Wednesday, October 24, 2018

Short comment on recent amendments to Model Rules on advertising and other forms of communication about legal services

Back in August I reported that the ABA had adopted a few amendments to the rules related to communication of legal services (aka advertising and solicitation) and later posted some links to a few comments about them.   Adding to that list, here is a link to a short comment by Legal Ethics in Motion.

Tuesday, October 23, 2018

ABA Committee on Ethics and Professional Responsibility issues opinion on duties related to safeguarding of data and data breaches

Last week, the ABA Standing Committee on Ethics and Professional Responsibility issued a formal opinion in which it concludes that lawyers have a duty to safeguard client data and to notify clients of a data breach. 

You can read the opinion (Formal Opinion 483) here.   The ABA Journal has a summary here.

Saturday, October 20, 2018

Podcast: Update on the new California rules of professional conduct

The Legal Talk Network has posted a new podcast on the California Rules of Professional Conduct.  You can listen to it by clicking on the "play button" below, or by going here.

Saturday, October 13, 2018

Massachusetts Supreme Court orders dismissal of thousands of cases because of prosecutorial misconduct related to state run evidence lab misconduct

Thousands of drug cases tied to a state-run Amherst drug lab will be dismissed, and the state attorney general's office will bear the costs, the Massachusetts Supreme Judicial Court ruled Thursday. The decision is the result of the court's finding that prosecutors withheld evidence about a state chemist's wrongdoing.  The Legal Profession blog has the story here.

Tuesday, October 9, 2018

Utah launches online dispute resolution program for small claims court

In September 2018, Utah launched a small claims court online dispute resolution (ODR) system which has been designed to provide “simple, quick, inexpensive and easily accessible justice” that includes “individualized assistance and information that is accessible across a multitude of electronic platforms.”

Online dispute resolution systems (some of which are fully automated - meaning there are no humans involved in the process) are not a new concept but it has been mostly used in the private sector (think eBay, for example).  Utah appears to be the first U.S. jurisdiction to launch a system for actual legal disputes, in this case small claims disputes, which currently include claims up to $11,000.

As Prof Laurel Terry explains, "the implications of this development are profound."  You can read her comment here.

Monday, October 8, 2018

Texas Opinion: no interviewing potential experts in order to create conflict -- UPDATED

You may have heard stories about divorce clients "interviewing" good divorce lawyers so that their spouses would not be able to hire any of the lawyers so interviewed...

Well, on a similar note, the Professional Ethics Committee of the Texas State Bar was recently asked the following question:  "Do the Texas Disciplinary Rules of Professional Conduct prohibit a lawyer from retaining an expert or intentionally disclosing confidential information to a prospective expert when the lawyer has no substantial purpose other than to attempt to disqualify or otherwise prevent the expert from being used by an opposing party including testifying on the opposing party’s behalf?"

And, last month, the Committee issued its answer in Opinion No 676:  Yes, the rules prohibit such conduct.

As Karen Rubin, of The Law for Lawyers Today, summarizes it, "You can’t interview potential expert witnesses and share confidential information with them solely to taint them with a conflict that would prevent the experts from working for the other side."   Her full comment on the Opinion is available here.

Over at Ethical Grounds, Michael Kennedy offers more analysis on the opinion.

Monday, October 1, 2018

"Road rage" incident escalates into a disciplinary sanction, one year suspension

As a reminder that lawyers can be sanctioned for conduct outside the practice of law, take a look at a recent case in which the Ohio Supreme Court suspended a lawyer for his conduct related to an incident with a bicyclist that led to a subsequent scuffle and more misconduct.  In a unanimous opinion, the Court suspended the lawyer for one year with six months stayed.

In addition, the more interesting part of the case is not the fact that the original conduct was an incident outside the practice of law but the discussion about what level of sanction should be imposed.  The Board of Professional Conduct had recommended a two year suspension.

The Legal Profession Blog has more details, but the basic story is this:  while driving his car, believing that a bicyclist had bumped into his car, the attorney in question followed the cyclist, drove in front of him and slammed on the breaks causing the cyclist to crash into the back of the car.  After that, the lawyer got into what was described as a "scuffle" with the cyclist and a witness who had started to take a video with his cellphone.  Eventually, the lawyer was charged with a misdemeanor, skipped his court date, was arrested, lied about the incident and so on. 

The lawyer, in a way, failed to follow the number one rule when you find yourself in a hole:  "stop digging!"  He continued to make things worse in different ways and ended up facing a two year suspension. He appealed the two year suspension, though, and was lucky to get it reduced to 1 year with the last 6 months stayed, which means in practical terms he could go back to practice in 6 months. 

You can read the opinion here

More interestingly, particularly if you are interested in the issue of how courts decide what is the proper level of sanction to impose for particular types of conduct, you can watch the video of the oral argument, during which the lawyers and justices discuss the lawyer's conduct, and the basis for the sanction.