Saturday, August 27, 2016

Judge declares mistrial in civil case because defendant's counsel made inappropriate comment in front of the jury

Over the years, I have commented on many cases where courts reverse criminal convictions due to inappropriate comments by overzealous prosecutors; but I don't remember having read about a similar result in a civil case.  For that reason, here is an interesting story out of the ABA Journal Online about a Florida judge who declared a mistrial in a tobacco case and ordered the defendant's lawyer to show cause why he shouldn’t have to pay sanctions for the cost of a retrial.  According to the story, in questioning an expert witness, the lawyer affirmed that a jury in a different case had found how many cigarettes a person had to smoke daily in order to become addicted.  The judge reacted to this for more than one reason, the most important being that the statement was not true. 

In addition to causing the mistrial and, perhaps costing the lawyer the bill for the retrial, if the statement was false, the lawyer could be found to have violated, at least, rules 4.1 and 8.4.

California opinion reaffirms traditional view on the extent of the duty of confidentiality

Back in July, 2015 I reported that the State Bar of California Standing Committee on Professional Responsibility had issued an "interim" opinion on confidentiality and was seeking comments on it before making it official.  The opinion addresses the question of whether an attorney has a duty to keep confidential information that is publicly available.

As I reported back then, the general principle has always been that there is a difference between information that is publicly available and information that is "generally known." If the information is generally known, then you can say there is nothing to protect - because the information is known already. But not all publicly available information is generally known. These principles had always been generally accepted and understood until the Virginia Supreme Court decided Hunter v Virginia in 2013, a heavily criticized outlier case in which the court surprisingly held otherwise.

On that point, California's interim ethics opinion reaffirmed the old principle concluding that "[a] lawyer may not disclose his client’s secrets, which include not only confidential information communicated by the client to the lawyer, but also publicly available information that the lawyer obtained during or related to the professional relationship which the client has requested to be kept secret or the disclosure of which might be embarrassing or detrimental to the client."

More than a year later, the interim opinion has been officially published as Formal Opinion 2016-195 and it is available here.

Professor Lisa Needham has posted a good short comment on the opinion.  [As a bonus, in the process she also criticizes Avvo's chief legal ethics officer, something I have done a number of times too.]

Short comment on new study regarding access to legal representation

Lawyerist has posted a short note on a new study that concludes that in nearly 70% of all civil cases only one of the parties is represented by an attorney. 

Friday, August 26, 2016

Should a law firm be allowed to bill a client for work performed by an unpaid intern? -- UPDATED

Suppose a law firm hires a student as a law clerk and the student does some work for one of the lawyers.  The lawyer would be allowed to bill the client for the "cost" of the law clerk's time, right?  But what is the client paying for?  Is it an amount that reflects a portion of the firm's overhead costs or is the client paying the firm for the value of the time of one of its employees (the law clerk)?  Is there a difference?

Now, what if the firm is not paying the law clerk at all.  It would seem odd that the firm could claim the client has to pay certain value for "overhead" when in reality there is no overhead.  On the other hand, since the law clerk is not a lawyer, can the firm charge the client for the value of the time of the law clerk?

My guess is these questions have probably been addressed by ethics opinions, but I have not done the research.

What I can tell you is that there is a new opinion (available here) out of the New York State Bar Association that holds that a "law firm may bill a client for work performed by a student-intern despite the fact that the law firm does not pay the intern, because the intern receives academic credit for the work, as long as (i) the internship program complies with applicable law, (ii) the educational institution does not object to the client charges, and (iii) the charge is not excessive."

Not everyone agrees this is the correct decision.  See this article in Above the Law for a negative review of the opinion.

UPDATE (8-26-16): The ABA Journal online is reporting that various law student groups and some labor groups have signed a letter to the New York Law Journal calling the ethics decision “fundamentally flawed” and asking the ethics committee to reconsider.

