Monday, October 26, 2015

Report on Utah's public defense system for indigent defendants

On October 26, 2015, the Sixth Amendment Center released a report criticizing Utah’s long-standing, deep-rooted indigent defense system's deficiencies.  Among other things, the report criticizes the lack of state oversight, the fact that prosecutors are in charge of some local indigent defense budgets, and the fact that public defenders have excessive caseloads.  According to the report, more than 62% of all people facing a potential jail term for a misdemeanor charge go through proceedings without counsel. You can read the full report here, and two additional stories on it here and here.  This second story is about changes being proposed by Utah policymakers in the wake of the report.

Should non lawyers be allowed to invest in lawsuits?

Interesting article in the New York Times here.

Thanks to Professional Responsibility: A Contemporary Approach for the link.

Sunday, October 18, 2015

D.C. Adopts Screening To Avoid Imputed Disqualification

The Legal Profession blog is reporting that the District of Columbia Court of Appeals has amended its Rules of Professional Conduct to permit screening to avoid imputed disqualification under Rule 1.10.  You can find the language of the new rule in the Legal Profession blog here. I never been a fan of the concept of screening, but that is a lost battle these days since the ABA adopted it for its Model Rules.

ABA and Rocket Lawyer launch on-demand legal advice pilot program

About three weeks ago, the American Bar Association and Rocket Lawyer announced the creation of a pilot program that provides on-demand legal advice for small businesses called ABA Law Connect.  It is currently being tested in Illinois, Pennsylvania and California.  Program users can access Rocket Lawyer’s system to post a legal question online which will be answered by an ABA member-lawyer for a flat rate of $4.95 (a rate that will also include a "follow up question").  According to the press release,  "[t]hose interested in additional legal advice can discuss legal matters further in a lawyer-client relationship."

This initiative is part of the ABA's efforts to improve access to legal services.  The goal is great, but I have a number of concerns about it.  I am, for example, not sure that the statement quoted above about the lawyer-client relationship reflects the basic principles about how an attorney client relationship can be formed.  It seems that it assumes that the $4.95 questions merely creates (or can only create) a prospective client type relationship (regulated under Rule 1.18), but that is not necessarily the case, as anyone who has read Togstad v Vesely or Perez v Kirk & Carrigan knows.  And, as those cases show, the consequences of not understanding this can be significant.  I am also not encouraged by the fact that Rocket Lawyer's website provides its consumers information that is not entirely accurate on the distinction between the attorney-client privilege and the duty of confidentiality. The blog IPethics and INsights was the first one to pick up on the concerns in a post listing some of the issues raised by the pilot program.

The new buzzword in Legal Ethics these days seems to be "innovation" and the ABA is trying to find ways to encourage innovation.  Yet we shouldn't rush to try to be innovative at the risk of creating other problems.  It reminds me of the Direct TV commercial that ends with "... not the way I would have gone, but it is innovative.  And that's what we want around here..."

I have no problem with innovation, or change or new initiatives and I most certainly don't have a problem in trying to find ways to provide access to legal services for people who can't afford them, but whatever is done should be done with a full understanding of the professional responsibility principles involved and of the possible consequences for possible mistakes. 

UPDATE 2-21-16:  In what is an embarrassing turn of events, the ABA has now quietly terminated its partnership with RocketLawyer and dismantled LawConnect.  Go here for the update,

Podcast on new technology

My most recent post was about technical competence.  To continue along that topic, here is a podcast (from the Legal Talk Network) on the 2015 ILTA/InsideLegal Technology Purchasing Survey and the 2015 ABA Legal Technology Survey.  In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell discuss key results from these important legal tech surveys, highlight the most interesting trends, and discuss ways that lawyers can use these results to inform and tailor their technology plans for the coming year. Although both Tom and Dennis agree that lawyers are behind the curve of technological adoption, they see an increased interest in security, big data, information governance, cloud computing, and overall proficiency. In most of these areas, however, they mention that lawyers are not as far progressed as they should be, and both hosts believe that those in the legal profession have become technologically complacent.

Wednesday, October 14, 2015

Article on Technological Incompetence

A couple of days ago I posted a comment on a new study that shows a vast majority of lawyers may be incompetent when it comes to protecting confidential information sent over the internet.  Today, Lawyerist has a good short article on some of the most important or common issues related to competence related to technology.  It discusses using Google, being efficient, data security, e-discovery and the use of social media as evidence in trials, among others.  Take a look at the article here.

