Louisiana Supreme Court disbars prosecutor for posting internet comments

If you need another reminder about the perils of posting internet comments that may disclose confidential information, take a look at this story in The Law for Lawyers Today, discussing a recent decision disbarring an assistant U.S. attorney for the Eastern District of Louisiana for publishing comments (under an pseudonym) on the website of the New Orleans Times-Picayune.  The opinion of the court is here.

Mississippi and Kentucky adopt exoneration requirement for malpractice claims against criminal defense attorneys

Some jurisdictions have recently abandoned the view that a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to prove that he or she was actually innocent of the crime for which they were convicted.  My most recent post on this is here.   Some of those, however, still require that the plaintiffs show they were exonerated through the criminal process (or what some call "post conviction relief").  In other words, in cases in which a convicted defendant wants to sue a former lawyer alleging they would not have been convicted but for the negligence of the lawyer there are three approaches:  requiring that the defendant show actual innocence, requiring that the defendant show post conviction relief (but not necessarily innocence) and not requiring anything other than the typical elements of a torts claim.

In two recent decisions, the Supreme Courts of Mississippi and Kentucky have decided to adopt the approach that requires "exoneration" for the malpractice claim to proceed.

The case in Mississippi is called Trigg v. Farese, and you can read the opinion here.  In it, the court concludes that "We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must “exonerate” himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled."

The case in Kentucky is called Lawrence v. Bingham, Greenbaum,Doll, LLP, and you can read the opinion here.  In it, the court adopted the following articulation of the Exoneration Rule: "to survive a motion to dismiss for failure to state a claim in a professional malpractice case against a criminal defense attorney, the convicted client must plead in his complaint that he has been exonerated of the underlying criminal conviction. He or she need not prove actual innocence, but they also may not rely solely upon a claim of actual innocence in the absence of an exonerating court decision through appeal or post-conviction order. Further, the statute of limitations on the legal malpractice claim does not begin to run until the postconviction exoneration occurs."

The Three Most Read Professional Responsibility Stories of 2018

Recently, the ABA Journal posted its “Top 10 most-read legal news stories of 2018.”  Three related to professional responsibility.  Michael Kennedy, of Ethical Grounds, discusses them here.

A different view on the justice gap and ABA Opinion 484

My most recent post was about ABA Opinion 484, which attempts to contribute to the effort to help close the access-to-justice gap.

Today, over at the ABA Journal, Jason Tashea offers a different perspective on the issue.  You should read his full post, but here is the gist of it:

Time and again, the proposed solutions to close the gap—whether loans, technology, professional rule changes, process and business model improvements—are missing the larger point. The access-to-justice gap doesn’t exist because of absence of loans or the lack of technology or the intractable billable hour. It exists—and continues to grow—because the cost of life in America has increased dramatically while wages for most Americans have been stagnant or even falling for decades.

ABA Opinion 484: can a lawyer refer a client to a financing company in which the lawyer owns a financial interest?

At the end of November, the ABA Committee on Professional Responsibility issued Formal Opinion 484 on whether a lawyer may refer a client to a fee financing companies in which the lawyer owns a financial interest.  I have not read the opinion in full, so I can't comment on it at this time.  Here is the summary:

Lawyers may refer clients to fee financing companies or brokers in which the lawyers have no ownership or other financial interests provided they comply with Model Rules 1.2(c), 1.4(b), 1.5(a) and (b), 1.6, 1.7(a)(2), and 1.9(a). If a lawyer were to acquire an ownership or other financial interest in a finance company or brokerage and thereafter refer clients to that entity to finance the lawyer’s fees, the lawyer would be entering into a business transaction with a client, or obtaining a security or pecuniary interest adverse to the client, or both. In that instance, the lawyer would also be required to comply with Model Rule 1.8(a).

ABA Opinion 483 on the duties related to data breaches

Last October, the ABA Committee on Professional Responsibility published Formal Opinion 483 to provide guidance on how lawyers should handle data breaches before, during, and after an event. In short, lawyers must take proactive steps to protect sensitive client data and they must disclose material data breaches.

