Professor Alberto Bernabe - The University of Illinois-Chicago School of Law
Sunday, June 24, 2018
Article on whether a prosecutor’s ethical duty to disclose exculpatory information is coextensive with her constitutional obligation to do so
Just over a week ago, The Harvard Law Review Blog published "Disentangling the Ethical and Constitutional Regulation of Criminal Discovery," a short article on whether a prosecutor’s ethical duty to disclose exculpatory information is coextensive with her constitutional obligation to do so. You can read it in full here.
Friday, June 22, 2018
Article on the ethical implications of artificial intelligence in the practice of law
Above the law has posted a very informative article on the ethical implications of the use of artificial intelligence in the practice of law. You can read it here.
Artificial intelligence and the practice of law
Here is a video of a "webinar" on how artificial intelligence is affecting and will continue to affect the practice of law. If you don't see the video below, you can go watch it here.
ABA Journal and New York Times articles on prosecutorial misconduct
Long time readers of this blog know that I have posted many comments on prosecutorial misconduct, including on the fact that there is little accountability for it (most recently here). For all my posts on prosecutors' ethics go here and scroll down.
Thus, two articles caught my eye recently. One is an op-ed piece published a couple of days ago in the New York Times, lamenting on the lack of accountability of prosecutors.
The other is an article in the May issue of the ABA Journal reporting that New York is considering changing the current rule that allows a prosecutor to wait until the eve of a trial to disclose exculpatory evidence.
As described in the article, New York’s current laws allow prosecutors to withhold key evidence, including witness names, police paperwork and prior statements by witnesses, until immediately before the prosecutor delivers an opening statement, which puts defense counsel at a disadvantage when preparing for trials.
I must confess I had never heard of that (which the article states is also the case in three other states), but from what I read in the article, I agree the law puts defense counsel at a disadvantage and should be changed.
You should take a look at the article, which is very short, here.
Thus, two articles caught my eye recently. One is an op-ed piece published a couple of days ago in the New York Times, lamenting on the lack of accountability of prosecutors.
The other is an article in the May issue of the ABA Journal reporting that New York is considering changing the current rule that allows a prosecutor to wait until the eve of a trial to disclose exculpatory evidence.
As described in the article, New York’s current laws allow prosecutors to withhold key evidence, including witness names, police paperwork and prior statements by witnesses, until immediately before the prosecutor delivers an opening statement, which puts defense counsel at a disadvantage when preparing for trials.
I must confess I had never heard of that (which the article states is also the case in three other states), but from what I read in the article, I agree the law puts defense counsel at a disadvantage and should be changed.
You should take a look at the article, which is very short, here.
Monday, June 18, 2018
How many states have adopted a duty to understand "technology" in the practice of law?
As you know, in 2012 the American Bar Association amended the comment to Model Rule 1.1 (Competence) to make clear that lawyers have a duty to be competent not only in the law and its practice, but also in technology. A majority of states have adopted the suggestion. Law Sites has an updated summary here.
Wednesday, June 13, 2018
Illinois disciplinary agency publishes comprehensive report recommending changes to the rules and the creation of a new regulatory system to allow lawyers to participate in for profit referral services and other "matching" services
A couple of weeks ago I participated in a panel on the debate over for-profit services that help “match” potential clients with lawyers who are looking for clients such as Avvo Legal Services. As long time readers of this blog know, this is a topic I have been writing about for some time. (To see my previous posts on the subject, go here and scroll down.) To see an article I wrote on the subject go here. (An update to this article with more recent developments since its publication is forthcoming.)
As I have chronicled here and elsewhere, all of the published opinions, and one proposed opinion have concluded that participating in for profit matching services such as Avvo Legal Services would violate, or likely violate, rules of professional conduct. Only one proposed opinion has suggested the opposite. Having said that, it should be noted that the vast majority of jurisdictions have not published any opinions on the subject which may mean that the regulators don’t see the question as a problem that needs to be addressed. Also, California allows for profit referral services, while others may not allow them, but seem to tolerate them.
Given the state of affairs, in some of my writings about this topic I have suggested that Avvo would be better served by seeking to get jurisdictions to change the rules so it would be allowed to do what it wants to do (rather than argue that what it is doing was not against the rules - a battle it seems to be losing.)
