Recent article on the criminal justice system

For those of you interested in issues related to the criminal justice system, you may want to check out a new article by David Patton (NYU Law School) which will be published by the Cornell Law Review.  In addition to discussing policy and constitutional law, the author argues that there are serious ethical problems with the current system of federal judges administering the system of federal public defense.  Here is the full abstract:

Independence is a foundational requirement for any good system of public criminal defense. The Constitution guarantees anyone charged with a crime the right to a defense attorney regardless of ability to pay, and that attorney has the ethical obligation to provide a zealous defense, free from any conflicting outside influence. And yet the system of federal public defense is funded, managed, and supervised by the very judges in front of whom defenders must vigorously defend their clients. The arrangement creates serious constitutional, ethical, and policy problems. This Article proposes a solution: an independent federal defense agency. The agency proposed, the Center for Federal Public Defense (CFPD), would administer federal defenders’ offices, manage the system of appointed private attorneys, and seek funding from Congress for indigent defense services. The Article places the discussion of the proposed organization in the context of other independent agencies that do not fit neatly into a single branch of government, sometimes described as “boundary organizations.”  In many ways, federal public defense is ideally suited for placement outside of the formal branches of government. Many congressionally created independent organizations are structurally problematic because of separation-of-powers concerns that arise from the agencies’ enforcement or rulemaking authority. Federal public defense attorneys, however, neither make rules nor enforce them. And because of the nature of their work, they legitimately require insulation from direct government control — including from the Judiciary. In a criminal justice system that relies on its adversarial nature to function properly, it would be inconceivable to have judges decide who is hired in a prosecutor’s office, how much they should be paid, or how and whether prosecutors should investigate individual cases. It would be equally problematic to have the Judiciary act as the voice of the Department of Justice in Congress when explaining resource needs and seeking appropriations. And yet the Judiciary currently does all of those things with respect to the defense function. It should not, and the fix is straightforward: the creation of an independent defender organization.

You can download the full article here.

ABA Committee on Ethics and Professional Responsibility issues new opinion on safeguarding fees to be split with lawyers outside the firm

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Opinion (No.475) to explain the duties of a lawyer who receives earned fees that must be shared with a lawyer from another law firm.  According to the opinion, the lawyer who receives the money must take steps to appropriately safeguard the funds by placing them in an account separate from his or her own property.  The attorney must then promptly notify the other lawyer, promptly forward the agreed portion to the other lawyer, and provide an accounting if the other lawyer requests it.  The opinion is available here for a limited time.

Not all jurisdictions agree with the approach but it makes sense to me.  The alternative is to have the lawyer transfer the money to the lawyer's general account and then pay the outside lawyer with funds from there.  Either way, the money will be commingling with either clients' money or lawyer's funds for a period of time.

IPethics & INsights has a nice comment on the opinion and its applicability to IP practice here. The Lawyer Ethics Alert Blog also has a comment on the opinion here.

Comment on jury nullification

Above the Law has published an interesting take on the issue of jury nullification.  You can read it here.

New Mexico public defender held in contempt for refusing to take cases arguing high caseloads impede proper representation

New Mexico’s chief public defender has been found in contempt of court and fined $5,000 for refusing to provide lawyers to represent criminal defendants in five cases because of his office’s high caseloads.  The ABA Journal has the story here.  Simple Justice has a good comment about it here.

Short comment on the different approaches to ghostwriting

A few years ago, the issue of whether it was proper for an attorney to "ghostwrite" documents for pro se litigants was hotly debated.  Some jurisdictions took the position that it was ok, other required lawyers to disclose their role.  See here and here for example. 

I had not see much on the issue since then until a few days ago, when I saw a short comment in Lawyerist summarizing the state of the law.  You can read it here.

Pennsylvania adopts new rule related to counseling clients in marijuana business

The Legal Profession blog is reporting that the Pennsylvania Supreme Court has adopted an amendment to its rules to add a new subsection (e) to Rule 1.2, which states: "A lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client's proposed course of conduct." The rule adopted differs slightly from the proposed rule change published back in May. That original proposal allowed lawyers to counsel clients on conduct expressly permitted by the law of the state where it takes place or has its predominant effect. The adopted rule addresses only conduct permitted under Pennsylvania law.

