New York amends its rules; allows lawyers from other jurisdictions to temporarily practice in New York

The ABA/BNA Lawyer's Manual on Professional Responsibility is reporting that "[l]awyers licensed outside New York are finally allowed to engage in temporary law practice in the Empire State, thanks to a new court rule adopted Dec. 10. With this long-awaited step, New York became the 47th state to adopt a version of ABA Model Rule 5.5 on multijurisdictional practice. The new temporary practice rule goes into effect Dec. 30, or as soon as certain steps required by New York judiciary law are completed. The New York rule differs from the MJP rules of other states in a couple of ways. Most notably, it allows temporary practice not just by lawyers licensed in other U.S. jurisdictions, but also by lawyers who are authorized to practice law in a non-U.S. jurisdiction. Also, New York's new MJP rule is a rule of attorney admission rather than a rule of professional conduct. This approach enabled MJP to be adopted in New York without getting approval from the presiding justices of the four appellate divisions, as is required for professional conduct rules."

The ABA/BNA Lawyer's Manual on Professional Responsibility has the full story at 31 Law. Man. Prof. Conduct 758 (here).

A conversation with LegalZoom's CEO

The Lawyerist has a podcast on LegalZoom with its CEO, John Suh, in which the hosts talk about  the nuts and bolts of how LegalZoom builds documents, the role LegalZoom plays in access to justice, its brushes with various states’ ethics boards, the ways LegalZoom partners with lawyers to deliver legal services, which it claims is more effective than LegalZoom or lawyers could do alone and about "why lawyers should stop treating LegalZoom like the bogeyman."  Go here to listen to the program/

Five ethical issues to consider related to litigation financing

There is a lot of literature out there about litigation financing.  Here is a short article asking five important questions to consider when asking whether litigation financing is ethical.

May lawyers reveal conflidential information to prevent a client's suicide?

The Virginia State Bar recently addressed the question of whether an attorney can disclose confidential information in order to help prevent a client from committing suicide.

Although Virginia ethics rules don’t specifically address a client’s threat of suicide, a 1984 Virginia ethics opinion said it is not improper for a lawyer to disclose to appropriate mental health authorities a client’s intent to commit suicide.  Therefore, according to an update to the Virginia State Bar’s list on frequently asked legal-ethics questions, a lawyer may take reasonably necessary protective action when the lawyer reasonably believes a client’s suicide threat is credible, adding that the rules “should be interpreted to allow the lawyer to contact the client’s family, close friends, mental health care providers, or emergency medical services personnel so that an intervention can be made to save the client from harm.”   Check out question and answer #26 here.

The Legal Profession blog has more information and some links here.  

On the issues raised by the need to reply to negative reviews

As you probably know, consumers often take to the internet to review products and services.  These reviews can be helpful to other consumers considering buying or seeking similar products or services.  Sometimes, when the reviews are negative, those who are criticized can and do reply to "defend" themselves.  Can a lawyer do the same?

There are law review articles and other literature on this out there.  There is no general reason to say a lawyer can't respond to a negative review, but a lawyer clearly has to be careful not to violate the rules of professional conduct when doing so.  In particular, lawyers have to be careful not to disclose confidential information when replying to a review, and since the category of confidential information is so broad, it may prove to be very difficult to reply to a review without doing so.

It can be argued that the exception to Rule 1.6 that allows attorneys to disclose confidential information to the extent necessary to respond to a claim filed against them should apply to allow attorneys to defend themselves from attacks on negative reviews, but I think that is a stretch given the current language of the rule.  As explained by a recent post in Attorneys for the Profession,

Restrictions on lawyers' ability to respond to criticism do raise some troubling concerns. Negative online reviews by clients remain on the Internet indefinitely and may even dominate an attorney's search engine results for several years, available to anyone, anywhere there is Internet access with a few "clicks." So even though the New York State Bar Ethics Committee concluded in its Opinion 1032 that the exception to RPC 1.6 should not be "interpreted in a manner that could chill…discussion," the reality is that prohibiting attorneys from fully defending against such potentially ruinous online comments does just that, by allowing the disgruntled client's side of the story to go unchallenged. A strong argument can be made that the self-defense exception to Rule 1.6 that exists in every state except California should be extended to allow lawyers to go online to defend themselves to the extent reasonably necessary in order to correct false or misleading reviews without having to fear potential disciplinary consequences. But until such a change is made to a state’s RPCs, or the exception is reinterpreted, lawyers should remember that the rules currently do not permit the use of confidential information in responding [to online criticism]. . .

 You should read the full post here.

Will lawyers be replaced by robots, part 3

In part because of the on going debate on 'innovation' and new ways to provide legal services, there is an on going discussion on the role of "artificial intelligence" in the practice of law.  See here and here for previous posts on the subject.  Adding to the discussion, Law Technology Today has a posted a short comment called "The Future of Law Firms: Will AI Replace Young Attorneys and Paralegals?"  It is available here.

California's proposal on "classic retainers" and flat fees

As you probably know, California is going through the process of revising it rules of professional conduct.  See here and here for recent updates on that.  If you are a long time reader of this blog, you may also know that I have often commented on the confused state of the law regarding flat fees.  See here, here and here for examples of why I have said that.  Much of that confusion relates to the issue of whether fees can be non-refundable.

