Friday, May 18, 2018

Supreme Court decides McCoy v Louisiana, finding ineffective assistance of counsel when attorney conceded guilt over client's objection

Back in October I wrote a comment on McCoy v. Louisiana, a case before the US Supreme Court in which a Louisiana death row inmate argued he received ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection. (I later posted some updates and relevant links here.) 

In my original post, I argued, among other things, that the case could result in expanding the reach of an older case which I don’t like (Florida v. Nixon).  In Nixon, the Court found that the lawyer had not provided ineffective assistance of counsel based on a distinction between "conceding guilt" and "pleading guilty."   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 a fundamental decision, which is explicitly reserved for the client to make, without client consent.

McCoy had the potential to make things worse because the Court was asked to find no ineffective assistance of counsel even if an attorney decided to concede guilt over the express objection of the client. 

Yet, I am pleased to report that the Court found for the defendant, holding that
“a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reason- able doubt.”
I definitely think this is the right decision in this case.  I just wish the Court had used the opportunity to find it had erred in Nixon (and to overrule it) too.

You can read the full opinion here.  The SCotUS blog has an analysis of the opinion here and NPR has a short comment here.

Another lawsuit alleging UPL to keep an eye on

I recently wrote about the controversy over the company TIKD (here) which is fighting a complaint alleging it is engaged in the unauthorized practice of law in Florida, a case that could really question the authority of the legal profession to continue to operate as a monopoly that regulates itself.

Now comes news of another case that may have similar implications.  As reported in Bloomberg Law, a lawsuit was filed earlier this month in California federal court accusing venture-backed legal matchmaker UpCounsel Inc. of violating ethics rules and unfair competition laws to gain an edge over traditional legal service providers. The lawsuit was filed by LegalForce RAPC Worldwide P.C., an intellectual property law firm that uses artificial intelligence software to streamline the trademark application process. Raj Abhyanker, an engineer-turned-attorney who founded the plaintiff entities, told Bloomberg Law that the UpCounsel lawsuit will shine a light on regulatory inequities that have allowed nontraditional legal service providers to gain a competitive edge in the marketplace.

Note how ironic this claim is.  The legal marketplace is essentially a monopoly in which only state admitted lawyers can participate and which is regulated by people who are participants in the monopoly itself.  Companies like UpCounsel and others have argued that this constitutes an inequity because it prevents them from entering and competing in the market.  Yet, the plaintiffs in this lawsuit are now claiming that allowing the companies to enter the market would constitute unfair competition.  In other words, those who have benefited from controlling the market as a monopoly are now arguing it is unfair to allow others to enter the market because they might gain a competitive edge.

According to Bloomberg, UpCounsel has stated that the suit “is a frivolous act” by “an entrepreneur who has failed to compete in the market and is lashing out in frustration.” “UpCounsel's goal is to create a platform that provides access for businesses to find, connect and work with independent attorneys across the nation,” the statement said. The company, it added, has “worked diligently for years, and at great expense, to ensure our business is compliant with all ethical rules.”

I suspect that the future of regulation and the opening of the market to "outsiders" will be the "next big thing" in Professional Responsibility, and will probably get a lot of attention at the upcoming ABA National Conference on Professional Responsibility at the end of the month.

Tuesday, May 15, 2018

Wisconsin Supreme Court to consider raising pay for private lawyers assigned to represent criminal defendants

Wisconsin's Public Defender's Office assigns private attorneys around 40 percent of its cases and pays them the lowest rate in the nation. Now, the office is having a difficult time finding lawyers willing to take those cases. Tomorrow, the state Supreme Court will take up a petition that would give attorneys a raise. Wisconsin Public Radio's Danielle Kaeding has more.

Thursday, May 10, 2018

California adopts new rules -- UPDATED

A few days ago, in a comment on a different topic, I wrote something along the lines that California had not adopted the Model Rules...

Well, that's not true anymore!