As you may remember, several other states addressed the issue this year.  Ohio first banned lawyers from counseling clients, but later adopted a rule to allow it (see here and here).  Colorado amended the comment to its rules to address the issue.  See here and here.  For a general comment on the issue, go here.

California proposes change to rule regarding sex with clients

Model Rule 1.8(j) was adopted a number of years ago to regulate possible sexual relationships with clients.  It states that "a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced."   

The topic is now back in the news because a few days ago it was reported that California is considering adopting the Model Rule's approach to the question (as part of an overhaul of the state’s disciplinary rules).  The current rule in California bars lawyers from coercing sex with a client or demanding sex in exchange for legal representation.  For more details and links go to NPR, or the ABA Journal.  For a comment on the proposal go to Simple Justice.

The topic was also proved difficulty in Texas when it considered changes to the rules back in 2010.

My article on Avvo is now available

During the spring and summer I wrote an article on ethical issues related to joining Avvo Legal Services.  I started writing the article soon after Avvo announced the new service, and finished it before the recent ethics opinions from Ohio, South Carolina, and Pennsylvania.  Georgetown agreed to publish the original article, but because it took them a long time to get around to it I had the chance to update the draft a little bit based on the recent opinions.  Now the article is finally available.  You can go to the Georgetown website and read it or download it here. 

Utah Supreme Court dismisses professional responsibility concerns over case in which plaintiff and defendant were the same person

I recently read in the Legal Profession blog a summary of a recent decision out of the Utah Supreme Court with the oddest fact pattern I have seen all year, which provides an interesting discussion of issues related to the two courses I teach: Torts and Professional Responsbility.  The case is Bagley v. Bagley and you can read the full opinion here.

Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later.  Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms. Bagley sued herself in an attempt to compel her insurance company to indemnify her.  Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time. 

Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.

Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.

The trial court granted a motion to dismiss, but the court of appeals reversed. 

On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”

In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant was (were?) represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest.  Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.”  It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her.  Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.

The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.”  (See footnote 37 of the opinion)

You can read the full opinion here.

District of Columbia Bar new opinions on social media use

The Legal Ethics Committee of the District of Columbia Bar has just issued two opinions on social media use.  Ethics Opinion 370 is available here.  Ethics Opinion 371 is available here.  The Legal Profession blog has a summary here.

Opinion 370, does not seem to add anything new.  It concludes that "a lawyer who chooses to maintain a presence on social media, for personal or professional reasons, must take affirmative steps to remain competent regarding the technology being used and to ensure compliance with the applicable Rules of Professional Conduct."

Opinion 371, on the other hand, provides more information and analysis in an attempt to provide  guidance about "advice and conduct by lawyers related to social media in the provision of legal services, including whether certain advice and conduct are required, permitted, or prohibited by the Rules."

One of my recent articles is now available online

My essay Through the Looking Glass in Indiana: Mandatory Reporting Child Abuse and the Duty of Confidentiality was recently published by Notre Dame and it is now available here.

Review of the state of the law on advanced conflicts waivers

IPethics & INsights has published two articles reviewing the current state of the law on advanced waivers.  Go here for part 1 and here for part 2.   Here is part of the introduction:

Some law firms try to avoid or limit their exposure to [conflicts of interests] by contracting with their clients to waive conflicts even before the facts giving rise to such conflicts are known either to the client or the law firm. Indeed, in large law firms that typically employ hundreds of lawyers in multiple offices around the globe, it is commonplace for their standard engagement agreements to include language in which the client agrees as part of the representation to waive in advance future conflicts of interest.

But are such “advanced waivers” ethical? It is one of the most vexing questions that has dogged law firms, regulators, and ethics counsel for years.

. . . . For lawyers who want a clear, definitive, black and white answer to the question of the legality and enforceability of advanced conflict waivers, unfortunately there is none. Ethics opinions and court rulings have created a patchwork of opinions. This lack of uniform treatment of advanced conflict waiver leads to unpredictability . . .  that most lawyers would rather avoid.

Please vote for the blog!

