Tennessee Bar Association asks State Supreme Court to adopt Model Rule 8.4(g)

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?

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:

[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.")

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.

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. 

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.

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.

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.

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?

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.

Court of Appeals for the Fourth Circuit comments on repeated misconduct ouf of prosecutors office in Virginia

The ABA/BNA Lawyers' Manual on Professional Responsibility is reporting today on a recent case in which the court wrote “We have repeatedly rebuked the commonwealth's attorney and his deputies and assistants for failing to adhere to their obligations” under the Constitution, and that “We find it troubling that, notwithstanding these rebukes, officials in the Commonwealth's Attorney's office continue to stake out positions plainly contrary” to those obligations, he said.  The case is Juniper v. Zook, 2017 BL 412748, 4th Cir., No. 13-7, 11/16/17.

The court cited other cases in which it "lambasted" Assistant Commonwealth's Attorney for "not produc[ing] evidence to a criminal defendant unless he first deems it to be 'material[]' and credib[le]."

The problem is that this conduct is the result of the development of the Brady progeny.  Brady imposes a duty to disclose "material" evidence.  However, over time, “material” has come to be defined as evidence that would probably would have changed the outcome of the trial if it had been admitted.

For this reason, when determining whether they have a duty to disclose, the prosecutor has to decide -- before the fact -- whether he or she believes that withholding the evidence will change the likely verdict in the case.   Thus, prosecutors can justify withholding evidence by claiming that they in good faith thought the evidence would not have affected the verdict.  If you add to that the fact that prosecutors are rarely punished for misconduct and the fact that, if discovered, the result of the conduct would be a retrial, you can understand why a prosecutor may be willing to take a chance and withhold the evidence.

One way to address the issue is to hold that the duty to disclose exculpatory evidence is broader than the duty required by Brady, as some opinions have held.  Another, suggested by the Court of Appeals in this case, is to hold that the prosecutor should always err on the side of disclosure. 

For more see the article in the ABA/BNA Lawyers' Manual at  33 Law. Man. Prof. Conduct 678.

ABA files amicus brief arguing that conceding guilt over client's objection constitutes ineffective assistance of counsel

A couple of weeks ago, I posted a comment on McCoy v. Louisiana, a case before the U.S. Supreme Court in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  You can find my comment here.  Today, I learned that the ABA has filed an amicus brief in support of the appellant.  As I argued in my original comment, I agree with this view.  The ABA explained its position in a press release.  You can also read the full brief here.

Philadelphia law firms files complaint against out of town firm arguing false advertising and unfair competition

If you watch any TV, you have seen commercials of firms announcing they are available to represent client suffering from any number of injuries.  But if you notice closely on the very small print at the end of the commercial you'd notice a disclaimer saying that the firm is only licensed in certain states which often does not include the state in which the commercial is airing.  When contacted by potential clients from these states, the firms typically will refer the case to a lawyer licensed in that state and share the fee.

Obviously, lawyers are not allowed to represent clients in a state in which the lawyers are not admitted.  Lawyers are also not allowed to get fees for merely referring cases to other lawyers.  But lawyers are allowed to share fees with other lawyers under certain circumstances.

Yet, is the practice of purposely advertising in a jurisdiction one is not admitted to a violation of the rules?  

Rosenbaum & Associates, a Philadelphia personal injury law firm, thinks so.  It  recently filed a complaint against Morgan & Morgan, a Florida-based personal injury law firm, alleging that Morgan & Morgan falsely advertises that it represents clients in the Philadelphia area, when in fact Morgan allegedly employs only one attorney in Philadelphia with “little or no experience in handling personal injury matters.”  According to Rosenbaum, Morgan & Morgan refers nearly all of its cases to another law firm in violation of a rule that prohibits advertising that is “a pretext to refer cases obtained from advertising to other lawyers.”

For more on the story go here.  To read the complaint go here.

Not surprisingly, Rosenbaum's complaint is based on the fact that has experienced a decline in influx of new clients, which it attributes to Morgan & Morgan’s misleading advertisements.  The question is whether the decline is the result of unethical or illegal conduct or just the result of economic competition.  Is the Morgan law firm just better at marketing its services?  Is it just smarter at taking advantage of what the rules allow it to do? 

It will be interesting to see how the court addresses these questions.

How not to practice law: when representing one of the most high profile people in the nation, write incoherent letters with grammatical mistakes, go on TV and make dumb comments, hold bad press conferences and more

Unless you have been hiding in a cave for the last few weeks, you are now familiar with Roy Moore: the twice removed from the bench former judge, Senate candidate from Alabama.  You would think that having been a judge he would know some good lawyers who would be willing to represent him.  Yet, the lawyer doing most of the talking on his behalf has become a laughingstock for his inability to write coherently, his poor knowledge of the law and his TV appearances.  It has also been reported that he was disciplined in the past.

There are many stories on this, and you can Google more, but here are a few:

On his poorly written (that's being generous) demand letter to a news outlet (here, here, here and here).  For the news outlet's reply go to this story (called "Roy Moore’s Lawyer Gets Called A Moron In The Most Professional Way Possible").

On his disastrous appearance on TV in which he expressed his ignorance, at best, about how cultural differences might be an issue related to the accusations against Roy Moore (here and here).

Podcast: On being a Limited License Legal Technician in Washington State

In an effort to provide better access to legal services, back in 2012 Washington became the first state to adopt rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians (or LLLTs).   Go here for some background.

