Some states require an “affidavit of
merit” in order for a plaintiff to bring a malpractice claim. The blog Professional Liability Matters has prepared this 50
state survey-table with the relevant information.
It is my understanding that typically these statutes refer to claims for "malpractice" while others mention the word "negligence." For this reason, there may some doubt as to whether a plaintiff bringing a claim
for a different cause of action, such as a breach of fiduciary duty or
an intentional tort, would be required to use of a certificate of merit.
The question is right now being litigated in New Jersey. Just a few days ago, in Perez v. Zagami, LLC, 2016 BL 7198, N.J. Super. Ct. App. Div., No. A-3268-14T2, 1/12/16, the court held that the New Jersey statute that requires malpractice plaintiffs to file an
affidavit of merit attesting to the viability of the complaint doesn't
apply to a lawsuit accusing an attorney of malicious use of process. Keep an eye on the case to see if the issue reaches the NJ Supreme Court. For more on the case go here.
Professor Alberto Bernabe - The University of Illinois-Chicago School of Law
Thursday, January 28, 2016
Wednesday, January 27, 2016
California Bar Ethics Committee issues opinion on acceptable "puffing" during negotiations
The California Bar's Ethics Committee recently issued an opinion on whether an attorney negotiating for a client can engage in some forms of “exaggeration, posturing or puffing,” such as overstating the client's “bottom line” settlement number. See Formal Op. 2015-194.
The Committee concluded that exaggeration, posturing and ‘puffing’ are acceptable but that statements that constitute misrepresentations of material fact upon which the opposing party is intended to rely are impermissible.
According to a report in the BNA/ABA Lawyer’s Manual on Professional Conduct, the committee generally embraced the analysis the ABA ethics committee used in its 2006 opinion on the subject, ABA Formal Ethics Op. 06-439. You can read the report here.
The Committee concluded that exaggeration, posturing and ‘puffing’ are acceptable but that statements that constitute misrepresentations of material fact upon which the opposing party is intended to rely are impermissible.
According to a report in the BNA/ABA Lawyer’s Manual on Professional Conduct, the committee generally embraced the analysis the ABA ethics committee used in its 2006 opinion on the subject, ABA Formal Ethics Op. 06-439. You can read the report here.
Monday, January 25, 2016
Avvo joins the legal market; now offers legal services through network of attorneys; should attorneys be concerned?
Avvo, the somewhat controversial (here and here) online rating company, has evolved into what it calls an online legal services marketplace now offering fixed-fee, limited-scope legal services through a network of attorneys. This is not surprising since the company's CEO has participated in a number of events calling for the opening of the legal market to outsiders and the elimination of regulation on the unauthorized practice of law to open the way for Avvo itself to join the market. (You can see a video of one of these events here.)
Finding new ways to provide access to legal representation, including by relaxing some regulations, is not necessarily a bad thing. But one must be careful not to make mistakes since the regulations have not been relaxed yet.
As I have argued before, the new buzzword in Legal Ethics these days is the notion of "innovation" and states and the ABA are trying to find ways to encourage innovation. Yet we shouldn't rush to try to be innovative at the risk of creating other problems. 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.
Not too long ago, I made that observation when commenting on the ABA initiative with a company called Rocket Lawyer (another one of those so called online legal services marketplaces). You can read my comment here.
I am repeating it now in light of the announcement that Avvo is now offering "legal services through a network of attorneys."
Avvo first got into the business of offering legal advice last year when it launched Avvo Advisor, a service that provides on-demand legal advice by phone for a fixed fee of $39 for 15 minutes. Just a couple of weeks ago, however, the ABA Journal.com reported that Avvo has begun testing a service that offers fixed-fee, limited-scope legal services through a network of attorneys, and plans to roll out the service more broadly over the next few months. (You should also read the comments posted at the end of the ABA Journal story.)
That's a whole different ballgame and one that deserves a closer look.
As described elsewhere, attorneys can sign up with Avvo to offer services by agreeing to pay a "marketing fee" the value of which will depend on the services rendered. Clients would choose an attorney from those registered with Avvo and form an attorney-client relationship with the attorney (not with Avvo). Avvo essentially serves as a means for the client to find an attorney.
Viewed this way, Avvo is essentially helping people find a lawyer who can serve their needs. Yet, Avvo claims it is not a referral service. Why? Maybe because lawyers have to pay Avvo a fee to get Avvo to connect them with clients, and the rules in most, if not all, jurisdictions say it is unethical to pay a third party for recommendations or referrals except under certain circumstances. Thus, ABA Model Rule 7.2(b), which has been adopted in the vast majority of jurisdictions, states that “[a] lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may . . . pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority. . . .” Avvo is a for profit business. Whether it is "a qualified referral service" depends on the law of each jurisdiction.
But, as long as you are willing to take Avvo's word for it, the is question moot anyway because Avvo clearly states in its website that it is not a referral service. So, there.
This brings us to the issues that arise when we start to look at how money is exchanged and what the money pays for.
Here is what Avvo itself says about this in the FAQ section of its website:
Of course, I am sure that Avvo believes its service does not violate the rules of professional conduct, but the fact they believe it, by itself, does not make it so. Do your own research before you commit to something that might become a problem.
Start by taking a look at what Avvo says about fee splitting: "Fee splits are not inherently unethical. They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment."
That statement is, at best, confusing. Let’s start with the basics. Model Rule 5.4, which has been adopted in pretty much every jurisdiction, states clearly that a it is misconduct to share a fee with a non-lawyer except under one of four enumerated circumstances and, at least the way I read it, the agreement described by Avvo does not fall within any of them. Of course, however, it is possible that a particular jurisdiction has different language that would recognize the validity of this type of agreement, and some jurisdictions have ethical opinions that have concluded it would be OK to share a fee with a non professional under certain circumstances.
Thus, at least as far as the Model Rule is concerned, unless allowed by one of the specific exceptions, splitting fees with a non lawyer is unethical, inherently or otherwise. It just is. Why? Because the rules say so, period. Because the rules take the view that splitting fees with a non lawyer inherently creates a situation that may compromise a lawyer's professional independent judgment. In other words, according to the Model Rules, splitting fees with non-lawyers is inherently unethical.
If you are going to argue the specific agreement does not violate the rule, you are going to have to develop some sort of analysis to show the agreement is not an example of splitting a fee.
Avvo wants it both ways. They claim, without analysis, that their program does not constitute splitting fees, but, just in case, they also claim that even if it is, splitting fees is not unethical unless there is a conflict of interest. Problem is there is no analysis to support the first part of this conclusion and the second part is contrary to the state of the law.
As an aside, I am assuming here, of course, that Avvo does not want to be considered a law firm. If it is a law firm, then the applicable rule is 1.5(e), which allows the splitting of fees among lawyers in different firms. Yet, Avvo would not want that rule to apply because this is allowed only if the requirements in that rule are strictly met, which is not the case in the Avvo type business relationship with the lawyer.
So, this brings us back to the question of whether the Avvo-Lawyer agreement does or does not constitute splitting of a legal fee with a non-lawyer (which, as stated above would be a clear violation of the rules).