UPDATE (9/6/16):  Legal Ethics in Motion has an update here.  It states, in part: "In response to the opinion, several organizations wrote an open letter, printed in the New York Law Journal, criticizing the decision as “fundamentally flawed.” . . .  In the letter, the signatories ask the ethics committee to reconsider its decision because the opinion “fails to consider the circumstances of most unpaid legal internships and the important moral questions they raise.”  The letter also challenges the assumption that unpaid internships at private firms comply with the applicable labor laws. The organizations contend that when a law firm charges for an intern’s free labor, they implicitly derive a substantial and economic benefit that cannot be offset by the academic credit that the interns receive, and they therefore may be entitled to pay."

The argument in favor of mandatory pro-bono

Verdict has just published a column making a case for mandatory pro-bono.  You can read it here.

Tuesday, August 23, 2016

Harvard Law School professor Laurence Tribe is heavily criticized for tweet that shows he may not understand confidentiality or privilege

I am late to post on this story about something that happened last week and which has received a lot of attention already, so I will keep it short.   Last week, Professor Laurence Tribe, Harvard's well known constitutional law professor, tweeted this message:  "I have notes of when Trump phoned me for legal advice in 1996. I'm now figuring out whether our talk was privileged."

With those "less than 140 characters" Tribe opened the door to an online discussion that resulted in general condemnation of his knowledge of the law and his motives.  I am sure he did not expect that, but he definitely walked right into it.

I will let others explain the many problems with Tribe's comment which include confusing the principles of confidentiality and privilege, and possibly not understanding the duty of confidentiality.

Here are links to some of the comments I have seen on the issue:

Michael Krauss, of George Mason Law School

Scott Greenfield, criminal defense blogger, who then posted a follow up here.

Professor Steve Lubet, at the Faculty Lounge

The ABA Journal online

The Legal Ethics Forum

As usual, by the way, it is worth to read the readers' comments under all these stories.

Thursday, August 18, 2016

Ohio board holds attorneys can't advise clients on marijuana business -- UPDATE: Ohio Supreme Court reacts by asking for an amendment to the rules

The last ABA national conference on professional liability featured a panel on ethical issues related to representing clients involved in the legalized marijuana business.  As reported by the ABA/BNA Lawyers’ Manual on Professional Conduct Conference Report, "[t]he panelists and other authorities ... said the uncertainties facing cannabis industry lawyers stem from the absence of clear guidance, in the ethics rules or case law, on several questions regarding the propriety of representing marijuana businesses in states that have decriminalized the drug for recreational or medicinal purposes."  For this reason, there is a risk for lawyers of facing professional discipline for providing legal services to marijuana businesses.

Now comes news that the Ohio board that oversees attorney conduct decided last week that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.

So, on the positive side, this decision does provide clear guidance for lawyers in Ohio.  But, obviously, on the negative side, it is not what lawyers representing clients in this particular business would want to hear.

I have not read the opinion itself, though, so I can't provide an opinion on it.  I just read the news in the Chicago Daily Law Bulletin, which did not link to the opinion itself.

UPDATE (8-18-16):  Soon after the advisory opinion was published the Ohio Supreme Court ordered its staff to prepare a draft amendment to alter its professional conduct rules for lawyers in order to clarify the legal services they can offer to clients connected to Ohio's upcoming medical marijuana business.  The Columbus Dispatch has more on the story here.

Thanks to Lloyd Snyder (Cleveland-Marshall College of Law) for the update.

UPDATE (8-19-16): The Law for Lawyers Today has an update on the story here.

UPDATE (9-16-16): Faughnan on Ethics has a comment on the story here.

UPDATE (9-20-16):  The Ohio Supreme Court has adopted an amendment to Ohio Rule 1.2 to allow representation of clients in the legal marijuana business.  Go here for more.

Wednesday, August 17, 2016

Court of Appeals for the 9th Circuit holds Fedral Government can't prosecute people who comply with state marijuana laws

A few days ago I reported that the Ohio board that oversees attorney conduct decided last week that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.  A few days later I posted a link to a comment on the issues regarding providing legal advice to clients in the legal marijuana business.

In a related story that affects the argument upon which the Ohio opinion is based, the ABA Journal is reporting today that the Court of Appeals for the 9th Circuit has held taht the U.S. Justice Department can’t spend money to prosecute people who are strictly complying with state medical marijuana laws, finding that such spending is banned by Congressional appropriations rider.  The case is United States v. McIntosh.