Which brings me to today’s news: the day before I spoke at the conference, the Illinois Attorney Registration and Disciplinary Commission (ARDC) published the most comprehensive report on this issue in which it suggests amendments to the Illinois rules of professional conduct in order to allow attorneys’ participation in for-profit referral services such as Avvo Legal Services.
In doing so, it is the first jurisdiction to publish such a recommendation. (North Carolina has been considering one, but it has not been officially published yet.)
The report, which you can find here, is very comprehensive (124 pages long) and I have not had a chance to read it all, but I looked at some sections and here is a quick review.
First of all, it should be noted that the report is just that; a report. It is not a final recommendation or a decision of any sort. And it is subject to changes since the ARDC is now seeking comments on it. But it does have suggestions on how to approach the issues.
Second, given those suggestions, it is clear that the report sides with what I have called the “Justice gap” theme in the debate. [See, "Justice Gap vs. Core Values: The Common Themes in the Innovation Debate" 41 Journal of the Legal Profession 1 (2016)] This refers to the position that we should do what we can to help provide more access to legal services, even if doing so involves taking innovative approaches that seem to go against tradition. As the report states, “[p]rohibiting lawyers from participating in or sharing fees with for-profit services that refer clients to or match clients with participating lawyers is not a viable approach, because the prohibition would perpetuate the lack of access to the legal marketplace.”
What is new, and may be controversial, in the report is that it does not only suggest changing the rules that apply to lawyers, it suggests creating a regulatory system to apply to the non-lawyers who want to provide for-profit referral services that would require them to meet certain standards and to register with, and be regulated by, the ARDC. According to the report, this approach would be better to protect clients and the integrity of the legal profession.
The ARDC will accept comments through at least Aug. 31, 2018. Comments should be sent to information@ardc.org. More here.
As expected, the report has generated some debate already. Here are some links to comments about it.
Carolyn Elefant writes that the proposal is a very bad idea, but not for the reasons that the jurisdictions that have published opinions have argued.
Law Sites describes the report here.
Legal Profession blog comments here.
Robert Ambrogi comments on the report at Above the Law.
Finally, here is a podcast discussing the report with its author. (if you can't see the podcast play button below, you can go here to access it.)
As I have chronicled here and elsewhere, all of the published opinions, and one proposed opinion have concluded that participating in for profit matching services such as Avvo Legal Services would violate, or likely violate, rules of professional conduct. Only one proposed opinion has suggested the opposite. Having said that, it should be noted that the vast majority of jurisdictions have not published any opinions on the subject which may mean that the regulators don’t see the question as a problem that needs to be addressed. Also, California allows for profit referral services, while others may not allow them, but seem to tolerate them.
Given the state of affairs, in some of my writings about this topic I have suggested that Avvo would be better served by seeking to get jurisdictions to change the rules so it would be allowed to do what it wants to do (rather than argue that what it is doing was not against the rules - a battle it seems to be losing.)
Which brings me to today’s news: the day before I spoke at the conference, the Illinois Attorney Registration and Disciplinary Commission (ARDC) published the most comprehensive report on this issue in which it suggests amendments to the Illinois rules of professional conduct in order to allow attorneys’ participation in for-profit referral services such as Avvo Legal Services.
In doing so, it is the first jurisdiction to publish such a recommendation. (North Carolina has been considering one, but it has not been officially published yet.)
The report, which you can find here, is very comprehensive (124 pages long) and I have not had a chance to read it all, but I looked at some sections and here is a quick review.
First of all, it should be noted that the report is just that; a report. It is not a final recommendation or a decision of any sort. And it is subject to changes since the ARDC is now seeking comments on it. But it does have suggestions on how to approach the issues.
Second, given those suggestions, it is clear that the report sides with what I have called the “Justice gap” theme in the debate. [See, "Justice Gap vs. Core Values: The Common Themes in the Innovation Debate" 41 Journal of the Legal Profession 1 (2016)] This refers to the position that we should do what we can to help provide more access to legal services, even if doing so involves taking innovative approaches that seem to go against tradition. As the report states, “[p]rohibiting lawyers from participating in or sharing fees with for-profit services that refer clients to or match clients with participating lawyers is not a viable approach, because the prohibition would perpetuate the lack of access to the legal marketplace.”
What is new, and may be controversial, in the report is that it does not only suggest changing the rules that apply to lawyers, it suggests creating a regulatory system to apply to the non-lawyers who want to provide for-profit referral services that would require them to meet certain standards and to register with, and be regulated by, the ARDC. According to the report, this approach would be better to protect clients and the integrity of the legal profession.
