Thursday, April 19, 2018

Confidentiality and privilege review - the Hannity and Trump edition

Over at Faughnan on Ethics, Brian Faughnan has published a short but very accurate review of the basics regarding confidentiality and privilege.  You should read it here.

The only thing I would add to what he says is that one way to remember the distinction between confidentiality and privilege is to understand that privilege is a right (of the holder of the privilege) while confidentiality is a duty (of the lawyer.)  Privilege gives the right to prevent disclosure of information; confidentiality imposes an obligation to keep the information secret.

Sunday, April 15, 2018

Iowa Supreme Court finds that proof of exoneration is not necessarily required for a convicted defendant to sue for legal malpractice -- UPDATED

In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. This view has been criticized but still appears to be the majority view. Yet, a number of jurisdictions have recently decided otherwise.

Back in 2016, I reported that the Iowa Supreme Court decided actual innocence is no longer required as an element of the cause of action; and I just saw that it recently reaffirmed this new approach in a case decided this year.  Here is the story which includes a link to the opinion.

Other jurisdictions that have held innocence is not a requirement include Washington, Kansas (also here) and Idaho.

UPDATE (4/15/2018):  Thanks to Patrick J. Olmstead, Jr. who wrote to me to let me know that the Indiana Court of Appeals also abandoned the actual innocence requirement in a case called Beal v. Blinn, 9 N.E.3d 694 (2014).

Saturday, April 14, 2018

Article on the lack of accountability of prosecutors for misconduct and what can be done about it

I have written often about prosecutorial misconduct and how rare it is to see accountability on the part of prosecutors who engage in it.  (Go here and scroll down for my posts on this.)  For this reason I recommend you go read an article by United States District Judge Frederic Block of the Eastern District of New York in which he argues it’s time to end the notion of absolute immunity for prosecutors.  You should read the full article here

Simple Justice has a comment on the article here.

Monday, April 9, 2018

Indiana Supreme Court Disciplinary Commission announces it will begin to publish advisory opinions; and uses first opinion to find that participating in Avvo creates the risk of violating the rules

The Indiana Supreme Court announced today that it will begin offering ethical guidance to Indiana lawyers and judges via the Supreme Court’s Disciplinary Commission.  The opinions, which will be available online at the Indiana Courts Portal (here), will be non-binding and will be issued in response to prospective or hypothetical questions regarding the application of the ethics rules applicable to Indiana judges and lawyers. (By saying "prospective" there, the court means that it will not offer advice on past conduct.)

The commission made the announcement at the same time it release its first opinion which is on a topic I have written about extensively: whether participating in Avvo Legal Services (and other similar services) would constitute a violation of the rules of professional conduct. 

In the opinion, which is only three pages long, the Commission does not answer the question definitively, but concludes that participating in such programs raises the risk of violation of certain rules, including Rules 1.2(c), 5.4(a), 5.4(c), 7.2(b), 7.3(d) and 7.3(e).

The opinion essentially expresses the conclusions of the Commission rather than explain the analysis it used to reach those conclusions.  However, the conclusions are in accord with opinions published so far in other jurisdictions, all of which so far have reached essentially the same conclusions.  North Carolina is considering a proposed opinion that would conclude the opposite but it has not been adopted yet.  If adopted, it would be the first one to find that participating in Avvo Legal Services would not violate the rules, although it has been reported that North Carolina is also considering amending the rules, which suggests that it would violate the current rules. 

For all my posts on Avvo, go here, scroll down and then read up in chronological order... (ie, the most recent posts will appear at the top of the page.)

Wednesday, April 4, 2018

The ethics of switching firms

This is an important topic since the vast majority of lawyers will not end their careers in the same firm they start it.  Here is a recent summary of some of the issues involved...