California's proposal is actually pretty straightforward and, in my opinion, a good approach to the question.  It states, in part,

(d) A lawyer may make an agreement for, charge, or collect a fee that is denominated as “earned on receipt” or “non-refundable,” or in similar terms, only if the fee is a true retainer and the client agrees in writing after disclosure that the client will not be entitled to a refund of all or part of the fee charged. A true retainer is a fee that a client pays to a lawyer to ensure the lawyer’s availability to the client during a specified period or on a specified matter, but not to any extent as compensation for legal services performed or to be performed.

(e) A lawyer may make an agreement for, charge, or collect a flat fee for specified legal services as long as the lawyer performs the agreed upon services. A flat fee is a fee which constitutes complete payment for legal fees to be performed in the future for a fixed sum regardless of the amount of work ultimately involved and which may be paid in whole or in part in advance of the lawyer providing those services.

Section (d) says that a classic retainer can be non-refundable.  However, you must remember that the retainer is still subject to the rule that says that all fees must be reasonable.  So is it possible that under certain circumstances making the retainer non refundable can make it unreasonable?  How about a case where a client agrees to, and pays the retainer, and then decides the next day that he does not want the lawyer any more?  Or a case where the client pays the retainer and when he goes to ask the lawyer to provide services, the lawyer is not available?  In those cases, it seems to me the client would have a good argument that the lawyer has a duty to refund the retainer because otherwise the non-refundability aspect of it would make it unreasonable.  If I am right, then all the rules says is that, in the end, a classic retainer can be non-refundable only as long as making it non-refundable does not make it unreasonable.  I think that is pretty much the prevailing view, and I don't have a problem with it.

Section (e) is more controversial.  Many, perhaps most, jurisdictions, have held that flat fees (at least when they are paid in advance for work to be performed later) can't be non refundable.  However, I have argued that doing so eliminates the advantages of flat fees as alternatives to hourly fees.  For that reason I have argued that flat fees should be allowed to be non refundable as long as there is a real possibility that the work to be performed could take longer than originally expected or agreed upon.  Section (e) appears to take this approach.  As long as the service is completed, the fact that it is completed in less time than expected does not require the lawyer to reimburse the amount of money equivalent to the time saved.  Again, however, the fee is subject to the requirement of reasonableness, but in this case the reasonableness refers to the amount charged taking into account the difficulty of the task, how much time it is expected to take to complete, the market rate and other similar factors.  this is not the prevailing view, but, again, I don't have a problem with it.

Legal Zoom settles case vs North Carolina Bar

The stories regarding whether LegalZoom is engaged in the unauthorized practice of law (UPL) go back many years.  I have posts on this issue on this blog from the very first year I started it.  The first story I posted on this is from 2010, here and here, when the company was sued in Missouri for allegedly violating the rules regarding UPL.  That claim was eventually settled.  See here.

Then in 2011 it was LegalZoom which took the offensive and sued the North Carolina Bar challenging its application of the rules regarding UPL.  See here. 

Now comes news that LegalZoom's claim against the North Carolina State Bar has been settled. (Forbes).  According to the story, under the terms of the settlement the state bar has agreed to support  legislation that would clarify the definition of “unauthorized practice of law,” which currently is open to various interpretations and was used by the bar to challenge LegalZoom. 

This is becoming one of the most important debates for the profession.  The ABA has announced a partnership with Rocket Lawyer (Legal Zoom's competition), and has created a Commission on the Future of Legal Services to study other innovative approaches to providing legal services.

The ABA has been slow to adopt meaningful change to its rules and views on innovation and it is not clear at this point what the recommendations of the Commission will be.  Also, the recommendations one similar state commission were not entirely well received (here).  But whatever happens, the ongoing and future debate on these issues (usually bundled under the catchphrase (or catch-word, rather)  "innovation") will be interesting.

Lawyer Ethics Alert Blog has more on the story here.  (10/28/15)

For more on LegalZoom go here, here and here.

UPDATE (12-9-15):  In my original post (above) I stated the case was "settled" and referred to the terms of the "settlement."  To be accurate, though, the parties agreed to a "consent judgment" in the case, the terms of which are summarized by the North Carolina State Bar here.  You can also read the full text of the consent judgment here.  One important point not mentioned before is that the consent agreement does not terminate the litigation but merely suspends it for two years or until the legislature approves the proposed legislation to amend the definition of the practice of law.  If this is not achieved within two years, the agreement states the parties can resume the litigation.  If the parties resume litigation, they will be free to pursue all claims and defenses that were available to them before the Consent Judgment was entered.

ABA Commission on the Future of Legal Services has issued its final Resolution & Report; did we really need that? does it say anything new?

The ABA Commission on the Future of Legal Services has issued its final Resolution and Report: Regulatory Objectives. This Resolution is scheduled for a vote at the February 2016 San Diego ABA Midyear Meeting.

I glanced at the resolution and will have to spend more time thinking about it, but from what I saw at first glance, there is not much that is new here; nor innovative; nor controversial.  Who is going to argue that there is an interest in providing more and better access to legal services?  We have been saying that for ages.  The question is how are we planning to achieve the goal?  What are we going to do to improve on the current situation?  That is what we need to be discussing; that is what is at the heart of the on going debate (in the academic literature, at least) on the question of "innovation."  Yet, this resolution and report doesn't address it. Maybe I expected too much; or maybe I misunderstood the aim of the Commission.  Regardless, it seems the discussion of innovation and new approaches to the delivery of legal services will have to wait for another day.

