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I am happy to report that my humble blog is one of the finalists in the 2016 Best Legal Blog Contest.  But it now needs your help!   Please vote for it by going here.  Tell your friends!

To check other nominated blogs (in many different categories) and the vote totals go here.

Comment on the new ABA rule on CLE panels

In 2008, the American Bar Association adopted as a goal to work to "eliminate bias and enhance diversity” by promoting full and equal participation in the association, our profession, and the justice system by all persons by eliminating bias in the legal profession and the Justice System.

As part of that effort, the ABA in turn adopted a new mandatory rule for all ABA-sponsored continuing legal education programs to regulate the composition of panels of speakers.  Is this a good idea?  Professor Ronald Rotunda (Chapman) offers his view on the issue in his latest column at Verdict.

The Sixth Amendment Center analyzes the “Indiana Model” for providing right to counsel services

The Sixth Amendment Center has published two articles analyzing in detail Indiana's system for providing attorneys to indigent defendants.  It concludes the system does not work.  You can read the articles, and the report they are based on, here and here.

Podcast on the ABA Report on the Future of Legal Services

Last August I reported on the ABA Report on the Future of Legal Services and concluded that I was not impressed.  You can read my detailed reasons, and check out links to more information and comments here.

Today, the Legal Talk Network has posted a podcast discussing the report.  You can listen to it by pressing on the play button below.  If you can't see the button below, you can go here.

Here is the description of the program:

Many lawyers are familiar with the varied services and resources that the American Bar Association provides to their members around the country. In this episode of The Digital Edge, hosts Sharon Nelson and Jim Calloway talk with Vandenack Williams LLC. founder Mary Vandenack about the American Bar Association Future of Legal Services commission, the data found in that study, and how those findings can help lawyers improve and prepare for the future of law. Mary Vandenack served on the American Bar Association Commission on the Future of Legal Services and currently serves as co-chair on the Futures Taskforce and co-chair of the Economics and Technology Committee of the ABA Section of Real Property, Trust, & Estate Law.

Judge assigned to wrongful death case against Hilary Clinton steps aside and asks for case to be reassigned after allegations of forum shopping

Back in August I reported that the parents of two Americans killed in Benghazi, Libya, filed a lawsuit 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.  I my post (here) I suggested the allegations in the complaint would be very difficult to prove and that there was a chance the case would be considered a frivolous lawsuit, in which case it should be dismissed and the lawyer should be sanctioned.

Now, a new report published in Politico (here) provides an interesting update on the story.  The judge who had been assigned the case decided to set aside and send the case back for reassignment.  It turns out the attorney who filed the case wanted that specific judge (a long time Clinton critic) and apparently tried to manipulate the system in order to get him.  According to the story, Clinton's lawyers filed a motion arguing, among other things that the plaintiffs' lawyer has a history of "judge shopping" and the judge gave up the case.

This new development adds to my concern over the plaintiffs' lawyer.  Did he first file a frivolous lawsuit and then try to manipulate the system in order to shop for the judge he wanted?   Will there be a hearing to discuss these questions?  Will the new judge impose sanctions?  Stay tuned...

California Appeals Court upholds disqualification of entire DA's office -- UPDATE

Back in March of 2015, I reported that a state judge in California removed an entire DA's office from a high-profile murder prosecution because prosecutorial misconduct had tainted the entire office’s handling of the case. The judge reassigned the case to the California attorney general, who appealed the ruling.  Go here for a New York Times article with more information on the original story.  The state legislature eventually adopted a statute to manage prosecutorial misconduct.  See here.

More than a year later, the California appeals court heard the oral arguments over whether the Orange County judge was right to remove the entire district attorney’s office.  The ABA Journal has more information here.

UPDATE (12/3/16):   In what the ABA Journal is calling a "blistering" and "sharply worded" ruling, the Court has upheld the order disqualifying the entire DA's office.  The opinion can be found here.

