Podcast on the ABA Commission on the Future of Legal Services

As everyone knows, the legal service industry has been changing rapidly. Some jurisdictions allow non lawyers to provide some legal services, companies provide access to legal documents and forms and many potential clients are now looking online for solutions to legal problems.  On the other hand, there is still a large percentage of the population without access to the legal services they need. In order to deal with this emerging legal marketplace shift, American Bar Association President William Hubbard formed the ABA Commission on the Future of Legal Services.

The Digital Edge has posted a podcast discussing the Commission on the Future of Legal Services and its specific plans for looking into solutions.  You can listen to the podcast by pressing on the play button below.  If you can't see the button you can go here.

Court orders new trial, holding former prosecutor, now TV personality engaged in unethical conduct

Jonathan Turley's Res Ipsa Loquitur is reporting that a state court has ordered a new trial for a man convicted in 2007 due to unethical conduct of former prosecutor television personality Kelly Siegler, the star of the reality series Cold Justice on TNT.   The judge detailed an astonishing 36 instances of unethical conduct by Siegler, including withholding exculpatory evidence.  The judge explained that the prosecutor testified at a habeas hearing that favorable evidence did not need to be disclosed if the state did not believe it was true.  This is interesting because if she really believed that then you may be able to argue she did not "knowingly" violate the law.  Yet, you can also argue she is incompetent since that is obviously not the standard.  So, either way, there is basis to argue unethical conduct.

Siegler, not surprisingly, has denied she engaged in misconduct and has asserted she never withheld evidence.  Reportedly, attorneys are now re-investigating all the murder cases she was involved in.

Sadly, this is not the first "TV prosecutor" with a history of allegations of unethical conduct.  The other, of course, is Nancy Grace, who has been accused of being an unethical prosecutor who violated the rights of accused persons.

Court of Appeals for the DC Circuit decides lower courts must address possible conflict of interest before deciding the merits of a case

 The Legal Profession blog is reporting today on an interesting case out of the United States Court of Appeals for the District of Columbia Circuit in which the court held that a trial court erred in granting summary judgment and then holding that a motion to disqualify counsel was moot.  According to the Court's opinion

The district court erred in the sequence in which it rendered its decisions. Because a claim of counsel’s conflict of interest calls into question the integrity of the process in which the allegedly conflicted counsel participates, the court should resolve a motion to disqualify counsel before it turns to the merits of any dispositive motion. That procedure was not followed here. We therefore vacate the district court’s grant of summary judgment and its denial of the motion to disqualify and remand this case for further proceedings. Because the district court will decide in the first instance whether there was a conflict of interest or an appearance of such a conflict in violation of applicable ethics rules and, if so, will determine the appropriate remedy, we offer only limited guidance on the remaining issues the parties briefed and leave to the district court to decide them in view of its ruling on the merits of the motion to disqualify.

I don't have a problem with this, except for the statement "or an appearance of such a conflict."  This appearance of impropriety standard has been abandoned and criticized by other courts; and for good reasons. See here.

For more on the case, go here.

Please help a friend with her research

My colleague Prof. Cynthia Bond is working on a article and she needs your help.  Here is her request:

I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).

To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:

https://www.surveymonkey.com/s/QH3GBZK

Thanks in advance for your time and have a wonderful rest of summer!

Cynthia Bond

The John Marshall Law School

Chicago, IL

Comment on Celgard v. LG Chem, an unusual disqualification case

Over at Justicia.com, Prof. Ronald Rotunda has posted a short comment on Celgard, LLC v. LG Chem, LTD., which he calls "a most unusual lawyer disqualification case" out of the Federal Circuit. 

In Celgard, the Federal Circuit disqualified law firm Jones Day because it was representing Celgard in a patent dispute while it continued to represent Apple in other matters, even though Apple's connection to the case was that it had a business relationship with one of the parties.  

As Prof. Rotunda explains, if one reads Celgard too broadly, it is a potentially dangerous opinion, but there is no need to do that because there is no conflict simply because a law firm represents a client and the result in the case would make it more difficult or more expensive for another client to purchase goods or services.

Review of new law review article on the future (and regulation) of legal services

Professor Laurel Terry has written a short review of Andrew M. Perlman's article Towards the Law of Legal Services, Suffolk University Law School Research Paper No. 15-5 (2015).  The review is available here; the article is available here. 

No, you can't try to get clients by offering them door prizes!

Addressing what in class I call the "chicken dinner" approach to attracting clients, the North Carolina State Bar recently announced 2015 Formal Ethics Opinion 3: Offering Prospective Client a Computer Tablet in Direct Mail Solicitation, which concludes that a lawyer may not offer a computer tablet to a prospective client in a direct mail solicitation letter.

I would have thought this is obvious!  I am surprised a formal opinion was needed to clarify it.  One of the reasons attorneys are not allowed to provide financial assistance to clients (in litigation) is that we don't want to see a market for legal services based on which firm can offer the best dinners...  For this reason, it would seem obvious, to me at least, that it would be improper to offer prizes to prospective clients.