According to Avvo, here is how the service works: A customer selects a lawyer for a particular legal need through the Avvo website and pays for the service the full flat fee assigned for that service up-front. Avvo retains that money until after the service is performed. Then, on the 7th of the month, Avvo will send the lawyer the full fee, and in a separate transaction will deduct a “per-service marketing fee” for each completed legal service. The amount of this fee depends on the service, and ranges from a $40 marketing fee for a $149 service to a $400 marketing fee for a $2995 service. Avvo specifically says the withdrawal of the service fee is a separate transaction “to avoid any fee-splitting concerns.”
[By the way, note that Avvo pays the attorney on the 7th of the month, not when the work is completed, so God forbid you finish the work on the 8th or you’ll have to wait a month for your check... But I digress.]
What could go wrong? Let’s review.
Let’s start with the fact that when a client pays for services up-front, a lawyer has an ethical obligation to keep a client’s money in a separate trust account, which in many jurisdictions has to be an interest bearing account (IOLTA) account. Since most jurisdictions have held that flat fees are not earned upon payment, by definition (at least in those jurisdictions) they fall in the category of fees that need to be in a trust account. According to the Avvo plan, however, the lawyer is allowing Avvo to handle those fees with (to my knowledge) no assurance that the fee will be held in a trust account, much less an IOLTA account, with the interest paid to the appropriate state agency. That could be a problem.
Then let’s think about the second transaction. The first thing to notice is that the amount of the so-called marketing fee varies depending on the amount of the flat fee. Unless I am missing something, this sounds to me like the marketing fee is really a percentage of the attorney’s fee. You’d have to do the math to determine the amount of the percentage, but since both fees are pre-determined, it shouldn’t be difficult. So, what is really happening here is that Avvo is collecting a percentage of the fee the client pays the attorney. The fact it does it separately, in a second transaction, does not change that fact. Does that sound to you like splitting a fee with a non-lawyer?
Next, does anyone see anything wrong with a lawyer giving Avvo direct access to a lawyer’s (or the firm’s) bank account so Avvo can make withdrawals directly? I see two issues here. You can see the problem if the attorney gives Avvo access to the firm's trust account, right? First, giving anyone (other than the bank) access to that account in and of itself is a problem. Second, when Avvo takes money out of that account to pay for the marketing fee, the lawyer is by definition using client money to pay for operating expenses. That's, at least, commingling.
Maybe these problems can be avoided by giving Avvo access to the firm's operating or general account. I suppose that would be OK in terms of ethical issues, but I wonder whether it is a good idea. This is a personal decision, but I wouldn't feel comfortable giving others the ability to take money out of my bank account directly... but that's just me... I would want assurances on the security measures taken to protect my bank account information. I don't want my account to be vulnerable if the other company gets hacked and my information is stolen or misplaced or something... Maybe, the best option is for the lawyer to open an account to be used only for transactions with Avvo. That could work, if that is something Avvo would agree to. None of this has to do with the rules of professional conduct or ethics, though... So let's get back to that discussion.
So after all this, what is Avvo and what is it doing? If Avvo is not a referral service, and it doesn't want to be considered to be a provider of legal services (a law firm) either, we are forced to go back to the issue of splitting fees with a non-lawyer.
When it talks to consumers Avvo says it "offers legal services" but when it talks to lawyers and its regulators it says we offer "a platform" for "marketing" of legal services. If Avvo is offering legal services then it should be subject to the same regulations that all legal services providers are subject to. If it isn't then the lawyers it serves need to make sure that by entering into agreements with it, the lawyers don't violate the rules the lawyers are subject to.
Maybe I am missing something here. Please explain it to me if I am.
Now, having said all that, I want to be clear that what I am saying here is simply that I have some concerns over whether agreeing to participate in the system designed by Avvo would violate the rules. I am not saying that it is necessarily a bad idea to find a way to make it work. Maybe it is a good idea for potential clients to have access to legal services through platforms like Avvo, RocketLawyer or LegalZoom. That is a different question. If it is, then we need to work to change the current rules. I have no problem with that.
For more on this go here.
UPDATE (2-10-16): Part II of my comment on Avvo Legal Services.
UPDATE (4-9-16): Avvo now offers legal forms. My comments here.
UPDATE (6-19-16): Ohio opinion suggests participating in Avvo Legal Services might be unethical
UPDATE (8-1-16): Florida adopts rules that make it unethical to participate in program like Avvo Legal Services
UPDATE (8-12-16): South Carolina opinion finds participating in program like Avvo Legal services unethical
UPDATE (10-10-16): Pennsylvania issues opinion finding participating in program like Avvo Legal Services is unethical.
Finding new ways to provide access to legal representation, including by relaxing some regulations, is not necessarily a bad thing. But one must be careful not to make mistakes since the regulations have not been relaxed yet.
As I have argued before, the new buzzword in Legal Ethics these days is the notion of "innovation" and states and the ABA are trying to find ways to encourage innovation. Yet we shouldn't rush to try to be innovative at the risk of creating other problems. 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.
Not too long ago, I made that observation when commenting on the ABA initiative with a company called Rocket Lawyer (another one of those so called online legal services marketplaces). You can read my comment here.
I am repeating it now in light of the announcement that Avvo is now offering "legal services through a network of attorneys."
Avvo first got into the business of offering legal advice last year when it launched Avvo Advisor, a service that provides on-demand legal advice by phone for a fixed fee of $39 for 15 minutes. Just a couple of weeks ago, however, the ABA Journal.com reported that Avvo has begun testing a service that offers fixed-fee, limited-scope legal services through a network of attorneys, and plans to roll out the service more broadly over the next few months. (You should also read the comments posted at the end of the ABA Journal story.)
That's a whole different ballgame and one that deserves a closer look.
As described elsewhere, attorneys can sign up with Avvo to offer services by agreeing to pay a "marketing fee" the value of which will depend on the services rendered. Clients would choose an attorney from those registered with Avvo and form an attorney-client relationship with the attorney (not with Avvo). Avvo essentially serves as a means for the client to find an attorney.
Viewed this way, Avvo is essentially helping people find a lawyer who can serve their needs. Yet, Avvo claims it is not a referral service. Why? Maybe because lawyers have to pay Avvo a fee to get Avvo to connect them with clients, and the rules in most, if not all, jurisdictions say it is unethical to pay a third party for recommendations or referrals except under certain circumstances. Thus, ABA Model Rule 7.2(b), which has been adopted in the vast majority of jurisdictions, states that “[a] lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may . . . pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority. . . .” Avvo is a for profit business. Whether it is "a qualified referral service" depends on the law of each jurisdiction.
But, as long as you are willing to take Avvo's word for it, the is question moot anyway because Avvo clearly states in its website that it is not a referral service. So, there.
This brings us to the issues that arise when we start to look at how money is exchanged and what the money pays for.
Here is what Avvo itself says about this in the FAQ section of its website:
"Should I be concerned about fee-splitting? No. Avvo always sends you 100% of the client’s payment. As a completely separate transaction, you will pay a per-service marketing fee. We know this issue is extremely important to participating attorneys. Here’s what ethics expert and Avvo General Counsel Josh King says on the matter, "Fee splits are not inherently unethical. They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment. We believe that Avvo Legal Services fees, like credit card fees, would involve the sort of technical fee split that would not create such a potential for compromise. Nonetheless, we have tried to keep things simple and clear by making the per-service marketing fee a separate charge."
