One of the top Professional Responsibility stories of 2016 was the ABA's decision to amend Model Rule 8.4 to add that under certain circumstances discrimination and harassment constitutes misconduct subject to discipline. There was a lot of opposition to the amendment, mostly by religious organizations, but also a lot of support for it and its adoption was celebrated by many.
I wrote about my concerns with the rule several times and others also published similar arguments on the possible unconstitutionality of the rule (at least as originally proposed).
More than a year since its approval, however, according to the ABA webstite, only one state (Vermont) has adopted the new rule. Earlier this year, I reported that Nevada might adopt the rule, but to my knowledge it has not happened yet. (If it did, please let me know.)
Now comes news that last month, after suggesting some changes to the language of the Model Rule and its comment, the Tennessee Bar Association has asked the Tennessee Supreme Court to adopt the new rule. Go here for some details.
Interestingly, one of the changes proposed is designed to address the argument that the Model Rule may violate the First Amendment (at least in its application). For this reason, the Association added a Comment not found in the Model Rule, that provides: "Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment. Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section."
This is a good addition to the comment but I am not sure it addresses all the concerns, particularly if the final comment also includes the current language in the Model Rule which states that "[c]onduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law."
Does the added language eliminate the problems described by UCLA professor Eugene Volokh? What do you think?
Sunday, December 31, 2017
ABA issues new ethics opinion on the duty not to use confidential information related to former client; OK, but ...
Two weeks ago, the ABA Standing Committee on Ethics and Professional Responsibility issued a short opinion on the meaning of the phrase "generally known" in reference to the duty of an attorney not to use confidential information related to a former client. (See Formal Opinion No. 479.) The opinion is short and straightforward and doesn't really say much we did not know (or at least assumed) already. Yet, I have to say I don't like a little detail on how the issue was framed. I understand why the drafters expressed the idea the way they did, and I may just be too picky, but I thought I would mention it.
But first things first. Let's start with the basics. Model Rule 1.9(c)(1) provides that a lawyer shall not use information relating to a former client’s representation “to the disadvantage of the former client except as [the Model] Rules would permit or require with respect to a [current] client, or when the information has become generally known."
What the opinion does is attempt to clarify how to consider that a certain piece of information has become "generally known." Using a variety of sources, the Committee concludes as follows:
Now, what is it I did not like? The opinion starts (from its very title) talking about the generally known "exception" to the rule. And I understand why the drafters did that: the way the rule is written it can be interpreted to say there is a duty to not use the information unless it is generally known, and the use of the word "unless" suggests that what comes after it is an exception to the statement of the duty that preceded it.
The problem is that this is wrong. If the information is generally known, it is not confidential. Period. By definition. Thus, there is no duty to keep it secret. There is no such thing as an exception to the duty. There is no duty.
In other words, one has to determine if the information is generally known to determine if there is a duty; not to determine if there is an exception to the duty.
You can read the full opinion here (It is only 6 pages long.)
The Law For Lawyers Today has a short comment on the opinion here.
UPDATE (12-31-17): First of all, Happy New Year to everyone. Second, someone asked me what difference does it make whether we consider the notion of "generally known" as a exception to the duty. Well, here is one way in which it makes a difference:
Assume a former client sues a lawyer for damages alleging a breach of a fiduciary duty based on the attorney's use of information. In such a case, the plaintiff has the burden to support the argument of duty, and therefore, will have to prove that the information is not generally known. If, on the other hand, we take the position that there is an exception to the duty, the defendant-lawyer would have the burden to show that the information is generally known in support of a defense. Depending on the evidence available to support the arguments, who has the burden of proof can make a difference.
UPDATE (March 2018): A new Formal Opinion (No. 480), which is available here, repeats the notion that information that is in the public record can still be confidential and that disclosing it can be a violation of the rules (unless allowed by one of the exceptions to the rule). This opinion was met with criticism by some who argue that it would be a violation of the first amendment for the state to discipline a lawyer for disclosing information that is in the public record.