Once Washington approved its program at least seven other states—California, Colorado, Connecticut, Minnesota, Oregon, Vermont and Virginia— created task forces to study the possibility of limited licensing as a partial solution to the so-called “access to justice gap.”  However, the development of programs in those, or other, states has not been as successful as once expected.

A few days ago, Lawyerist posted a podcast with Laura Genoves about being one of the first Limited Licensed Legal Technicians in Washington State and the differences between a legal technician and a practicing attorney, including everything from education costs to how each can practice.   If you can't see the controls below, you can listen to the podcast by going here.

In case you missed it: reminder that a lawyer's conduct outside the practice of law can have consequences

We all learned in law school that the regulation of  the profession is not really limited to practice of the profession.  And we all know that there are many many cases out there of lawyers getting in trouble for conduct in their personal lives.  But every now and then it is not bad to get a little reminder.   The latest example involves a Dallas prosecutor who got into what some have called a "drunken tirade" with an Uber driver.  The driver recorded the encounter, it went viral and the prosecutor got fired.  The fact you are a lawyer does not give you the right to claim you are more important than other people, to threaten them or to be abusive.  This should be common sense.  There are many stories and videos on the incident out there. Here is one of them:

New York Times article on whether defense lawyers should be allowed to contribute to the campaigns of District Attorneys

You may have heard recent accounts of negotiations between lawyer Marc E. Kasowitz, a lawyer for the Trump family and the Manhattan District Attorney regarding the possibility of charging Ivanka Trump and Donald Trump Jr. for allegedly misleading investors in a condo-hotel project. The stories highlighted that Mr. Vance had received a $25,000 contribution from Mr. Kasowitz (which was returned prior to the meeting) and that a year later Mr. Vance’s campaign accepted a $32,000 gift from Mr. Kasowitz, only to end up returning it seven weeks ago after reporters highlighted it.

Should there be some limits to, or regulation of, defense lawyers' contributions to District Attorney's campaigns?  The New York Times discusses the issue in a recent article you can access here.

Court of Appeals rejects appeal by lawyer who had been ordered to pay $4.2 million as sanction for sending unsolicited faxes to potential clients

In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Supreme Court held that a state can not ban a lawyer from sending targeted letters to potential clients in part because the invasion of privacy involved in receiving the unsolicited letter was minimal.  As someone later put it, the trip from the mailbox to the trash can is a short one. 

You would think the same could be said about a fax (technology that is not as common these days), but in a 2013 opinion, the 7th Circuit found that unsolicited faxes sent by a Chicago lawyer to potential clients were advertisements covered by the Federal Telephone Consumer Protection Act, which imposes penalties for sending faxes without an opt-out provision.  As a result, the lawyer was ordered to pay $500 for each of his 8,430 faxes, amounting to $4.2 million.

The case has been going up and down to and from the Court of Appeals since then and just recently it was reported that the Court has denied the most recent appeal.  Go here for more details. 

New York adopts new rule requiring judges to remind prosecutors to comply with duty to disclose exculpatory evidence

In response to the efforts of a task force convened by the state’s chief judge to address the causes of wrongful convictions in New York, beginning in January, judges will be required to issue an order reminding prosecutors of their obligation to turn over “information favorable to the defense” in all criminal cases.  According to the National Registry of Exonerations, 38% of the 234 exonerations in New York state have involved violations of the duty to disclose exculpatory evidence.  You can read the press release announcing the new rule here.  (This link also includes the task force's report, which makes a number of other recommendations worth reading.)  The new rule also directs judges to remind defense lawyers of their duty to provide effective assistance of counsel under Constitutional standards.   The ABA Journal has more on the story here.

7th Circuit refuses to reverse a conviction even though the prosecutor did not comply with duty of candor to disclose perjured testimony

    Applying the principle that a federal court of appeals can not reverse a conviction unless the defendant shows that the lower state court’s decision was contrary to, or an unreasonable application of, clearly established law under Supreme Court authority, the Court of Appeals for the Seventh Circuit recently refused to reverse a conviction even though the prosecutor in the case failed to comply with the duty of candor. 

    In the case, Long v. Pfister, one of the key witnesses for the prosecution identified the defendant as the perpetrator of the crime in question even though the witness had at one point recanted her testimony.  When asked on cross–examination, the witness denied having recanted her testimony.  Both the prosecutor and defense counsel knew this was a lie.  Defense counsel eventually called another witness who testified that the prosecutor’s witness had lied on the stand.  However, the prosecutor did nothing to inform the court or the jury about the perjured testimony. The defendant was convicted.

    The defendant was denied post conviction relief by a federal district court, but a panel of the Court of Appeals reversed.  The panel concluded that, by not spontaneously correcting the perjured testimony, the prosecutor had violated the rule of Napue v. Illinois, 360 U.S. 264 (1959)  and Giglio v. United States, 405 U.S. 150 (1972), which according to the panel’s interpretation, hold that whenever any witness makes a statement that the prosecutor knows is false, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement immediately.

    After an en banc rehearing, however, a majority of the court reversed.  According to the majority, the case involved four questions that have never been expressly decided by the Supreme Court: (1) Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?; (2) must the prosecutor correct false testimony when defense counsel already knows the truth?; (3) does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?; and (4) does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?

    In Napue v. Illinois the Supreme Court held that the State deprives a person of liberty without due process of law if it convicts the person by knowingly using false testimony.  Thus, Napue has been interpreted to hold that whenever any witness makes a statement that the prosecutor knows is untrue, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement. Rules of professional conduct in all jurisdictions also impose on all lawyers a duty to remedy the effects of material false evidence known to the lawyer before the end of the proceeding.  Further, in Giglio v. United States the Court reversed a conviction when a prosecutor failed to correct perjured testimony and then relied on it during summation to the jury. 

