Monday, May 25, 2015

DQed on the effect of a disqualification order

When a court orders disqualification, the court obviously has authority to enjoin the attorney or law firm from appearing before the court on behalf of a party.  It is also fairly uncontroversial that the court’s authority extends to so-called ancillary proceedings, such as depositions, in the same matter (even if the judge is not physically present).  But does this disqualification authority extend to bar the lawyer from, for example, counseling (but not appearing for) the client?  I would think so, but apparently there are differences of opinion on this.  DQed has a short comment on the issue here.

Sunday, May 24, 2015

Another case on whether the appearance of impropriety can be used as a standard in conflicts cases

A few days ago I wrote about a case in which the Kentucky Supreme Court criticized the use of the notion of "appearance of impropriety" as a standard in conflicts cases.  See here.

In contrast, in a case decided in New York about a month later, the court relied on appearance of impropriety in a routine former client conflict of interest case.  See  Avigdor v. Rosenstock (N.Y. Sup. Ct. May 12, 2015).  The court held that if a party seeking to disqualify a lawyer meets the elements required to support the motion to disqualify, the order to disqualify should be issued in order to "free the former client from any apprehension that matters disclosed to an attorney will subsequently be used against it in related litigation" and to avoid "the appearance of impropriety' on the part of the attorney or the law firm."

Thanks to Bill Freivogel of Freigovel on Conflicts for the update.

Improper comments during trial result in reversal of judgment in civil case

Over the years I have posted lots of links to recent cases in which courts reverse convictions because of improper comments by prosecutors.   This is, unfortunately, not an uncommon occurrence.  Yet, I don't remember a case reversing a judgment in a civil case.  Until now. 

Earlier this month, the appellate division of the New Jersey Superior Court issued an opinion vacating a multi-million dollar judgment because of the cumulative effect of comments made during trial by the plaintiff’s lawyer.  In my opinion, some of the comments would have been acceptable rhetoric, but when put together with those others which crossed the line, the effect was too damaging.   The comments included a statement during the opening statement telling the jury that it was their job to hold the defendant responsible, statements referring to facts not in evidence, expressions of opinion on the defendant's arguments and on defendant's lawyer's questioning of witnesses, attacks on the credibility of the defendant's lawyer and a request on the jury to "send a message" by finding for the plaintiff.  Some of these would have violated Model Rule 3.4, and I know that "send a message" type argument has been held to be improper in another jurisdiction.

The case is called Burkert v. Holcomb Bus Service Inc.

Professional Liability Matters has more here.

Florida Bar Committee on Advertising rules texting is impermissible solicitation

Last year I posted a comment on an Advisory Opinion of the Ohio Board of Commissioners on Grievances and Discipline which states that Ohio lawyers are not prohibited from soliciting potential clients via text messages. See here

In contrast to that opinion, Legal Ethics in Motion is reporting that the Florida Bar Committee on Advertising recently held that a law firm’s proposed texting campaign was impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients.  The committee apparently rejected the law firm’s argument that texting is similar to direct mail or email advertising, which is permissible if done in accordance with the Florida Bar’s rules.  Read more here.

UPDATE August 2015:  The Florida Bar Board of Governors rejected the Committee's analysis and recommendation.  Go here for the story.

Friday, May 15, 2015

North Carolina criticized for going after criminal defense attorneys

The Legal Profession blog has two stories on what it calls "the North Carolina State Bar's war on criminal defense counsel."  I have not been following the underlying claims and issues, so I will not comment at this point.  The stories have links to more information.  Go here and here for all the details.

Oregon disbars attorney for conduct as a business partner

A few days ago, I commented on a couple of cases involving conduct outside the practice of law.  See here.  I mentioned the inconsistent decisions in Illinois involving dishonest conduct when not related to the practice of law.

In yet another story related to this question, the Legal Profession blog is reporting on a case from Oregon in which an attorney was disbarred because of conduct as a business partner - not as a lawyer.  The case, again, takes the position that the conduct outside the practice of law shows the attorney is not fit to practice law.  I think this is the proper approach to the question, and the reason the Illinois decision in In re Karavidas was wrong.

Another court abandons the use of "appearance of impropriety" as a disciplinary standard

The Supreme Court of Kentucky, like many other jurisdictions, has used the notion of "appearance of impropriety" as a basis to disqualify attorneys in conflict of interest cases.  Recently, however, the court decided to abandon its adherence to this standard concluding that "in deciding disqualification questions, trial courts should apply the standard that is currently in the Rules of Professional Conduct, which at this time requires a showing of an actual conflict of interest.” The case is called Marcum v. Scorsone (also available here).  The Legal Profession blog has more here.

This is a good result.  I have never liked the use of a standard based on an appearance of impropriety which is such a vague and subjective standard.  Now, if we could only convince courts to stop talking about the "image of the profession"!  But that is another story.

In terms of the appearance of impropriety, now there are essentially three approaches:  some states hold it should not be used as a standard for discipline; others hold that it can be used as a factor when used in addition to other more clearly defined standards; and others still hold it can be used as a factor on its own. 

The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to a standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite.  See Rotunda and Dzienkowski, Professional Responsibility, A Student's Guide (2012-13), p. 20, stating that charges based on allegations of appearance of impropriety have increased at a rapid rate.


Tuesday, May 12, 2015

Review of the anti-contact rules and doctrine, part 2

When can you contact people who are or were represented by counsel?  Last month I posted a link to the first comment on this issue in the New York Legal Ethics Reporter.  The most recent edition of the Reporter is now available and part 2 of the article is here.

Comments on the proposed Supreme Court Ethics Act

There is only one judicial system in the United States that has adopted some version of the Code of Judicial Conduct:  United States Supreme Court, "which has steadfastly resisted promulgating any rules of ethics."  For this reason, a bill has been introduced to require the Supreme Court to adopt written ethics rules, but which does not specify the content of the rules, leaving that to the Court itself.   The proposed bill, which is very short, can be found here.