You can read the opinion here.  Here is a summary by the National Law Review:

The ABA states that data breaches pose a “major professional responsibility and liability threat” to the entire legal profession.  It defines a data breach as “a data event where material client confidential information is misappropriated, destroyed or otherwise compromised, or where a lawyer’s ability to perform the legal services for which the lawyer is hired is significantly impaired by the episode.”  When there is data breach, attorneys must first comply with state and federal legislation. Next, attorneys must disclose a breach to a current client if (a) that client’s material, confidential information is or reasonably may have been compromised (e.g., unauthorized access, use, theft, or destruction), or (b) the breach has materially disrupted the attorney’s ability to serve the client (e.g., ransomware limiting access to client information for any material amount of time). In essence, lawyers must notify clients when incidents like ransomware materially impair operations—even when there is no evidence of exfilatrated or compromised data.  Here, strong defense mechanisms include up-to-date, accessible, and easily restorable back-ups to fend off disruption of legal services

For some commentary on the opinion go here:

Faughnan on Ethics (on the relationship between the opinion and Model Rules 1.15 and 4.4)

Above the law

Lawyer Ethics Alerts Blog

Articles about lawyering and artificial intelligence

While I was away from blogging during the last few weeks I saw a few articles about artificial intelligence that you might find interesting.  Here are the links:

LawTech: Time for a cybernetic legal ethics?

What’s Artificial About Ethical AI In The Legal Industry? Everything

Legal Ethics: The Ethical Dilemma of Artificial Intelligence (The National Law Review)

Where Avvo Legal Services left off, Basic Counsel picks up

Regular readers of this blog know I have been writing about Avvo Legal Services for a long time, and that I have expressed serious concerns about possible ethics violations in participating in it.  You also know that those concerns were shared by enough jurisdictions out there that Avvo Legal Services stopped providing services and is no longer in business.

But where it left off, a new platform has taken its place.  I have not reviewed the details on how it functions but from what little I have read so far, it is clear they are trying to address the concerns that made participating in Avvo such a risk for lawyers.

The new platform is called Basic Counsel and it seeks to enable attorneys to offer flat-fee, limited scope services, while complaying with every state’s professional conduct rules.

Bob Ambrogi, of Law Sites, describes the services in some detail here.  In a nutshell, consumers search or browse the site for the service they need in the location they need it. When a consumer buys a service, the fee is sent directly to the lawyer and Basic Counsel collects a separate “platform fee” from the consumer of 5 percent of the service cost (with a $10 minimum).  As the lawyer works on the client's case, the platform offers ways for the attorney to keep the client informed on the tasks progress and ways for attorney and client to communicate and share documents.

As Ambrogi points out, with regard to the potential ethics issues raised by a site such as this, there are clearly some differences between Basic Counsel and Avvo Legal Services.  For example, a concern of ethics bodies was that Avvo set the fee and defined the scope of the service. On Basic Counsel, the lawyer sets the fee and defines the scope.  Also, Avvo Legal Services collected the fee from the client and held it until the service was completed, which some said interfered with the lawyer’s duty to safeguard client funds. On Basic Counsel, the funds go directly to the lawyer.

Still another ethics issue for Avvo Legal Services was that it charged the lawyer a marketing fee, which some ethics bodies saw as fee splitting. Basic Counsel charges the client a platform fee, and Marchbanks says the fee is for the direct benefits the client obtains from using the platform — not for anything the attorney provides.

This sounds good, yet it is not clear to me how calling the fee a "platform fee" distinguishes it from Avvo's marketing fee when both are based on a percentage of the amount charged by the attorney.  It was that fact, which does not seem to be different in Basic Counsel's system, that got Avvo in trouble.  On the other hand, the percentage involved in Avvo was higher than the 5 percent charged by Basic Counsel.  In Avvo's case, the percentage also increased as the price for the services increased.

Why can't they make the platform fee a flat fee itself, not dependent on the value of the services?  It seems to me that would be a safer way to deal with this.  Otherwise, the door is still open for the interpretation that the fee constitutes sharing a fee with a non lawyer.