...  and while I have your attention, let me take the opportunity for a shameless plug:  If you are interested in this subject consider attending the next International Legal Ethics Conference, July 14 to 16 at Fordham University in New York.  For more information go here.  I will be hosting two panels during the conference and one of them is on the question of innovation and the future of the profession.  You can read a description of the panel and about the panelists here.

Update on the process to revise the rules in California

Here is an update on the tumultuous process to revise the rules of professional conduct in California. (For the background story go to the California label and scroll down for multiple posts.)

Court of Appeals for the 7th Circuit on the validity of a contingency fee agreement

Last month (on Nov. 5), the U.S. Circuit Court of Appeals for the 7th Circuit issued a short, but interesting opinion on whether a certain contingency fee agreement was reasonable.  The case is called Goesel v. Boley International Ltd., Westlaw cite: 2015 WL 6774211.

The facts of the case were as follows:  A five year-old boy was injured when playing with a toy and his parents retained a law firm to sue on Cole’s behalf.  The agreement between the parents and the firm provided that the firm's fees would be one-third of any gross settlement or judgment, and that the clients would be responsible for litigation expenses.  In the event of no recovery, the clients would not be responsible for either expenses or fees.   After four years of litigation, the case was settled for $687,500. Under the retainer agreement, the firm’s one-third of the gross settlement amount was $229,166.67 and the litigation expenses totaled $172,949.19.  This meant the clients would recover about $288,000 or 42% of the total amount of the settlement.  Because the injured party a minor at the time of the litigation, the federal court’s local rules required court approval before the settlement could be finalized. At a hearing on the settlement, the district judge launched sua sponte into his objections to a contingent-fee arrangement.  Holding that the amount of recovery clients received was inadequate, the judge modified the fee structure, deducting expenses prior to calculating the one-third fee.  The law firm appealed.

On appeal, the court held that the fee agreement was reasonable because it did not exceed the prevailing market rate, nor did it defeat the public policy of protecting the interests of minors in litigation. In fact, the court noted that the duty to protect minors is consistent with the policy of promoting access to the courts through reasonable contingent fee arrangements.  The court, therefore, reversed the district court’s decision and ordered the original fee arrangement be reinstated.

This was the correct decision.  First, it should be noted that the court focused its analysis on the reasonableness of the agreement and not on the fee (or more specifically on the amount recovered by the firm).  This is an important distinction.  What defines a contingency agreement is the fact that there is a level of uncertainty as to the result of the case, and because of that it is possible that the case could end up generating less value than expected.  Also, the fact that the client is responsible for the expenses of the case in addition to the fee earned is not only the prevailing practice, it is also reasonable.  Remember that during the litigation, the firm is advancing these costs.  If the firm was forced to recover both fees and expenses out of the amount obtained by using the percentange agreed upon to determine fees, there would come a time when the firm could be losing money on the case, which will result in firms not taking certain cases and, therefore, less access to justice for clients.  This approach was unsuccessfully attempted as a form of tort reform in Florida.

There is however, one aspect of the agreement that should also be examined.  The rules require that a firm proposing a contingency fee agreement explain its consequences and alternatives.  This is so precisely to make make that attorneys explain the possibility that the firm may end up recovering a higher amount than the client in the end, as happened in this case.  The client must give valid, informed consent, which means the client must freely agree to the fee arrangement with an understanding of this possibility.  Presumably this happened in this case, after all it was not the client who objected to the agreement but the trial judge on his own. 

Excellent post on the proper and improper conduct during depositions

Over at Litigation & Trial, Max Kennerly has published an excellent short post on proper and improper conduct of lawyers when making objections during depositions. 

Do prosecutors have too much power?

Last month, Northwestern University Law School hosted a debate on the topic of whether prosecutors have too much power.  The debate featured two speakers in favor of the proposition that prosecutors do indeed have too much power and two speakers against the proposition.  The speakers for the proposition were Paul Butler, a former federal prosecutor and currently a professor at Georgetown Law School and Nancy Gertner, a former federal judge and now a lecturer at Harvard Law School.  The speakers arguing that prosecutors do not have too much power were David Hoffman, former federal prosecutor and partner at Sidley, Austin and Reid Schar, also a former federal prosecutor and now a partner at Jenner & Block.

The debate was organized by a group called "Intelligence Squared" (or "lQ2") which has its own website with lots of useful information on the topic, the panelists and links to the both video and audio versions of the full debate.  Unfortunately, I can't embed the video here, but you can watch it here.

I thought the program was a bit too long, but other than that it was very interesting.  They actually have the audience vote on which side "won" the debate and the results are presented at the end.  I won't spoil it for you, but even if you don't watch the full show, fast forward to the end to see the results.

Check out the IQ2 website for upcoming debates and mark your calendar.

Nearly all members of the Washington Practice of Law Board resign accusing the Washington State Bar Association of systematically undermining the Board's mission

As I have argued before, the "hottest" issue in professional responsibility today is the notion of "innovation" which is shorthand for a discussion on new approaches to providing legal services.  And one of the most important recent developments on the subject was the approval of a proposal in Washington state to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians, or LLLTs).  I discussed this development here and here. 

By taking this approach, Washington state became the leader in the discussion of innovative ways to provide access to legal representation.  Yet, it appears this came at a cost, and that things are not running as smoothly as I thought.

