Thursday, August 30, 2018

Arizona Supreme Court rejects ABA Model Rule 8.4(g)

Back in May I reported (and commented on the fact) that Tennessee had rejected Model Rule 8.4(g).  See here.

Now comes news that the Arizona Supreme Court has also denied a petition to adopt MR 8.4(g). The court doesn't usually explain its decisions on rule-making issues, so it is not surprising that it didn't do it in this case.  Thus, we don't know whether it just doesn't like the Model Rule, thinks it has constitutional issues, or thinks it is uncessary. It just said no.

As of now, only Vermont has adopted the rule.

Thanks to Patricia Sallen for the update.

Monday, August 20, 2018

Dept of Justice is challenging Tennessee Supreme Court's Bd on Professional Responsibility

A few days ago I wrote about a new opinion by the Board on Professional Responsibility of the Tennessee Supreme Court stating what is the generally accepted view on a prosecutor's duty to disclose exculpatory evidence.  See here.

This generally accepted view is that the ethical duty to disclose exculpatory evidence is broader than the duty established by Brady v. Maryland.  The ABA adopted this interpretation in Formal Opinion 09-454 and the Tennessee Supreme Court's Board of Professional Responsibility reiterated it earlier this year.

Yet, the US Department of Justice's three district attorneys in Tennessee sent a scathing 10-page letter demanding to appear before the board—a hearing that has now been scheduled for September.  As reported in the ABA Journal online, "[i]t’s the kind of little-noticed move the department makes all the time but could have a lasting impact on the criminal justice system."

The article in the ABA Journal online has more details.

Friday, August 17, 2018

Ethics issues related to "of counsel" lawyers - UPDATED

Ethical Grounds has a short comment on ethics issues related to "of counsel" lawyers here.

UPDATE 8/17/18:  If you want more information on issues related to "of counsel", particularly about conflicts of interest, you should check Bill Frievogel's On Conflicts website.

Friday, August 10, 2018

First group of non lawyer technicians in Utah is expected to be licensed in 2019 -- UPDATED

Since 2015, there has been a lot of discussion on whether non lawyers should be allowed to provide some legal services.  Back then, Washington created a program to certify "Limited Licensed Legal Technicians" (or "LLLTs") who, after completing a course of study, would be allowed to represent clients without the supervision of a lawyer in limited circumstances.  You can read my original posts on this topic here, here, here, here, here, and here.  For many months, there was a debate as to whether this was a good idea, and whether other states would follow Washington's lead.  Some states did appear to be ready to do so, but in the end only Utah followed through.

Now comes news that new rules regulating paralegal practitioners in Utah are set to take effect Nov. 1 and that the first paralegal practitioners are expected to be licensed in 2019.  This will make Utah and Washington the only states that allow non-lawyers to practice law. The new rules will allow the licensed paralegals to provide limited legal services without a lawyer’s supervision in the following areas: cases involving temporary separation, divorce, cohabitant abuse, civil stalking, custody and support, name changes, cases involving forcible entry and debt collection matters in which the dollar amount in issue does not exceed the statutory limit for small claims cases.

Licensed paralegals will not be allowed to appear in court, but they will be permitted to perform the following services:

Interview clients to understand their objectives and obtain facts relevant to achieving that objective.

Handle forms, which includes being able to inform, counsel, advise, and assist in determining which form to use and give advice on how to complete the form; sign, file, and complete service of the form and to obtain, explain, and file any document needed to support the form.

Review and explain documents of another party.

Inform, counsel, assist and advocate for a client in mediated negotiations.

Fill in, sign, file and complete service of a written settlement agreement form in conformity with the negotiated agreement.

Communicate with another party or the party’s representative regarding the relevant form and matters reasonably related thereto.

Explain a court order that affects the client’s rights and obligations.

Although the Supreme Court has approved the program, it has not yet published the final regulations. Those are due to be published by the end of September.

Law Sites has more details.

Ethical Grounds has a comment here.

Wednesday, August 8, 2018

Comments on the amendments to ABA rules on lawyer advertising

As I reported yesterday, the ABA just approved amendments to the Model Rules on advertising and solicitation.  I think the amendments are very good, and will encourage states to revise their own rules which hopefully will lead to more consistency among jurisdictions.

McCabe law offers a good summary of the changes here.  Brian Faughnan on Ethics has a short comment here.

Interestingly, not everyone is happy with the amendments.  The former counsel for Avvo, for example, thinks the amendments don't go far enough.  (He has suggested eliminating rule 7.2 entirely, something I don't agree with.)

Likewise, My Shingle concludes that "The bar needs leadership and action on these questions, not scriveners to reorganize paragraphs (message to ABA: computers can do that now!).  If these tepid rule changes are the best that the ABA can do, then we should just let the organization die on the vine right now, because it simply doesn’t have the ability to lead lawyers into the future."

Here is a video of the presentation to the House of Delegates.  The amendments are summarized quickly starting at the 6:10 minute mark.  If you can't see the video below, you can watch it here.


Monday, August 6, 2018

ABA approves amendments to the rules on attorney advertising

Last week, the ABA adopted some amendments to the Model Rules that regulate attorney advertising and solicitation.  You can read the amendments and the reports that goes with them here.

I read the amendments and they do a good job of clarifying and simplifying the rules, although they are not as comprehensive or radical as some expected.  Two rules have been eliminated, but the basic principles in them are preserved as part of the comments of the rules that are retained.  Also, the requirement that advertising material sent by mail be labeled "advertising material" has been removed.