    The Court of Appeals, however, distinguished the case before it from these two cases.  In a 5 to 3 opinion, the court held that there is no clearly established Supreme Court law on whether a prosecutor has a duty to disclose perjury if the perjury is known to the defendant’s lawyer and the defendant’s lawyer presents evidence to contradict the perjured testimony. 

    In a strong dissenting opinion, however, three judges dispute the majority’s holding arguing that the opinion is based on notions that have been clearly rejected by the Supreme Court.  They, therefore, concluded that the defendant had met the burden to get Habeas Corpus relief. 

    According to the majority, it is not clearly established that a prosecutor has a duty to remedy known perjury if (1) the defendant’s lawyer already knew the testimony constituted perjury, (2) the defendant’s lawyer presented evidence to contradict it (which could create an inference in the jury that the testimony was not credible), and (3) the prosecution did not rely on the perjured testimony in its argument the jury. 

    The dissenting judges addressed all these arguments concluding that it is clear that a prosecutor has a duty to correct the testimony regardless of the circumstances.  A lie is a lie, and the prosecutor has a duty to correct it, they said.  The duty belongs to the prosecutor and he or she can’t rely on the evidence presented by the defendant to contradict the perjured testimony.  The fact that the defendant attempted to contradict the perjured testimony does not constitute a correction of the perjury.  

    It should be made clear that even though the case revolves around the issue of the duty of candor of a prosecutor, the court did not decide what that duty involves.  Unlike what has been reported in some news stories about the case (in the Chicago Daily Law Bulletin, for example), the court did not decide that a prosecutor does not have a duty to disclose perjury under the circumstances of the case.  It only held that the Supreme Court has not decided it.  It is precisely because, according to the court, the issue has not been decided, that it felt it could not reverse the conviction in this case.  I hope I am wrong, but I am afraid, however, that the case might be interpreted to relieve prosecutors of the duty of candor under certain circumstances.  That would be wrong.

    The Marshall Project has a comment on the case here.

Bitcoin and the Legal Ethics of Lawyers

"Bitcoin and the Legal Ethics of Lawyers," Prof. Ron Rotunda's most recent column, is now available here.

ACLU sues Nevada alleging constitutionally inadequate indigent defense system

The ACLU of Nevada has sued the state, alleging that indigent defense in rural counties is so inadequate—and so poorly overseen by state authorities—that the defense provided is inadequate  under the Sixth Amendment.  The ABA Journal has the story here.

Justice Department asks Supreme Court to consider discipline for ACLU lawyers in abortion case

You have probably read or heard about the story of the 17 year old detainee who was seeking to get an abortion while in custody.  After the government refused to allow her to leave the shelter where she was being held in custody, a ruling by the full U.S. Court of Appeals for the District of Columbia Circuit cleared the way for the abortion.

The case has not ended however, since it is being reported now that the Department of Justice has filed a petition before the Supreme Court in which it is asking the justices to vacate the D.C. Circuit’s ruling.  This would mean that the decision would no longer serve as legal precedent.

More interestingly for readers of this blog, the government is also suggesting that the justices should sanction the woman's attorneys for misconduct that, the government argues, thwarted it from seeking Supreme Court review of the decision in the first place.  You can read more about this development in the SCotUS blog here.

According to the ABA Journal online, ACLU legal director David Cole responded to the government filing in a statement that states: “This administration has gone to astounding lengths to block this young woman from getting an abortion,” Cole said. “Now, because they were unable to stop her, they are raising baseless questions about our conduct. Our lawyers acted in the best interest of our client and in full compliance with the court orders and federal and Texas law. That government lawyers failed to seek judicial review quickly enough is their fault, not ours.”

Virginia might soon become the next state to hold participating in Avvo Legal Services is unethical

Readers of this blog know that I have written extensively on the issues related to Avvo Legal Services.  You can go here and scroll down to see all my posts and links to some of my articles.  And, it is no secret that I have been critical of Avvo's model from the beginning, arguing that it places attorneys in a position to violate several rules of professional conduct.

For this reason, I have not been surprised to see that ethics committees in Ohio, Pennsylvania, South Carolina, New Jersey, New York and, most recently, Utah have issued opinions holding that it would be unethical to participate in Avvo Legal Services.  Florida, and North Carolina are considering the question. Of these, only North Carolina is reportedly considering holding that participating in Avvo Legal Services would be OK, but it is also considering amending the rules -- which begs the question, if is OK to participate why would you need to amend the rules to allow it?  But that is a different conversation...

Today's post is to announce the latest addition to the list of opinions holding that participating in Avvo Legal Services would violate current rules.

As reported in the Lawyer Ethics Alert Blog, just over a week ago, the Virginia State Bar voted to approve a draft ethics opinion holding that a lawyer’s participation in services such as Avvo's would violate the Virginia Rules of Professional Conduct.  Like most other opinions on the subject, it does not refer to Avvo by name but given the description of the services it addresses it is pretty clear the opinion relates to Avvo Legal Services.

Not surprisingly, the opinion reaches the same conclusions reached in the literature and other opinions, namely that participating in Avvo Legal Services violates rules related to sharing fees with non-lawyers, paying for referrals, duties to safeguard client property, and duties related to trust accounts including the duty to refund unearned portions of a fee.