Having said that, as I have written about before many times, it is possible the rules can and will be changed to welcome this type of interaction because of the obvious benefits it provides to consumers.  But until that time, lawyers should be careful not to engage in conduct that has been interpreted to constitute sharing fees with non lawyers in violation of the rules.

Also, it is not clear whether lawyers should be concerned about confidentiality issues when it uses the platform to communicate and share documents with clients and prospective clients.

Florida Supreme Court: there is no reason to treat "Facebook friendships" differently when it comes to disqualifying judges

Almost a year ago, I wrote that the Florida Supreme Court was considering the question of whether a judge should be disqualified from presiding over a case because he or she was a "Facebook friend" of one of the lawyers.  In my post I argued that whether the relationship between a lawyer and a judge is so close as to call the judge’s impartiality into question should be decided on a case by case basis.  I agreed with my friend and colleague Ray McKoski who had written an article in which he argued that imposing a per se rule would be an overreaction given the fact that judges preside over lawyers who they know and are friends with outside of Facebook. As he correctly stated, there is no rule that automatically bars a lawyer from appearing before a judge when the two share an actual friendship.

Well, now we have the official answer to the question from the Florida Supreme Court.  Last month, the Court released its long awaited decision, holding that

In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification. 

The case is called Law Offices of Herssein & Herssein v United Services Automobile Association.  You can read the opinion here.

It seems to me the opinion reaches the correct result, and what it surprising is that the decision was actually 4 to 3.  The position of the dissenting judges was that "a judge’s involvement with social media is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter. . . . I would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook “friends” appears before them. This rule does little to limit the judge’s personal liberty, while advancing the integrity of the judicial branch as the one branch of government that is above politics."

Yet, it is not clear how the fact the friendship originates in Facebook makes it so different from an actual old fashioned "personal" friendship that we need a strict rule.

For more commentary on the opinion go to:

Ethical Grounds

Faughnan on Ethics

The ABA Journal

Jurist

Hinshaw

Lawyer Ethics Alert Blog

Free Webinar on Confidentiality and Privilege

On December 17, 2018, the ABA will host a webinar with the author of The Attorney-Client Privilege: A Practitioner's Guide, on client confidentiality and attorney-client privilege. This webinar is free to ABA members.

To register, go here.

I know, I know, it has been a long time....

It has been a while since I posted on the blog, and I am sorry about that.  My semester became extremely busy at one point because I had to take on two other courses and other projects, so I had very little time...  But now I am done with classes and, although I still have to grade exams for a couple of weeks, I have more free time.  There is a lot to talk about and I will try to catch up with the news before the end of the year. 

Florida Bar Board of Governors approves revised rule on qualifying provider fees and ethics opinion on “expert” and “specialist” -- UPDATED

On October 12, The Florida Bar’s Board of Governors voted to approve substantive revisions to Bar Rule 4-7.14 related to the use of “expert” and “specialist.”

Revised Bar Rule 4-7.14 would allow non-certified attorneys to call themselves “expert” or “specialist” if they can objectively verify that claim based upon the lawyer’s education, training, experience, and “substantial involvement” in the area of practice. The amended rule would also allow law firms to call themselves “experts” or “specialists” if that claim can be objectively verified for at least one lawyer in the firm.  The law firm making the claim would be required to have a disclaimer stating that not all firm members meet the same standards, if there are lawyers who do not qualify.

Lawyer Ethics Alert Blog has more information here.

UPDATE (11/17/18):  Legal Ethics in Motion has a short comment here.

UPDATE (8/2/19):  Lawyer Ethics Alert Blogs has a comment here.

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.

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.

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.

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.

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.

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.

"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.

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.

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.

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.

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.

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.

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.

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. 

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.

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.

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.

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.

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.

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.

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.

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.


 

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.

Where Avvo Legal Services left off, Text-a-Lawyer may pick up...

Earlier this month I reported that Avvo Legal Services was shutting down; but I also stated that I was sure ALS' demise would not be the last time we hear about client-lawyer matchmaking services.  Where Avvo left off, someone else will pick up...