I know of only one case that has held this (Hunter v Virginia State Bar). Opinion 480 addresses the issue and points out other court decisions that disagree with Hunter as well as other secondary sources that address the issue.
I wrote about Opinion No 480 here.
But first things first. Let's start with the basics. Model Rule 1.9(c)(1) provides that a lawyer shall not use information relating to a former client’s representation “to the disadvantage of the former client except as [the Model] Rules would permit or require with respect to a [current] client, or when the information has become generally known."
What the opinion does is attempt to clarify how to consider that a certain piece of information has become "generally known." Using a variety of sources, the Committee concludes as follows:
[T]he Committee’s view is that information is generally known within the meaning of Model Rule 1.9(c)(1) if (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade. Information may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media. With respect to category (b), information should be treated as generally known if it is announced, discussed, or identified in what reasonable members of the industry, profession, or trade would consider a leading print or online publication or other resource in the particular field. Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public. For example, if a former client is in the insurance industry, information about the former client that is widely recognized by others in the insurance industry should be considered generally known within the meaning of Model Rule 1.9(c)(1) even if the public at large is unaware of the information.
Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes. Information that is publicly available is not necessarily generally known. Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).There is still some vagueness in this approach but that is inevitable when the standard is based on a notion of reasonableness. In other words, there will always be some level of interpretation needed to evaluate whether the information should be considered to be generally known, but these paragraphs do a good job of explaining the proper approach to the question.
Now, what is it I did not like? The opinion starts (from its very title) talking about the generally known "exception" to the rule. And I understand why the drafters did that: the way the rule is written it can be interpreted to say there is a duty to not use the information unless it is generally known, and the use of the word "unless" suggests that what comes after it is an exception to the statement of the duty that preceded it.
The problem is that this is wrong. If the information is generally known, it is not confidential. Period. By definition. Thus, there is no duty to keep it secret. There is no such thing as an exception to the duty. There is no duty.
In other words, one has to determine if the information is generally known to determine if there is a duty; not to determine if there is an exception to the duty.
You can read the full opinion here (It is only 6 pages long.)
The Law For Lawyers Today has a short comment on the opinion here.
UPDATE (12-31-17): First of all, Happy New Year to everyone. Second, someone asked me what difference does it make whether we consider the notion of "generally known" as a exception to the duty. Well, here is one way in which it makes a difference:
Assume a former client sues a lawyer for damages alleging a breach of a fiduciary duty based on the attorney's use of information. In such a case, the plaintiff has the burden to support the argument of duty, and therefore, will have to prove that the information is not generally known. If, on the other hand, we take the position that there is an exception to the duty, the defendant-lawyer would have the burden to show that the information is generally known in support of a defense. Depending on the evidence available to support the arguments, who has the burden of proof can make a difference.
UPDATE (March 2018): A new Formal Opinion (No. 480), which is available here, repeats the notion that information that is in the public record can still be confidential and that disclosing it can be a violation of the rules (unless allowed by one of the exceptions to the rule). This opinion was met with criticism by some who argue that it would be a violation of the first amendment for the state to discipline a lawyer for disclosing information that is in the public record.
I know of only one case that has held this (Hunter v Virginia State Bar). Opinion 480 addresses the issue and points out other court decisions that disagree with Hunter as well as other secondary sources that address the issue.
I wrote about Opinion No 480 here.
Complaint filed against Legal Zoom alleges unauthorized practice of law
A California law firm recently filed a lawsuit in federal court against LegalZoom arguing that LegalZoom is engaging in unauthorized practice of trademark law in violation of the Rules of Professional Conduct, antitrust law, and state and federal unfair competition law. McCabe on IP Ethics has more details on the claims.
This is not new for LegalZoom which has been subject to such attacks in the past. But the lawsuit is the most recent example of two ongoing, and related, debates. One is about the proper definition of what constitutes the practice of law and the other is on whether it is a good idea to allow non-lawyers to provide some level of legal services.