Having said that, the opinion states lawyers could participate in the service if some of the conditions are changed.  Doing so, however, would change Avvo's terms and it is not clear that Avvo would want to agree to change its business model.

The opinion (which is available here) will now go before the Virginia Supreme Court for approval.

In light of so many opinions holding against Avvo's service, I have often suggested Avvo is going about its plan the wrong way.  Rather than arguing that the rules should be interpreted to say something they don't, or, worse, that they should be ignored, or continue to advance weak legal arguments, Avvo should advocate for changes in the rules.

Take a look at the position Avvo took in relation to the Virginia opinion (here) and note what they don't do.  They don't even try to address the substantive/legal arguments related to the violations of the rules.  They essentially say the opinion is bad because it does not allow Avvo to do what it wants.  The argument is essentially that what Avvo wants is good, and, thus, preventing it is bad.  Yet, the problem is that even if what Avvo wants is good, it leads to violations of the rules.  The solution can't be to ignore the rules.  The solution has to be to change the way Avvo wants to do what it wants to do so it does not violate the rules or to change the rules. 

What Avvo does now puts lawyers in a position to violate the rules.  Arguing that it doesn't is going nowhere fast.  So, why doesn't Avvo change course and try to present arguments for changing the rules to suggest a new approach would be better for the profession, for consumers and for society in general?  To its credit, Avvo seems to be trying this approach in North Carolina and maybe it is just waiting to see if it works there as a "test case" before trying it elsewhere.

I have argued for this change in tactics before and I am happy to report I am not alone in this view.  Brian Faughnan (of Faughnan on Ethics) has recently published "an open letter" to Avvo arguing the same point.

California finally adopts professional responsibility rule requiring prosecutors to disclose exculpatory evidence

A few days ago I reported that the Louisiana Supreme Court recently held that the duty to disclose exculpatory evidence in Rule 3.8(d) is not broader than the duty recognized by the US Supreme Court decision in Brady v. Maryland.  (See here.)

Now comes news that the California Supreme Court has approved revisions to the California Rules of Professional Conduct governing the ethical duties of prosecutors in California by revising Rule 5-110 to include the obligation to disclose exculpatory evidence.  If you are wondering how this was not part of the rule already, it is because California remains the only state that has not fully adopted the ABA Model Rules.  Popehat has the details here.

Interestingly, in contrast with the decision in Louisiana, the comment to the new California rule implies that the duty to disclose is broader than the duty imposed by Brady:

[3] The disclosure obligations in paragraph (d) are not limited to evidence or information that is material as defined by Brady v. Maryland . . .  and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. . . .

Video on ethical issues related to the use of social media

Law Technology Today has posted a short video discussing a number of ethical issues related to the use of social media, including the dangers associated with disregarding confidentiality, unethical information gathering, failure to assert client control, evidence preservation and spoliation, ethical conduct involving jurors, and the impact of what attorneys share on social media themselves.  You can watch the video here.

Louisiana continues to make bad law regarding duty to disclose exculpatory evidence

As you probably know already, Louisiana has a long (and on might say troubling) history as it relates to the duty of disclosing exculpatory evidence (see  here and here), most notably Connick v. Thompson and Smith v. Cain (See here, here, and here).

Now comes word that the Louisiana Supreme Court has held that the duty to disclose exculpatory evidence in Rule 3.8(d) is not broader than the duty recognized by the US Supreme Court decision in Brady v. Maryland.

Although the ABA Standing Committee on Professional Responsibility has held that the Model Rule imposes a broader duty (see Formal Opinion 09-454), a few jurisdictions have held otherwise.  I have written about this in the past here.

Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in, at least, Washington, Utah, Texas, North Dakota, Massachusetts and the District of Columbia.  The New York City bar's ethics committee has also 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.  Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, and Wisconsin.

The Legal Profession Blog has a discussion on the new decision by the Louisiana Supreme Court here.  The case is called In re Seastrunk and you can read the opinion here.

FL supreme court asked to decide whether lawyers and judges can be Facebook friends

Last summer, the Third District Florida court of appeals affirmed an order refusing to disqualify a judge who was Facebook friends with one of the lawyers in a case before her.  The law firm that had filed the motion to disqualify has now asked the Florida Supreme Court to accept an appeal, citing a split on the issue among Florida state appellate courts.  The Law for Lawyers Today has more details on the story, and some links to more information on the issue, here.

UPDATE 11/4/17:   Brian Faughnan has some comments on the story here.

Court imposes $9 million sanction on two firms for filing frivolous lawsuits

Just as my students and I are about to start discussing ethical issues related to litigation, including the rules related to filing frivolous claims, I saw this bit of news. 

A panel of four federal judges recently imposed sanctions totaling $9.1 million on two Florida law firms for filing 1,250 frivolous claims against tobacco companies accused of hiding the dangers of cigarettes, including suits on behalf of people who never authorized the suits, people who never lived in Florida, nonsmokers, and people whose cases had already been tried.  They also filed claims on behalf of people who had died before the claims were filed as if they were still alive rather than as wrongful death claims.

The ABA Journal online has the story here.

How not to practice law -- UPDATED

It has been a while since I posted a story to the running "How not to practice law" series, so here are two new ones.

How not to practice law:  As a prosecutor, be in a personal-romantic relationship with the lead FBI investigator you use as principal witness to get indictments before a grand jury.  The Legal Profession Blog has the story.  The prosecutor was suspended for a year and a day (although all but 6 months was stayed.)   [UPDATE 10/29/17:  Lawyer Ethics Alerts Blog has a story on this case here.]