Tuesday, August 16, 2016

ABA announces plan to create Center for Innovation

A few days ago I reviewed the final report of the ABA Commission on the Future of Legal Services (see here) and pointed out that one of its recommendations was for the ABA to create a Center for Innovation. 

So, not wasting any time, on Monday, the ABA announced the creation of the Center, whose purpose will be "to foster innovative and ground-breaking approaches to bridging the access to justice gap as well as to improve the delivery of legal services."  The Center will also serve as a resource center for ABA members, keep track of the ABA’s innovative efforts and provide fellowships for attorneys to collaborate with professionals in the technological, entrepreneurial and design industries.  It will be located at the ABA’s headquarters in Chicago. The first major project for the Center will be to assist with a court-annexed online dispute resolution pilot project in New York.

The ABA Journal online has more information here.

Monday, August 15, 2016

Another comment on the newly adopted amendment to Model Rule 8.4

A few days ago I wrote about my concern that the newly adopted amendment to Model Rule 8.4 can be used to impose sanctions for what is otherwise protected speech under the Constitution.  You can read my comment here.

Today I saw a column in the Wasington Post by Professor Eugene Volokh (UCLA) in which he expands on the same theme.  You can read the full column here, but here are some of the key points:
"... say that some lawyers put on a Continuing Legal Education event that included a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side said something that was critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar . . ."

. . . .

"Or say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint.

Again, you’ve engaged in “verbal . . . conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The state bar, if it adopts this rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.

. . . .

Many people pointed out possible problems with this proposed rule — yet the ABA adopted it with only minor changes that do nothing to limit the rule’s effect on speech. My inference is that the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of. . . .  [S]tate courts and state bars should resist the pressure to adopt [the new rule]."

Thanks to the Legal Ethics Forum for the link.

Legal Zoom founder comments on the report of the ABA Commission on the Future of Legal Services -- UPDATED

A few days ago I posted my review of the final report of the ABA Commission on the Future of the Legal Services.  In case you missed it, you can read it here.  As I stated then, I am not impressed.  And I am pretty sure that all the comments I have seen (some of which are linked to in my post) generally agree the report is weak and disappointing.

Today, I saw an interview by the host of the blog Law Sites with one of the founders of Legal Zoom in which both of them criticize the report for the same reasons I did.  You can read the interview here.

UPDATE (8-23-16):   The same website that published the interview with Legal Zoom's founder, now has a column by the co-chairs of the Commission in which they respond to the criticism.  You can read it here.  They reply to some direct criticism of the report and defend its conclusions and recommendations, but it is not clear to me they explain why the language of the recommendations is tentative.  Why, instead of recommending states to "consider" something, not recommend that they "adopt" a particular view or approach.  I don't have a problem with the recommendations; I guess I just expected that they would be more definitive or concrete. 

UPDATE (8-24-16):  Another member of the Commission has posted a reply to some of the criticism here.

Comment on the law of lawyering for clients in the marijuana business

A few days ago I reported that the Ohio board that oversees attorney conduct decided last week that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.

Today, Above the Law published a good short comment on the state of the law on this issue around the country.  You can read the article here.

Saturday, August 13, 2016

US Patent & Trademark Office Director issues important decision

IPethics & INsights is reporting that on August 5, 2016, the USPTO Director issued a Final Order reversing an administrative law judge’s initial decision, which had suspended a practitioner for 18 months. The Final Order is significant for two reasons.  First, it appears to be the first time ever (at least since the USPTO set up a formal attorney disciplinary system and adopted rules of ethics) that an attorney has actually won a disciplinary case before the Patent Office.

Second, the decision is important for every attorney who is subject to the disciplinary jurisdiction of both the USPTO and any state bar because the USPTO Director has now made it crystal clear that the USPTO’s reciprocal disciplinary process is mandatory, not discretionary.

For more information and commentary go to IPethics & INsights.

Friday, August 12, 2016

South Carolina ethics advisory opinion finds that participating in programs like Avvo Legal Services is unethical

South Carolina's Ethics Advisory Committee has issued an opinion holding that participating in a program like Avvo's Legal Services is unethical. You can read the Opinion here.  