In an article I published last year, I studied some aspects of these debates (all of which relate to the notion of innovation in the practice of law) by dividing the arguments into what I called the “Justice Gap” and the “Core Values” themes. The Justice Gap theme focuses the need for innovation on the fact that the vast majority of civil legal needs in the United States are addressed without attorneys, in part because of lack of access to affordable legal services. The Core Values theme focuses the need to oppose some types of innovation because of the need to protect certain principles upon which the practice of the profession is based. And then there is the argument that the core values argument is merely a protectionist approach to the practice of law. How these themes are addressed by regulatory agencies in the near future will determine the fate of the discussion on innovation in the practice of law in the United States.
If you are interested, the citation for the article is 41 Journal of the Legal Profession 1 (2016). If you are super interested, send me a message with your address and I can send you a reprint when I get back to the office in mid January. (I don't know how many I have, so "first come-first served.")
This is not new for LegalZoom which has been subject to such attacks in the past. But the lawsuit is the most recent example of two ongoing, and related, debates. One is about the proper definition of what constitutes the practice of law and the other is on whether it is a good idea to allow non-lawyers to provide some level of legal services.
In an article I published last year, I studied some aspects of these debates (all of which relate to the notion of innovation in the practice of law) by dividing the arguments into what I called the “Justice Gap” and the “Core Values” themes. The Justice Gap theme focuses the need for innovation on the fact that the vast majority of civil legal needs in the United States are addressed without attorneys, in part because of lack of access to affordable legal services. The Core Values theme focuses the need to oppose some types of innovation because of the need to protect certain principles upon which the practice of the profession is based. And then there is the argument that the core values argument is merely a protectionist approach to the practice of law. How these themes are addressed by regulatory agencies in the near future will determine the fate of the discussion on innovation in the practice of law in the United States.
If you are interested, the citation for the article is 41 Journal of the Legal Profession 1 (2016). If you are super interested, send me a message with your address and I can send you a reprint when I get back to the office in mid January. (I don't know how many I have, so "first come-first served.")
Friday, December 29, 2017
Georgia issues opinion on conflict of interest when serving as attorney for a minor and guardian ad litem at the same time
Back in 2010 I posted a comment criticizing the practice of appointing attorneys for juveniles in delinquency proceedings to serve simultaneously as guardians ad litem and urging the Illinois Supreme Court to grant review in a case that challenged it. I stated that the way courts justified the practice "displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible." Later I wrote a law review article on the subject (available here) in which I made a long argument in support of my position. The Illinois Supreme Court eventually decided, as I had suggested, that the dual appointment constituted a conflict, and I wrote another article commenting on the case (available here.)
That case, however, was limited to the practice in juvenile delinquency proceedings, and I found out later that Illinois courts continue to assign lawyers the dual role of attorney and guardian in family law matters. In my opinion, the fact the are of the law is different does not make a difference and it is disturbing that the practice continues.
Today I found out, however, that earlier this month the Georgia Supreme Court approved an ethics opinion about the subject finding that it is a conflict of interest to serve as both a child's lawyer and guardian ad litem in a termination of parental rights proceeding when the child's wishes and best interests conflict.
The new opinion, which was issued by the Georgia State Bar's Formal Opinion Advisory Board, is attached as an appendix to the court's per curiam opinion approving it (In re Formal Advisory Opinion No. 16-2, 2017 BL 444895, Ga., No. S17U0553, 12/11/17).
The opinion concludes that when an irreconcilable conflict of interest develops between the child's wishes and the lawyer's view of the child's best interests, the lawyer must withdraw from the role of guardian ad litem, and may seek to withdraw entirely if the conflict is severe.
That case, however, was limited to the practice in juvenile delinquency proceedings, and I found out later that Illinois courts continue to assign lawyers the dual role of attorney and guardian in family law matters. In my opinion, the fact the are of the law is different does not make a difference and it is disturbing that the practice continues.