How not to practice law:  Offer to pay a witness $7,000 for his "honest testimony."  The Law For Lawyers Today has that story here.  The lawyer was suspended for 35 days.

Utah State Bar has issued yet another ethics opinion stating that participating in Avvo Legal Services would be unethical

As long time readers of this blog know, I have been following the developments related to Avvo Legal Services for a while.  You can read all my comments by going here and scrolling down. 

Not too long ago, I commented on the fact that ethics committees in Ohio, Pennsylvania, South Carolina, New Jersey and New York had issued opinions holding that it would be unethical to participate in Avvo Legal Services.

Now comes news that about three weeks ago the Utah State Bar Association issued a similar opinion.  Although it does not mention Avvo by name, it concludes that participating in a program whose description is just like Avvo Legal Services would violate Utah’s Professional Conduct Rule 5.4 which bans splitting fees with a non-lawyer and Rule 7.2 which regulates restrictions on payment for recommending a lawyer’s services.  

In addition, it finds that the fee paid by the lawyer does not appear to be a fee for the reasonable costs of advertising and discusses how participating in the service may violate a number of other rules related to client confidentiality, lawyer independence, and safekeeping of client property.  Finally, the opinion states that participating in the program raises serious concerns about a lawyer’s ability to comply with Rule 1.15 since “[i]t is difficult to see how a lawyer can protect client funds “with the care required of a professional fiduciary” when trust fund account information is provided to a third party over which the lawyer has no control.”

As I have stated before, given the current regulatory structure, I am not surprised.  You can read the full opinion here.

"My computer ate my homework" is not a good excuse -- UPDATED

As readers of this blog know, the Model Rules of Professional Responsibility and now more than half the states, consider part of the duty of competence a duty to understand "technology" used in the practice of law.  (Go here for my most recent post on this.)  This means not only that lawyers should understand how the technology works but also how to use it properly.

So, what happens if the clerk of courts e-mails you an order, but your spam filter catches the e-mail and then deletes it after 30 days without alerting you, and you therefore fail to appeal the order in time?  You may be in trouble, that's what.

The Law For Lawyers Today discusses the issue here.

UPDATE:  Vermont's bar counsel, Michael Kennedy, picked up the story and added another good one.  In this new one a lawyer sent an email to a client asking whether the client wanted to file an appeal in a matter the court had decided against the client.  The e-mail never left the lawyer's computer system and, eventually, the client lost the right to file the appeal.   Lesson learned:  go "old school" and pick up the phone!

US Supreme Court grants cert to decide whether it is ineffective assistance of counsel to concede client's guilt over client's objection -- UPDATED

The U.S. Supreme Court has granted review in McCoy v. Louisiana in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection.  You can find all the documents related to, and more information on, the case at the SCOTUSblog here. The New York Times also has some information on the case here.

In this case, the defendant, Robert Leroy McCoy, refused his lawyer’s suggestion to accept a plea deal, and objected when the lawyer informed him he planned to concede guilt.  He also protested at trial, after the lawyer conceded guilt during the opening statement.  According to an article in the ABA Journal, "the lawyer maintained the concession was necessary because he had an ethical duty to save McCoy’s life." 

There is only one problem.  There is no such ethical duty.

The duty of the lawyer is to represent the client and this includes following the client's instructions as to the goals of the representation.

The case presents an opportunity to clarify a terrible old decision of the US Supreme Court called Florida v. Nixon.  In that case, a lawyer attempted unsuccessfully to get his client - also a death row inmate - to cooperate in preparing his defense.  The inmate, who probably had diminished capacity, either did not understand what was happening or did not wish to communicate with the lawyer.  Eventually, the lawyer decided to concede guilt in order to argue for a lower sentence at the sentencing phase of the trial.  On appeal, much of the discussion revolved around whether there is a difference between "conceding guilt" and "pleading guilty."  The distinction is important because the rules of professional conduct explicitly reserve the right to plead guilty to the client.  Simply stated the lawyer has no authority to decide whether to plead guilty without a client's consent.

In a confusing opinion, the Court found that the lawyer had not provided ineffective assistance of counsel.  Yet it is not clear whether the decision was based on either (a) that the decision was for the client to make but the lawyer could make the decision for the client because the client was incapable of communicating with the lawyer or (b) that the decision was for the lawyer to make because it was "tactical" in nature.  If the decision in the case was to plead guilty, then the Court's decision must have been based on option (a), which would be wrong under the rules of professional conduct.  If the decision was "to concede guilt" (meaning something different from pleading guilty, even if the effect is the same) then it can be argued the Court's decision was based on option (b).  

I have never been comfortable with Florida v Nixon for many reasons, the most important one of which is that I don't see the difference between conceding guilt and pleading guilty.  In the end, the Court allowed an attorney to make the most fundamental decision, which is explicitly reserved for the client to make, without client consent.

And now McCoy could be even worse.

In McCoy, the Court is being asked to take the decision in Nixon one step further and allow the attorney to make the decision over the express objection of the client based on the notion that the decision to "concede guilt" is purely tactical and, thus, can be made by the lawyer.  In fact, in affirming the lower court's decision, the Louisiana Supreme Court found no Sixth Amendment violation stating that “[g]iven the circumstances of this crime and the overwhelming evidence incriminating the defendant, admitting guilt in an attempt to avoid the imposition of the death penalty appears to constitute reasonable trial strategy.” [emphasis added.]