. . . . Does this count as fee splitting? No. As mentioned in the ethics section of this FAQ, Avvo always sends you the entire legal fee paid by the client. The per-service marketing fee is a completely separate transaction. We know this is extremely important to participating attorneys. Here’s what ethics expert and Avvo General Counsel Josh King says on the matter, "Fee splits are not inherently unethical. They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment. We believe that Avvo Legal Services fees, like credit card fees, would involve the sort of technical fee split that would not create such a potential for compromise. Nonetheless, we have tried to keep things simple and clear by making the per-service marketing fee a separate charge.”
Of course, I am sure that Avvo believes its service does not violate the rules of professional conduct, but the fact they believe it, by itself, does not make it so. Do your own research before you commit to something that might become a problem.
Start by taking a look at what Avvo says about fee splitting: "Fee splits are not inherently unethical. They only become a problem if the split creates a situation that may compromise a lawyer’s professional independence of judgment."
That statement is, at best, confusing. Let’s start with the basics. Model Rule 5.4, which has been adopted in pretty much every jurisdiction, states clearly that a it is misconduct to share a fee with a non-lawyer except under one of four enumerated circumstances and, at least the way I read it, the agreement described by Avvo does not fall within any of them. Of course, however, it is possible that a particular jurisdiction has different language that would recognize the validity of this type of agreement, and some jurisdictions have ethical opinions that have concluded it would be OK to share a fee with a non professional under certain circumstances.
Thus, at least as far as the Model Rule is concerned, unless allowed by one of the specific exceptions, splitting fees with a non lawyer is unethical, inherently or otherwise. It just is. Why? Because the rules say so, period. Because the rules take the view that splitting fees with a non lawyer inherently creates a situation that may compromise a lawyer's professional independent judgment. In other words, according to the Model Rules, splitting fees with non-lawyers is inherently unethical.
If you are going to argue the specific agreement does not violate the rule, you are going to have to develop some sort of analysis to show the agreement is not an example of splitting a fee.
Avvo wants it both ways. They claim, without analysis, that their program does not constitute splitting fees, but, just in case, they also claim that even if it is, splitting fees is not unethical unless there is a conflict of interest. Problem is there is no analysis to support the first part of this conclusion and the second part is contrary to the state of the law.
As an aside, I am assuming here, of course, that Avvo does not want to be considered a law firm. If it is a law firm, then the applicable rule is 1.5(e), which allows the splitting of fees among lawyers in different firms. Yet, Avvo would not want that rule to apply because this is allowed only if the requirements in that rule are strictly met, which is not the case in the Avvo type business relationship with the lawyer.
So, this brings us back to the question of whether the Avvo-Lawyer agreement does or does not constitute splitting of a legal fee with a non-lawyer (which, as stated above would be a clear violation of the rules).
According to Avvo, here is how the service works: A customer selects a lawyer for a particular legal need through the Avvo website and pays for the service the full flat fee assigned for that service up-front. Avvo retains that money until after the service is performed. Then, on the 7th of the month, Avvo will send the lawyer the full fee, and in a separate transaction will deduct a “per-service marketing fee” for each completed legal service. The amount of this fee depends on the service, and ranges from a $40 marketing fee for a $149 service to a $400 marketing fee for a $2995 service. Avvo specifically says the withdrawal of the service fee is a separate transaction “to avoid any fee-splitting concerns.”
[By the way, note that Avvo pays the attorney on the 7th of the month, not when the work is completed, so God forbid you finish the work on the 8th or you’ll have to wait a month for your check... But I digress.]
What could go wrong? Let’s review.
Let’s start with the fact that when a client pays for services up-front, a lawyer has an ethical obligation to keep a client’s money in a separate trust account, which in many jurisdictions has to be an interest bearing account (IOLTA) account. Since most jurisdictions have held that flat fees are not earned upon payment, by definition (at least in those jurisdictions) they fall in the category of fees that need to be in a trust account. According to the Avvo plan, however, the lawyer is allowing Avvo to handle those fees with (to my knowledge) no assurance that the fee will be held in a trust account, much less an IOLTA account, with the interest paid to the appropriate state agency. That could be a problem.
Then let’s think about the second transaction. The first thing to notice is that the amount of the so-called marketing fee varies depending on the amount of the flat fee. Unless I am missing something, this sounds to me like the marketing fee is really a percentage of the attorney’s fee. You’d have to do the math to determine the amount of the percentage, but since both fees are pre-determined, it shouldn’t be difficult. So, what is really happening here is that Avvo is collecting a percentage of the fee the client pays the attorney. The fact it does it separately, in a second transaction, does not change that fact. Does that sound to you like splitting a fee with a non-lawyer?
Next, does anyone see anything wrong with a lawyer giving Avvo direct access to a lawyer’s (or the firm’s) bank account so Avvo can make withdrawals directly? I see two issues here. You can see the problem if the attorney gives Avvo access to the firm's trust account, right? First, giving anyone (other than the bank) access to that account in and of itself is a problem. Second, when Avvo takes money out of that account to pay for the marketing fee, the lawyer is by definition using client money to pay for operating expenses. That's, at least, commingling.
Maybe these problems can be avoided by giving Avvo access to the firm's operating or general account. I suppose that would be OK in terms of ethical issues, but I wonder whether it is a good idea. This is a personal decision, but I wouldn't feel comfortable giving others the ability to take money out of my bank account directly... but that's just me... I would want assurances on the security measures taken to protect my bank account information. I don't want my account to be vulnerable if the other company gets hacked and my information is stolen or misplaced or something... Maybe, the best option is for the lawyer to open an account to be used only for transactions with Avvo. That could work, if that is something Avvo would agree to. None of this has to do with the rules of professional conduct or ethics, though... So let's get back to that discussion.
So after all this, what is Avvo and what is it doing? If Avvo is not a referral service, and it doesn't want to be considered to be a provider of legal services (a law firm) either, we are forced to go back to the issue of splitting fees with a non-lawyer.
When it talks to consumers Avvo says it "offers legal services" but when it talks to lawyers and its regulators it says we offer "a platform" for "marketing" of legal services. If Avvo is offering legal services then it should be subject to the same regulations that all legal services providers are subject to. If it isn't then the lawyers it serves need to make sure that by entering into agreements with it, the lawyers don't violate the rules the lawyers are subject to.
Maybe I am missing something here. Please explain it to me if I am.
Now, having said all that, I want to be clear that what I am saying here is simply that I have some concerns over whether agreeing to participate in the system designed by Avvo would violate the rules. I am not saying that it is necessarily a bad idea to find a way to make it work. Maybe it is a good idea for potential clients to have access to legal services through platforms like Avvo, RocketLawyer or LegalZoom. That is a different question. If it is, then we need to work to change the current rules. I have no problem with that.
For more on this go here.
UPDATE (2-10-16): Part II of my comment on Avvo Legal Services.
UPDATE (4-9-16): Avvo now offers legal forms. My comments here.
UPDATE (6-19-16): Ohio opinion suggests participating in Avvo Legal Services might be unethical
UPDATE (8-1-16): Florida adopts rules that make it unethical to participate in program like Avvo Legal Services
UPDATE (8-12-16): South Carolina opinion finds participating in program like Avvo Legal services unethical
UPDATE (10-10-16): Pennsylvania issues opinion finding participating in program like Avvo Legal Services is unethical.
Sunday, January 24, 2016
Comment on process to adopt new rule regarding prosecutorial misconduct in California - UPDATED
I have posted some links to comment on the on going process in California for the possible adoption of new rules. (Go here and scroll down.) The most recent development, reported in The Legal Ethics Forum some time ago, is that the Commission seems to be considering "fast tracking" some rules while waiting on others. One of the rules the Commission seems to be interested in fast tracking is a rule on the duties of prosecutors (presumably akin to Model Rule 3.8). On that topic, Kafkaesq has a comment here.