This comes as no surprise to me, or, I suspect, to readers of this blog since I have been saying that for quite some time.  (See here, here and here.  I also wrote a law review article on the subject which will be published by Georgetown Law Journal.  I will post a link when it comes out.)

Although the opinion does not mention Avvo specifically, it is clear from the description of the program it is commenting on that that is what is at issue here.  After describing the terms of the service, the opinion concludes that participating in it would violate the ban on sharing fees with non-lawyers:
In the situation described above, the service collects the entire fee and transmits it to the attorney at the conclusion of the case. In a separate transaction, the service receives a fee for its efforts, which is apparently directly related to the amount of the fee earned in the case. The fact that there is a separate transaction in which the service is paid does not mean that the arrangement is not fee splitting as described in the Rules of Professional Conduct.

A lawyer cannot do indirectly what would be prohibited if done directly. Allowing the service to indirectly take a portion of the attorney’s fee by disguising it in two separate transactions does not negate the fact that the service is claiming a certain portion of the fee earned by the lawyer as its “per service marketing fee.”
As I have argued before, the key to Avvo's problem is that the fee it charges is essentially a percentage of the lawyer's fee.  I have read Avvo's arguments to the contrary and they simply can't get around this fact. You can read their response to the South Carolina opinion here, and you will see they don't address this issue.  And that's because they don't have an argument. 

The opinion also states that marketing fees must represent the reasonable cost of the service, and these fees do not meet that criteria because the fees vary depending on the amount of the fees.  In other words, as stated above, the fees are essentially a percentage of the fees charged, as opposed to a set fee for advertising as Avvo claims.   As the opinion points out,
“Presumably, it does not cost the service any more to advertise online for a family law matter than for the preparation of corporate documents. There does not seem to be any rational basis for charging the attorney more for the advertising services of one type of case versus another.”

“The service, however, purports to charge the lawyer a fee based on the type of service the lawyer has performed rather than a fixed fee for the advertisement, or a fee per inquiry or “click.” In essence, the service’ s charges amount to a contingency advertising fee arrangement rather than a cost that can be assessed for reasonableness by looking at market rate or comparable services.”

Again, as I have argued in the past, I think this is correct. 

Interestingly, the opinion does not address another, perhaps worse, problem with Avvo's system:  the fact that Avvo retains the fee paid by the client until the work is performed, which I would argue violates the attorney's duty to safeguard that money by placing it in a trust account.

In any case, that is the third opinion this summer holding that for one reason or another participating in a program like Avvo's would be unethical.  See here (Ohio) and here (Florida).

Even so, though, according to the ABA Journal, Avvo is signing up lawyers in South Carolina and plans to launch there soon based on its stance that the opinion "is advisory and Avvo disagrees with the conclusions."  As Avvo's chief legal officer has stated “We’ve looked at the rules. We have our own interpretation of the rules."  That's cute.  Just like Avvo has stated elsewhere that it "believes" its fee arrangement system does not constitute fee sharing.

Of course Avvo will say it has a different interpretation of the rules.  Avvo wants to lure lawyers who need work into paying it for "leads."  But it is the the lawyers who take the risk of getting disciplined.  Remember that the rules don't apply to Avvo; they only apply to the lawyers who sign up with Avvo. 

For that reason, I would not advise a lawyer to sign up with Avvo in Ohio, Florida or South Carolina before the rules are amended unless he or she is willing to be disciplined in order to challenge the rules in court.

If that is a risk you are willing to take, my advise is for you to read up on Avvo's arguments in support of its "own interpretation of the rules."  Those are the arguments you would be trying to use in your defense against a disciplinary charge.  Just because Avvo claims it ‘believes’ that participating in its services does not place lawyers at risk of violating the rules of professional conduct does not make it so. Relying on Avvo’s claims is not a good substitute your own careful judgment.

For another comment critical of Avvo (other than my own) go here.

Thursday, August 11, 2016

ABA Commission on Future of Legal Services issues its final report; I am not particularly impressed -- UPDATED

Back in 2014, the American Bar Association created a Commission on the Future of Legal Services and charged it with the task of studying how legal services are delivered in other countries and of recommending innovations that would improve the delivery of, and the public’s access to, legal services in the United States.