I did not like that interpretation in Florida v. Nixon and I like it even less here.  As explained in the amicus brief of the The Yale Law School Ethics Bureau (available here),

The decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense–a right that personally belongs to the accused. ... In this case, Mr. McCoy vigorously and repeatedly expressed his desire to assert innocence at trial. Yet Mr. English [McCoy's lawyer] disregarded those entreaties and readily conceded guilt . By doing so, Mr. English not only betrayed the sacred bond between lawyer and client, but also denied Mr. McCoy his personal right to put on a defense.

[Because of the egregious nature of the ethical failures in this case,] Mr. McCoy was constructively denied counsel. By conceding guilt over Mr. McCoy’s express objection, Mr. English failed to act within the scope of the attorney–client relationship. He was not, in any meaningful sense, acting as Mr. McCoy’s lawyer. Mr. McCoy therefore did not just receive an “incompetent counsel”–he effectively did not receive any counsel “at all.” ...

Additionally, Mr. English failed to subject the prosecution’s case to meaningful adversarial testing. Indeed, far from testing the prosecution’s case, Mr. English seemed downright eager to advance it. He readily conceded Mr. McCoy’s guilt in his opening statement; called Mr. McCoy to the stand only to impeach his credibility; and failed to present any evidence that challenged the prosecution’s theory of the case. ...

Relying on reasoning from the Court’s decision in Florida v. Nixon,... the Louisiana Supreme Court declined to find Mr. English’s conduct presumptively prejudicial. But Nixon only held that a lawyer is not required to obtain affirmative consent from the client before conceding guilt. It expressly did not address the situation presented here, where the client positively objects to conceding. The difference between conceding guilt in the face of a client’s non–response and his explicit objection is crucial; for it is the difference between a reasonable strategic decision based on limited information and total destruction of the attorney–client relationship.

I agree.

Another argument in the case is that the lawyer was compelled to concede guilt because the lawyer did not believe the client's story and, thus, thought the client was going to base his defense on false evidence.

Yet, the rules of professional conduct do not give a lawyer the authority to unilaterally concede a client’s guilt because the lawyer doubts his client’s claim of innocence.  Even if the lawyer believes the client intends to present false evidence, the alternative approaches to the problem provided by the rules do not include conceding guilt.

Whatever the Court decides, this will be a very important decision.

UPDATE (11/25/17):   The ABA has filed an amicus brief in support of the appellant.  As I argued in my original comment, I agree with this view.  The ABA explained its position in a press release.  You can also read the full brief here.

UPDATE (January 26, 2018):  The Supreme Court heard oral arguments on the case today.  Here are some comments and links on it.  The oral argument itself is available here.

Quick review of the duty of confidentiality

The news that some of Trump's attorneys inadvertently disclosed some confidential information raised issues as to whether the conduct constituted a violation of the duty of confidentiality. I will let you do you own research as to the story and the different reactions to it.  But, here is a quick review of the general principles related to the duty by the Bar Counsel of Vermont, Michael Kennedy.

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.

Florida Bar to consider whether it is ethical to participate in Avvo Legal Services

A few days ago, I reported that the NY state bar association issued an opinion holding it would be unethical to participate in Avvo Legal Services. See here.  Now comes news that the Florida Bar’s Board of Governors has decided to prepare an advisory opinion on whether lawyers could participate with a private lawyer referral service which charges a different set fee depending upon the type of case referred.  Without mentioning it, of course, this description refers to the Avvo Legal Services scheme which has now been rejected in every ethics opinion that has considered the question. 

The Florida Bar has in the past attempted to change the state rules to allow lawyers to participate in private referral services, but the Florida Supreme Court rejected the idea.  In fact, it published an opinion on September 24, 2015 which instructed the Bar to draft rules that “preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.”  Given this background it will be interesting to see if the Board of Governors attempts to revise its position or follows the lead of the Court.  For more on the news from Florida go here.

For some of my previous posts on Avvo go here and scroll down.

NY State Bar Association issues opinion holding participating in Avvo Legal Services is unethical

The New York State Bar Association’s Committee on Professional Ethics has issued a new opinion holding that participating in Avvo Legal Services violates the state’s rules of professional conduct.  In particular, the opinion holds that a lawyer paying Avvo’s current marketing fee for Avvo Legal Services is the equivalent of making an improper payment for a recommendation in violation of Rule 7.2(a). 

As long time readers of this blog know, the opinion is similar to opinions in Ohio, Pennsylvania, South Carolina and New Jersey.  And, as I have argued many times, no one should be surprised by the conclusions reached in these opinions because the analysis is consistent with the text of the rules.  You can read my article on the subject here, which was published just after the first couple of those opinions were issued. 

In that article, I pointed out that because the comment to rule 7.2 states that lawyers are banned from paying a lead generator “if the lead generator states, implies, or creates a reasonable impression that it is recommending the lawyer,”  lawyers paying Avvo should be concerned with the possibility that their state disciplinary authority might argue that by providing Avvo’s own “ratings,” as opposed to client ratings, Avvo creates the impression that Avvo is recommending some lawyers more than others. 

That question had not been approached back when I wrote that.  Now it has.  While the other opinions have mostly emphasized the issue of whether paying Avvo’s fees constitutes sharing fees with a non-lawyer, the NYSBA opinion focuses on that precise point.  You can read the full opinion of the New York State Bar Association’s Committee (Opinion 1132 (8/8/17))  here. 