UPDATE (12-9-15): Legal Ethics Forum has an update here.
UPDATE (1/24/16): KafkaEsq has a new comment on the proposed new rule and asks whether it will ever be used, here. The author is skeptical that the rule will make much of a difference.
UPDATE (12-9-15): Legal Ethics Forum has an update here.
UPDATE (1/24/16): KafkaEsq has a new comment on the proposed new rule and asks whether it will ever be used, here. The author is skeptical that the rule will make much of a difference.
Thursday, January 21, 2016
Should the ABA adopt a new rule making it misconduct to engage in discriminatory conduct?
As I reported back in August, the ABA is considering an amendment to Rule 8.4 of the Model Rules of Professional Conduct to address issues of harassment and discrimination based on a proposal by the ABA Standing Committee on Ethics and Professional Responsibility ("the Committee"). The proposed amendment (and other materials in support of the proposal) are available here.
According to the Committee, at least 24 U.S. jurisdictions have adopted some form of anti-bias, anti-prejudice and/or anti-harassment rule as part of their lawyer conduct rules. But the rules vary significantly and the Committee is trying to find a good way to compromise all the concerns and interests.
There is no question that manifestations of prejudice, bias and discrimination are always a cause for concern. However, as I have been thinking about the issue, I find myself torn. I understand the interest behind the proposal but I also have some concerns about the proposed rule. I am working on a longer article on this, but while I do so, I thought I would share some of my initial thoughts on the matter.
After I was done writing this, I realized the post came out to be much longer than I expected - and probably rambling too - so let me insert a few bullet points here before you start reading the whole thing:
1. The Model Rules do not address issues related to bias or discrimination in the practice of law, and the current approach to the issue expressed in the comment to Rule 8.4 is actually worse than the Committee believes it to be.
2. Thus, if you think there ought to be a rule on this topic, there certainly is a good argument for enacting one. Yet the question is whether there ought to be a rule to begin with.
3. I am not opposed to enacting a rule, but I am also not convinced that we need one.
4. If we are going to have a rule, the proposed rule is a good start but needs to be adjusted.
5. At the very least, the rule should make it part of the rule (as opposed to the comment) that it won’t apply to conduct or speech protected by the First Amendment.
6. The rule should make clear how it can, or can’t, be applied to the decision to accept or reject clients. Personally, I think the rule should not apply to the client selection process.
Now here are the details:
The current state of the law
Current Model Rule 8.4(d) (and most, if not all, of its state equivalents) consider misconduct to engage in conduct that is "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. ...”
There are several problems with this comment. First, it suggests there could be discipline on the basis of speech. Note that it talks about manifesting “by words or conduct.” Manifesting means expressing and expressing an idea by words is, by definition, speech. So I have a problem with the suggestion that the state can discipline an attorney for expressing an idea, even if that idea is offensive to some. It seems to me that if the First Amendment stands for something, it stands for the proposition that the state has very limited authority to regulate speech simply because someone might find that speech offensive.
Second, contrary to what the Standing Committee on Ethics and Professional Responsibility says in its memo in support of the Draft Proposal, the comment 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 could be subject to discipline for violating the ban against conduct that is against the administration of justice.
The current comment, thus, suggests that under certain circumstances knowingly manifesting bias or prejudice would not constitute conduct against the administration of justice and, thus, would not be the basis for discipline. For this reason, if one thinks that discriminatory or biased conduct should always be considered to be misconduct, given what the current comment actually states, the argument for a new rule is actually stronger than the one currently advanced by the Committee.
But, putting aside that initial misunderstanding as to what the current comment says, the question remains whether it is a good idea to amend the rule as proposed.
What is the policy behind the proposal?
In support of the proposal, the Committee cites a resolution drafted by members of the Oregon New Lawyers Division which states, among other things, that “[t]here is a need for a cultural shift in understanding the inherent integrity of people regardless of their race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation, marital status, or disability, to be captured in the rules of professional conduct.”
I totally agree that there is a need for a cultural shift, but I am still unclear as to why it needs to be captured (or why it would be a good idea to capture it) in the rules of professional conduct.
In response to that question, the resolution continues saying that the need arises “because the Model Rules are supposed to ensure the integrity of the legal profession.”
But is that really the purpose of the rules of professional conduct? According to the Scope section of the Model Rules, the Rules of Professional Conduct “simply provide a framework for the ethical practice of law” and the basis for the imposition of discipline when the conduct of a lawyer violates that framework. I have never been particularly fond of arguments for discipline based on a need to protect “the integrity of the profession.” What is “the integrity of the profession” if not a subjective concept based on a value judgment the state seems to want to impose upon all members of the profession? Isn’t it as vague as “the appearance of impropriety” which has been generally abandoned as a standard for evaluating what ought to be considered misconduct?
As has been argued elsewhere, discrimination is a social evil and the Rules of Professional Conduct are not necessarily designed to address social evils; they are yardsticks by which we measure the fitness of lawyers to practice.
Now, one might say that someone who believes in discrimination or who behaves in a discriminatory manner is not fit to practice law. Yet, I don’t think that’s the case. Aside from the much criticized case involving white supremacist Matthew Hale in Illinois, denying someone the right to practice law because they believe (or have expressed that they believe) in discrimination could be interpreted to be a violation of the First Amendment. Also, lawyers are allowed to discriminate in certain aspects of the practice of law (more about that later).
Thus, I am concerned about possible regulation of speech based on a value judgment about whether a certain expression is an affront to the “integrity of the profession.” This was the kind of reasoning used to exclude Matthew Hale by a panel that found that his "publicly displayed views are diametrically opposed to the letter and spirit" of the Rules of Professional Conduct” and that “in regulating the conduct of attorneys, certain "fundamental truths" of equality and nondiscrimination "must be preferred over the values found in the First Amendment."
The proposed new rule 8.4 seems to be based on a very similar notion that there is a fundamental value, which can be enforced through the disciplinary process, in equality and nondiscrimination.
Freedom of speech
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. Again, the decision seems to be based on the notion that certain expressions are inherently unacceptable and, thus, can subject an attorney to discipline.
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) and maybe for conduct that can be argued to be prejudicial to the administration of justice (as I assume was the case in that case), but not necessarily as to the content of the attorney's speech in all circumstances.
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?
Smartly, the drafters of the new proposed rule eliminated the reference to expressions by words (although the new language does not necessarily limit the rule’s application to conduct) and added a new statement in the comment to the rule explaining that the rule does not apply to conduct protected by the First Amendment.
Thus, according to the comment, which is elsewhere described as a guide to the interpretation of the rule, a lawyer could not be disciplined for prejudiced, biased or harassing speech if the speech is "unrelated to the practice of law or protected by the First Amendment."
I like that, but how would we apply this standard to a lawyer who rejects a case because the prospective client is gay and the lawyer says he objects to gays on religious reasons? Isn’t the lawyer engaging in discriminatory conduct? Does this mean that some discriminatory conduct is permitted by the rules? If so, how is that different from the current approach, which says some discriminatory conduct is not prejudicial to the administration of justice?