Last month, nearly all members of the Washington Practice of Law Board resigned accusing the Washington State Bar Association of systematically undermining the Board's mission.  The resigning members sent a letter to the Washington Supreme Court detailing their concerns in which they state that "the Washington State Bar Association has a long record of opposing efforts that threaten to undermine its monopoly on the delivery of legal services" including the fact that "[t]he Washington State Bar Association opposed the Limited License Legal Technician Rule..."  You can read the full letter here.  It ends by stating that "[t]he treatment of the Practice of Law Board over the last three years is a textbook study on how to discourage and disempower a board comprised of volunteers ..."

The Washington State Bar Association has replied that the letter contains “significant misinterpretations and misunderstandings” and that “[a]ccess to justice and the protection of the public are unwavering commitments shared by the Washington Supreme Court and the Washington State Bar Association.”  Lawyerist and the ABA Journal have the story here and here.

The assertion that the Bar Association has tried "to protect its monopoly on the delivery of legal services" is not surprising in the sense that that has always been part of the debate on issues of innovation.  A lot of the recent discussion on innovation deals with opening the doors to the market of legal services to non-lawyers and it is not uncommon to hear the accusation that lawyers try to keep the doors closed in order to protect their control on the market. 

I don't have any information to know whether this accusation is true or accurate when it comes to the Washington Bar Association, but it is a common argument with the larger debate on how to make legal services more accessible, more affordable though innovation.

As you probably know, the ABA has created a Commission on the Future of Legal Services to study these issues. 

ABA files brief urging Supreme Court to review case that the ABA contends threatens the attorney work product doctrine

The ABA Journal is reporting that the ABA has filed a brief urging the U.S. Supreme Court to review a decision favoring the Federal Trade Commission in its battle to obtain attorney documents regarding a drug company’s settlement agreement with a generic manufacturer, arguing that the appellate decision “opens the floodgates” to disclosure of attorney work product in government investigations.  The ABA's  arguments are summarized in a press release available here.  The full brief is available here.

Florida Bar adopts opinion on whether an attorney can advise a client to clean up a social media page in advance of litigation

A few days ago, the Florida Bar’s Board of Governors adopted Ethics Opinion 14-1 (which had been circulated earlier this summer) on whether an attorney may advise a client to “clean up” social media pages (Facebook, Twitter, Instagram etc.) in anticipation of litigation to “remove embarrassing information that the lawyer believes is not material to the litigation matter.”  You can read the full opinion, which is very short, here.

The opinion mentions opinions from other jurisdictions on the same question and concludes "that a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence."  However, if the information is removed from the social media page, "the social media information or data must be preserved if the information or data is known by the inquirer or reasonably should be known by the inquirer to be relevant to the reasonably foreseeable proceeding"

In the end, what the opinion seems to be saying is that there is a difference between "removing" the evidence from the social media page and "destroying" the evidence.  Removing it is simply hiding it, but not destroying it.  Also, given the added requirement to preserve the evidence after removal, presumably the evidence will continue to be discoverable. 

In other words, what the opinion seems to say is that the client can take something that was public and hide it, but has to preserve it in case the other party in litigation asks for it in discovery, at which point the client may have to produce it.

It seems to me this is not different than the rules that would apply to any other kind of evidence.

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.

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.

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.

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.

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.

Interesting new study on professionalism

Ethical Systems.org 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.

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.

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.

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.

Reforms Proposed For New York Bar Disciplinary System

A comprehensive series of reform proposals have been set forth in a recent report evaluating the New York State bar disciplinary system by the Commission on Statewide Attorney Discipline, including. among many others the creation of a more easily accessible, searchable, consumer-friendly, statewide website geared toward the legal consumer.

Also, I am happy to see the report pays particular attention to the need to take prosecutorial misconduct more seriously, a problem I have written about here repeatedly.

The Legal Profession blog has more information here.

Quick review of the basics of handling money

IPethics&Insights has a short post reviewing the basics on handling clients' money, firm bank accounts and the like, here.

Follow up on the story on judge's questioning of prosecutor's exercise of discretion not to charge

Less than a week ago, I wrote about a case in Colorado where a judge ordered a prosecutor to appear for a hearing to explain why the prosecutors' office did not file charges against a sheriff's deputy.  Go here for the details.  Today, the ABAJournal.com is reporting that the judge found the prosecutor should have filed charges (which I assume means the judge found the prosecutor abused his discretion in not doing so).  However, the judge also found that it was too late to do it now because the statute of limitations had run.

Should the judge have imposed sanctions for the abuse of discretion?  I don't think so.  Even though the prosecutor's explanation as to why he decided not to file charges is simply unbelievable (given the evidence available in the videos showing the incident), for good or for bad, prosecutorial discretion is a necessary component of our criminal justice system.  Prosecutors are, and should be, subject to criticism for their conduct, but in a case like this one, allowing the judge to impose sanctions would be problematic.

Court finds prosecutor intentionally withheld evidence and lied and yet denies habeas and does not even suggest sanctions

In another example of a court not doing anything to curb prosecutorial misconduct, the ABAJournal.com is reporting on a case from Texas where the court found that a prosecutor intentionally withheld evidence and lied multiple times and yet does nothing about it. The court just said it "did not approve" of the conduct. Wow!, what a bold statement!! You can read the opinion here.
 