Florida ready to ban attorneys from accepting referrals from for profit non lawyer owned referral services

In 2011, the president of the Florida Bar appointed a special committee to review “whether and to what extent [the bar] can or should directly regulate” for-profit lawyer referral services. The study was prompted by what the bar described as the “dramatic growth” of such entities in recent years, and by “numerous complaints” about the allegedly “misleading nature of their activities.” The committee's final report recommended that the bar's board of governors petition the supreme court for rule changes that would prohibit lawyers from accepting referrals from certain types of referral services. The board eventually adopted less restrictive proposals that wouldn't forbid lawyers to accept referrals. However, at the end of last month, the Florida supreme court rejected the bar's proposals as insufficient. “The dangers that non-lawyer-owned, for-profit referral services pose to members of the public—who may be especially vulnerable after they suffer an injury, or when they face a legal matter that they never anticipated—leads us to conclude that much stricter regulations upon lawyer referral services are required than those proposed by the Bar,” it said.

The ABA/BNA Lawyers Manual on Professional Conduct has the full story at 31 Law. Man. Prof. Conduct 584.  The Legal Profession blog has more here.  Lawyer Ethics Alert Blog has more here.

Critique of Florida Access To Justice Commission's Initial Recommendations

Back in July, the Florida Supreme Court rejected a proposal to improve legal aid funding by increasing annual bar dues by $1000 which would have netted something on the order of $10 million in additional legal aid funding.  At the same time, a newly formed task force called the Florida Commission on Access to Civil Justice was working on recommendations to deal with the issue.

Those recommendations are now available and, at least according to Sam Wright of Above the Law, they are disappointing.  For example, the first one, recommends "support of the continued development of the Statewide Gateway Portal and approval of a pilot project, subject to obtaining adequate funding.”  Huh?  What the heck does that mean?  It appears it is a plea for funding to create a self help website.  Really?  You want to provide access to legal representation because there is no funding, by asking for funding so that people can represent themselves?

The second recommendation is even more precious: to approve the Commission’s adoption of an aspirational goal of 100 percent access to effective assistance for essential civil legal needs.”  Let's see, aspirational goal vs. $10 million in additional legal aid funding...  Tough one!  

Not everything is bad news, though.  One recommendation is to apply some income from class action litigation for financing legal aid. Yet, all in all, the recommendations seem to be weak. Read the details and critique of the rest at Above the Law.

Also, the recommendations do not address another issue under debate in the state.  Maybe the state could do better at providing access to legal representation, if it lowered barriers that prevent lawyers from other states from practicing there.  Yet, just this month, the Florida Bar tabled a proposal to adopt reciprocity or some other form of admission on motion. More on that here.

Tuesday, October 13, 2015

Follow up on the mess created by Indiana opinion on confidentiality and whether there is a duty to disclose suspected child abuse

A little over a month ago, I reported that the Indiana State Bar Association recently issued a new opinion that concludes that absent client consent an attorney may not report information about suspected child abuse learned during a representation unless the lawyer believes it necessary to prevent reasonably certain death or substantial bodily harm.   As I argued back then, the opinion is wrong because it suggests there is a duty to keep information confidential when the clear text of the applicable rule states a lawyer can disclose it.  Go here to read my original post.

Today, the Chicago Daily Law Bulletin has an article pointing out that "[s]ome child welfare officials say there could be dangerous fallout from an Indiana State Bar Association committee’s opinion that lawyers aren’t bound by a state law requiring anyone who suspects child abuse to immediately report it."  I agree.

The article quotes Sandy Runkle-DeLorme, director of programs at Prevent Child Abuse Indiana, saying "[b]ecause it’s an opinion and not a change in legislation, I hope that people do what they need to do, which is follow the law.”

Sure you always want people to "do the right thing," but here is the problem:  Because of the opinion, lawyers may fear they will be subject to sanctions if they disclose the information (as required by the law and permitted by the professional responsibility rule) because the disciplinary authorities may later determine that the lawyer should have acted according to the conclusion in the opinion.

On the other hand, if the lawyer follows the opinion, he or she could be subject to misdemeanor charges for violating the law.  Damn if you do; damn if you don't.

Thus, oddly, the opinion needlessly puts at risk the safety of both children and attorneys at the same time. 

UPDATE April, 2016:  I wrote an article about this topic and you can read it here.

Monday, October 12, 2015

Ronald Rotunda's most recent column: Regulating Lawyer Advertising When It Is Not Misleading

Back in July, I reported that the Association of Professional Responsibility Lawyers (APRL) had released a comprehensive report in which it argued 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, was the culmination of a two-year study of the ABA Model Rules of Professional Conduct and various state bar approaches to regulating lawyer advertising. Go here for my original post.