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

NYC Bar Ethics Committee issues opinion holding that prosecutors’ duty to disclose is broader than the duty imposed by Brady v Maryland

As you probably know, there are differences of opinion as to whether the duty to disclose information imposed on prosecutors by ABA Model Rule 3.8 is broader than the duty imposed by the constitutional standards in Brady v. Maryland.  The ABA Standing Committee on Professional Responsibility held that it does in Formal Opinion 09-454, but a few jurisdictions have held otherwise.  I have written about this in the past here.  (And for all my posts on prosecutors' duty to disclose evidence go here.)

Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia.  Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana and Wisconsin.

Now comes news that the New York City bar's ethics committee has issued an opinion holding that a prosecutor's ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland.  See N.Y.C. Bar Ass'n Comm. on Prof'l Ethics, Op. 2016-3, 7/22/15.

Thanks to the ABA/BNA Lawyers' Manual on Professional Conduct for all the links. 

UPDATE 10-29-16:  Legal Ethics in Motion has a comment here.

Ohio Supreme Court adopts amendment to allow lawyers to advise clients in legal marijuana business

Just about a month ago, I reported that the Ohio board that oversees attorney conduct decided 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 updated the story when it was reported that the Ohio Supreme Court would consider a draft amendment to the Ohio Rules of Professional Conduct to address the issue.

The Court not only prepared the draft, it just formally adopted the amendment. The amendment modifies Prof. Cond. R. 1.2(d)(2) by adding a new subsection, which reads:  “A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub.H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise the client regarding related federal law.”

Thanks to the Legal Profession blog for the update.

Ohio Supreme Court issues divided opinion on whether disciplinary counsel can bring charges against an attorney after another disciplinary agency had already decided not to do so -- UPDATED

Ohio has two parallel disciplinary mechanisms:  the certified grievance committees of local bar associations and the state disciplinary counsel.  If the local disciplinary counsel decides not to prosecute a case, can disciplinary counsel prosecute anyway? 

Last week, the Ohio Supreme Court addressed that question for the first time in a case called In Disciplinary Counsel v. Kramer.  The Court split 4 to 3 and held that the state's disciplinary counsel can pursue a case against a lawyer even though another agency had already decided not to do so.  

In Kramer, a prosecutor was investigated by the Cleveland Metro Bar Association (CMBA) because of discrepancies in his time sheets.  The CMBA determined that, because Kramer had resigned, no further disciplinary action was warranted.  However, before the CMBA formally sent a letter dismissing the matter, Ohio disciplinary counsel received an anonymous complaint based on the same misconduct.  Kramer argued that the CMBA dismissal should be final, and that its decision should be given full faith and credit, but the Supreme Court closely split on whether the rules governing Ohio attorneys allowed the disciplinary counsel to pursue charges against Kramer under those circumstances.

The Legal Profession Blog has a good summary of the decision here.

Thanks to Patrick B. Cavanaugh, of Kitch Drutchas Wagner Valitutti & Sherbrook for sending me information on the case.

UPDATE 9-18-16: Mike Frisch of the Legal Profession blog has a comment on the case here.  His conclusion:  "I agree with the majority on policy grounds. If the Ohio rules of discipline accord quasi-double jeopardy status to grievance panel dismissals, the rules defeat the purpose of bar discipline - protection of the public from unethical lawyers."

Comment on whether attorneys should be forced to provide pro bono services

Last July, Professor Ron Rotunda wrote a column in Verdict arguing that the government should not force lawyers to perform pro bono services.  In response, Joseph A. Sullivan, Special Counsel and Director of Pro Bono Services at Pepper Hamilton, LLP, wrote a rebuttal.  Prof. Rotunda now has published his response.  You can read it here.

Zeekbeek: a new way to find a lawyer online

There is a new way to find a lawyer online in Michigan (and soon in other midwest states).  Using data from the State Bar of Michigan, Zeekbeek.com is an online marketplace where consumers can connect with lawyers. Unlike Avvo, LegalZoom and Rocket Lawyer, Zeekbeek works with the state bar association to create a searchable database of lawyers. Michigan was the first state to have an operational agreement with Zeekbeek, but Indiana, Ohio and Illinois recently signed on with Zeekbeek also.

Can an attorney disclose very old confidential information because of its historical value? -- UPDATED

September 10, 2016

If you used the textbook by Prof. Stephen Gillers in your Professional Responsibility course (as a student or professor), you may remember the hypothetical question involving a firm that finds among its old files certain client files involving John Wilkes Booth.  Could the firm turn those files over to the Smithsonian or another institution?  Should the interests of history create an exception to a lawyer’s duty of confidentiality?