Today I found out, however, that earlier this month the Georgia Supreme Court approved an ethics opinion about the subject finding that it is a conflict of interest to serve as both a child's lawyer and guardian ad litem in a termination of parental rights proceeding when the child's wishes and best interests conflict.
The new opinion, which was issued by the Georgia State Bar's Formal Opinion Advisory Board, is attached as an appendix to the court's per curiam opinion approving it (In re Formal Advisory Opinion No. 16-2, 2017 BL 444895, Ga., No. S17U0553, 12/11/17).
The opinion concludes that when an irreconcilable conflict of interest develops between the child's wishes and the lawyer's view of the child's best interests, the lawyer must withdraw from the role of guardian ad litem, and may seek to withdraw entirely if the conflict is severe.
ABA to discuss proposed amendments to the rules on advertising and solicitation -- UPDATED
The Association of Professional Responsibility Lawyers (APRL) (of which I am a member) has for some time now suggested multiple changes to the ABA Model Rules' approach to advertising and solicitation and the ABA has been working on the idea.
As a result of these efforts, a working draft of the proposed amendments to the ABA Model Rules was approved by the Standing Committee on Ethics and Professional Responsibility. Also available is a Memorandum explaining the proposed changes.
The ABA Ethics Committee is hosting a public forum to collect ideas and comments on the Working Draft on Friday, February 2, 2018, at 2:00 p.m. at the MidYear Meeting of the APRL in Vancouver.
(Please send a message to Natalia Vera at Natalia.vera@americanbar.org if you plan to attend.)
All written comments on the Working Draft should be filed by March 1, 2018. Comments may be emailed to modelruleamend@americanbar.org. All comments will be posted on the ABA website.
The Ethics Committee will review all comments prior to submitting to the House of Delegates a resolution and report amending the Model Rules of Professional Conduct on lawyer advertising for the August 2018 meeting.
According to an ABA press release, draft proposes changes to the following Model Rules: Rule 1.0: Terminology; Rule 7.1: Communication Concerning a Lawyer’s Services; Rule 7.2: Advertising; Rule 7.3: Direct Contact with Prospective Clients; Rule 7.4: Communication of Fields of Practice & Specialization; and, Rule 7.5: Firm Names & Letterhead.
For more on the story go to the ABA Journal online (here) and Faughnan on Ethics (here).
UPDATE (1/10/18): Josh King, from Avvo recently posted his views on the ABA proposed changes here and here. I disagree with his proposal to completely eliminate Rule 7.2, particularly the section that regulates when a lawyer can pay someone else to recommend the lawyer.
As a result of these efforts, a working draft of the proposed amendments to the ABA Model Rules was approved by the Standing Committee on Ethics and Professional Responsibility. Also available is a Memorandum explaining the proposed changes.
The ABA Ethics Committee is hosting a public forum to collect ideas and comments on the Working Draft on Friday, February 2, 2018, at 2:00 p.m. at the MidYear Meeting of the APRL in Vancouver.
(Please send a message to Natalia Vera at Natalia.vera@americanbar.org if you plan to attend.)
All written comments on the Working Draft should be filed by March 1, 2018. Comments may be emailed to modelruleamend@americanbar.org. All comments will be posted on the ABA website.
The Ethics Committee will review all comments prior to submitting to the House of Delegates a resolution and report amending the Model Rules of Professional Conduct on lawyer advertising for the August 2018 meeting.
According to an ABA press release, draft proposes changes to the following Model Rules: Rule 1.0: Terminology; Rule 7.1: Communication Concerning a Lawyer’s Services; Rule 7.2: Advertising; Rule 7.3: Direct Contact with Prospective Clients; Rule 7.4: Communication of Fields of Practice & Specialization; and, Rule 7.5: Firm Names & Letterhead.
For more on the story go to the ABA Journal online (here) and Faughnan on Ethics (here).