And now we have a new participant in the market....  Say hello to Text A Lawyer, ("TaL") a service that will provide a platform for prospective clients to ask lawyers questions via text.  For now, the service is available only in Oregon and Washington but its developer plans to expand the service nationwide if he can find investors to help fund the project.  You can read more about Text a Lawyer here.

Aside from the fact that I have serious doubts that texting is a good way to discuss legal matters with a client a lawyer has not even met, the billing process used by TaL has already been criticized as having some of the same problems that got Avvo in trouble in so many jurisdictions.  You can read about it here.  Of course, if jurisdictions decided to change the applicable rules, then things might be different, but until then, the discussion we were having about Avvo Legal Services will continue.

Here is a video that explains the service (taken from its website).  What do you think?

Was Michael Cohen’s Secret Taping of his Then-Client Donald Trump Improper?

Bernie Burk (Campbell) offers some thoughts on the question here.

Ghostwriting for clients?

The June edition of the ABA Journal has a short article on whether it is ethical for an attorney to "ghostwrite" a document for a client to be filed in court.  You can read the article here.

As you may know, there are a few ethics opinions available on the subject and they vary on a few details particularly whether the attorney must disclose the fact that the document was prepared with the aid of an attorney.

And just as this article was hitting the press, a Committee of the Mississippi bar issued the latest opinion on the question holding that ghostwriting is OK on “discrete aspects in a matter” without the need to disclose either the name of the attorney who prepared the document or that the document was prepared by a lawyer.   As the opinion states, the Committee was concerned that lawyers would be dissuaded from providing limited representation if required to disclose their involvement. You can read the opinion here.

More on the demise of Avvo Legal Services -- UPDATED

A few days ago I reported that the company that recently bought Avvo has decided to discontinue Avvo Legal Services ("ALS"). 

There have been a couple of comments, but I am a little surprised I have not seem much reaction to the news.  Law Sites has a report with some links, but no opinion one way or another.

The only opinion statement I have seen so far is by Professor Milan Markovic, over at the Legal Profession blog, in which he laments ALS's demise, stating that "My personal view is that the ethical concerns regarding Avvo Legal were overblown because Avvo Legal neither recommended one attorney over another nor interfered with attorneys' professional independence of judgment.  ...[T]o address lack of access to justice, the organized bar should embrace Avvo Legal and other companies that promote awareness of the law and the availability of lawyer assistance.  Instead we continue to ignore the demand side of lack of access to justice while regulators experiment with supply-side solutions such as "navigators", "LLLTs," and alike that I fear will prove ineffectual." 

UPDATE 7-26-18:  Faughnan on Ethics has published a comment on Avvo's demise here.

NY State Bar calls for regulation of online providers of legal documents -- UPDATED

The New York State Bar has filed a resolution with the ABA House of Delegates, to be heard at the Annual Meeting, calling for regulation of online providers of legal documents. The resolution states, in full:

RESOLVED, That the American Bar Association urges states to adopt General Provisions for Regulation of Online Providers of Legal Documents to establish reasonable standards of product reliability and efficacy, provide consumers with information and recourse against abuse, ensure consumers are made aware of the risks of proceeding without attorneys, inform consumers where affordable attorneys can be found, and protect confidential information; and

FURTHER RESOLVED, That until such time as the General Provisions are adopted, online providers of legal documents are encouraged to adopt the Statement of Best Practices to provide a common-sense approach to self-regulation of online providers of legal documents.

The report that accompanies the resolution argues that "there is a need for some form of regulation in order to (i) establish minimum standards of product reliability and efficacy, (ii) provide consumers with information and recourse against abuse, (iii) ensure consumers are made aware of the risks of proceeding without attorneys, (iv) inform consumers how affordable attorneys can be found, and (v) protect consumers’ confidential information."

The ABA annual meeting is in about a week.  Stay tuned.

UPDATE (7/26/18):  I just heard that the sponsors of the resolution are withdrawing it, but also that they anticipate filing it to be considered at the ABA Midyear Meeting next February.  Again, stay tuned...