At the time, this seemed like a great way to organize what could otherwise have become an ever expanding and hard to manage debate, but now that the Commission's final report is out, it is being criticized for a number of reasons.   

The Commission presented its final report at the 2016 ABA Annual Meeting and it has already been criticized for avoiding the hardest issues.  See here, here and here, for example. The commission stated that courts should be open to innovations in the delivery of legal services and called on them to adopt the ABA Model Regulatory Objectives for the Provision of Legal Services but fell short of taking a specific stance on the more controversial topics.  It merely encouraged states to “explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public.”  In other words, after two years of work, the Commission encouraged the states to consider what the Commission itself considered during those two years.  And, as for the notion of alternative business structures, the Commission’s report’s language is even more tentative.  It merely states that “[c]ontinued exploration of alternative business structures (ABS) will be useful.”

Thus, while the ABA’s Commission took steps to open the door to innovative approaches to the delivery of legal services, even considering allowing alternative business structures and non-lawyer service providers, the ABA itself continues to avoid embracing some of those approaches.  As expressed by one commentator, even though the report documents the successful use of non lawyer legal services providers (LSPs) in a number of jurisdictions,
rather than explicitly endorse wider use of LSPs, the commission passes the buck, calling on courts to “examine, and if they deem appropriate and beneficial to providing greater access to competent legal services, adopt rules and procedures for judicially authorized and regulated legal services providers.”

With regard to companies that use technology to deliver legal services, the commission finds that “in many instances, these innovative LSP entities have positively contributed to the accessibility of legal services.” Here again, however, the commission takes the route of recommending further study, calling on states to “explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public associated with those services.”

. . . .

. . . No one can deny that the future of legal services hinges on how we, as a profession, answer critical questions about evolving business models, evolving service-delivery models, and emerging technologies. Yet on these questions, the commission falls short of taking bold and decisive stands, instead recommending further study and consideration.

Moreover, as a result of the Commission’s report, the ABA has done what it does all too often.  It created yet another Commission – or, in this case, a Center – to be chaired by one of the co-chairs of the ABA Commission on the Future of Legal Services, to continue studying the issues.  This new Center, to be known as The Center for Innovation, will be responsible for “driving innovation in the justice system and the legal profession” by, among other possibilities, serving as a resource for ABA members, maintaining an inventory of the ABA’s innovation efforts as well as the efforts of the domestic and international legal services community, and operating a program of “innovative fellowships” to work with other professionals, such as technologists, entrepreneurs and design professionals, to create models that improve the justice system.

How these goals can be achieved, of course, is the real challenge that lies ahead.

In addition to recommending the creation of the Innovation Center, the Report lists 11 specific recommendations, most of which are general and things that no one would disagree with. For example:

1. The legal profession should support the goal of providing some form of effective assistance for essential civil legal needs to all persons otherwise unable to afford a lawyer.

2.  The legal profession should adopt methods, policies, standards, and practices to best advance diversity and inclusion.

3.  The criminal justice system should be reformed.

4.  Resources should be vastly expanded to support long-standing efforts that have proven successful in addressing the public’s unmet needs for legal services.

5.  Outcomes derived from any established or new models for the delivery of legal services must be measured to evaluate effectiveness in fulfilling regulatory objectives.

6.  The ABA and other bar associations should make the examination of the future of legal services part of their ongoing strategic long-range planning.

7.  Courts should be accessible, user-centric, and welcoming to all litigants, while ensuring fairness, impartiality, and due process.

8. All members of the legal profession should keep abreast of relevant technologies.
[Note that idea has been incorporated into the Model Rules and into the rules of most states by now.]

Then there is this interesting recommendation:  

9.  Individuals should have regular legal checkups, and the ABA should create guidelines for lawyers, bar associations, and others who develop and administer such checkups.

I am not sure I understand this one.  The report reminds us that most Americans don't have access to legal representation, but at the same time it recommends that all Americans go get a legal check up regularly.