Prof. Jonathan Turley did some research and found that the prosecutor in question has a long history of misconduct. Apparently over the years she has already violated 34 rules of professional conduct. You can read the full post on her long history here. Do you think she will be deterred after the most recent case? She hides evidence, lies, gets away with it and the defendant's conviction stands. What do you think?
 

Conviction reversed because prosecutor broke a promise to the defendant

I have posted numerous stories on courts reversing convictions because of the conduct of a prosecutor.  Most of the time, the conduct related to the duty to disclose exculpatory evidence, to comments in front of the jury or to conduct during the trial.  Recently, there were a few cases involving the misuse of powerpoint... 

But I don't remember seeing a case where the conviction was reversed because of a broken promise to the defendant.  The facts of the case are simple.  The prosecutor promised to drop charges of tampering with evidence if the defendant produced the weapon used during a crime.  The defendant produced it, but the prosecutor did not drop the charges.  As a result, the New Mexico Supreme Court vacated the conviction stating that a plea-bargained sentence must be fulfilled by the prosecution, or it will be enforced by the courts."  The case is State of New Mexico v. King, and it is available here.

This makes sense to me but I wonder if the court should have imposed sanctions on the prosecutor.  As I have argued innumerable times before, courts need to do more to curb prosecutorial misconduct.  

South Carolina redefines when the clock starts for purposes of the statute of limitations in a claim for legal malpractice

Last week, the South Carolina Supreme Court overruled prior precedent and held that the statute of limitations in a legal malpractice claim starts to run after the underlying case that gives rise to the malpractice action is resolved on appeal.

In this case, everyone agreed that the statute starts to run when the affected party knew or should have known that it had a legal malpractice claim against its trial counsel.  The question was whether the party 'knows or should have known' at the time they lose the case at the trial level, or at the time the higher court affirmed the decision of the trial level.

Overruling prior precedent on the issue, the court held as follows:  "We overrule Epstein and now hold that the statute of limitations for a legal malpractice action may be tolled until resolution on appeal of the underlying case if the client has not become aware of the injury prior to the decision on appeal. We find this rule comports with the discovery rule and effectuates the purpose of the statute of limitations."

The case is called  Stokes-Craven Holding Corp., v. Scott L. Robinson and Johns on McKenzie & Robinson, LLC, and it is available here. The Legal Profession Blog has more information here. Professional Liability Matters has a comment here.

Ohio Board of Professional Conduct issues opinion on whether lawyers can discuss legal matters with attendees at, or after, seminars

To discuss the formation of an attorney client relationship, I give my students a hypo in which a lawyer gives a presentation at a seminar open to the public and then stays for a reception during which the lawyer answers questions about legal matters from one of the attendees.  Months later, the lawyer gets a motion to disqualify in a case because the person the lawyer had talked to during the reception argues the lawyer had been his lawyer in the past.

I don't remember where I got the hypo originally, but now I know how one jurisdiction has decided to avoid the problem it points to.  As reported in Legal Ethics in Motion, on August 7, 2015, the Ohio Board of Professional Conduct issued Formal Opinion No. 2015-2, in which it concludes that lawyers may present a legal seminar to prospective clients, after which lawyers may provide law firm brochures and information, but cannot answer attendees’ legal questions or personally hand out promotional brochures.  The law firm brochures and information must be left near the exit of the seminar, so that the lawyer, or a third party on the lawyer’s behalf, does not personally distribute the materials to attendees.   Legal Ethics in Motion has more information here.

I understand the spirit of the Opinion's conclusion and agree it might be a good idea for attorneys' to be extra careful when handling questions from the audience after a seminar, but I am not sure the opinion's suggestion (if it were to be considered an actual rule) would survive an attack under the first amendment case law.  The opinion's suggestion is a ban on an attorney's right to talk to people who come to the attorney for guidance.  I am not sure how strong the argument of the state would be that the circumstances implicate the "Ohralik dangers" (the few state interests that have been held to support an argument for state regulation of commercial speech.  On the other hand, if the regulation is seen as imposing merely a delay, or waiting period, then it may be argued that the state can impose it under the reasoning of Florida Bar v. Went for it.... but since most agree Went for it was wrongly decided...  I am skeptical.

In rare questioning of prosecutorial discretion judge orders DA to explain why no charges have been filed against a sheriff's deputy

As you know, prosecutors have vast discretion to decide whether to charge someone with a crime.  Prosecutorial discretion can be a dangerous thing, but it is usually thought to be needed for the proper functioning of our criminal justice system.

As explained in one of the few texts available on prosecutorial ethics, "[t]he decision of what criminal charges to bring against an accused provides perhaps the best example of the vast discretion held by the prosecutor's office.  ... If the prosecutor determines that no charges are warranted, neither a private citizen nor a judge may compel the prosecutor to commence criminal proceedings.  See, R. Michael Cassidy, Prosecutorial Ethics, Ed. ed. 11 (2013).

For this reason, it is surprising to read that a District Judge in Denver has ordered the Denver district attorney to appear in court today to explain why a sheriff’s deputy wasn’t prosecuted for slamming an inmate, who was in handcuffs and waist chains at the time, into a courtroom window frame during a court proceeding.  The incident was caught on camera, as seen below.  As you can see in the video, the defendant is addressing the judge calmly (about something related to the investigation) when the deputy attacks him and starts yelling "don't turn on me!"

According to an article in The Denver Post, here,  the District Attorney has been criticized by various community groups, including the NAACP and Colorado Latino Forum, because he rarely prosecutes police or sheriff's deputies accused of excessive force.