Florida releases electronic communications guidelines

The Florida Bar has released guidelines for electronic communication that consider issues of professionalism and legal ethics that may arise when an attorney uses texting, emailing, a smart phone, and social media in his or her practice. The best practice suggestions range from considering client confidentiality to understanding technology to practical suggestions for responding to an “angry email.”  To read the Florida Bar’s Best Practices for Effective Electronic Communication click here.

E-discovery and the duties of competence and confidentiality

Professional Responsibility: A contemporary approach reports that "[a] recent ethics opinion from the California State Bar Committee on Professional Responsibility, Formal Op. 2015-193, outlines how even an experienced lawyer can breach duties of competence and client confidentiality by engaging in e-discovery without the assistance of someone with e-discovery expertise."  Go here for more.

New ABA formal opinion on duties regarding client files upon termination of the attorney-client relationship

The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued a new opinion on the obligations of lawyers to return file/documents to former clients. Formal Ethics Opinion 471 is available here.  (Get it now, because the ABA archives opinions after some time, after which they are only available to members.)  For more on the opinion go to Professional Liability Matters.

UPDATE 8/16/16:  Lawyers Ethics Alert Blog has a comment on the Opinion here.

Recent opinion of the California State Bar Standing Committee on Professional Responsibility reaffirms old principle: confidentiality can include publicly available information

Professional Responsibility students often have a hard time understanding that the duty of confidentiality includes a duty to keep confidential information that is publicly available.  "If it is publicly available," they often wonder, "there is no confidentiality to protect."  But the general principle has always been that there is a difference between information that is publicly available and information that is "generally known."  If the information is generally known then you can say there is nothing to protect - the information is known already.  But not all publicly available information is generally known.

These principles have always been generally accepted and understood until the Virginia Supreme Court decided Hunter v Virginia in 2013, in which the court surprisingly held otherwise.  But this aspect of the decision has been heavily criticized and, to my knowledge, not followed anywhere else.

To that point, the California State Bar Standing Committee on Professional Responsibility has proposed a new ethics opinion reaffirming the old principle.  The opinion concludes that "[a] lawyer may not disclose his  client’s secrets, which include not only confidential information communicated by the client  to the  lawyer, but also publicly available information  that the  lawyer obtained  during or related to the professional relationship which the client has requested to be  kept  secret or the  disclosure of which  might be embarrassing or detrimental to the client."

The opinion is available here.  The California Bar is asking for comments on the proposed opinion through August 27, 2015.  I think this is the correct view of the issue and should be supported.  To learn how to submit comments go here.

Call for comments on possible changes to DC rules

The District of Columbia Court of Appeals is soliciting public comment on proposed amendments to the D.C. Rules of Professional Conduct that include revisions to Rules 1.10 and 7.1 and comments thereto, and the addition of a new comment to Rule 1.15.  For more information go here.

Association of Professional Responsibiity Lawyers issues report on advertising; calls for changes in the rules

The Association of Professional Responsibility Lawyers (APRL) recently released a comprehensive report in which it argues that “It is long past time for rationality and uniformity to be brought to the regulation of lawyer advertising,” The report, which was authored by the APRL’s Regulation of Lawyer Advertising Committee, is the culmination of a two-year study of the ABA Model Rules of Professional Conduct and various state bar approaches to regulating lawyer advertising.
The report states that the balance between the “core values” of professional responsibility and effective lawyer advertising must be “realigned” to ensure that consumers of legal services have access to accurate information about legal services.  The report also concludes that

Simply stated, current regulations of lawyer advertising are unworkable and fail to achieve their stated objectives.  Survey results show that there are too many state deviations from the ABA Model Rules, actual formal lawyer discipline imposed for advertising violations is rare, lawyers are disheartened by the burden of attempting to determine which regulations apply to the ever-changing technological options for advertising, and consumers of legal services want more, not less, information about legal services.  The basic problem with the current state patchwork of lawyer advertising regulations lies with the increasingly complex array of inconsistent and divergent state rules that fail to deal with evolving technology and innovations in the delivery and marketing of legal service  The state hodge-podge of detailed regulations also present First Amendment and antitrust concerns in restricting the communication of accurate and useful information to consumers of legal services.

 For more on the report go here and here.

Discipline for moral turpitude. What is moral turpitude?

I have commented before how the concept of "moral turpitude" is used inconsistently and how I am still confused as to what it really means.  About two weeks ago, Prof. Ronal Rotunda (Chapman) wrote an excellent short comment on the issue here.  He concludes that "the law may reject “moral turpitude” as a standard too vague to apply, yet some courts continue to apply it, even though those courts have adopted new rules that reject “moral turpitude” as the standard. Go figure." 

Short comment on the NY social media guidelines

In my last two posts I mentioned the recently discussed social media guidelines in New York.  Are this guidelines really needed or are existing rules sufficient?  Do we really need new rules every time new technology becomes available, or at least popular?  These are some of the questions addressed in a short comment in the blog Real Lawyers Have Blogs.