The California Supreme Court announced today that it has adopted 69 new rules of professional conduct patterned on the ABA Model Rules.

Here is a press release and the court's order.

And here is a table that correlates the California rules in place until today and the new ones.

UPDATE 5-11-18:  Here is a link to the new rules. 

ABA Formal Opinion 481: When does a lawyer have a duty to inform a client that the lawyer has made a mistake in the representation? -- UPDATED

The Standing Committee on Ethics and Professional Responsibility of the American Bar Association recently issued Formal Opinion 481, called “A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error” in which it concludes that attorneys have a duty to disclose material errors in representation to their clients. You can read the opinion here.

Evidently, the duty is limited by "materiality," but what is it that makes an error "material." According to the opinion, a material error is defined as one that a “disinterested lawyer” would conclude is either “(a) reasonably likely to harm or prejudice a client, or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice.”

Interestingly, however, the opinion finds that there is no duty to inform a former client if the lawyer discovers after the attorney-client relationship has ended that the lawyer made a material error in the former client’s representation.

You can find short comments on the opinion over at The Law for Lawyers Today and Professional Liability Matters.

UPDATE (1/17/19):  Legal Ethics in Motion has a short comment here.

Wednesday, May 9, 2018

TIKD v The Florida Bar: the case that challenges the very notion of professional regulation

If you are reading this blog it must be because you are interested in Professional Responsibility issues; and if you are interested in that topic, you probably know by now that there is a controversy in full swing in Florida that challenges the very notion of professional regulation.

I am referring to the antitrust case filed by a company called TIKD against the Florida Bar.  TIKD's website is here.

TIKD is a company that promises consumers to take care of their traffic tickets (with a money back guarantee).  The consumer pays a fee to the company and the company takes care of everything, including hiring a lawyer to represent the consumer.   Based on this business model, a law firm in Florida filed a complaint with the Florida Bar alleging that TIKD was practicing law without a license.  The Florida Bar issued an opinion finding that lawyers who work with TIKD could be in violation of Florida Bar disciplinary rules and requested an injunction to prevent TIKD from continuing to provide services in the state.

Meanwhile, TIKD went on the offensive and filed a federal lawsuit against the Florida Bar, the law firm, and others alleging, among other things, antitrust violations and that the Florida Bar and the law firm are engaged in a “concerted effort” to put TIKD out of business.

In response, the Florida Bar argued it has immunity from antitrust laws under the so-called state action doctrine, which provides that the Sherman Act does not apply to the conduct of a state when it regulates its economy by displacing competition in favor of regulation of a monopoly in the public service.  For the doctrine to apply, however, the state must act as a sovereign, rather than as a “participant in a private agreement or combination by others for restraint of trade.”

Private entities can also be protected by state-action immunity, but only if their conduct is (1) taken pursuant to a clearly articulated and affirmatively expressed state policy and (2) actively supervised by the State itself.  (See, California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97 (1980)).  Midcal, however, did not decide whether professional regulators, such as the Florida Bar, whose members are participants in the market they regulate, should be subject to the doctrine’s requirement of active state supervision for private entities claiming state-action immunity.

Thus, the application of the state action doctrine is the key to the controversy, and that’s where North Carolina State Board of Dental Examiners v. Federal Trade Commission comes into play. In that case the Supreme Court held that if a controlling number of decisionmakers are active market participants in the occupation the agency regulates, a state agency must be actively supervised by the state in order to obtain antitrust immunity.  (For a comment on the North Carolina case, you can go to the Harvard Law Review here.)

In the TIKD case, the Florida Bar is arguing that, as an “arm of the Florida Supreme Court,” it is entitled to state-action protection without having to meet the “clear articulation” or “active supervision” requirements recognized by the Supreme Court.  Yet, the U.S. Department of Justice has filed a statement of interest arguing that the Florida Bar is not immune from federal or state antitrust liability based on North Carolina State Board of Dental Examiners.  You can read the statement of interest here.