And then there is the fact that not all jurisdictions adopt the comments. What would happen in such a jurisdiction? Could the use of the word “harass” be interpreted to apply to speech? After all, one can harass someone else by expressing offensive speech. Could the Matthew Hale denial of admission then become support for the notion that there are certain fundamental values, including a value in non discrimination, that could be enforced by the imposition of discipline?
Here is another problem. As currently drafted, the rule says it is professional misconduct to “harass or knowingly discriminate.” Doesn’t this mean that there can be discipline if you unknowingly harass someone? This is a dangerous proposition. What if a lawyer is accused of engaging in “microaggressions,” which have been defined as happening below the level of awareness of well-intentioned members of the dominant culture? Does the fact that the microaggression is expressed with words by definition place it under the protection of the First Amendment and, therefore, outside the reach of the proposed rule? What if the microaggression is not expressed but the result of conduct? Will disciplinary agencies need to go into interpretations of what was meant by a certain conduct or attitude and whether it can be interpreted to be offensive to the complainant?
For an article critical of the concept of microaggressions go here. For an article critical of using microaggressions as the basis for disciplinary actions (in a context other than law) go here.
The Committee’s memo in support of the proposed new rule states that “[t]he terms “harassment” and “discrimination” are defined terms under law; they refer to the adverse, negative consequences of conduct that manifests bias or prejudice.” Yet, the Committee does not state which law, statute or doctrine should be used to define the terms and the definition it provides does not adequately limit what could be a very broad interpretation of the concepts, including the notion of microaggressions.
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. In this way, the rule of professional conduct limits its application to conduct that is determined to be discriminatory by other defined and applicable statutes and standards. This seems to be preferable than to base the determination of what is discriminatory on whether it is offensive to the integrity of the profession. For a discussion of this issue under California law, go here.
Duty to report misconduct?
Moving on... Here is another concern. Under Rule 8.3 attorneys have a duty to report misconduct of other attorneys under certain circumstances. Would attorneys now be subject to discipline if they don’t report another attorney’s offensive conduct? What if the conduct is offensive to another person but not to the attorney who fails to report it? And what if the conduct is part of an expression by words? (Note how much of the problem for me keeps coming back to the issue of the protection of speech vs. conduct and the interaction with the First Amendment. Is the end result that we can impose discipline for discriminatory conduct but have to tolerate discriminatory speech?)
The ABA Journal.com recently asked readers to post whether they had ever heard sexist comments at work. You can see the responses here. How many of these would trigger the proposed rule and, therefore, the duty to report by those who heard the comments? Or, again, is the fact that they were "comments," which by definition is different from "conduct" mean that comments don't count?
Is the proposed rule too broad?
Shouldn’t certain types of discriminatory conduct be subject to discipline? Sure. There are plenty of examples out there of lawyers who have been duly disciplined for harassing and discriminatory conduct. But usually the conduct is also a violation of other regulation or statutes, and there didn’t seem to be a need to create new rules to impose discipline.
The proposed new rule not only creates a specific rule, it uses language that expands on the reach of the current comment. Whereas the current comment to Model Rule 8.4 applies to conduct “in the course of representing a client,” the new rule would apply to “conduct related to the practice of law.”
As the Committee explains in its memo in support of the proposal, there are arguments for and against this change, but it determined that the arguments for the new language is more compelling.
The question for me is whether the new rule, with the new language, would make a difference. It seems like it would, but not necessarily by creating new situations in which discipline would be available. Take for example a case in which a lawyer sexually harasses a law firm colleague. Currently, this situation could result in discipline in one of two ways. First, discipline could be imposed as the result of a finding, after whatever procedure applies, of an actual violation of the law. This would require the person who suffered the harassment to bring a complaint, and for that claim to be resolved through the proper process. In the alternative, the disciplinary agency could impose sanctions based on a finding that the conduct should be deemed to be “prejudicial to the administration of justice.” One might think this is a stretch, but there are plenty of cases out there that have resulted in discipline for conduct based on this standard.
To avoid having to stretch the use of the notion of “the administration of justice,” however, it might not be a bad idea to create a new rule. This also eliminates the dependency on other procedures before discipline can be imposed. As the Committee has said, the fact that legal remedies exist for those who suffer workplace harassment or discrimination at the hands of lawyers isn't reason enough to exclude that behavior from the scope of the proposed rule.
The biggest change the new rule could create in a situation like this one is that the person who was harassed does not even need to complain at all for a claim to be initiated. If the conduct is observed by another lawyer, presumably that lawyer has a duty to report it and a disciplinary action could be initiated based on that observation. Obviously, without the corroboration or cooperation of the person who was harassed the case would be weak, but that is a different issue.
The point here is that the expansion of the language in the proposed new rule could have the effect of bringing more conduct within the application of the rule; but only as long as the conduct is not protected by the First Amendment or exempted by the rule itself. Suppose that a lawyer gets drunk at a firm party and directs homophobic or racial slurs at a co-worker. Would the lawyer be subject to discipline? Probably not, whether under the current state of the law, nor under the new proposed rule.
Are lawyers allowed to discriminate when choosing clients?
I mentioned above that one possible problem with the new rule could be the fact that lawyers are allowed to discriminate in certain aspects of the practice of law. This is particularly true when it comes to selecting clients. It is generally accepted that lawyers are free to reject the representation of prospective clients for any number of reasons. Some firms actually do so based on gender. Take for example this law firm, or this one, for example.
By choosing to represent only men, or women, a firm, by definition is engaged in discrimination. It may be permissible discrimination, but discrimination it is. The question is whether the new rule recognizes a distinction between discrimination that is permissible or whether it would ban the kind of practice engaged in by firms that specialize in representing men or women in divorce cases.
This question reminds me of the debate generated by Stropnicky v. Nathanson, a case in which a Hearing Commissioner for the Massachusetts Commission Against Discrimination ruled that a woman lawyer could not refuse to represent men in divorce actions under the state's public accommodation statute. The lawyer was fined, but she was not subject to discipline. Under the new rule, presumably she would be.
Stropnicky generated a healthy debate on whether the application of a state’s anti-discrimination statute to a lawyer's decision not to represent a client on the basis of gender violates the First Amendment. For an article arguing that it does, go here. For more articles, mostly supporting the lawyer’s right to reject clients even if doing so could be considered to be discriminatory, go here and here.
The proposed new rule does not address this issue directly other that by saying in the comment to the proposed rule that the rule does not apply to activities protected by the First Amendment. But since it is not clear that discriminating when choosing client is, in fact, protected by the First Amendment, it is also not clear whether the rule would ban this aspect of the practice of law.
The proposed new comment also states that the new rule does not prevent a lawyer from rejecting a case under Rule 1.16 which allows an attorney to refuse or withdraw from representation. However, again, this seems inconclusive since it is not clear that rejecting someone on the basis of gender would be considered to be valid under the rule that allows a client to reject a client for personal reasons. Interestingly, one way to avoid discipline in a case like this would be for the lawyer to simply lie to the prospective client when explaining why the lawyer rejected the case, thus making sure the reason given falls within the acceptable reasons under Rule 1.16. Yet, I have to think that it would be ironic, to say the least, that by encouraging lawyers not to discriminate, we could be encouraging them to lie so they could do what they believe to be best for them, their practice and their current clients.
Shouldn’t certain types of discriminatory conduct be subject to discipline?
