Illinois Supreme Court hears oral argument on whether a Public Defender should be held in contempt for refusing to represent a defendant when doing so would result in a confict of interest

About two weeks ago, the Illinois Supreme Court heard oral arguments in a very interesting case that started last year when a trial judge appointed Cook County Public Defender Amy P. Campanelli to represent a defendant in a murder case.  The Public Defender refused to do so arguing that accepting the representation would constitute a concurrent conflict of interest.  She also told the judge she could not divulge more information because doing that would constitute a violation of the duty of confidentiality to her other clients.  The judge held the Public Defender in civil contempt and fined $250 per day.

In Holloway v Arkansas, the US Supreme Court held that reversal of a conviction should be automatic if the attorney for the defendant had been denied a request for separate counsel for a client based on a conflict of interest at trial.  Denying the request would force a defendant to be represented by an attorney with a conflict of interest in violation of the 6th Amendment to the Constitution.  Since then, most courts have held that an attorney's request for independent counsel should be granted because the attorney is in the best position to determine if there is a conflict.

Based on this case law, it would seem like the contempt conviction should be reversed.

The state argued the conviction should be affirmed because all the judge wanted was for the attorney to provide the basis for the objection to the representation rather than a vague and unsubstantiated claim of possible conflict.

You can listen to the oral argument here.  You can also download a video of the oral argument by going to this page and scrolling down to September 12.  The case is People v. Cole.

ACLU files lawsuit to block customs and border searches of electronic devices

Last week I reported that the New York City Bar Association  issued an ethics opinion holding that lawyers must take reasonable precautions to protect confidential information if the lawyer is searched by U.S border/customs agents.

In a related story, now comes news that the ACLU and the Electronic Frontier Foundation have sued the Department of Homeland Security to block U.S. Customs and Border Protection personnel from searching travelers’ electronic devices without warrants.

TechDirt has a comment here.  The Law for Lawyers Today has more information here.  You can read the complaint here. 

How do we (or should we) define "the practice of law"?

How we define "the practice of law" has been a difficult question for a long time.  At one point, the ABA created a task force to propose a model definition which was eventually disbanded because it could not reach a viable solution.  And, more importantly, the answer to the question has tremendous implications.

The whole notion of regulation is based on the justification that there is something to regulate and that there is a reason for the regulation.  We have a hard time justifying it if we can't define what it is we are trying to regulate and why.  Likewise, the principle that lawyers need to be "admitted" to practice in a jurisdiction to be able to engage in the practice of law in that jurisdiction is equally shaky if we can't find a way to justify it.

Both principles are under attack.  There is an ongoing debate on whether lawyers admitted in one jurisdiction should be allowed to practice in all other jurisdictions.  In some jurisdictions, non-lawyers are allowed to engage in activities that could be considered to be the practice of law, and there are efforts in other jurisdictions to start allowing it.  Many are arguing for the elimination of rules that prevent lawyers from partnering up with non lawyers.  The use of technology has opened the door for computers to perform tasks that used to be performed by lawyers.  And now Congress is considering legislation that would affect the regulation of the profession.

Where will it all lead?  I don't know.   But the discussion starts with the basic question: what is the practice of law?

Prof.  Ronald Rotunda's most recent column at Justicia addresses the issue.  You can read it here.

Duty of confidentiality at the border

Given a number of recent reports that people's phones are being "searched" by customs officials when entering the US or other countries, it is not surprising to know that the New York City Bar Association recently issued an ethics opinion holding that lawyers must take reasonable precautions to protect confidential information if the lawyer is searched by U.S border/customs agents.  You can read the opinion here: NYCBA Opinion 2017-5.

Although the specific context in which the topic is discussed, the actual content of the opinion is nothing new or surprising.  It is merely an application of the principle already expressed in Model Rule 1.6(c) which states that "a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

Since the duty is to take reasonable measures to protect the information, the fact that the information is disclosed, by itself, would not result in a violation of the rule.  Whether an attorney violates the rule, will depend on the reasonableness of his or her efforts to protect the information, Thus, the key question is what will be considered "reasonable."

On this, the opinion restates the comment to the Model Rule which explains that reasonableness will depend on may factors and that factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

The opinion then adds that the simplest way to avoid a problem is to not possess any client confidential information when crossing the border and instead opting for other alternatives such as carrying a “burner” telephone, laptop computer, or other digital device, removing confidential information from digital devices, signing out of cloud-based services, uninstalling applications allowing remote access to confidential information, storing confidential information in secure online locations rather than locally on digital devices, and using encrypted software.

How not to practice law: videotape co-worker while she is undressing in the office

It has been a while since I have posted an entry into the "How not to practice law" series, a series of posts about incredibly stupid things that lawyers do.  Past examples include the "typical" showing up drunk, judge having someone deciding case for them, lying and so on.

Today's story involves a lawyer who had the bright idea to place a secret camera in a colleague's office so he could record her changing clothes.  When caught, he was indicted and charged with a felony, after which he pled guilty to a reduced charge.  Now he is facing disciplinary charges for violating Illinois Rule 8.4(b) (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.)

You can read the disciplinary complaint here and a summary here.

All kidding aside, though, it is often the case that many of the stories in the "how not to practice law" series involve personal issues such as addiction, alcoholism, inability to control urges (whether based on greed or sexual desire) and so on.  That is troubling and sad, but lawyers need to know that their role requires professionalism, discipline and the ability to stay in control.  If you or someone you know has these types of issues, get help.  Bar associations have lawyer assistance programs or access to other alternative.  Everybody makes mistakes; but often those mistakes will cost lawyers their livelihood.

California opinion on the "insurance triangle"

Back in April, the Los Angeles County Bar Association issued an ethics opinion on whether a lawyer hired by an insurance company to represent an insured can disclose certain information to the insurance company to the detriment of the insured.   It concludes that

When an attorney engaged by an insurance carrier to defend the interests of an insured obtains information that could provide a basis for the insurance carrier to deny coverage, the attorney is ethically prohibited from disclosing that information to the insurance carrier.  In such a situation, the attorney must withdraw from the representation.

Up to the last sentence, the conclusion is not surprising and, as far as I know, the generally accepted view on this issue everywhere.  But the last sentence (the duty to withdraw) only makes sense in jurisdictions that hold that an attorney hired by a person to represent another actually has two clients.  In jurisdictions where the attorney in such circumstances only has one client (the insured, in this example), there should be no duty to withdraw. 

Also, as pointed out by Faughnan on Ethics, what happens when the attorney in California withdraws and a new attorney is appointed to the representation of the insured.  The same thing will happen again, and that new attorney will have to withdraw.

You can read the opinion here.