It is an interesting question on whether we should recognize yet another exception to the duty of confidentiality to which we did not have a definitive answer...  Until now.  Earlier this year, the Maine Professional Ethics Committee issued an opinion on this very question.

Here is the question, as explained in the opinion,  

Bar Counsel has inquired whether, and under what circumstances, a law firm may consider donating old, inactive legal files that may have historical significance to a library or educational institution. As a matter of background, the attorney holds a variety of client files, many of which were generated by a single family, dealing with a public undertaking of significant historical interest in the attorney’s area. The files range back as early as the mid- to late 1800s, and run through the early to mid-1900s. The single family referenced above has indicated their consent, but for many of the other files, both the clients as well as the attorneys who were involved in the legal work generating the files are long since deceased, and it may be difficult to find a representative of either the attorneys or the families. Given the passage of time, and the historical import of the files, may the firm turn over these client files to a library or educational institution?

And here is the conclusion:

In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client “confidences” or “secrets,” the attorney may not divulge the confidential materials in that attorney’s possession despite the passage of time and the potential historical significance of the materials.

You can read the full opinion here.


Thanks to the Legal Profession blog for the information.

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

California Governor vetoes bill that would have imposed mandatory pro bono for newly admitted lawyers

Citing the fact that many law graduates are facing high debt, California Gov. Jerry Brown has vetoed a bill that would have required recently admitted lawyers to complete at least 50 hours of supervised pro bono work within their first year in practice.  The Governor stated that “Law students in California are now contending with skyrocketing costs—often more than $200,000 for tuition and room and board —and many struggle to find employment once they are admitted to the bar.  In this context, I believe it would be unfair to burden students with the requirements set forth in this bill.”  Opponents of the proposal had argued that the duty to perform mandatory pro bono work should not be imposed on brand new lawyers because they are the least able to handle the imposition of working for free.

Over at Above the Law, Jeff Bennon sees the issue differently.  Commenting on the Governor's basis to veto the bill, he says that "[it] is, of course, ridiculous, because if you can withstand 100-plus weeks of legal education, adding five more 10-hour days is not going to push anyone over the edge."  But then he adds that the Governor "was right to veto the bill though, because it was stupid, not because it would burden students."  He argues the proposal is "stupid" because the supervising lawyers do not want to supervise newly admitted lawyers for the mandatory 50 hours and that the newly admitted lawyers would not get much out of the experience either.  In other words, the proposal does not really benefit anyone.  You can read his comment here.

Florida Bar appears to be going forward with proposal to amend the Rules of Professional Conduct in spite of finding that the proposal is most likely unconstitutional

Back in 2015, in a case called Searcy v Florida Bar, a Federal District Court Judge enjoined the Florida Bar from enforcing a rule prohibiting truthful claims of expertise. The Bar had argued that potential clients would be misled into assuming that lawyers who advertise that they “specialize in" or that they have “expertise” in a certain area of the law are board certified.  However, the Court found no evidence to support this argument and held that, because the rule essentially banned attorneys from making true statements that describe their areas of practice, it concluded the rule was unconstitutional 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.  Go here for more information.

Notwithstanding this decision, the Florida Bar has expressed its view in a proposed amendment to the state's Rules of Professional Conduct and will ask the Florida Supreme Court to approve it.  You can read the proposed new language and get more information here.

As I have argued many times over the years, I think states' attempts to ban lawyers from saying they "specialize" in a certain area of the law are ridiculous.  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. 

For that reason, I think the decision in Searcy was correct and that this new attempt by the Florida Bar to regulate speech should be defeated.

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. 

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

DC's strange concept of moral turpitude -- UPDATED

In Washington DC, disbarment is mandatory for convictions of crimes that involve moral turpitude, yet I continue to be baffled by Washington DC's concept of moral turpitude.  I have discussed cases that found no moral turpitude when a lawyer was convicted of murdering his wife (here), or of stealing property from a store for personal gain (here), or of felony traveling for the purpose of engaging in sex with a minor in a case in which the attorney had made a 12-year-old boy his sex slave for six years (here). Yet tampering with a witness was considered to involve moral turpitude (here). See here for more.