UPDATE (1/10/18): Josh King, from Avvo recently posted his views on the ABA proposed changes here and here. I disagree with his proposal to completely eliminate Rule 7.2, particularly the section that regulates when a lawyer can pay someone else to recommend the lawyer.
Another court abandons the "appearance of impropriety" test to evaluate misconduct
A few years ago, there were a number of cases reported in which courts explicitly abandoned the practice of imposing discipline based on the notion of appearance of impropriety. Although many courts still use the language, the notion is considered "outmoded" as an actual basis for discipline. (See here and here, for example.)
We can now add the North Carolina Supreme Court to the list of courts that have explicitly rejected the use of appearances as a basis for discipline. In a case called Worley v Moore, the court stated that "the trial court applied the incorrect standard under Rule 1.9(a) in disqualifying defendants’ counsel. In making its determination..., the trial court must objectively assess the facts surrounding the motion to disqualify counsel without relying on the former client’s subjective perception of his prior representation. The trial court should avoid the outmoded “appearance of impropriety” test. We reverse the trial court’s decision and remand this case to that court for application of the correct legal test."
The Legal Profession blog has more on the case here.
We can now add the North Carolina Supreme Court to the list of courts that have explicitly rejected the use of appearances as a basis for discipline. In a case called Worley v Moore, the court stated that "the trial court applied the incorrect standard under Rule 1.9(a) in disqualifying defendants’ counsel. In making its determination..., the trial court must objectively assess the facts surrounding the motion to disqualify counsel without relying on the former client’s subjective perception of his prior representation. The trial court should avoid the outmoded “appearance of impropriety” test. We reverse the trial court’s decision and remand this case to that court for application of the correct legal test."
The Legal Profession blog has more on the case here.
Illinois Supreme Court decides People v Cole, holding the Public Defender's office is not a "firm" for purposes of conflicts of interest
Back in September I wrote about a case before the Illinois Supreme Court called People v Cole in which the Public Defender refused to represent a client arguing that accepting the representation would constitute a concurrent conflict of interest. Go here for that post which includes links to the oral argument.
In my original post, I wrote that based on the position adopted by the US Supreme Court in Holloway v Arkansas, "it would seem like the contempt conviction should be reversed." But my position assumed that the PD's office would be considered just like any other law firm for purposes of a conflict -- ie, that if one lawyer had a conflict, the conflict would be imputed to other lawyers in the firm.
Well, about a month ago, the Illinois Supreme Court issued its decision and it did not hold as I predicted precisely because it attacked my premise. It reiterated that in Illinois the PD's office should not be considered to be a law firm for purposes of conflicts of interest.
You can read the opinion here and a good comment on the case at the Legal Ethics Forum.
In my original post, I wrote that based on the position adopted by the US Supreme Court in Holloway v Arkansas, "it would seem like the contempt conviction should be reversed." But my position assumed that the PD's office would be considered just like any other law firm for purposes of a conflict -- ie, that if one lawyer had a conflict, the conflict would be imputed to other lawyers in the firm.
Well, about a month ago, the Illinois Supreme Court issued its decision and it did not hold as I predicted precisely because it attacked my premise. It reiterated that in Illinois the PD's office should not be considered to be a law firm for purposes of conflicts of interest.
You can read the opinion here and a good comment on the case at the Legal Ethics Forum.
Thursday, December 28, 2017
Florida Bar’s Board of Governors finds that AVVO Advisor is a for-profit lawyer referral service and must comply with Bar Rules
The Lawyer Ethics Alerts Blog is reporting that Florida Bar’s Board of Governors has found that AVVO Advisor is a for-profit lawyer referral service and therefore must comply with Bar Rules. Read the full story here.
Florida Bar podcast on advertising
Florida is one of the more aggressive states when it comes to regulating advertising. In this episode of The Florida Bar Podcast, hosts Christine Bilbrey and Karla Eckardt talk to Elizabeth Clark Tarbert about the Ethics and Advertising Department of the Florida Bar. They also discuss advertising rules and how to keep track of these rules as they change.