The decision by a judge to question prosecutorial discretion is rare and its implication can be important.  I am very interested to see what comes of this.  

Here is an UPDATE.

Indiana State Bar Association issues new opinion on confidentiality which contradicts the text of the rule it attempts to interpret

The Indiana State Bar Association recently issued a new opinion on confidentiality 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.  You can read the opinion, Op. 2 of 2015, here.  If that was all, this conclusion sounds perfectly consistent with the doctrine of confidentiality.  Unfortunately, it is not.

The question addressed by the opinion relates to the apparent conflict between a duty to report imposed on everyone by a state mandatory reporting statute and the duty of confidentiality which, subject to some exceptions, requires lawyers to keep secret information related to the representation.

As the opinion explains, the mandatory reporting statute in Indiana is broadly phrased, stating that any individual who has reason to believe that a child is a victim of child abuse or neglect is obligated to “immediately make an oral report to (1) the department [of Child Services] or (2) the local law enforcement agency.”  Making no exceptions for lawyers, the statute appears to require lawyers to disclose confidential information.

Given the apparent conflict between statute and the duty of confidentiality, the Legal Ethics Committee of the ISBA attempted to reach a compromise based on the general policy behind the duty of confidentiality and the text of the exception to the duty of confidentiality that allows, but does not require, an attorney to disclose information if needed to prevent substantial bodily harm or reasonably certain death.

Inexplicably, however, the Committee failed to mention the text of Indiana's rule, derived from the ABA's Model Rule 1.6, which clearly states that a lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to comply with other laws.

In other words, according to the text of the Indiana Rules of Professional Conduct itself, a lawyer can disclose confidential information without violating the rules, in order to comply with the mandatory reporting statute.  The committee is simply wrong in finding a conflict between the rules and the statute.  The statute says you must report; the rules say you can. 

In fact, it is the Committee's new interpretation of the rule that is now in conflict with the text of the rule.  The Committee's opinion ignores the clear text of the rule, and, worse, re-writes it with a new interpretation that is not supported by the text. The Committee concludes that in many cases a lawyer can't report, when the rules say the lawyer can.

Now, let me be clear that I am not saying the conclusion suggested by the Committee is not good policy.  What I am saying is that it is not supported by the text of the rules.  If Indiana prefers the Committee's approach to the issue, it should amend the rules to reflect it.

UPDATE 10-7-15: Legal Ethics in Motion has a comment here.

UPDATE 10-12-15:  Professional Responsibility A contemporary approach has a comment here.

UPDATE 10-13-15:  I posted a follow up on the story here.

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

NPR: New report criticizes the control judges exercise over the federal government's system for defending poor people

According to a story in NPR, a new report by the National Association of Criminal Defense Lawyers concludes that judges have too much power over the federal government's system that provides representation to the poor.  It says that judges who are supposed to be neutral arbiters too often put their fingers on the scales.  You can read the report here.  NPR has the story here, or you can click on the play button below to listen to it.

Bar Standards Board of England and Wales amends rule regarding duty to provide representation

The Bar Standards Board that regulates barristers in England and Wales recently approved a proposal from to change an existing rule which says, in essence, that barristers are required to accept clients who request their services. Barristers are now allowed to refuse to represent clients under certain circumstances. For more information, go here.

The English approach to the duty to provide representation, even as amended recently, is very different than the American approach which is reflected in the ABA Model Rules. The only mandatory ABA Model Rule that contains a “duty to accept” cases is found in ABA Model Rule 6.2 regarding court appointments, and even then, Rule 1.16 recognizes a number of reasons that would justify refusing to accept the appointment.

Kansas Supreme Court holds plaintiff in malpractice case based on representation in criminal matter does not have to show actual innocence

In most jurisdictions, a plaintiff suing an attorney for malpractice arising out of the attorney's representation in a criminal matter has to meet not only the elements of the cause of action but also has to show actual innocence.  This approach has been criticized by many in the literature but it continues to be the majority view.

However, a few days ago, the Kansas Supreme Court joined the minority of jurisdictions where this is no longer the case.  In a case called Mashaney v. Board of Indigents' Defense Services, the Court held that a convicted defendant may be able to pursue a legal malpractice claim against his former attorneys without proof of actual innocence.

The Legal Profession Blog and the Chicago Legal Malpractice Lawyer Blog have more on the story here and here.

Wrong Way To Collect A Fee Or Best Way To Get Disbarred?

I always tell my students that the easiest way to get disbarred is to steal money from clients.  Disbarment is almost guaranteed.  But there are other ways, I guess...  There is a story making its way around the internet about a lawyer who was disbarred for using abusive, insulting and racist language toward a client.  It has been discussed in a few other blogs, but  I liked the title of this one blog post about it: Wrong Way To Collect A Fee Or Best Way To Get Disbarred?

Does defense counsel have a duty to provide evidence, originally produced by the prosecutor, to the prosecutor because the prosecutor lost the original?

Last week I read a story in the ABA Journal.com and I wonder what everyone thinks.  Here are the facts, in a nutshell:

Prosecutor gives defense counsel a copy of a video that supports the prosecution's case.  Because of the video, Prosecutor has a strong case against defendant.  But later, somehow, Prosecutor loses the original of the video and asks the judge to order defense counsel to make a copy available to the prosecution so the prosecution can use it against the defendant.  Defense counsel did not want to provide the video (presumably arguing it was not her job to help the prosecution), and the judge replied counsel's conduct violated "the spirit of" the rule that forbids a lawyer to “unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.”