Finally, there are the recommendations that are going to be the center of criticism of the Commission:

10.  The legal profession should partner with other disciplines and the public for insights about innovating the delivery of legal services.

I am not sure how to interpret this recommendation.  Is the Commission endorsing eliminating the ban on allowing lawyers to form partnerships with non-lawyers or something less controversial?  I am not sure.  My guess is that working on this recommendation will be part of the new Center's goal.

11.  Courts should consider regulatory innovations in the area of legal services delivery.

OK, but, as stated above, this is kind of an empty recommendation because all the Commission does is recommend that state courts consider that which the Commission has been considering for the last two years.  I would have preferred to see something more concrete.

Also, it is interesting that rather than recommend the use of innovative ways to provide access to legal services, the Commission is recommending the adoption of innovative regulation to manage the delivery of legal services.

UPDATE (8-23-16):   A few days after I posted this, I posted a link to an interview with one of the founders of LegalZoom with more criticism of the Commission's report.  The same website that published that interview, now has a column by the co-chairs of the Commission in which they respond to the criticism.  You can read it here.  They reply to some direct criticism of the report and defend its conclusions and recommendations, but it is not clear to me they explain why the language of the recommendations is tentative.  Why, instead of recommending states to "consider" something, not recommend that they "adopt" a particular view or approach.  I don't have a problem with the recommendations; I guess I just expected that they would be more definitive or concrete.

UPDATE (8-24-16):  Another member of the Commission has posted a reply to some of the criticism here.

UPDATE (10-23-16):  The Legal Talk Network has posted a podcast discussing the Commission's report.

Tuesday, August 9, 2016

ABA adopts amendment to Model Rule 8.4; is it unconstitutional?

Back in January I wrote a long post on a proposal to amend Model Rule 8.4 to make it a sanctionable offense to engage in harassment or discrimination.  I thought that the original proposal was problematic for a number of reasons.  Some of the problems I thought of originally were addressed (and fixed) in subsequent versions of the proposal, but I still have some concerns.  The final version of the amendment is available here.

Here is my concern: the adopted amendment does not address the fact that the new rule can be applied to impose sanctions on attorneys for expressing Constitutionally protected speech.  In fact, on this point, the adopted proposal is worse than the original.   The earlier version of the proposal stated explicitly in the proposed new comment that the rule did not apply to conduct protected by the First Amendment.  Unless I missed it, that language has been taken out. 

Worse still, the adopted comment to the rule states that the rule applies to "harmful verbal . . . conduct that manifests bias or prejudice towards others."

What exactly does "harmful verbal conduct" mean?  I don't know how that is different than a verbal expression.  And once we understand that as an expression, the First Amendment's protection of freedom of speech comes into play.

And what is it that makes the expression "harmful"?  As stated in the new comment, it seems that what makes the "verbal conduct" harmful is the fact that it "manifests bias or prejudice."  Note that it does not say verbal conduct that results in some sort of exclusion or discrimination.  It only seems to require that the verbal conduct express bias.

The ABA being a private organization can adopt any rules it wants to apply to its members.  However, assume a state adopts the new language for its own rules, how would that not be an example of the state trying to penalize someone for expressing his or her views because those views are objectionable to others?  Isn't that what the First Amendment is there to prevent?

What do you think?  Can a ban on "harmful verbal conduct" survive a Constitutional attack?

Parents of two Americans killed in Benghazi sue Hillary Clinton for wrongful death; should attorney be sanctioned for filing frivolous lawsuit?

NPR is reporting that the parents of two Americans killed in Benghazi, Libya, are suing Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  Even though none of the many Congressional investigations nor the FBI investigation found any proof that the attack was due to access to information in Clinton's emails, the lawsuit argues that Islamic terrorists were able to track the movements of Ambassador Chris Stevens and plot the deadly siege because of Clinton's use of a personal email server to conduct government business.

