Idaho Supreme Court abandons actual innocence requirement for legal malpractice actions against former criminal defense attorneys

Just about a year ago 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.  A few months later, however, the Washington State Supreme Court reversed the trend by adhering to the majority view and holding that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.

Now comes news that last week the Idaho Supreme Court has abandoned the actual innocence rule in a case called Molen v. Christian.  In part, the court concluded:

We hold that actual innocence is not an element of a criminal malpractice cause of action. Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the fundamental principle that a person is presumed innocent until proven guilty beyond a reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or she incurs as a result of being guilty of a crime. . . .  Additionally, as a practical matter, requiring actual innocence would essentially eliminate a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty. For the foregoing reasons, we hold that actual innocence is not an element of a criminal malpractice cause of action.

This means that three of the last four jurisdictions to consider the issue have rejected the majority approach, which makes me wonder if what is the majority has now shifted.  I have not done a state by state survey recently, so I don't know for sure.  However, I have not read anyone make that claim yet, so I assume the majority approach is still to require a showing of actual innocence.  If someone has information about the actual count of how many states follow each approach, please let me know. 

Illinois Supreme Court adopts 'proactive management-based regulation'

Yesterday, the Illinois Supreme Court announced rule amendments that make Illinois the first state to adopt so-called “proactive management based regulation” (PMBR), a system designed to prevent ethical missteps by requiring lawyers without malpractice insurance to review their operations. For the text of the changes, see Amended Rule 756(e).  The Illinois State Bar Association website has more detailed information about the program here.

Forthcoming law review article on the need to re think norms, duties and the notion of value in legal services

Readers of the blog might be interested in this forthcoming law review article: Restraining Lawyers: From 'Cases' to 'Tasks' by Morris Ratner from the University of California Hastings College of the Law, which will be published by the Fordham Law Review. Here is the abstract:

Developments in the domains of procedure and private contract highlight a continuing shift in authority away from lawyers and towards courts and clients accomplished by a conceptual downshift from “cases” to “tasks.” The 2015 amendments to the Federal Rules of Civil Procedure limit attorney and party discretion by further empowering the trial court judge to dissect, assess the value of, and sequence case activity, including discovery. At the same time, in the private sphere, sophisticated clients aided by advances in project and information management are controlling legal spend by unbundling cases into tasks. From that position, they can source projects to low-cost providers. Clients are also increasingly demanding litigation budgets and seeking value-based pricing, both of which work best if there is heightened communication between lawyer and client regarding the means to be pursued to achieve litigation aims. These regulatory and market restraints on lawyers and lawyer-driven adversarialism, while pointing in a similar direction, differ fundamentally in terms of their reach, efficacy, and fairness. Despite their differences, these developments in tandem have the potential to inspire the creation of new norms and duties calling on litigators to think more deeply and inclusively about the value of litigation tasks from the perspective of court and client.

ABA Center for Innovation is now accepting applications for its fellowship program

The ABA Center for Innovation, about which I wrote not too long ago here, is accepting applications for its inaugural fellowship program.  As reported in the ABA Journal:  "Open to both newly minted lawyers and mid-career professionals outside the law, the program seeks applications and proposals to create or develop projects to improve the legal industry. Those who wish to apply should have an idea that bridges the access-to-justice gap in the U.S.; utilizes technology to deal with a vital legal need; designs or builds a more effective way of delivering legal services; provides the public with easier access to legal information; reduces the backlog of cases in various courts throughout the country; creates tools that allow lawyers to better represent their clients; or helps pro se litigants represent themselves more effectively. The deadline for applicants is Jan. 31."

"Innovation," as you may recall, was my pick for the hot topic of the year last year -- a claim I spoke about at the International Legal Ethics Conference in New York last summer.  But, as I discussed during that presentation, the concept is too broad and often used to mean different things.  For my posts on all topics somehow related to the issues raised by the concept of innovation, you can go here and scroll down.

Pennsylvania rejects ABA Rule 8.4(g) approach to regulation of discriminatory conduct and proposes new rule similar to the one in Illinois

Just a few minutes ago I posted an item on the much discussed newly adopted ABA Model Rule 8.4(g), and then I found this new bit of news:  Last month the Pennsylvania Disciplinary Board proposed an amendment to the state's Rule 8.4 to address the issue of discriminatory conduct.  Interestingly, however, the proposal actually rejects the ABA Model Rule and proposes instead the approach currently in place in Illinois.  The proposal would amend the current rule to make it misconduct to "violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer."  This is the same language that has been in Illinois Rule 8.4(j) since 2010.

Obviously, the Illinois approach is much narrower than the new ABA Rule, but it avoids the potential problem of imposing discipline for engaging in constitutionally protected speech. Under the ABA rule, the disciplinary agency itself makes the determination of whether the lawyer committed discriminatory conduct. Under the Pennsylvania proposal, that conduct must violate an applicable law, and if there is a forum to make the determination of whether the lawyer committed a violation, that process must take place first. 

Texas Attorney General thinks new anti-discrimination Model Rule is unconstitutional

The ABA recently approved an amendment to Model Rule 8.4 to make it misconduct to use discriminatory or biased speech.  Back in January I wrote a long comment on the original proposal, which was changed before it was approved.  The approved version addressed some of the issues I had originally objected to, but I still have reservations about the approved language because it seems to punish protected speech.  You can read my most recent comments on it here,  here and here. 

Now comes news that the Texas attorney general has expressed the view that the rule is unconstitutional.  The rule has not yet been adopted in Texas.  The ABA Journal has more on the story here.