I am not so sure about this.  I think the spirit of that rule implies the person withholding the information has a duty to disclose it and that the other side does not know it exists.

What do you think?  Should the judge grant the request?  Does defense counsel have an obligation to produce the video, thus helping the prosecution build the case against his or her own client?

Here is the link to the story.

Is it improper to post bail for a client? Alaska Bar Association says not always.

According to the rules in most jurisdictions (based on Model Rule 1.8), it is improper for attorneys to provide financial assistance to clients in litigation other than providing advances on litigation costs.  Is posting bail the equivalent of financial assistance or the equivalent of litigation costs? 

I think bail should not be considered a "litigation cost" and that, therefore, it would be improper for an attorney to post bail for a client.  As explained in a recent ethics opinion from the Alaska Bar Association, "[p]osting bail for a client imposes on the lawyer both contractual and financial constraints which could give rise to a situation in which the lawyer’s interests are materially adverse to the client’s, particularly if the client fails to comply with his or her conditions of release."  Thus, by posting bail, the attorney would be creating a conflict of interest.

However, the same ethics opinion goes on to state that in rare circumstances, attorneys should be allowed to post bail.  The opinion does not go into what those rare circumstances might be other than stating that "a lawyer may post bail for a client where the amount of bail is insignificant enough to not create a material limitation on the lawyer’s ability to represent the client."

I understand the sentiment, but personally I would prefer a more bright line rule. If you think about it, the question presented was whether posting bail creates an impermissible conflict.  In the end, what the opinion seems to say is that posting bail generally creates a conflict, but if it is not an impermissible conflict then it is okay.  This means that when the question arises someone will still have to determine if the conduct creates an impermissible conflict. 

You can read the full opinion (which is very short) here or in the Legal Profession Blog.

Florida Bar rejects an opinion of its Advertising committee and rules that texting is an acceptable form of advertising

Back in May I reported that the Florida Bar Committee on Advertising had found that a law firm’s proposed texting campaign was impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients.

Just a few days ago, however, it was reported that the Bar Board of Governors rejected the opinion and held that, because text messaging is more like targeted mail than in person solicitation, the law firm can send texts to prospective clients as long as the messages comply with the Bar rules on written and email communications.

The report states that the law firm will keep a record of the texts’ content and who received them, and will work with cell phone service providers to ensure that the firm pays for the text if that is something the recipient would pay for under the recipient’s mobile phone plan, but it is not clear whether these practices are now required for any lawyer seeking to use texting as a form of solicitation.

With this decision, Florida joins Ohio in holding that attorneys have the right to use texting to solicit clients, subject to limited regulation by the state.

UPDATE Sept 3, 2015:  The ABA Journal.com has more here.

Court of Appeals for the 5th Circuit blasts prosecutors and affirms order for new trial

Back in September of 2013, I reported that U.S. District Judge Kurt Engelhardt ordered a new trial for officers accused of deadly shootings at the Danziger Bridge after Hurricane Katrina and the subsequent cover-up describing the conduct of Justice Department lawyers as “grotesque.”  See here.

Now comes news that the Court of Appeals for the Fifth Circuit has affirmed the order, echoing the sentiment about the misconduct by prosecutors.  The opinion states that

The government makes no attempt to justify the prosecutors’ ethical lapses, which the court described as having created an “online 21st century carnival atmosphere.” Not only that, but the government inadequately investigated and substantially delayed the ferreting out of information about its in-house contributors to the anonymous postings. The district court also found that cooperating defendants called to testify by the government lied, an FBI agent overstepped, defense witnesses were intimidated from testifying, and inexplicably gross sentencing disparities resulted from the government’s plea bargains and charging practices.

Like the district court, we are well aware of our duty normally to affirm convictions that are tainted only by harmless error. In this extraordinary case, however, harmless error cannot even be evaluated because the full consequences of the federal prosecutors’ misconduct remain uncertain after less-than-definitive DOJ internal investigations. The trial, in any event, was permeated by the cumulative effect of the additional irregularities found by the district court. We conclude that the grant of a new trial was not an abuse of the district court’s discretion.

You can read the full opinion is available here.


Thanks to the Legal Ethics Forum for the update.

Judges behaving badly

Prof. Ronald Rotunda's most recent column at Verdict (Justicia.com) discusses instances of judges behaving badly and embarrassing the courts.

If you haven't seen them already, you may also want to look at his recent columns on moral turpitude, lying during negotiations and on "a most unusual disqualification case."

Short article on competence and technology

As you probably know by now, the ABA Model Rules and the rules in many jurisdictions have been amended to include a comment related to competence as it relates to modern technology.  Paragraph 8 of the comment to Model Rule 1.1 states that "[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . ."

The adoption of this language in the comment of the Model Rule, generated a good deal of literature and debate.  I have posted a number of comments and podcasts on the subject (from oldest to the most recent: here, here, here, here, here and here.

Now here is the latest one.  IP Ethics and Insights has a short article on "technical competence" covering e-discovery, social media, and cloud computing. 