One can make a good argument that engaging in discrimination is wrong in a moral sense. It may even be the wrong way to attempt to support an ideological position (for articles on that point go here and here). Yet, the question is not whether it is wrong. The question is whether it should be considered conduct that should subject a lawyer to discipline. Before Stropnicky, the generally accepted view in the profession was that it wasn’t. Maybe that view changed since then, but I would like to see more evidence of it before making up my mind.
Conclusion
OK. I think that is enough for now. Please let me know what you think. And let the Committee know too. The Committee has requested comments on its latest draft proposal. Written comments will be accepted until March 11, and the committee will hold a public hearing in San Diego on Feb. 7 to discuss the proposal.
In particular, the committee is seeking feedback on whether the new proposed rule should be limited to conduct that occurs “in the course of representing a client” as opposed to “conduct related to the practice of law,” which would cover the operation and management of a firm and thus implicate workplace discrimination or harassment.
According to the Committee, at least 24 U.S. jurisdictions have adopted some form of anti-bias, anti-prejudice and/or anti-harassment rule as part of their lawyer conduct rules. But the rules vary significantly and the Committee is trying to find a good way to compromise all the concerns and interests.
There is no question that manifestations of prejudice, bias and discrimination are always a cause for concern. However, as I have been thinking about the issue, I find myself torn. I understand the interest behind the proposal but I also have some concerns about the proposed rule. I am working on a longer article on this, but while I do so, I thought I would share some of my initial thoughts on the matter.
After I was done writing this, I realized the post came out to be much longer than I expected - and probably rambling too - so let me insert a few bullet points here before you start reading the whole thing:
1. The Model Rules do not address issues related to bias or discrimination in the practice of law, and the current approach to the issue expressed in the comment to Rule 8.4 is actually worse than the Committee believes it to be.
2. Thus, if you think there ought to be a rule on this topic, there certainly is a good argument for enacting one. Yet the question is whether there ought to be a rule to begin with.
3. I am not opposed to enacting a rule, but I am also not convinced that we need one.
4. If we are going to have a rule, the proposed rule is a good start but needs to be adjusted.
5. At the very least, the rule should make it part of the rule (as opposed to the comment) that it won’t apply to conduct or speech protected by the First Amendment.
6. The rule should make clear how it can, or can’t, be applied to the decision to accept or reject clients. Personally, I think the rule should not apply to the client selection process.
Now here are the details:
The current state of the law
Current Model Rule 8.4(d) (and most, if not all, of its state equivalents) consider misconduct to engage in conduct that is "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. ...”
There are several problems with this comment. First, it suggests there could be discipline on the basis of speech. Note that it talks about manifesting “by words or conduct.” Manifesting means expressing and expressing an idea by words is, by definition, speech. So I have a problem with the suggestion that the state can discipline an attorney for expressing an idea, even if that idea is offensive to some. It seems to me that if the First Amendment stands for something, it stands for the proposition that the state has very limited authority to regulate speech simply because someone might find that speech offensive.
Second, contrary to what the Standing Committee on Ethics and Professional Responsibility says in its memo in support of the Draft Proposal, the comment 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 could be subject to discipline for violating the ban against conduct that is against the administration of justice.
The current comment, thus, suggests that under certain circumstances knowingly manifesting bias or prejudice would not constitute conduct against the administration of justice and, thus, would not be the basis for discipline. For this reason, if one thinks that discriminatory or biased conduct should always be considered to be misconduct, given what the current comment actually states, the argument for a new rule is actually stronger than the one currently advanced by the Committee.
But, putting aside that initial misunderstanding as to what the current comment says, the question remains whether it is a good idea to amend the rule as proposed.
What is the policy behind the proposal?
In support of the proposal, the Committee cites a resolution drafted by members of the Oregon New Lawyers Division which states, among other things, that “[t]here is a need for a cultural shift in understanding the inherent integrity of people regardless of their race, color, national origin, religion, age, sex, gender identity, gender expression, sexual orientation, marital status, or disability, to be captured in the rules of professional conduct.”
I totally agree that there is a need for a cultural shift, but I am still unclear as to why it needs to be captured (or why it would be a good idea to capture it) in the rules of professional conduct.
In response to that question, the resolution continues saying that the need arises “because the Model Rules are supposed to ensure the integrity of the legal profession.”
But is that really the purpose of the rules of professional conduct? According to the Scope section of the Model Rules, the Rules of Professional Conduct “simply provide a framework for the ethical practice of law” and the basis for the imposition of discipline when the conduct of a lawyer violates that framework. I have never been particularly fond of arguments for discipline based on a need to protect “the integrity of the profession.” What is “the integrity of the profession” if not a subjective concept based on a value judgment the state seems to want to impose upon all members of the profession? Isn’t it as vague as “the appearance of impropriety” which has been generally abandoned as a standard for evaluating what ought to be considered misconduct?
As has been argued elsewhere, discrimination is a social evil and the Rules of Professional Conduct are not necessarily designed to address social evils; they are yardsticks by which we measure the fitness of lawyers to practice.
Now, one might say that someone who believes in discrimination or who behaves in a discriminatory manner is not fit to practice law. Yet, I don’t think that’s the case. Aside from the much criticized case involving white supremacist Matthew Hale in Illinois, denying someone the right to practice law because they believe (or have expressed that they believe) in discrimination could be interpreted to be a violation of the First Amendment. Also, lawyers are allowed to discriminate in certain aspects of the practice of law (more about that later).
Thus, I am concerned about possible regulation of speech based on a value judgment about whether a certain expression is an affront to the “integrity of the profession.” This was the kind of reasoning used to exclude Matthew Hale by a panel that found that his "publicly displayed views are diametrically opposed to the letter and spirit" of the Rules of Professional Conduct” and that “in regulating the conduct of attorneys, certain "fundamental truths" of equality and nondiscrimination "must be preferred over the values found in the First Amendment."
The proposed new rule 8.4 seems to be based on a very similar notion that there is a fundamental value, which can be enforced through the disciplinary process, in equality and nondiscrimination.
Freedom of speech
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. Again, the decision seems to be based on the notion that certain expressions are inherently unacceptable and, thus, can subject an attorney to discipline.
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) and maybe for conduct that can be argued to be prejudicial to the administration of justice (as I assume was the case in that case), but not necessarily as to the content of the attorney's speech in all circumstances.
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?
Smartly, the drafters of the new proposed rule eliminated the reference to expressions by words (although the new language does not necessarily limit the rule’s application to conduct) and added a new statement in the comment to the rule explaining that the rule does not apply to conduct protected by the First Amendment.
Thus, according to the comment, which is elsewhere described as a guide to the interpretation of the rule, a lawyer could not be disciplined for prejudiced, biased or harassing speech if the speech is "unrelated to the practice of law or protected by the First Amendment."
I like that, but how would we apply this standard to a lawyer who rejects a case because the prospective client is gay and the lawyer says he objects to gays on religious reasons? Isn’t the lawyer engaging in discriminatory conduct? Does this mean that some discriminatory conduct is permitted by the rules? If so, how is that different from the current approach, which says some discriminatory conduct is not prejudicial to the administration of justice?
And then there is the fact that not all jurisdictions adopt the comments. What would happen in such a jurisdiction? Could the use of the word “harass” be interpreted to apply to speech? After all, one can harass someone else by expressing offensive speech. Could the Matthew Hale denial of admission then become support for the notion that there are certain fundamental values, including a value in non discrimination, that could be enforced by the imposition of discipline?