Prof. Steve Lubet (Northwestern) has posted a comment on the act in both The Faculty Lounge and the Legal Ethics Forum.  The post is the same but each blog has its own discussion in the comments section.  

Recent case discusses what makes screening "ineffective"

Recently DQed discussed a new case in which the court found that screening mechanisms would not be effective in a case involving the hiring of a paralegal from another firm even though the court found that the firm’s screening measures “mirror and, sometimes exceed, screens approved in other cases.”  The case is called Ullman v Denco and it is available here.

Monday, May 11, 2015

Lawywer disbarred for "repugnant pattern of behavior." It was, indeed, repugnant, but was it sanctionable?

The Indiana Supreme Court recently issued an interesting opinion in which it disbarred a lawyer for what it called a “repugnant pattern of behavior.” The behavior was, indeed, repugnant and disturbing, but the opinion raises an interesting question about the standard that should be used to justify the imposition of sanctions for conduct outside the practice of law.

The facts of the case, in a nutshell, are as follows: The lawyer, who was 41 years old and married at the time, began a romantic relationship with his daughter’s college roommate. The roommate ended the relationship in March 2008 and for the next two years the lawyer continued to harass the young woman by e-mail, by phone and in person. The court describes the conduct in some detail and characterizes it as "threatening, abusive, and highly manipulative in nature.”The lawyer also left many “profoundly disturbing,” angry, and insulting voice mail messages for the woman. The lawyer also engaged in what is now known as "revenge porn," by sending nude photos of the woman to others in e-mails, and posting them on adult websites and on his own blog.

In another count of the complaint, the court considered the lawyer's conduct in representing an unrelated client. In that case, the lawyer failed to perform the work for which he was hired. For this particular conduct, the lawyer was charged with violating Indiana Rules of Professional Conduct 1.4(a)(2):Failing to reasonably consult with a client about the means by which the client’s objectives are to be accomplished and1.4(a)(3): Failing to keep a client reasonably informed about the status of a matter.

I have no problem with the conclusion that the lawyer violated those rules and should be disciplined. I also have no problem with the conclusion as another count related to rule 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit,or misrepresentation. This allegation was based on a number of arguments the lawyer made to the disciplinary authority which were found to be "tortured and not credible."

OK, that's all fine, but I am not sure that, if that was all, the lawyer would have been disbarred. It seems to me he was disbarred because of the, admittedly, very disturbing behavior related to his personal relationship and, therefore, which was mostly not related to the practice of law. (I say mostly because the conduct included the lawyer filing a complaint against the woman in question, which can be argued involves the practice of law in the sense that it suggests using the legal process for inappropriate purposes.)

Assuming that I am right in suggesting that the real reason for disbarment was personal (not professional) conduct, here is what I think is the interesting issue: what are the guidelines for discipline for conduct in a lawyer's personal life?

In class, I like to use the case In re Lamberis, in which the Illinois Supreme Court decides that a lawyer can be disciplined for personal conduct only when that conduct somehow relates to the lawyer's competence to practice law. According to this very broad approach, regardless of what the conduct is, or its context, if the disciplinary authority can somehow make the claim that the conduct shows the attorney is not fit to practice law, then the attorney can be disciplined. The conduct in Lamberis was plagiarism for a master's thesis, which the court found displayed dishonesty.

The problem in Illinois, however is that, more recently, in In re Karavidas, the same court decided, without mentioning Lamberis, that a lawyer can only be disciplined for conduct that violates a specific rule of professional conduct. The conduct in Karavidas was misappropriation and mishandling of money in a trust, but not when acting as a lawyer, which the court found did not justify discipline. In my opinion, the cases are not reconcilable. Whether a person can be trusted to manage a trust fund as a fiduciary officer, in my opinion, clearly reflects on an attorney's fitness to practice law since attorneys have a fiduciary duty toward their clients and have clearly defined duties related to trust accounts. Yet, the court did not find the conduct to be sanctionable.

I am not familiar with the law in Indiana, however, so I am only going to raise questions that maybe some of you can comment on.

For the disturbing personal conduct in Keaton the lawyer was charged with violating Indiana Rule 8.4(b): Committingcriminal acts that reflectadversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. The "criminal acts" in question was the conduct the court characterized as "stalking, harassment, and intimidation." The lawyer was at one point arrested and charged for stalking, but the charges were later dropped.

My first question is this: how are "criminal acts" defined by rules of professional conduct? On the one hand, you can argue that the act is not criminal until it is adjudicated as such. In other words, until a court has decided that the lawyer is guilty of criminal conduct (or the lawyer has entered a plea agreement, etc), neither one of which had happened in this case. On the other hand, you can argue that the disciplinary process should not have to wait until a criminal case is decided to determine if the lawyer should be disciplined. In that case, however, wouldn't it be better if the rule eliminated the word "criminal"? Otherwise, what constitutes "criminal" conduct would be decided by the disciplinary board. Is that the law in Indiana?

My second question is: if the conduct is not criminal but the court considers the conduct disturbing enough to warrant concluding the lawyer should not be allowed to practice law, isn't the court adopting the broad view that any conduct in a lawyer's personal life can subject the lawyer to discipline as long as the court sees a connection between the conduct and the lawyer's fitness to practice law?

Personally, I don't have a problem with that standard, just as I did not have a problem with its application in In re Lamberis, but I am not sure that is the prevailing standard. It does not seem to be in Illinois; I wonder if it is in Indiana. And if it is, why didn't the court discuss it?

The case is called In the Matter of R. Mark Keaton and you can find a copy of it here. The Legal Profession blog has more on the case here.