Elizabeth Clark Tarbert has been ethics counsel for The Florida Bar since 1997, providing oral and written ethics opinions Bar members. If you can't see the player below, you can listen to the podcast here.
Friday, December 15, 2017
Recent case is good reminder of details on advertising regulation, and also on debate on whether we need them
A month ago, the Legal Profession blog reported on a recent case in South Carolina in which the court discussed some of the details that apply to the regulation of advertising. It serves as a reminder of how courts often use the ban against "misleading" advertising as a catch-all rule to impose discipline.
In this case, the lawyer was reprimanded for, among other things,
1. using the tagline "attorneys at law" on his law firm letterhead. This was found to be misleading because the lawyer is a solo practitioner.
2. claiming that he had "28 years experience both as a lawyer and former law enforcement officer." In fact, the lawyer had 16 years of experience as a lawyer, and 12 years of experience as a law enforcement officer. The statement was found to be misleading because it suggested the lawyer had 28 years of experience as a lawyer.
3. using the telephone number (844) FIXTICKET. This was found to be misleading because it would create unjustified expectations or an implication that the lawyer could achieve a specific result by unethical means.
4. claiming "unique insight into the South Carolina traffic laws that many other lawyers simply do not have."
I do agree that the statements are misleading and that, under the current rules, discipline is justified. But this is the type of case that fuels the debate as to whether the profession needs to be concerned with the type of regulation to begin with. Do consumers really need to be protected from these types of statements that are not that uncommon in the world of advertising?
1. using the tagline "attorneys at law" on his law firm letterhead. This was found to be misleading because the lawyer is a solo practitioner.
2. claiming that he had "28 years experience both as a lawyer and former law enforcement officer." In fact, the lawyer had 16 years of experience as a lawyer, and 12 years of experience as a law enforcement officer. The statement was found to be misleading because it suggested the lawyer had 28 years of experience as a lawyer.
3. using the telephone number (844) FIXTICKET. This was found to be misleading because it would create unjustified expectations or an implication that the lawyer could achieve a specific result by unethical means.
4. claiming "unique insight into the South Carolina traffic laws that many other lawyers simply do not have."
I do agree that the statements are misleading and that, under the current rules, discipline is justified. But this is the type of case that fuels the debate as to whether the profession needs to be concerned with the type of regulation to begin with. Do consumers really need to be protected from these types of statements that are not that uncommon in the world of advertising?
Saturday, December 9, 2017
ABA new ethics opinion on whether judges can search the internet for facts related to a case over which they are presiding -- UPDATED
The ABA Standing Committee on Ethics and Professional Responsibility has issued a new opinion addressing whether a judge can conduct online research to find out more about the facts of a case being litigated before them. The opinion explains that
-- judges can conduct legal research online for cases not cited by the parties.
-- judges can can go online for facts that are subject to judicial notice because they are generally known and not subject to reasonable dispute
-- BUT using the internet to look for facts concerning the actual parties in a case is generally banned by the ABA Model Code of Judicial Conduct. The facts are the facts that will need to be adjudicated in the proceeding, including who did what, where, when, how, and with what motive or intent.
The ABA Journal has more on the story here. You can read the full opinion here.
UPDATE (1/18/18): Legal Ethics in Motion has a comment here.
-- judges can conduct legal research online for cases not cited by the parties.
-- judges can can go online for facts that are subject to judicial notice because they are generally known and not subject to reasonable dispute
-- BUT using the internet to look for facts concerning the actual parties in a case is generally banned by the ABA Model Code of Judicial Conduct. The facts are the facts that will need to be adjudicated in the proceeding, including who did what, where, when, how, and with what motive or intent.
The ABA Journal has more on the story here. You can read the full opinion here.
UPDATE (1/18/18): Legal Ethics in Motion has a comment here.
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