Sunday, September 30, 2018

Avvo fined by NY Attorney General's Office

As you probably know by now, Avvo Legal Services shut down earlier this year, but Avvo itself did not.  The controversial original directory and rating service is still in operation.  I say "controversial" because since early on there have been lawsuits and claims that its ratings system is misleading and that it favors attorneys that pay to join Avvo in order to build their profile.

Now comes news that Avvo has reached an agreement with the New York Attorney General’s Office according to which Avvo will pay a $50,000 fine and will state on its website that attorneys who "claim" their profile (presumably by paying a fee to Avvo) receive higher rankings, among other things.  Also, Avvo will no longer be able to claim that its ratings are “unbiased.”

The ABA Journal online has more on the story here.

Wednesday, September 19, 2018

ABA issues new Formal Opinion

Earlier today, the ABA Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (Number 482) on “Ethical Obligations Related to Disasters,” which is not about what happens when a lawyer makes a huge disastrous mistake.

The Opinion is essentially a reminder to lawyers that they need to be aware of their duties when their practice is affected (or is likely to be affected in the future) by natural disasters. 

As the opinion explains in more detail, extreme weather events such as hurricanes, floods, tornadoes, and fires have the potential to destroy property or cause the long-term loss of power.  For this reason, lawyers must be prepared to deal with disasters.  Thus, lawyers have an ethical obligation to implement reasonable measures to safeguard property and funds they hold for clients or third parties, prepare for business interruptions, and keep clients informed about how to contact the lawyers (or their successor counsel).  The opinion concludes that “by proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.”

You can read the full opinion here.

Tuesday, September 18, 2018

How not to practice law: threaten another lawyer with a gun during a deposition

I am sure that there are lots of stories of lawyers threatening to fight during depositions; and, unfortunately even more of lawyers using foul and insulting language.  (Here is an example caught on video).  But today I bring you a story that combines both and takes it a step further.

As reported in the Legal Profession Blog, the misconduct involved a lawyer's behavior during a deposition at his office described as follows:
"When questioning the deponent, [the laywer] used vulgarities, called the deponent derogatory names, aggressively interrupted the deponent and opposing counsel, answered questions for the deponent, and repeatedly made inappropriate statements on the record. [The lawyer] went on to ask the deponent if he was "ready for it" while positioning his hand near his hip. The deponent briefly left the room, but when he returned [the lawyer] displayed a firearm he had holstered on his hip to the deponent and opposing counsel.]
Based on the record, the court called the lawyer's behavior "appalling" and found that there was substantial evidence to support a violation of RPC 8.4(d) (prohibiting an attorney from engaging in conduct that is prejudicial to the administration of justice). 

The lawyer was suspended for six months and a day.  Do you think the penalty is adequate? 

You can read more about the case here and here.

Monday, September 17, 2018

Comment on case imposing sanctions on prosecutor

About two weeks ago I reported that the Indiana Supreme Court had imposed sanctions on a prosecutor for failing to disclose exculpatory evidence.  See here.

A few days later, Michael Kennedy, of Ethical Grounds, posted a more detailed comment on the case and its implications.  You should take a look at it here.

Friday, September 14, 2018

Louisiana Supreme Court reverses conviction applying McCoy v Louisiana (in which the US Supreme Court had reversed the Louisiana Supreme Court)

As you may recall, back in May the US Supreme Court issued its opinion in McCoy v Louisiana, an eagerly awaited case on whether an attorney has the authority to concede a client's guilt in order to seek leniency at sentencing.  The Court held that the attorney did not have such authority and that because he acted against the client's will, the conduct constituted a reversible error.  For reasons I discussed elsewhere, I consider McCoy to be only a partial victory, but that is another story you can read about here.

In McCoy, the Louisiana Supreme Court had held that the attorney's concession of guilt had been a tactical decision within his authority; but the US Supreme Court held that type of decision related to the objective of the representation and therefore belonged to the client and reversed.

Now comes news that the Louisiana Supreme Court learned the lesson and has reversed a conviction in a new case that presented the same issue.  The case is called Louisiana v Horn and you can read the opinion here.

The Legal Profession blog has a summary here.

Monday, September 10, 2018

Short comment on Judge Kavanaugh and the Duty of Candor

Over at the Legal Ethics Forum, Prof. Milan Markovic (Texas A&M) has posted a short comment on whether Judge Kavanaugh i) had a duty to be candid in his nomination hearings and ii) he might have violated this duty.   You can read it here.

Sunday, September 9, 2018

Article on using non lawyer legal services to provide better access to legal representation

Because statistics show that the vast majority of people don't have access to legal representation, for years there has been a debate about whether jurisdictions should allow non-lawyers to provide certain types of legal services in order to provide better access to representation.  I have posted many comments, links to articles and podcasts, most recently here, here, and here

Yet, to date, only Washington and Utah have actually created programs to do something about it by recognizing and regulating "legal technicians" (or LLLTs for "limited license legal techinicians").  The requirements of the program in Washington are explained here.

Last week, the ABA Journal published another article on the subject (here).  The title of the article asks "Can licensed legal paraprofessionals narrow the access-to-justice gap?"  It is an odd question to ask, in my mind, because at this point the answer should be obvious.  Yes!  The question is whether the legal profession wants to make the commitment to see it done and to see it done well.  Two states have, but the rest don't seem to be interested or are extremely slow in following their example. 

Wednesday, September 5, 2018

How not to practice law: Continue representing a client after the court disqualifies you

Continuing our long-running list of obviously dumb things lawyers do, here is the latest:

Faughnan on Ethics is reporting on a recent case in which a lawyer was disbarred for disregarding a court's order that disqualified him from representing a client.  But it is worse than that.

First, the lawyer did not recognize that the representation constituted a conflict of interest to begin with (which was pretty obvious).  That means he violated two rules: the rule against conflicts and the rule on competence.  Then he was disqualified, but continued the representation.  Then he was suspended, but, you guessed it, continued the representation while suspended.  At this point I wonder if the attorney is still practicing while disbarred.

You can read the details of the case here.

Monday, September 3, 2018

Disciplinary sanctions imposed on prosecutor

Long time readers of this blog know I have posted many comments and articles on the lack of accountability for prosecutorial miscondcut (most recently here).

For that reason, it is nice to report that one court has decided to impose discipline on a prosecutor for a change.

As reported in the Legal Profession blog, the the Indiana Supreme Court has sanctioned a former prosecutor it found committed attorney misconduct by failing to disclose exculpatory evidence and by prosecuting a charge she knew was not supported by probable cause. For this misconduct, the court suspended the prosecutor for at least eighteen months without automatic reinstatement.  You can read the details of the story, here.  The case is called In the Matter of Hudson and it is available here.

Saturday, September 1, 2018

Podcast on ethics issues related to cloud computing

Back in 2014 I wrote a short article about ethical issues related to cloud computing.  See here.  Since then, obviously, the practice of using "the cloud" and other technological advances have continued to play an important part of the practice of law.  Accordingly, the ABA amended the comment to Model Rule 1.1 on competence to make clear that the duty of competence includes a duty to keep abreast of the benefits and risks associated with relevant "technology."   Since then, a majority of the states have adopted the change.

Which brings me to today's post.  As a good refresher on the issues related to cloud computing, the Legal Talk Network has published a new podcast in which hosts Sharon Nelson and Jim Calloway talk to Lucian Pera about the ethics of lawyers using the cloud and how they can use it with confidence. They break down the different cloud providers, the dangers that can potentially crop up when using the cloud, and the importance of having a technology mentor that lawyers can turn to with questions whenever they need it.

You can listen to the podcast by clicking on the play button below or by going here.