Here is another problem. As currently drafted, the rule says it is professional misconduct to “harass or knowingly discriminate.” Doesn’t this mean that there can be discipline if you unknowingly harass someone? This is a dangerous proposition. What if a lawyer is accused of engaging in “microaggressions,” which have been defined as happening below the level of awareness of well-intentioned members of the dominant culture? Does the fact that the microaggression is expressed with words by definition place it under the protection of the First Amendment and, therefore, outside the reach of the proposed rule? What if the microaggression is not expressed but the result of conduct? Will disciplinary agencies need to go into interpretations of what was meant by a certain conduct or attitude and whether it can be interpreted to be offensive to the complainant?
For an article critical of the concept of microaggressions go here. For an article critical of using microaggressions as the basis for disciplinary actions (in a context other than law) go here.
The Committee’s memo in support of the proposed new rule states that “[t]he terms “harassment” and “discrimination” are defined terms under law; they refer to the adverse, negative consequences of conduct that manifests bias or prejudice.” Yet, the Committee does not state which law, statute or doctrine should be used to define the terms and the definition it provides does not adequately limit what could be a very broad interpretation of the concepts, including the notion of microaggressions.
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. In this way, the rule of professional conduct limits its application to conduct that is determined to be discriminatory by other defined and applicable statutes and standards. This seems to be preferable than to base the determination of what is discriminatory on whether it is offensive to the integrity of the profession. For a discussion of this issue under California law, go here.
Duty to report misconduct?
Moving on... Here is another concern. Under Rule 8.3 attorneys have a duty to report misconduct of other attorneys under certain circumstances. Would attorneys now be subject to discipline if they don’t report another attorney’s offensive conduct? What if the conduct is offensive to another person but not to the attorney who fails to report it? And what if the conduct is part of an expression by words? (Note how much of the problem for me keeps coming back to the issue of the protection of speech vs. conduct and the interaction with the First Amendment. Is the end result that we can impose discipline for discriminatory conduct but have to tolerate discriminatory speech?)
The ABA Journal.com recently asked readers to post whether they had ever heard sexist comments at work. You can see the responses here. How many of these would trigger the proposed rule and, therefore, the duty to report by those who heard the comments? Or, again, is the fact that they were "comments," which by definition is different from "conduct" mean that comments don't count?
Is the proposed rule too broad?
Shouldn’t certain types of discriminatory conduct be subject to discipline? Sure. There are plenty of examples out there of lawyers who have been duly disciplined for harassing and discriminatory conduct. But usually the conduct is also a violation of other regulation or statutes, and there didn’t seem to be a need to create new rules to impose discipline.
The proposed new rule not only creates a specific rule, it uses language that expands on the reach of the current comment. Whereas the current comment to Model Rule 8.4 applies to conduct “in the course of representing a client,” the new rule would apply to “conduct related to the practice of law.”
As the Committee explains in its memo in support of the proposal, there are arguments for and against this change, but it determined that the arguments for the new language is more compelling.
The question for me is whether the new rule, with the new language, would make a difference. It seems like it would, but not necessarily by creating new situations in which discipline would be available. Take for example a case in which a lawyer sexually harasses a law firm colleague. Currently, this situation could result in discipline in one of two ways. First, discipline could be imposed as the result of a finding, after whatever procedure applies, of an actual violation of the law. This would require the person who suffered the harassment to bring a complaint, and for that claim to be resolved through the proper process. In the alternative, the disciplinary agency could impose sanctions based on a finding that the conduct should be deemed to be “prejudicial to the administration of justice.” One might think this is a stretch, but there are plenty of cases out there that have resulted in discipline for conduct based on this standard.
To avoid having to stretch the use of the notion of “the administration of justice,” however, it might not be a bad idea to create a new rule. This also eliminates the dependency on other procedures before discipline can be imposed. As the Committee has said, the fact that legal remedies exist for those who suffer workplace harassment or discrimination at the hands of lawyers isn't reason enough to exclude that behavior from the scope of the proposed rule.
The biggest change the new rule could create in a situation like this one is that the person who was harassed does not even need to complain at all for a claim to be initiated. If the conduct is observed by another lawyer, presumably that lawyer has a duty to report it and a disciplinary action could be initiated based on that observation. Obviously, without the corroboration or cooperation of the person who was harassed the case would be weak, but that is a different issue.
The point here is that the expansion of the language in the proposed new rule could have the effect of bringing more conduct within the application of the rule; but only as long as the conduct is not protected by the First Amendment or exempted by the rule itself. Suppose that a lawyer gets drunk at a firm party and directs homophobic or racial slurs at a co-worker. Would the lawyer be subject to discipline? Probably not, whether under the current state of the law, nor under the new proposed rule.
Are lawyers allowed to discriminate when choosing clients?
I mentioned above that one possible problem with the new rule could be the fact that lawyers are allowed to discriminate in certain aspects of the practice of law. This is particularly true when it comes to selecting clients. It is generally accepted that lawyers are free to reject the representation of prospective clients for any number of reasons. Some firms actually do so based on gender. Take for example this law firm, or this one, for example.
By choosing to represent only men, or women, a firm, by definition is engaged in discrimination. It may be permissible discrimination, but discrimination it is. The question is whether the new rule recognizes a distinction between discrimination that is permissible or whether it would ban the kind of practice engaged in by firms that specialize in representing men or women in divorce cases.
This question reminds me of the debate generated by Stropnicky v. Nathanson, a case in which a Hearing Commissioner for the Massachusetts Commission Against Discrimination ruled that a woman lawyer could not refuse to represent men in divorce actions under the state's public accommodation statute. The lawyer was fined, but she was not subject to discipline. Under the new rule, presumably she would be.
Stropnicky generated a healthy debate on whether the application of a state’s anti-discrimination statute to a lawyer's decision not to represent a client on the basis of gender violates the First Amendment. For an article arguing that it does, go here. For more articles, mostly supporting the lawyer’s right to reject clients even if doing so could be considered to be discriminatory, go here and here.
The proposed new rule does not address this issue directly other that by saying in the comment to the proposed rule that the rule does not apply to activities protected by the First Amendment. But since it is not clear that discriminating when choosing client is, in fact, protected by the First Amendment, it is also not clear whether the rule would ban this aspect of the practice of law.
The proposed new comment also states that the new rule does not prevent a lawyer from rejecting a case under Rule 1.16 which allows an attorney to refuse or withdraw from representation. However, again, this seems inconclusive since it is not clear that rejecting someone on the basis of gender would be considered to be valid under the rule that allows a client to reject a client for personal reasons. Interestingly, one way to avoid discipline in a case like this would be for the lawyer to simply lie to the prospective client when explaining why the lawyer rejected the case, thus making sure the reason given falls within the acceptable reasons under Rule 1.16. Yet, I have to think that it would be ironic, to say the least, that by encouraging lawyers not to discriminate, we could be encouraging them to lie so they could do what they believe to be best for them, their practice and their current clients.
Shouldn’t certain types of discriminatory conduct be subject to discipline?
One can make a good argument that engaging in discrimination is wrong in a moral sense. It may even be the wrong way to attempt to support an ideological position (for articles on that point go here and here). Yet, the question is not whether it is wrong. The question is whether it should be considered conduct that should subject a lawyer to discipline. Before Stropnicky, the generally accepted view in the profession was that it wasn’t. Maybe that view changed since then, but I would like to see more evidence of it before making up my mind.