Pennsylvania Opinion finds participating in program like Avvo Legal Services to be unethical

For the third time in four months, a state bar ethics committee has warned attorneys that participating in an Avvo like client referral program would be unethical.  Similar to opinions in Ohio and South Carolina, and to rules revisions in Florida, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility issued Formal Op. 2016-200 holding that attorneys risk violating several ethics rules if they participate in a program like Avvo Legal Services.

I have not been able to find a copy of the opinion yet, but an article in the BNA/ABA Lawyers’ Manual on Professional Conduct reports that it finds a number of problems with the way the program is set up an implemented. For example, it finds that what Avvo claims is a marketing or advertising fee does “not correspond to any traditional model of compensation for advertising,” that the program improperly “delegates to a non-lawyer several critical decisions and functions that fall within the exclusive domain of the practice of law,” that it interferes with attorneys’ duty to exercise independent professional judgment, that it hampers a lawyer's ability to comply with Rule 1.16(d), which requires lawyers to refund any fees that have not been earned at the end of a representation, that the management of the fees constitutes commingling and a violation of the duty to safeguard client property and that it threatens the confidentiality of information related to the representation.

This comes as no surprise to me, or to longtime readers of this blog.  I have argued both here and in an upcoming article, that under the current regulatory system, Avvo Legal Services puts lawyers in positions to violate a number of rules and that Avvo's arguments to the contrary are not convincing.  See here, here and here for example.

However, saying that participating in Avvo Legal Services would violate the rules is not the end of the issue.  The question then becomes whether the rules should be changed to accommodate what Avvo wants to do. Interestingly, I don't think this is what Avvo has been arguing in response to the opinions around the country.  Instead of saying that the rules should be changed, Avvo typically argues that the rules don't apply or should not be followed.

Others, on the other hand, have been making more thoughtful arguments.  For example, solo attorney-blogger Carolyn Elefant has published an interesting post in My Shingle in which she argues why the rules should be changed to allow services like Avvo Legal Services to operate the way they want to.  Among other things, she argues that rules should not require lawyers to use trust accounts at all, which I imagine will be controversial.

Also, Professor Milan Markovic (Texas A&M) criticizes the approach of some of the opinions on Avvo as mechanistic.  You can read his comment here.

Virginia clarifies duty of candor regarding possible perjury

The Legal Profession Blog is reporting that the Supreme Court of Virginia has approved amendments to Rules 1.6 and 3.3. The amendments clarify a lawyer’s obligations when a client discloses his or her intent to commit perjury in advance of trial, and whether the lawyer can withdraw from the representation before the client’s intended perjury occurs.  You can read the amendments here.

California: Prosecutors who withhold evidence can be charged with a felony

Long time readers of this blog know I often complain about the fact that courts do not seem to take prosecutorial misconduct too seriously.  Go here, here, and here, for a few examples; and you can go to the prosecutors tag and scroll down for lots of stories, and links on the topic.

Well, today, I am posting good news, for a change. Almost exactly one year ago, I posted (here) that California had adopted a new law to bolster a judge's ability to disqualify a prosecutor or an entire prosecuting attorney's office and to make it mandatory for judges to report violations to the state bar. 

Now, California has gone even further by making it a felony crime to withhold exculpatory evidence. Violators of the law could be sentenced to up to three years in prison.  The ABA Journal has more details here.

Five Myths About USPTO Ethics Investigations and Disciplinary Complaints

IPethics & INsights  has published a short and informative post called Five Myths About USPTO Ethics Investigations and Disciplinary Complaints.  You can read it here.  The five myths are:

1. The OED Only Cares About Practice Before the USPTO

2. If I Am Not A Registered Patent Practitioner The OED Does Not Care About My Conduct

3. The USPTO Prefers to Let the State Bars Investigate Ethics Violations

4. Discipline by the USPTO Will Not Impact State or Federal Bar Licenses

5. The OED Will Only Conduct an Ethics Investigation When Someone Files A Complaint