Adding to the list now we have a case in which an attorney who pleaded guilty to a misdemeanor violation of 22 D.C. Code section 3531(c), which makes it a crime to electronically record, without consent, a person using a bathroom or restroom or who is undressing or changing clothes.

According to the Legal Profession blog, Maryland recently disbarred an attorney who videotaped three tenants in intimate encounters.

In Washington DC, apparently this type of conduct is not considered to involve moral turpitude and resulted in only a three year suspension.

The Legal Profession Blog has more information on the case here.

For a short summary of the issues related to the concept of moral turpitude go here.

UPDATE (7/30/16):  The District of Columbia Board on Professional Responsibility has issued its long-awaited report in which it explains that it disagreed with a hearing committee recommendation and concluded that the attorney's crime involved moral turpitude.  The Legal Profession Blog has more details here.  The Board apparently stated this was "a difficult case."  I don't understand that.  To me this was an easy case, but as you know, I have long had reservations about DC's concept of moral turpitude, so what do I know...

South Carolina opinion finds lawyer can wait until litigation is over to report misconduct under rule 8.3

The South Carolina bar's ethics committee has issued an opinion (S.C. Bar Ethics Advisory Comm., Op. 16-04, 7/18/16) holding that a lawyer who believes an opposing attorney in a pending matter has committed professional misconduct may wait until the proceeding concludes to make a disciplinary report.

The generally accepted rule on this is that if the rule applies, attorneys must disclose misconduct "promptly."  However, it is not always clear what "promptly" means.  In the well known In re Himmel case in Illinois, the affected attorney argued that he did not want to disclose the misconduct because doing so would be contrary to his client's interests.  The attorney wanted to wait until he got his client the compensation the client wanted before disclosing.  In that case, the court did not buy the argument.

Yet, it appears the SC committee agrees with it, holding that a lawyer may wait until the conclusion of the matter if the lawyer determines immediate reporting may hurt the client. However, the misconduct should be reported “promptly” at the conclusion of the litigation or appeal.  Thus, the committee concluded that “it is appropriate for a lawyer to consider any potential adverse impact to his or [her] client in determining the timing of a report against another lawyer.”

I understand the spirit of the opinion, but it seems to me it does not take into account that civil litigation can take years to conclude.  Indeed, although not all cases take years to conclude, it is certainly not uncommon for some cases to last a long time.  Should that make a difference?  And what if the representation is not in litigation? 

Washington State Supreme Court holds plaintiff has to show actual innocence in malpractice claim against former criminal defense lawyer

Back in February I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  The majority view is that the plaintiff does have to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. Yet cases in Kansas and Iowa recently held otherwise.

Now comes news that the Washington State Supreme Court has reversed the trend and has held that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.  The case is called Piris v Kitching and you can read the opinion here.  The Legal Profession blog has more details here.

One Justice dissented in Piris, making what I think is a persuasive argument.  Interestingly, the argument is not that plaintiffs should not have to show actual innocence in all cases, but that it was improper to use that "rule" in this particular case because the plaintiff had already obtained post conviction relief.

Christopher Piris successfully obtained postconviction relief from a miscalculated sentence. But due to alleged attorney negligence, he was not timely resentenced and he spent more time imprisoned than his corrected sentence authorized. The majority holds that Piris cannot pursue malpractice claims against his defense attorneys unless he proves he is actually innocent of the underlying charges. I disagree. When a client wins postconviction relief for resentencing and attorney negligence results in the client's excessive imprisonment because the client did not timely receive the benefit of resentencing, it is no excuse to say that the client was subject to some imprisonment. Extending the "actual innocence rule" to the unique circumstances of this case serves only to perpetuate an injustice. I respectfully dissent...

In other words, the plaintiff in the malpractice case (defendant in the original criminal case) endured a longer stay in jail (more than a year) because of the attorney's conduct.  Yet the court says he was not entitled to a remedy because he was "due" some time in jail anyway.  The fact that the attorney's conduct caused him to suffer more than he was legally "due" is irrelevant to the majority.  I agree with the dissent in this case.  This view is not justified.  It allows for an injustice to go unpunished and gives a pass to an attorney whose conduct clearly caused injury to the client.  I don't see why it makes sense to give the attorney such a free pass.