Saturday, March 31, 2018

Alaska warns about using "cc" an "bcc" when using e-mail.

A recent ethics opinion issued in Alaska concludes that it is not necessarily unethical for attorneys to carbon-copy or blind-copy clients in e-mails exchanged with opposing counsel.  However, the ethics opinion warns that the practice of using “cc” or “bcc” could cause lawyers to face disciplinary action—as well as be adverse to their clients’ interests—if the client inadvertently clicks “reply all” and responds with a message that reveals case strategy, negotiation tactics, or other confidential information that should not be disclosed.

It is interesting that the attorney would face disciplinary action for the conduct of the client, but I guess it is the conduct of the lawyer which put the client in the position to make the mistake.  There are opinions in other two states that have held the same thing.

For more details on this story, go here.  You can read the opinion here.

Podcast: Ethical misadventures in E-discovery

The Legal Talk Network has posted a new podcast on ethical issues related to e-discovery.  You can listen to it by clicking on the play button below or by going here.

Illinois State Bar Association issues opinion holding it is unethical to use email tracking software.

A recent Professional Conduct Advisory Opinion from the Illinois State Bar Association (Opinion No. 18-01, January 2018) joined at least three other jurisdictions in concluding that the practice of using hidden email tracking software would be unethical for a variety of reasons. (See Alaska Bar Association Ethics Opinion No. 2016-01; New York State Bar Association Ethics Opinion 749; and Pennsylvania Bar Association Formal Opinion 2017-300.)

For more on this story go here, and here. Michael Kennedy, of Ethical Grounds, offers good analysis here.

Tuesday, March 27, 2018

Prosecutors investigate firms that offer to pay cash to plaintiffs

According to a story in the New York Times, published March 19, federal prosecutors are investigating finance companies that provide cash advances to plaintiffs in personal injury and other lawsuits. 

Because lawyers are banned from providing financial assistance to clients involved in litigation, it is not uncommon for plaintiffs who need money quickly to either settle their claims for less than their value or to seek help from these companies which offer cash in exchange for repayment out of a future judgment plus interest.  And it is that interest that raises concerns because it is often extremely high. 

Again, due to the fact that lawyers can't help clients financially, it is also not uncommon for lawyers to suggest to their clients to go to the financing companies for help.  In fact, many of the cash-advance firms rely on lawyers to send them financially unsophisticated clients who are waiting to collect on legal settlements. And this is also under investigation. 

According to the story, federal prosecutors in Manhattan are seeking information about the business relationships between the cash-advance firms and the trial lawyers who sometimes refer their clients to the firms, apparently looking into whether there were formal financial arrangements between the parties, which could be construed as illegal kickbacks.

Those who defend the financing industry argue that it provides a crucial service, allowing customers to afford basic expenses and to hold out for potentially more attractive settlements instead of automatically accepting defendants’ initial offers. 

This is true but it does not necessarily justify the high interests which appear to be abusive.  But the industry responds to this argument by saying that the high interests charged are justified because the recovery of the financial advances are not guaranteed.  If the plaintiff does not recover a judgment in their favor, or if it is too low, the company does not recover its investment.

In response, a few states have imposed ceilings on the interest rates on settlement advances, which might be a good way to achieve an acceptable compromise.  State legislators in New York have introduced similar legislation.

Monday, March 26, 2018

Omnibus spending bill includes increase in funding for the Legal Services Corp.

Last month, I reported that Trump's budget proposal would eliminate all funding for the Legal Services Corp, the largest single funder of civil legal aid for low-income people.

However, somehow the omnibus spending bill he signed included a funding increase for the LSC which will get an additional $25 million, for a total of $410 million in fiscal 2018.

Read more about it here.

ABA Ethics Opinion on confidentiality draws criticism

Back in December I wrote about ABA Standing Committee on Ethics and Professional Responsibility Ethics Opinion No. 479 (here) which discussed, among other things, the distinction between information which is generally known and information that is in the public record.  In my opinion, the opinion did not really add anything in terms of substantive law we did not know already, but it did give some guidance on how to determine if information should be considered to be generally known.

A few days ago, the Committee followed up that opinion with another one also on the topic of confidentiality and it has not been well received by some.  As one commentator wrote, "Granted, the ABA has a reputation for being a bit behind the curve on technology issues. But in reading this opinion, one has the feeling that someone at the ABA found it in a desk drawer where it had been lost for a decade and decided, “What the heck, let’s publish it.”"  See here.

The Law for Lawyers Today has a short comment on the opinion here.  So does Ethical Grounds.

Like Opinion No. 479, the new opinion (No. 480), which is available here, does not seem to say anything new at first.  Essentially, it holds that lawyers should not disclose confidential information in violation of the rules when blogging.  This sounds obvious, but the opinion has been criticized by some because it repeats the notion that information that is in the public record can be confidential and disclosing it can be a violation of the rules (unless allowed by one of the exceptions to the rule).

Again, in terms of substantive law, this is nothing new.   But the opinion's conclusion does raise the question of whether 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 addressed this question directly (Hunter v Virginia State Bar) and it held that disciplining a lawyer for disclosing confidential information in the public record would violate the First Amendment.

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.

So, go ahead and read the opinion (particularly the section called First Amendment Considerations, and its footnotes) and then read Robert Ambrogi's criticism here or Avvo's Josh King's comments here.