The National Law Review has a short discussion of the issues raised by the case here.

On the other side of the equation, so to speak, TIKD’s arguments are also problematic.  It argues that it is not engaging in the practice of law because it is merely a referral service rather than a law firm.  But its own representations in its website, do make it sound like it provides legal services to the consumers.  It essentially says, pay us, send us your ticket and we will provide you with a lawyer.  From what I can see in its website, the consumer does not choose the lawyer, TIKD does, and the lawyer doesn’t even have to meet the client.  At best TIKD seems to be operating as a temp agency, which finds lawyers and sends them off to do tasks for clients who have no (or very limited) contact with the lawyers themselves.

Also, if TIKD wants to be considered to be a referral service, then it needs to make sure it is complying with all the rules related to referral services, and the lawyers who are accepting referrals from TIKD need to worry about whether they are violating the rules related to paying for referrals or sharing fees with non-lawyers.

As of now, it seems that both the petition for injunction at the state level and the case in federal court are pending, but the results will have significant implications on the future of the notion of regulation of the profession.

More on the question of accepting fees in Bitcoin

After I posted a link to a story on whether attorneys can accept payment for fees in Bitcoin last night, I vaguely remembered I had seen an article about the same issue by Ron Rotunda in Verdict recently.  So I searched for it today and here it is.  As he always did, Ron provides a short and interesting analysis.

Tuesday, May 8, 2018

Tennessee Formal Opinion finds that prosecutors' ethical duty to disclose evidence to the defendant is broader than duty under Brady v. Maryland -- UPDATED

As I have discussed before, some cases or ethics opinions have found that the ethical duty to disclose exculpatory evidence is broader than the duty established by Brady v. Maryland (DC and New York, for example, see here and here). Others have held both duties are the same (Wisconsin, for example).

We can now add the Tennessee Supreme Court's Board of Professional Responsibility to the list of those who think the duty is broader.  You can read its ethics opinion on the issue here.  You can read a comment on it, here.

If you want to read about how a prosecutor approaches the issue of exculpatory evidence, go here.

UPDATE (8/29/19):  The Tennessee Supreme Court has vacated the opinion.  See here.

How not to practice law: lie to judge about family emergency after Instagram posts show you were on vacation

Here is the latest installment in our running list of dumb things lawyers do.  In today's tale, the lawyer claimed to have missed a deadline because she had to leave the country because of a family emergency.  The court found the attorney's claims were false, as exposed by social media posts.  Go here for the full story.

Can a lawyer accept Bitcoin as payment for legal fees?

Over at Ethical Grounds, Michael Kennedy discusses Nebraska’s Lawyers Advisory Committee's  Ethics Advisory Opinion 17-03, which appears to be the only formal opinion on whether an attorney can accept Bitcoin (or other cryptocurrencies) as payment for legal fees. 

As he explains, the answer is essentially yes, as long all applicable rules are followed.  You can read the full opinion here.

North Carolina considering mandating CLE on technology

Back in 2016, I reported (here) that Florida became the first state to mandate technology training for lawyers by adopting a rule that requires lawyers to complete three hours of CLE every three years “in approved technology programs.”  Since then, no other state has adopted a similar rule, but that may be about to change. 

LawSites is reporting that the North Carolina State Bar Council has approved a proposed amendment to lawyers’ annual CLE requirements that would mandate that one hour of the required 12 hours of CLE training annually be devoted to technology training.  Go here for the full story.

Tuesday, May 1, 2018

Maine is considering revising Rule 1.10 to allow for screening as a solution to imputed conflicts of interest

The Maine Supreme Court is seeking comments on a proposal to revise Rule 1.10 to allow for screening as a solution to imputed conflicts of interest.  The Legal Profession blog has more information here.

New ABA Center for Innovation project will connect legal aid providers with free legal tech

Article here.

