D. 283 (E.D. Pa. 2002); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 220 F.Supp.2d 283 (S.D. N.Y. 2002); SonicBlue Claims LLC v. Portside Growth & Opportunity Fund Ltd. (In re SONICBlue Inc.), No. 03-51775, Bloomberg law Citation: 2008 BL 15488 (Bankr. N.D. Cal. Jan. 18, 2008); Thelen Reid & Priest LLP v. Marland, No. C 06-2071 VRW, 2007 BL 226352 (N.D. Cal. Feb. 21, 2007). There are all kinds of reasons why, in my humble opinion, the earlier federal decisions are poorly reasoned and implement bad policy. But the issue has been current a lot longer than some may think, and until recently was regularly decided the other way.

2. The ABA House of Delegates recently adopted a resolution supporting the decisions in Georgia and Massachusetts.

Thanks to Bernie for the updates!

Are legal services "unaffordable"?

A few days ago, The Atlantic published an article titled Is There Such a Thing as an Affordable Lawyer?  The article argues that the monopoly on legal services by lawyers results in legal services becoming overpriced and unaffordable.  I agree that legal services are expensive and that many people in need of services can't afford them, but the story upon which the article is based did not provide the best support for the argument according to comments in the Legal Ethics Forum and My Shingle. 

Court of Appeals for the 7th Circuit decides case on conflicts in class action representation

Yesterday, the Court of Appeals for the 7th Circuit dismissed a settlement agreement reached in a class action case citing a laundry list of what it said were conflicts of interest on the part of the plaintiff lawyers and inequities in the agreement itself, which the court called "scandalous."  “Class counsel sold out the class,” Judge Richard A. Posner wrote for a three-member panel of the court. The case is called Eubank v. Pella Corp.  and the opinion is available here.  The Legal Ethics Forum has links to comments on the story here. 

Unfortunately, issues of inequities in class action representation are not a new problem.  Richard Zitrin and Carol Langford have a very good chapter on the subject in their book "The Moral Compass of the American Lawyer."

New Jersey Appellate Court holds that a convicted criminal defendant does not have to show innocence to support a malpractice claim (if the defendant pleaded guilty)

As I have discussed previously (more recently here, here and here), a majority of jurisdictions hold that a convicted criminal defendant does not have a right to sue his or her trial attorney for legal malpractice unless the plaintiff can show he or she was innocent of the crime.  However, there are a few jurisdictions (last time I checked it was four) that have decided there is no need to show actual innocence.

A new case from New Jersey addressed the issue and found no need to show actual innocence while suggesting the requirement should still apply to most cases.  The court tries to make a distinction; but I don't buy it.

In this case, Cortez v. Gindhart, the defendant pleaded guilty to criminal charges but later brought a malpractice claim based on his trial counsel's alleged failure to follow up on the government's suggestion of a possible plea deal.  The lower court dismissed the complaint based on precedent cases in the jurisdiction that required the showing of actual innocence.  The Appellate Court, however found that those cases did not apply and held that the actual innocence requirement is not a requirement in all cases.

The court found that the issue was different because in the older cases, the plaintiffs (former criminal defendants) had claimed they were wrongfully convicted as a result of their public defenders' negligence while in Cortez the plaintiff had admitted his guilt.

According to the court, the claimed injury in Cortez is different because as a result of the alleged negligence, Cortez was deprived of an opportunity to accept a more favorable plea offer and, as a result of that deprivation, he received a harsher sentence.  Based on this, the court then concluded that there is no need for proof of innocence because “negligence in the discharge of duties for a client who pleads guilty may result in actual injury to a client even if guilty.”

I don't find the distinction convincing.  What the court is suggesting is that if a person is guilty of the charged crime, and they get convicted, they got what they deserved.  But what they deserved was a negligent free representation and if they can show that they would not have been convicted but for the negligence then they did suffer an actual injury even if they were guilty.

Assume for example that a criminal defendant is guilty of possession of an illegal substance.  He is guilty because he did, in fact, had the drugs in his possession, but for whatever reason decided to plead not guilty and goes to trial.  But also assume that the police obtained the drugs during an illegal search in violation of the defendant's constitutional rights.  Then assume that the defendant's lawyer negligently failed to file a motion to suppress the evidence which would have been granted and which would have resulted in the exoneration of the defendant or the dropping of the charges because there was no other evidence.  Wasn't the defendant convicted but for the negligence of the lawyer?  Didn't the guilty person suffer an actual injury?

Even if guilty, the criminal defendant in this case claim that that the attorney's negligence resulted in actual injury, just as much as the criminal defendant in Cortez could. I think the underlying argument on which both defendants are basing their claims is the same, and that the analysis of the court should be the same.  In fact, I think the court reached the correct result in Cortez, but it is wrong in holding that the result does not apply to other cases.  It should.  There should be no requirement to show actual innocence; period.

Having said all that, it should be noted that in Cortez the court affirmed summary judgment for the lawyer for a different reason.  The plaintiff could not establish that but for the lawyer's substandard performance the government would have offered—and the client would have accepted—a deal better than the one he eventually took.  In other words, the plaintiff's argument that he would have gotten a better result had it not been for the lawyer's negligence was based on speculation, not on an actual fact.  Had the state made a better offer and the attorney had failed to tell the client, then the client would have had a claim; but since no alternative offer was made, the client could not show that the negligent conduct was the cause in fact of the claimed injury.