As the Committee explains “[i]f the lawyer is paying [Avvo’s] fee solely to obtain advertising and marketing services from Avvo, then the lawyer is not giving Avvo something “of value” to recommend the lawyer, but is instead paying Avvo for marketing services, which does not violate Rule 7.2(a).  If, however, the marketing fee also includes a payment to Avvo for recommending the lawyer, then the payment constitutes giving something “of value” for a recommendation, which does violate Rule 7.2(a).”

After discussing Avvo’s business model, the Committee concluded that Avvo does seem be recommending lawyers and, thus, lawyers who pay Avvo’s fee would be in violation of the rule.  This is so, according to the opinion, because Avvo does more than merely list lawyers, their profiles, and their contact information. Avvo also gives each lawyer an Avvo rating, on a scale from 1 to 10 in a way that suggests mathematical precision.  Also, some of Avvo’s ads expressly state that the Avvo Rating enables a potential client to find “the right” lawyer or “the right lawyer for their needs.”

Based on this, the committee found that “[t]hrough these statements and through Avvo’s description of its rating system, Avvo is giving potential clients the impression that a lawyer with a rating of “10” is “superb,” and is thus a better lawyer for the client’s matter than a lawyer with a lower rating.”  Thus, the opinion concludes that “the way Avvo describes in its advertising material the ratings of participating lawyers either expressly states or at least implies or creates the reasonable impression that Avvo is “recommending” those lawyers.”

In addition, the opinion pointed out (but did not resolve) more issues raised by participation in Avvo Legal Services, including:

(1) the fact that Avvo sets the amount of the legal fee for each service raises questions about whether a participating lawyer can deliver competent legal services for Avvo’s chosen price and whether a lawyer is allowing Avvo to interfere in the lawyer’s independent professional judgment regarding how much time to spend on a matter.

(2) the marketing fee raises questions about whether lawyers who participate in Avvo Legal Services are improperly sharing legal fees with a nonlawyer.

(3) Avvo’s satisfaction guarantee raises questions about confidentiality. If clients call Avvo to complain, does the “documentation” that Avvo asks for or receives include “confidential information” within the meaning of Rule 1.6(a)?

As in the past, Avvo’s chief legal officer, has posted a short response to the opinion, but, also as in the past, it is weak and again bases part of the argument on the wrong the constitutional standard.

Yet, Avvo can count one small "victory" in the NYSBA opinion.  Avvo always refers to its fee as "marketing fee" -- not as just "fee" -- perhaps thinking that if you repeat something enough times people will begin to believe it.  And it works.  While other opinions have held that merely because Avvo says the fee is for "marketing" (by which they really mean "advertising"), it does not make it so, the NYSBA opinion states explicitly that Avvo’s website is an “advertisement.”  According to the opinion, "[t]he Avvo website is a public communication on behalf of each participating lawyer, about that lawyer, for the primary purpose of helping the participating lawyers obtain employment by potential clients who use the Avvo website."

Florida seeks comments on proposed opinion on whether to allow sharing of fees with firms that allow sharing of fees with non-lawyers

The Florida bar is likely to adopt an ethics opinion that would make it easier for Florida lawyers to enter into co-counsel relationships with law firms in which non-lawyers have ownership stake -- or, in other words, to share fees with firms that share fees with non-lawyers.  Only two jurisdictions in the US allow sharing fees with non-lawyers, but a number of foreign countries do.

This is a big change in approach since only two jurisdictions in the US currently allow sharing of fees with non-lawyers and it may open the door for even more changes including allowing lawyers to share fees with non-lawyers directly in Florida - which would be good news for Avvo, as discussed in previous posts below.

But let's not get ahead of ourselves, yet.  The draft opinion emphasizes that it does not address a Florida Bar member becoming a partner, shareholder, associate, or other formal arrangement in a law firm that is permitted to have non-lawyer ownership in its home jurisdiction.

The committee will accept comments on the proposed opinion until Aug. 15. If no comments are received, the opinion will become final five days later. If comments are received, the matter will be taken up at The Florida Bar's Fall Meeting on October 13.

You can read the proposed opinion here.

Avvo responds to NJ Opinion

Last month I reported (here) that three committees of the New Jersey Supreme Court issued a joint opinion concluding that it would be unethical to participate in Avvo Legal Services.  A few days ago, Avvo's Chief Legal Officer posted a reply to the opinion in the blog Socially Awkward.  The reply is short and, in my opinion, weak.  All it does is repeat some of the arguments the opinion rejected.  It also gets the constitutional standard that applies to the commercial speech doctrine wrong (as I have pointed out in the past).

For some of my previous posts on Avvo go here, here, here, here, here, here, here, here, here, and here.

Three committees of the New Jersey Supreme Court issue opinion holding that it is unethical to participate in Avvo Legal Services; also affects Legal Zoom and Rocket Lawyer but for different reasons

The Advisory Committee on Professional Ethics, the Committee on Attorney Advertising, and the Committee on the Unauthorized Practice of Law of the Supreme Court of New Jersey recently issued an opinion holding, among other things, that it would be unethical to participate in Avvo Legal Services.  You can read the opinion here.

This comes as no surprise to me since I have argued both here and in a law review article (available here), 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.  All the opinions addressing the question so far have reached the same conclusion.  See here.