Here is a copy of the complaint. The main argument is this:
It is highly probable, given Defendant Clinton’s history of reckless handling of classified information, that Defendant Clinton, as Secretary of State, sent and received information about Ambassador Christopher Stevens and thus the U.S. Department of State activities and covert operations that the deceased were a part of in Benghazi, Libya. This information was compromised from the second that it left Defendant Clinton’s private e-mail server and easily found its way to foreign powers including, but not limited to Russia, Iran, China, and North Korea. As a direct result of Defendant Clinton’s reckless handling of this classified, sensitive information, Islamic terrorists were able to obtain the whereabouts of Ambassador Christopher Stevens and thus the U.S. State Department and covert and other government operations in Benghazi, Libya and subsequently orchestrate, plan, and execute the now infamous September 11, 2012 attack.
In the section on "facts" (presumably the factual basis for the complaint), the plaintiffs affirm that "Islamic terrorists obtained the information sent and received by Defendant Clinton about the location of Ambassador Christopher Stevens and thus the U.S. Department of State and the covert CIA and other government operation s in Benghazi and used it to plan, orchestrate, and carry out the horrific and devastating attack on the American diplomatic compound in Benghazi, Libya on September 11, 2012 (“Benghazi Attack”), resulting in the death of four Americans..."

Now, this is a very different type of statement.  This is an affirmative statement of fact, which, presumably, the plaintiffs will be able to prove.  Is there any evidence that what is alleged here is true?   Not according to any of the investigations I have heard of, but I guess it is possible there is information out there I am not aware of.  Are you?  Let me know.

If there is no basis in law or fact for the complaint, this is a frivolous lawsuit, and I think it will be dismissed in due time.  The only question in my mind is whether the lawyer who brought it will be sanctioned for violating the ethical duty, and procedural rules, against bringing frivolous claims.  According to Above the Law, the lawyer "has been banned from multiple judges’ courtrooms" and has orchestrated other politically motivated legal stunts, including a deportation petition against President Obama, which claimed the president was born in Kenya; alleging the Clintons murdered White House associates in the 90s; and filing lawsuits accusing the Clintons of racketeering.

For more go to NPR or Slate

ABA approves resolution urging recognition of evidentiary privilege to cover communications between prospective clients and lawyer referral services

The ABA House of Delegates just adopted a Resolution, which urges courts and legislatures to adopt rules or enact statutes that would establish an evidentiary privilege for communications between bar-sponsored lawyer referral services and the clients who contact them for assistance in locating representation.

Monday, August 1, 2016

Florida adopts amendments to rules that may make it improper for lawyers to participate in Avvo Legal Services and other similar "matching" sites

Original post (July 11, 2016); Update below:

I recently posted a note on a recent opinion in Ohio which essentially concludes it is unethical for lawyers to participate in services like Avvo's Legal Services.  (I happen to think that, as presently constituted, participating in Avvo Legal Services is unethical pretty much anywhere (see here, here and here), but not everyone agrees with me.)

Now comes news that the Florida Bar is considering certain amendments to its rules on referral services, which, depending on how they are interpreted, may also make it unethical to participate in Avvo's services.

Avvo Legal Services can argue it should not be considered a referral service, but the proposed Florida rule is apparently designed to defeat that argument by eliminating the distinction between referral services and "lead generators" - which is what Avvo is.  The new Florida rule holds that any private entities that connect consumers looking for legal services with lawyers are to be called “qualifying providers” regardless of whether they are a “traditional” referral service or a technology-based provider (AVVO, LegalZoom).

Once all the different services are in the same category, whether they are lead generators or referral services does not make a difference.  And the other important change to the rule is that it says that a lawyer can participate in private, for profit service only if the lawyer receives no fee or charge that is a division or sharing of fees unless the provider is The Florida Bar Lawyer Referral Service or a referral service approved by the Florida Bar.

As I have discussed elsewhere, Avvo disputes that its payment structure constitutes fee sharing, but I think the argument can easily be made that it is.  In such a case, therefore, unless the Florida Bar has "approved" Avvo as a referral service in Florida - which I doubt - than Florida lawyers would be violating the rules by participating in Avvo's Legal Services.

You can find the redline version of the proposed rule and its comment here.   Lawyers Ethics Alert Blog has more information here.

UPDATE (8/1/16):   The Board of Governors met on Friday, July 29, 2016 in Miami Beach and approved the proposed revisions.  Lawyer Ethics Alert Blog has more details here.