The ARDC will accept comments through at least Aug. 31, 2018. Comments should be sent to information@ardc.org. More here.
As expected, the report has generated some debate already. Here are some links to comments about it.
Carolyn Elefant writes that the proposal is a very bad idea, but not for the reasons that the jurisdictions that have published opinions have argued.
Law Sites describes the report here.
Legal Profession blog comments here.
Robert Ambrogi comments on the report at Above the Law.
Finally, here is a podcast discussing the report with its author. (if you can't see the podcast play button below, you can go here to access it.)
Saturday, June 9, 2018
NJ Supreme Court rejects request to review opinion on Avvo legal services -- UPDATED
About year ago, 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 issued an opinion holding, among other things, that it would be unethical for New Jersey lawyers to participate in Avvo Legal Services.
In response, Consumers for a Responsive Legal System, an organization that represents Avvo and other online companies providing lawyer referrals, petitioned the NJ Supreme Court to review the order. But earlier this month, the court denied the petition.
Responsive Law executive director Tom Gordon said in a statement that, “by summarily declining to review the decision … [the court] has abrogated its responsibility to engage in active supervision of the bar’s anti-competitive conduct.”
This statement is, of course, a reference to the holding of the U.S. Supreme Court's decision in North Carolina State Board of Dental Examiners v. Federal Trade Commision, in which the Court found regulation of a profession is subject to antitrust regulation if it is exercised by market participants unless there is active supervision by a government agency. In other words, the organization (and Avvo) are gearing up to argue that the system of self regulation used by the legal profession violates antitrust principles.
On the other hand, the NJ State Bar Association issued a statement stating, in part, that “The court’s decision to let stand the joint opinion is an important . . . provides clarity for New Jersey lawyers and protects consumers" and that “[t]he association has increasingly grown concerned about the number of organizations that have sought to open the door to fee sharing, which could interfere with a lawyer’s independent professional judgement, and with the concept of organizations providing legal services when they are not bound by the same ethics rules that guide attorneys.”
I am not sure that both statements are entirely accurate. The fact that the court denied the petition does not mean it did not exercise supervision. If it reviewed the petition, it exercised supervision. Avvo just doesn't like the result. That does not make the review insufficient; it just makes it unfavorable to its position.
On the other hand, the statement by the Bar Association, is not entirely convincing either. It suggests that Avvo is "providing legal services," which it does not do.
For more on the court's denial of the petition, go here.
UPDATE 7/6/18: Lawyer Ethics Alert Blogs has an update here.
In response, Consumers for a Responsive Legal System, an organization that represents Avvo and other online companies providing lawyer referrals, petitioned the NJ Supreme Court to review the order. But earlier this month, the court denied the petition.
Responsive Law executive director Tom Gordon said in a statement that, “by summarily declining to review the decision … [the court] has abrogated its responsibility to engage in active supervision of the bar’s anti-competitive conduct.”
This statement is, of course, a reference to the holding of the U.S. Supreme Court's decision in North Carolina State Board of Dental Examiners v. Federal Trade Commision, in which the Court found regulation of a profession is subject to antitrust regulation if it is exercised by market participants unless there is active supervision by a government agency. In other words, the organization (and Avvo) are gearing up to argue that the system of self regulation used by the legal profession violates antitrust principles.
On the other hand, the NJ State Bar Association issued a statement stating, in part, that “The court’s decision to let stand the joint opinion is an important . . . provides clarity for New Jersey lawyers and protects consumers" and that “[t]he association has increasingly grown concerned about the number of organizations that have sought to open the door to fee sharing, which could interfere with a lawyer’s independent professional judgement, and with the concept of organizations providing legal services when they are not bound by the same ethics rules that guide attorneys.”
I am not sure that both statements are entirely accurate. The fact that the court denied the petition does not mean it did not exercise supervision. If it reviewed the petition, it exercised supervision. Avvo just doesn't like the result. That does not make the review insufficient; it just makes it unfavorable to its position.
On the other hand, the statement by the Bar Association, is not entirely convincing either. It suggests that Avvo is "providing legal services," which it does not do.
For more on the court's denial of the petition, go here.
UPDATE 7/6/18: Lawyer Ethics Alert Blogs has an update here.