The opinion from the New Jersey committees is short and well written and addresses most, if not all, the arguments I have been discussing regarding Avvo's claims.  And it reaches pretty much the same conclusions I reached in my article, concluding that New Jersey lawyers may not participate in Avvo legal service programs because the programs improperly require the lawyer to share a legal fee with a non-lawyer in violation of Rule of Professional Conduct 5.4(a), and to pay an impermissible referral fee in violation of Rule of Professional Conduct 7.2(c) and 7.3(d).

Interestingly, Avvo was able to respond to the inquiry addressed by the committees before the opinion was issued and it seems it made the same arguments it has been making elsewhere and that I have discussed before.  The opinion rejects them all for pretty much the same reasons I described in my article.

For example, Avvo argued that its fee scheme does not constitute sharing fees with a non-lawyer because it is a "marketing fee."  About this, the opinion concludes that the fact that Avvo refers to its fee as a “marketing fee” does not determine the purpose of the fee or negate the fact that paying it constitutes sharing a fee with a non-lawyer.

Similarly, I have argued that the fact that Avvo’s fee varies depending on the value of the legal fee creates the impression that  the  lawyer  is  paying  Avvo  a  percentage  of  the  legal  fee,  which  is precisely what the ban on sharing fees with a non lawyer prohibits.

On this, the New Jersey opinion concludes that the fee lawyers pay to Avvo is not for marketing because "it is a fee that varies with the cost of the legal service provided by the lawyer, and is paid only after the lawyer has completed rendering legal services to a client who was referred to the lawyer by Avvo."   Further, it states:

Avvo claimed that the “marketing fee” is not a referral fee but an advertising cost, and because the “marketing fee” is a separate transaction, there is no improper fee sharing. The label and timing of the fee does not transform it into an advertising cost. This fee varies depending on the cost of the legal service provided, which is inconsistent with the essential elements of an advertising cost. Avvo defended the varying amounts of its “marketing fees” by stating that in the online market, bigger-ticket services should have bigger-ticket fees. It stated that it spends more to advertise the range of services and takes a bigger payment processing risk for more expensive services. The Committees are not convinced that the sliding scale of fees for legal services rendered bear any relation to marketing.

Moreover, as I pointed out in my article, according to the drafters of the Comment to Model Rule 7.2, a fee paid to a non lawyer for a client lead should not be contingent on a person’s use of the lawyer’s service because “[s]uch a fee would constitute an  impermissible  sharing  of  fees  with  non lawyers  under  Model  Rule 5.4(a).”  Since a lawyer does not have to pay a fee to Avvo unless a client chooses the lawyer, the fee seems to be “contingent on a person’s use of the lawyer’s  service.”  Thus,  paying  the  fee  to  Avvo arguably constitutes  a violation of the ban on fee sharing and, as a consequence, of Model Rule 7.2.

Once again, the New Jersey opinion agrees with my analysis when it concludes that "[w]hen the lawyers pay a fee to the company based on the retention of the lawyer by the client or the establishment of an attorney-client relationship, the answer to the inquiry is simple: the company operates an impermissible referral service."

Finally, the opinion addressed Avvo's contention that fee sharing with non-lawyers is not inherently unethical.  According to this argument it is unethical only if it results in an interference with the lawyer's independent professional judgment.

In my article I explained that Avvo's argument is wrong because, at least as far as the text of the Model Rule is concerned, unless allowed by one of the specific exceptions, splitting fees with a non lawyer is inherently unethical. The rule does not say that sharing a fee with a non lawyer is unethical only if it interferes with the attorney’s independent professional judgment; it says sharing a fee is unethical because it is a threat to an attorney’s independent professional  judgment. Clearly,  part  of  the  policy  behind  the  rule  is  to protect the attorney’s independent professional judgment, but that does not mean that the interference needs to be shown in order for the rule to apply.

And, again, the New Jersey opinion agrees:

Avvo further asserted that fee sharing is only unethical if it compromises the lawyer’s professional judgment. The Committees acknowledge that concerns about independent professional judgment undergird the prohibition on sharing legal fees with nonlawyers. But the precedent in New Jersey, in case law, opinions, and the language of the Rule of Professional Conduct itself, do not restrict the prohibition to situations where there is a clear connection between the fee sharing and the lawyer’s professional judgment. . . .  Sharing fees with a nonlawyer is prohibited, without qualification.

The opinion also addressed certain services offered by LegalZoom and Rocket Lawyer.  It found they also violate the rules, but for other, easy to address, reasons.  The opinion held that these programs are different than Avvo's because they operate as legal service plans and that, therefore, New Jersey lawyers may not participate in the plans until they are registered with the Administrative Office of the Courts.  This is a setback for LegalZoom and Rocket Lawyer, but one that should be easy to solve by registering the programs accordingly.

Simple Justice has a comment on the New Jersey opinion here.  (He agrees with me.)
My Shingle has a comment here.  (She does not.)
Above the Law comments here.
The Law for Lawyers today comments here.

Now back to the issues related to Avvo Legal Services, I want to reiterate something else I have stated in the past.  Saying that participating in Avvo Legal Services would violate the rules is not the end of the debate.  The more interesting question is whether the rules should be changed to accommodate what Avvo wants to do.  That is not addressed by the New Jersey opinion.  As I reported recently, though, it is under review in North Carolina and, perhaps in Oregon.

In other words, I think Avvo is going at this all wrong.  It should not be arguing that participating in its services does not constitute a violation of the rules.  Given the current rules, that argument is weak.  What it should be doing is arguing that the rules should be changed to allow it to do what it wants to do and to allow lawyers to participate.  That is a better approach, which may yield better results for Avvo.  What happens in North Carolina will tell.