Thursday, March 31, 2016

Supreme Court decides Luis v United States, upholding right to attorney of choice -- UPDATED

Today the US Supreme Court announced its decision in an important case involving the right to an attorney.  As explained in a story in Slate, the case involves a defendant (Sila Luis) accused of criminal fraud of some sort.  Understandably, the defendant wanted to to hire the best lawyer she could afford.  However, the government froze all her assets, including those completely untainted by the alleged fraud. The defendant argued that the asset freeze violates her Sixth Amendment right “to have the assistance of counsel for [her] defense.” The government replied that there is no violation because the defendant can still hire counsel; she just has to find one who’ll represent her for free.  You can see the issue, right?

So, today the Supreme Court announced its decision in which it vacated the judgment and remanded the case, siding with the defendant. Justice Breyer wrote a plurality opinion in which he wrote that the Sixth Amendment grants a defendant “a fair opportunity to secure counsel of his own choice" and that the government “would undermine the value of that right by taking from Luis the ability to use the funds she needs to pay for her chosen attorney.” In short, the defendant must be permitted to pay her preferred lawyer with untainted funds.

You can read the Slate story here.  You can also read the SCotUS blog analysis of the case here.  You can access all the documents filed in the case here.

UPDATE 3/31:  Amy Howe, of the SCOTUS blog, has published an analysis of the opinion here. Bloomberg Law has a 3 minute clip on the case here

Monday, March 28, 2016

Another podcast on artificial inteligence and the practice of law

Back in August of last year, I posted a podcast on artificial intelligence and the practice of law (see here).  My intro was as follows:  "Have you seen the newest commercial for LegalZoom in which lawyers say "I am definitely not a robot!"?   This line is a reference to recent debates as to whether lawyers can (or will be) replaced by robots or computers in the future.  Interestingly, some lawyers have been replaced by computers already by a computer program that allows parties to resolve disputes without the need for lawyers, mediators or arbitrators.  But I don't think we need to worry about all lawyers being replaced ....yet, at least"

The issue of artificial intelligence is back in the news and here is a new podcast courtesy of the Legal Talk Network:  "Artificial intelligence has long been a tool for lawyers to perform their tasks more efficiently. However, the technology has advanced to the point where computers can now perform many of the tasks that were once the exclusive domain of humans. In this month’s Asked and Answered, the ABA Journal’s Victor Li talks to freelance writer Julie Sobowale about how artificial intelligence is revolutionizing the practice of law." 

You can listen to the podcast by pressing the play button below or by going here.

Ron Rotunda on judges who impose unusual punishment

A few years ago, I commented on judges who impose sentencing by creating their own type of punishment, like public shaming, or ordering someone to go to church.  See here and here for previous posts on this.

Professor Ronald Rotunda's most recent column at Verdict (available here) offers an update on the issue addressing the practice of forcing lawyers to donate money to charity as a form of sanction. He notes that although there are a host of ethics opinions and laws that say it is improper because it is an abuse of judicial power, many judges continue to think they have the power to impose such a sanction.  He proposes that, just like the court did in In re Merritt, 432 N.W.2d 170 (Mich 1988), courts should start enforcing the rules by requiring judges to pay, out of their own pockets, the money they ordered the defendants to pay.  

Saturday, March 26, 2016

I recently wrote a short essay on flat fees; here is the link

Last month, the Board of Professional Conduct of the Ohio Supreme Court released an advisory ethics opinion discussing the propriety of flat fee agreements. In it, the Board reiterates the principles contained in the Ohio Rules of Professional Conduct on whether a lawyer may enter into an agreement requiring a client to pay a flat fee in advance of representation and whether a lawyer must deposit such a fee into a client trust account.