Tennessee formally rejects Model Rule 8.4(g) on conduct (and speech)

A little over a week ago, the Tennessee Supreme Court issued a one page order formally rejecting a proposal to adopt ABA Model Rule 8.4(g).

This ABA section has proven to be controversial.  Pennsylvania rejected it, and just when it looked like Nevada would adopt it, it decided to retract its position in reaction.

More than a year since its approval, however, according to the ABA webstite, only one state (Vermont) has adopted the new rule.  And now we can add Tennessee to the list of states that have considered it and rejected it.

The Court's order states, in part:
On November 15, 2017, the Tennessee Board of Professional Responsibility (“BPR”) and the Tennessee Bar Association (“TBA”) filed a petition asking the Court to amend Rule 8, RPC 8.4 of the Rules of the Tennessee Supreme Court by adopting a new RPC 8.4(g). This proposed rule of professional conduct provision pertains to the prohibition of discrimination and harassment by attorneys in relation to the practice of law. . . . .
The Court has received in excess of four hundred (400) pages of comments to the proposed amendment to Rule 8, RPC 8.4, from members of the bar, members of the public, and various organizations, including the Knoxville Bar Association and the Memphis Bar Association. . . .
The Court has carefully considered the BPR and TBA’s proposed amendment, the comments received, including the points and issues raised therein, and this entire matter. Upon due consideration, the BPR and TBA’s petition to adopt a new Rule 8, RPC 8.4(g) is respectfully DENIED. It is so ORDERED.
And that's that.  No further explanation or discussion.  Yet, it is safe to assume that the comments probably explored the same concerns that have been raised elsewhere (some of which I discussed in my comments to the original ABA proposal. The proposal changed a little since then but it remained problematic.)

Brian Faughnan, who publishes Faughnan on Ethics (blog I like), was directly involved in the process in favor of adopting the proposal in Tennessee and was, understandably disappointed in the result.  He offers his thoughts on the matter here.

UPDATE:  Just a few minutes after I posted the story, the ABA/BNA Lawyers' Manual on Professional Responsibility ran a story (or here) on this.  In it, it mentions that South Texas College of Law constitutional law professor Josh Blackman told Bloomberg Law that lawyers “don't forsake all of [their] free speech rights by becoming an attorney.” And the bar doesn't have the same interest in disciplining lawyers for conduct at a bar association dinner or at continuing legal education classes, as it does in disciplining lawyer conduct in a courtroom, deposition or mediation, Blackman said. The rule is a tool “to silence and chill people.” Blackman was recently protested and heckled by students at CUNY Law School for speaking about free speech. Blackman said those kids will be enforcing 8.4(g) in a few years and “if you give these kids a loaded weapon, they'll use it to discipline people who speak things they don't like.”

Lessons on confidentiality and privilege

Faughnan on Ethics discusses seven lessons learned on confidentiality and privilege out of the "client number three" revelation in the Michael Cohen saga.  The post is short and worth reading as a reminder of some basic principles.

Should legal technicians be allowed to represent clients in courtrooms

A few years ago, Washington state made news by approving a program to recognize licensed limited legal technicians (LLLTs) who would be allowed to provide limited legal services to clients.  Since then, other jurisdictions have been working on approving similar programs.

The program has not generated the results many expected.  There were problems with the direction of the program itself, and so far only 30 people have become LLLTs.

In addition, the original program, however, did not allow the LLLTs to represent clients in courts.  This decision limited one of the goals of the program which is to provide access to legal representation to those who don't have access to it.

Thus, it can be argued that there is an inherent contradiction in a system that seeks to increase access to legal services but that also limits the participation of LLLTs in that representation. 

Here is a recent article addressing this issue, which argues that LLLTs should be allowed to represent clients in the courtroom.

Somebody please ...

Trump keeps tweeting about the "special council" !  Please, somebody tell him the word is counsel.  Didn't someone say he was "post literate" ...