Today, Verdict/Justicia published Ronald Rotunda's most recent column in which he reviews the APRL report and discuses other issues related to the debate over the regulation of advertising.  

Apparently, over 70% of lawyers don't know how to protect confidential information sent over the internet

Since the ABA adopted an amendment to the comment of Model Rule 1.1 (on competence) to explain that being competent requires lawyers to understand "the benefits and risks associated with relevant technology" there has been a lot of discussion on how lawyers can meet the requirement.  I posted a couple of podcasts on the subject (here and here).  Also, as everyone probably knows, another rule specifically requires lawyers to use reasonable care in protecting the confidentiality of client data.

Given these rules, you would assume that lawyers who do not understand the technology they are currently using to transfer client information can be found to be incompetent.

Yet a recent according to the 2015 edition of the annual Legal Technology Survey Report, 71% of lawyers rely only on a confidentiality statement in the body of messages as the security precautions they use when sending confidential or privileged communications to clients via email.

Now think about this.  Is placing a "confidentiality statement" at the end of a message using reasonable care to protect the confidentiality of the information.  By the time the reader gets to the statement, the information has already been disclosed!  As someone else has already pointed out, this is akin to putting a note inside a box that says, “Do not open this box.”

Law Sites and Lawyerist have comments on this here and here.  Getting right to the point, Lawyerist states:  "If you think a confidentiality statement in your email counts as a precaution when you are sending confidential information, you are incompetent. We can argue about whether precautions are necessary in the first place, but there is no argument to be made that words constitute a precaution. Disclaimers (including confidentiality statements) are pointless." Go here for more and links.  Likewise, Professional Liability Matters concludes "you are not cyber ready."

Second Circuit finds prosecutors do not have absolute immunity from suits for misconduct while presenting a case to a grand jury

Last year I reported that a split panel of the Court of Appeals for the Seventh Circuit held in a case called Fields v Wharrie, that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case (as opposed to the trial phase of the case).

Above the Law is now reporting on a recent decision from the Court of Appeals for the Second Circuit holding that because the jury found that the prosecutor presented false evidence to the grand jury that he either knew was false — or was reckless in figuring out the truth of — he had no qualified immunity. Even though a prosecutor can decide to exclude material evidence and can affirmatively ignore exculpatory evidence in a grand jury presentation, the Second Circuit didn’t have trouble finding that the law is pretty clearly settled that a prosecutor can’t actually provide false evidence.

What is interesting in this case is that the court finds that presenting the case to the grand jury falls within the "investigation" phase of the case.  The case is called Morse v. Fusto and you can read it here.

Prosecutorial misconduct in California: an entire DA's office disqualified; and now a statute to encourage more accountability for misconduct

Long time readers of this blog know that I have often commented on the fact that courts do not seem to take prosecutorial misconduct too seriously, and do not do enough to discourage it.  (Click on the label "prosecutors" on the right hand side panel and scroll down for many posts on the subject).

That may change in California, where prosecutors who deliberately withhold evidence from defense attorneys may face harsher punishment under a new law recently signed into law by Gov. Jerry Brown.  Go here for more on the story.

The statute bolsters a judge's ability to disqualify a prosecutor or an entire prosecuting attorney's office. The law also requires the court to report violations to the state bar, which licenses attorneys.
"The bill seems like a step in the right direction," Alex Kozinski, former chief judge of the Ninth Circuit Court of Appeals, told The Huffington Post. "It seems to give a great deal of discretion to trial judges, so its effectiveness will depend on the degree to which those judges are willing to exercise that authority."

But that's the key.  The law itself will be ineffective unless judges are willing to exercise their authority.  In fact, I don't think the law changes much, since it does not give judges any more authority than they already had.  Yet, if all it does is encourage more judges to take action, then the law is, in fact, a step forward.

The law seems to be a reaction to an incident back in March when a state judge removed a full DA's office from the county’s highest-profile murder prosecution in years because misconduct had tainted the entire office’s handling of the case. He reassigned the case to the California attorney general, Kamala Harris, a ruling her office is appealing.  Go here for a New York Times article with more information on that story.

Saturday, October 10, 2015

Interesting new study on professionalism

Ethical is reporting on a new paper on Professionalism and Moral Behavior which tests the hypothesis that individuals in traditional occupations that strongly identify as professionals (e.g., law, medicine) have a greater likelihood of engaging in unethical behavior. This is an important inquiry in light of ethical failures in companies where lawyers and accountants often act as “gatekeepers” on ethics and compliance issues vis a vis corporate practices.  Examples of incidents in these types of companies abound, with automakers and financial companies featuring prominently on the list.  Go here for more information and links.