Conclusion
OK. I think that is enough for now. Please let me know what you think. And let the Committee know too. The Committee has requested comments on its latest draft proposal. Written comments will be accepted until March 11, and the committee will hold a public hearing in San Diego on Feb. 7 to discuss the proposal.
In particular, the committee is seeking feedback on whether the new proposed rule should be limited to conduct that occurs “in the course of representing a client” as opposed to “conduct related to the practice of law,” which would cover the operation and management of a firm and thus implicate workplace discrimination or harassment.
Tuesday, January 12, 2016
Judicial Campaigns and the Appearance of Impropriety
Professor Ron Rotunda's most recent column at Justicia.com is on Judicial Campaigns and the Appearance of Impropriety. Worth a look... Go here. He argues among other things that the notion of the "appearance of impropriety" is inadequate as an expression of a rule. I agree and we are not alone. I have reported before on a number of courts which have rejected the notion at least as a way to determine conflicts of interests. For two relatively recent posts on that subject go here and here.
Monday, January 11, 2016
Utah getting close to allowing non-lawyers to provide some legal services
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, here and, most recently, here.
Once Washington approved its program at least seven other states—California, Colorado, Connecticut, Minnesota, Oregon, Vermont and Virginia—have created task forces to study the possibility of limited licensing as a partial solution to the so-called “access to justice gap.” But Utah is the only jurisdiction where such a task force, which received its charge from its state supreme court, has finalized a recommendation.
Based on the recommendation, the Utah Supreme Court has given preliminary approval to a program that would authorize “licensed paralegal practitioners” (LPPs) to engage in the practice of law on a limited basis by performing discrete legal tasks in specified practice areas. The Court will now form a committee to make recommendations on numerous unresolved details—including the scope of the services LPPs will be allowed to perform, the practice areas they will be confined to and the regulatory framework for licensing LPPs and overseeing their conduct.
The recommendation urges to the court to authorize LPPs to perform limited tasks in three practice areas: family law, eviction and debt collection within which they would be allowed to provide limited client counseling, help with forms, represent a client in mediated negotiations, explain another party's documents and prepare settlement agreements, among other things.
Interestingly, although not surprisingly, the task force expects there will be significant “opposition from lawyers” which could be one “barrier to establishing a paraprofessional program.” Sixty percent of those responding to a 2015 survey said they disagree with the proposal, with many expressing concerns that the public needs access to qualified counsel, rather than to unqualified counsel in what is a highly complex area of the law which can impact the client significantly for years to come.
For more information, you can check out the ABA/BNA Lawyers' Manual on Professional Responsibility, 31 Law. Man. Prof. Conduct 760.
Once Washington approved its program at least seven other states—California, Colorado, Connecticut, Minnesota, Oregon, Vermont and Virginia—have created task forces to study the possibility of limited licensing as a partial solution to the so-called “access to justice gap.” But Utah is the only jurisdiction where such a task force, which received its charge from its state supreme court, has finalized a recommendation.
Based on the recommendation, the Utah Supreme Court has given preliminary approval to a program that would authorize “licensed paralegal practitioners” (LPPs) to engage in the practice of law on a limited basis by performing discrete legal tasks in specified practice areas. The Court will now form a committee to make recommendations on numerous unresolved details—including the scope of the services LPPs will be allowed to perform, the practice areas they will be confined to and the regulatory framework for licensing LPPs and overseeing their conduct.
The recommendation urges to the court to authorize LPPs to perform limited tasks in three practice areas: family law, eviction and debt collection within which they would be allowed to provide limited client counseling, help with forms, represent a client in mediated negotiations, explain another party's documents and prepare settlement agreements, among other things.
Interestingly, although not surprisingly, the task force expects there will be significant “opposition from lawyers” which could be one “barrier to establishing a paraprofessional program.” Sixty percent of those responding to a 2015 survey said they disagree with the proposal, with many expressing concerns that the public needs access to qualified counsel, rather than to unqualified counsel in what is a highly complex area of the law which can impact the client significantly for years to come.
For more information, you can check out the ABA/BNA Lawyers' Manual on Professional Responsibility, 31 Law. Man. Prof. Conduct 760.
Sunday, January 10, 2016
Kansas Supreme Court reaffirms its position that criminal defendant does not have to show actual innocence to support a malpractice claim, but does have to get post conviction relief
The majority of jurisdictions that have addressed the question, have held that, in order to support a legal malpractice claim against a lawyer whose negligence arguably causes the defendant to be wrongfully convicted, a criminal defendant has to show the he or she was actually innocent. A few jurisdictions do not impose any requirements on such plaintiffs other than those imposed by the law of torts in any malpractice claim. But there is a compromise position in between these two, and the Supreme Court of Kansas recently reaffirmed its adherence to it.
In a case called Garcia v. Ball, available here, the court reaffirmed its position in an older case stating that the "rule does not require a criminal defendant to prove actual innocence in order to bring a legal malpractice claim against his or her criminal defense attorney.... But the rule does require "the lifting of criminal liability by vacation or reversal of a conviction, regardless of whether the vacation or reversal is compelled by a successful assertion of actual innocence.""
In Garcia, the lower court accepted Garcia's stipulation to violating probation, revoked his probation, and remanded Garcia to the custody of the Kansas Department of Corrections to serve his originally imposed prison term. But the journal entry of sentencing erroneously directed that Garcia was subject to postrelease supervision following his probation revocation, which ultimately led to Garcia serving more time in prison than his original sentence. Garcia sued his former lawyer (Ball) and the case was eventually dismissed. On appeal, the court held that Garcia has met the requirement of showing post conviction relief and reversed:
In a case called Garcia v. Ball, available here, the court reaffirmed its position in an older case stating that the "rule does not require a criminal defendant to prove actual innocence in order to bring a legal malpractice claim against his or her criminal defense attorney.... But the rule does require "the lifting of criminal liability by vacation or reversal of a conviction, regardless of whether the vacation or reversal is compelled by a successful assertion of actual innocence.""
In Garcia, the lower court accepted Garcia's stipulation to violating probation, revoked his probation, and remanded Garcia to the custody of the Kansas Department of Corrections to serve his originally imposed prison term. But the journal entry of sentencing erroneously directed that Garcia was subject to postrelease supervision following his probation revocation, which ultimately led to Garcia serving more time in prison than his original sentence. Garcia sued his former lawyer (Ball) and the case was eventually dismissed. On appeal, the court held that Garcia has met the requirement of showing post conviction relief and reversed:
Accordingly, Garcia was not required to prove that he was actually innocent of either the crime for which he was illegally sentenced to a postrelease supervision term or the new crime that triggered his imprisonment for violating the unlawfully imposed postrelease supervision. Instead, Garcia was required to obtain post-sentencing relief from the unlawful sentence. That "exoneration" occurred when the district court acknowledged that it had imposed an illegal sentence by entering a nunc pro tunc order, setting aside the illegal postrelease supervision term.
Monday, January 4, 2016
Detailed comment on New York's new rule on temporary admission to practice
Saturday, January 2, 2016
Update on the process to adopt new rules in California
As you may recall, in October 2014 it was reported that the California Supreme Court has decided not to adopt a proposal for new rules of professional conduct after 14 years of work by a rules revision commission after which the process went into disarray. For background and comments on the issues go here, here, here, here, here, here and here.
Now here is the latest as reported by Lawyerist.
Now here is the latest as reported by Lawyerist.