Florida amends rules regarding lawyer referrals to include online for-profit services

Earlier this month the Florida Supreme Court amended the state’s lawyer referral rules to include for-profit “matching” sites and lawyer directories,, such as Avvo Legal Services, Rocket Lawyer and LegalZoom.  You can find the amendments here.

According to the court the amendments create a single regulatory scheme that includes for-profit lawyer referral services, pooled advertising programs, lawyer directories, internet “matching” sites and lead generation services.

However, the rule did not change some of the current requirements to which some of the online services object.  For example, the rule still bans fee-sharing with non-lawyers which is the main reason ethics opinions in other jurisdictions have held that participating in services like Avvo Legal Services would be unethical.

Read more about the new rules here.

Friday, March 23, 2018

How not to practice law: show up to court with a .337 blood alcohol level

Yesterday I read a story about a man who was arrested for driving under the influence with a .316 alcohol level, when the legal limit is .08 and .350 is considered "lethal."  I thought that someone could function with a .316 level was incredible!

Yet, today the Legal Profession blog is reporting that ... well, take a look:
Gray represented his client in a civil case in Jefferson Circuit Court, ... On the last day of trial, Gray delivered an hour-long closing argument. Gray's demeanor and performance during the argument concerned the trial judge, and after the jury returned its verdict against Gray's client, the trial judge asked Gray to submit to a breathalyzer test. Gray acquiesced and blew a .337 on the breathalyzer. Emergency medical services were called and Gray was taken to a local hospital by ambulance.
Oh, and, by the way, the lawyer was suspended from the practice of law too.

Thursday, March 22, 2018

Podcast: Ethically problematic marketing

Lawyerist and The Legal Talk Network has posted a podcast on ethically problematic marketing strategies. You can listen to it by clicking on the play button below or by going here.


Wednesday, March 21, 2018

Florida adopts new rules related to referral services

The Florida Supreme Court has adopted new rules regarding lawyer referral services concluding that the amendments "are necessary to ensure that all services that connect prospective clients to lawyers conform to the Rules Regulating the Florida Bar and operate in a manner consistent with the public interest."

On the other hand, the Court stated that the amendments do not resolve the Court's concern "with how some lawyer referral services operate in Florida, especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident,"  adding that "[t]he findings of the Special Committee on this matter are troubling and we continue to believe additional measures are needed to ensure the public is not exposed to harm."

To this end, the Court directed the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s recommendation.

You can read the adopted amendments here.  You can find more information on the adopted changes here.

Sunday, March 4, 2018

Office Depot now offers legal services..... Or does it?

A few weeks ago I was alerted that Office Depot had begun to advertise a new legal services plan.  You can find the announcement here.  I clicked on the announcement and it took me to a page explaining the services.  I saved it so I could go back to explore it when I had time so I could comment on it here.

It took me until today to find the time and when I went back to the page to explore it more carefully I was surprised to find a page that says "this page does not exist."

Maybe the page is just off today.  However, I also noticed that the service is no longer listed in the available services so maybe something happened that made Office Depot or BizBox decide not to offer the service after all.

I just don't know; and I am very curious to find out what happened.  If anyone has more information on this please send it my way!

Here is a copy of the original page:

Five questions on technology competence

As you probably know, more than half the states have adopted the ABA Model Rules' suggestion that lawyers must be knowledgeable about "technology" as part of the duty of competence.  Go here and scroll down for multiple stories on the subject.

To help educate lawyers about technology, here is a short article called "Five Questions to Test Your Understanding of the Ethics of Technology."

Article on using digital assistants in the practice of law

Here is an interesting article on the use of digital assistants like Amazon's Alexa, Microsoft's Cortana and Google Voice in the practice of law, including a discussion of issues related to confidentiality.

How not to practice law: several updates

Here are a few new entries to the ongoing series "how not to practice law."

An attorney in Colorado got a three year suspension for lying to the court.  He claiming he had cancer in response to motions to show cause.  Story here.

A lawyer in Florida was disbarred for "obnoxious conduct." Apparently, the Florida Supreme Court has drawn a line in the sand: you can be “professional and aggressive” but not “obnoxious.” The conduct included loudly kicking a table and muttering “lie, lie, lie” during court proceedings, going on a "tirade" during a deposition and insulting opposing counsel. The case was reported here, herehere and here.

A Pennsylvania man has sued a Willig Williams & Davidson attorney representing his wife in a divorce proceeding alleging the attorney knocked him to the ground during a break in a hearing causing him permanent injury. The case is Charles Elliott v. Scott Orloff et al., case number 171201130, in the Court of Common Pleas of Philadelphia County.

In re: Encore Prop. Mgmt. of W. New York, LLC, Debtor., No. BR 18-20014-PRW, 2018 WL 941647, at *3 (Bankr. W.D.N.Y. Feb. 16, 2018) in which the court actually stated "A finer example of what not to do as a litigator would be hard to find."  (Thanks to Roy Simon for alerting me to these last two.)

A lawyer in Kentucky created a few fake bar associations so he could then claim his referral service was not in violation of a rule that limits referral services to those sanctioned by the Bar in the state.  You can find more on the story here, and here.  Is this unethical or a smart way to take advantage of a loophole?

And my favorite this month:  how not to practice law:  send a message to Bar officials telling them to go fuck themselves!  The Legal Profession Blog has the story here, which raises another interesting question in this case: whether the sanction was appropriate.  The lawyer was only issued a reprimand.  Should the sanction have been worse?