On a related matter, here is a comment on the ethical culture that allows conduct as the one recently discovered Volkswagen perpetrated to deceive consumers and authorities.

Wednesday, October 7, 2015

Chicago State's Attorney refuses to re-open cases found likely to have resulted in wrongful convictions

Chicago's Cook County State's Attorney Anita Alvarez is again under fire.  I say "again" because it is not the first time she has drawn national attention regarding the topic of wrongful convictions.  Go here for a 60 minutes segment on the subject.  Now, Alvarez is facing more criticism for refusing to re-open four cases that were identified in an independent investigation as “more likely than not” resulting in the conviction of innocent men. The investigation had been commissioned by mayor Rahm Emanuel and conducted by former U.S. attorney Scott Lassar.

One interesting aspect of this story is that in many other jurisdictions, Alvarez's conduct could be argued to be a violation of the rules of professional conduct.  Model Rule 3.8 includes the following two sections:

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
Of course, if these sections applied, the question would be whether the investigation constitutes "new evidence." Alvarez has argued it does not.

But the question in Illinois is different because these sections were not adopted in Illinois when the state adopted the Model Rules in 2010.  In the end, right now it appears the decision does not depend on anything other than Alvarez's discretion.

Slate has the story here.

Tuesday, October 6, 2015

On teaching how to represent a client with diminished capacity

The blog IP Ethics & Insights has a monthly feature on "what they don't teach you in law school" which is actually making me feel pretty good about my own teaching because the last two topics it has covered (here and here) are things I actually do teach in my class.  The first one was how to handle client's money, which I will be covering in class today, as a matter of fact.

The second one is how to represent a client with diminished capacity, which I cover as part of the discussion on the basic principles of an attorney-client relationship.  IP Ethics & Insights covers the basics here.  To discuss this material I assign a case called In the Matter of MR, 638 A.2d 1274 (N.J. 1994), which provides a good discussion of the basic principles and a helpful analysis on how to evaluate the proper role of the lawyer and the allocation of the decision making authority within the attorney client relationship. 

If you want more information about what I cover in my class (and how I do it), feel free to visit my course website here.

Monday, October 5, 2015

Florida adopts amendments to clarify issues related to different types of fees

About three weeks ago, the Florida Supreme Court adopted some changes to the state's rules to provide better definitions of some concepts related to fees.  See In re Amendments to Rule Regulating the Fla. Bar 4-1.5—Fees & Costs for Legal Servs., 2015 BL 300826, Fla., No. SC14-2112, 9/17/15.

According to the new text in Rule of Professional Conduct 4-1.5, a “retainer” is a sum paid to guarantee a lawyer's future availability, not payment for past or future legal services, while a “flat fee” is money paid for all legal services to be provided and may be termed “non-refundable.” An “advance fee” is a payment against which the lawyer will bill the client as legal services are provided.  Note that what Florida calls "advance fees" is what most other jurisdictions know as a "security retainer."

In addition to the new text of the rule, Florida amended the rule's comment to make clear that a nonrefundable retainer or nonrefundable flat fee should not be held in trust and that advance fees must be held in trust until earned.  The comment also says that nonrefundable fees, like all fees, are subject to the prohibition against excessive fees.

I find it interesting that the Court decided to allow non refundable flat fees.  Whether flat fees can be non refundable has been the subject of different (and often confusing) approaches by many courts.  See my previous comments on the subject here, here and here.

My own view on this topic is that it is not unreasonable to collect a non refundable flat fee if the task is completed in less time than originally expected.  In such a case, the attorney should be allowed to keep the value of the time saved.  If the task is not completed, however, as when a client dismisses the attorney before the task is completed, the attorney should refund the portion of the fee that is "unearned." 

If that is what Florida has in mind in its new rules, I am OK with it.  

NY opinion on what to do when client files are accidentally destroyed by fire or natural disaster

When a hurricane, fire, or other disaster destroys client files, attorneys face the difficult question of how to communicate the loss to clients. Until recently, most ethics guidance on this topic focused on what lawyers can do ahead of time to reduce the risk of loss. Now, a new ethics opinion by the New York City Bar Association's Committee on Professional Ethics offers guidance on what lawyers should do after client files are inadvertently destroyed. Here's a helpful summary.