I did not like the opinion when I first read it, so I decided to look at it more carefully.  Go here for my original post.  As I looked more into it I realized that the problem was not with the opinion but with the Ohio Rules of Professional Conduct, and, in particular with a paragraph in the comment to Rule 1.5 which does not appear in the Model Rules but was added by the drafters of the Ohio rules.  So I decided to write a short comment on the opinion and the rule/comment upon which it is based.  I recently posted a draft in SSRN.  You can take a look at it here.  The abstract reads:

Last month, the Board of Professional Conduct of the Ohio Supreme Court released an advisory ethics opinion discussing the propriety of flat fee agreements. In it, the Board reiterates the principles contained in the Ohio Rules of Professional Conduct on whether a lawyer may enter into an agreement requiring a client to pay a flat fee in advance of representation and whether a lawyer must deposit such a fee into a client trust account. Because these questions are addressed in the applicable Rules of Professional Conduct or their comments, the Opinion does not actually add much to the current state of the law. Unfortunately, however, that state of the law is based on a confusing and indefensible inherent contradiction within the applicable rules. By simply repeating that confused doctrine without criticizing it, the Board missed the opportunity to take a stand against the wrongheaded state of the law and to propose a much needed change in the applicable rules. As a result, the Board’s opinion merely reiterates a faulty analysis that leads to confusion and defeats the purpose of providing clear guidance to lawyers. This short essay will discuss the issues and will provide an alternative approach to help Ohio lawyers better understand the issues they face when handling flat fees paid in advance.

Friday, March 18, 2016

Podcast on technology and competence

There has been a lot of discussion on whether lawyers meet their duty of competence when it comes to "technology."  For some of my recent posts, and links, on the subject go here, here and here.

Adding to the list, the most recent podcast in the Legal Talk Network is features lawyer and legal technology blogger Bob Ambrogi talking about the lawyer’s duty of technology competence, how it applies to discovery and confidentiality, and how technology can really benefit lawyers too. You can listen to the program by hitting the play button below or by going here.

Sunday, March 13, 2016

Federal District Judge enjoins Florida Bar from enforcing rule prohibiting truthful claims of expertise -- UPDATED

(You may remember this story from October 2015; skip to the bottom for the latest update.)

I have often criticized jurisdictions that impose sanctions when attorneys advertise that they specialize in a particular area of the law based on the notion that such a claim is either "misleading" or in violation of a rule that prohibits lawyers from advertising that they are “a specialist" unless the lawyer is actually so certified by a certifying agency, the state or the ABA.   I made my case against this view back in 2011 in reaction to a case from Indiana (here) and then again to the news about the case in Louisiana (here) and was happy to see a court reaching what I believe to be the correct result here.

Florida, one of those states that is very aggressive when it comes to enforcing rules related to advertising, was among those states that held that claiming to specialize in an area of the law should be considered to be unethical.  Until now.  Last week, District Court Judge Robert L. Hinkle (Northern District of Florida) found unconstitutional Florida’s rule.

The Bar had argued that potential clients would be misled into assuming that lawyers who advertise that they “specialize” or have “expertise” are board certified, but the Court found no evidence to support this argument.

Because the rule essentially bans attorneys from making true statements that describe their areas of practice, the judge concluded the rule was unconstitutional under the test used to determine the constitutionality of restrictions on commercial speech under the First Amendment.  Accordingly, the court enjoined the bar from prohibiting the plaintiffs from making truthful statements on websites, blogs or social media about their specialty and expertise.

This, in my opinion, is the correct approach to the issue -- as I have argued before in other cases (see links above).  The case is Searcy v Florida Bar, and you can read the Court's order here.

The ABA/BNA Lawyers' Manual on Professional Conduct has more on the story at 31 Law. Man. Prof. Conduct 566.

UPDATE 10/18/15:  The Lawyer Ethics Alert Blog has a comment here.

UPDATE 3/13/16:  The ABA Journal has a story on this in its February issue here.

Tuesday, March 8, 2016

Supreme Court orders new trial for death-row inmate because of prosecution failure to disclose evidence

The U.S. Supreme Court has ruled in a summary disposition that a death-row inmate’s due-process rights were violated when the prosecution failed to turn over material evidence.  You can read the opinion here (scroll down to page 33 of the document).  The ABA has more here.