ABA considers adding anti-bias rule; is it a form of regulating "offensive" speech? Meanwhile, in New York, lawyer gets suspended for expressing offensive speech

Model Rule 8.4(d) (and most, if not all, its state equivalents) considers misconduct to engage in conduct that prejudicial to the administration of justice.  In addition, paragraph 3 of the comment to Model Rule 8.4 states that "[a] lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d)..."

This is an odd comment.  It does not say that expressing bias or prejudice while representing a client is prejudicial to the administration of justice (and thus could subject the lawyer to possible discipline).  It only states that if engaging in that conduct is against the administration of justice then the lawyer violates the ban against conduct that is against the administration of justice.  In other words, the comment really does not add much to the rule.

For this reason, the ABA Standing Committee on Ethics and Professional Responsibility is considering an amendment to the Rule itself.  The proposed amendment (and other materials in support of the proposal) are available here.  The new Rule 8.4(g) would state that it is misconduct to "knowingly harass or discriminate" against persons on the basis of the factors currently listed in the comment.

One concern over adopting "anti-bias" rules is that if the rule is not drafted carefully it may be subject to attack for regulating constitutionally protected speech, even if the state can, and already does, regulate attorneys' speech in other contexts.

Take for example a recent case in New York in which a lawyer was suspended for, among other things, having made “patently offensive racial, ethnic, homophobic, sexist, and other derogatory remarks to attorneys.”   The case is Matter of Teague and it is available here.

The opinion does not really explain the context of the statements other than saying they were uttered "to attorneys." The court suggests that the attorney in question "spewed racist, sexist, homophobic and offensive epithets against other attorneys that any reasonable person, let alone a reasonable attorney, would know are simply unacceptable in public discourse," but it is not clear, when or where, those epithets were uttered.  For example, it is not clear whether the comments were made during a legal proceeding, or during private conversations.

The court concluded that "Respondent’s conduct should not and will not be tolerated."  This conclusion is fine as to the other "conduct" involved in the case (disruptive conduct in hearings) but not necessarily as to the content of the attorney's speech.

Would it be permissible for the state to discipline a lawyer for expressing bias at a social event?  during conversation with a stranger at a bar? during a political rally?  Would it be permissible for a state to discipline an attorney because the attorney is a member of a group that expresses bias against others? or a member of a church that expresses bias against women or other religious groups? 

The broad language used by the court in New York suggests an attorney could be disciplined for offensive language regardless of context.  I am not sure that result would be valid.

Smartly, the proposed language for a new Model Rule 8.4(g) attempts to avoid the problem by trying to limit the rule to "conduct" (as opposed to speech).   However, by using the word "harass," the rule leaves open the possibility of its application to speech.

Other jurisdictions have already adopted anti bias rules. As discussed in the Legal Ethics Forum,  Indiana Rule 8.4(g) states that it is misconduct to "engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors..."

Note how this rule applies to pure speech but limits its applicability to a lawyer's professional capacity. 

In contrast, Illinois Rule 8.4(g) holds it is misconduct to violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer.

This rule limits its application to conduct that constitutes a violation of the law and that reflects adversely on the lawyer's fitness to practice law.

Are these good, or valid, ways to compromise?

Short article on issues related to unauthorized practice of law claims against non lawyer providers of legal services

If I had to pick what is the "hottest" issue in professional responsibility today, I would say it is a collection of issues all related to the notion of unauthorized practice of law, and the "threat" of competition from non lawyers in the provision of legal services.  This includes issues related to DIY legal services, such as those provides by LegalZoom and others, the regulation of non lawyers to provide legal services, artificial intelligence, and so on.  It is no accident that the ABA recently created a commission on the future of the practice of law to study these types of questions.

This is why a recently published comment in the NY Legal Ethics Reporter is so relevant.  It is called Virtually Unclear: Will Legal Tech Companies Bridge Justice Gap or Fall into UPL Abyss? and you can read it here.

Second Circuit on what constitutes "the practice of law" and its implications for issues related to unauthorized practice and more (including artificial intelligence)

The United States Court of Appeals for the Second Circuit recently issued an opinion in an interesting case with important implications for the definition of what it constitutes to practice law, which in turn is important to the broader debates on who can practice law, whether lawyers can practice in jurisdictions where they are not admitted and whether companies that provide legal services by non lawyers are practicing law illegally.

The case involved a lawyer who was hired to conduct document review by a law firm.  The lawyer was licensed in California but not in North Carolina where the document review would take place.  The lawyer, who typically worked 45-55 hours per week, sued because he was not paid overtime as required by the Fair Labor Standards Act.  However, because the FLSA does not apply to the “practice of law,” the court had to determine if he was engaged in the practice of law or was merely performing clerical or other ministerial tasks.

The court held the lawyer was not engaged in the practice of law under the circumstances, which raises the question of whether we can agree on a definition for what constitutes the practice of law.

The best discussion of the case and it implications I have seen is at the Faculty Lounge, here, and it is worth reading (including the comments).  You can read the opinion itself here.

The Legal Profession Blog has a summary here and Above the Law has a short comment here.

What does this have to do with "artificial intelligence," the subject of my two previous posts today?   Two things:  1.  part of the reasoning by the court was based on the argument that what the lawyer was doing could be performed by a machine, implying it did not require any independent professional judgment.  Whether that is true or convincing remains a matter of debate, but that was part of the reasoning.  2.  to the extent that work usually performed by lawyers can be done by a machine, then companies that provide those services either by machines or non lawyers can defend against accusations of violating rules or statutes against the unauthorized practice of law.