Supreme Court decides McCoy v Louisiana

Last year I posted comments on a case then before the Supreme Court which I thought was important on the issue of client autonomy and allocation of decision making authority within the attorney-client relationship.

The case was decided back in May but I hadn’t had a chance to read the decision yet.  Well, I just finished reading it, and I am happy to report that it was decided just like I suggested it should.  Here are my initial thoughts.

First, a little background.  The case is McCoy v. Louisiana in which a defendant in a capital murder case appealed his conviction arguing ineffective assistance of counsel based on the fact that his lawyer conceded his guilt over the defendant's objection.  You can find all the documents related to, and more information on, the case at the SCOTUSblog here.

The relevant facts of the case are as follows.  Two weeks before trial, the defendant’s lawyer (Larry English) told his client, McCoy, that he thought the evidence against McCoy was overwhelming and that, absent a concession that McCoy was the killer at the guilt stage, a death sentence would be impossible to avoid at the penalty phase.  English, therefore, decided to concede that McCoy committed the murders in an attempt to convince the jury not to impose the death penalty.  McCoy did not agree, and told English not to make that concession. Instead, McCoy wanted English to emphasize his defense based on an alibi - a story that English did not believe was true. Based on their disagreement, McCoy asked to court to terminate English’s representation but the court refused.

At the beginning of his opening statement at the guilt phase of the trial, English told the jury that McCoy killed the victims.  McCoy objected and addressed the judge outside the presence of the jury.  Yet, the judge reminded McCoy that he was being represented by English and told him that “the court would not permit any other outbursts.”  In his closing argument, English again reiterated that McCoy was the killer.

After he was convicted and sentenced to death, McCoy unsuccessfully moved for a new trial, arguing that the trial court violated his constitutional rights by allowing English to concede McCoy committed three murders over McCoy’s objection. Then, on appeal, the Louisiana Supreme Court affirmed the trial court’s ruling because, according to the court, counsel reasonably believed that admitting guilt afforded McCoy the best chance to avoid a death sentence.

The Louisiana Supreme Court also concluded that English’s refusal to maintain McCoy’s innocence was necessitated by Louisiana Rule of Professional Conduct 1.2(d), which provides that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent” because, according to the court, presenting McCoy’s alibi defense would have forced English to violate his duty against presenting false evidence.

In holding the way it did, the Louisiana Supreme Court did not follow the analysis of three other state Supreme Courts that have addressed the same issue.  (See, Cooke v. State, 977 A.2d 803 (Del. 2009), State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000), and People v. Bergerud, 223 P.3d 686 (Colo. 2010), all of which held that although defense counsel is free to develop defense theories based on reasonable assessments of the evidence, counsel cannot usurp the fundamental choices reserved for criminal defendants.

The US Supreme Court granted review to solve the division of opinion among state courts and agreed with the majority of those state courts that counsel may not admit a client’s guilt over the client’s objection.

If you read my previous posts on this case, you know I think this was the right decision.

First, the Louisiana Supreme Court was wrong when it held that English’s conduct was justified because otherwise he would have used false evidence.  As the Court explains, the fact that English did not believe McCoy’s account does not mean that pursuing McCoy’s preferred defense would constitute using false evidence.  Louisiana’s ethical rules might have prevented English from presenting McCoy’s alibi evidence if English knew false evidence or perjury was involved, but English did not have such knowledge.  According to the rules, mere suspicion (or even a reasonable suspicion) that a client might be lying is not enough to trigger the duties in the rules related to the duty of candor.

More importantly, on the main issue before the Court, the Court held that, as stated in rules of professional conduct, it is the client – not the lawyer – who has the right to make decisions related to the objective of the defense:

. . . Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.

. . . When a client expressly asserts that the objective of “his defense” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.  . . . see ABA Model Rule of Professional Conduct 1.2(a) (2016) (a “lawyer shall abide by a client’s decisions concerning the objectives of the representation”). 

For these reasons, it was improper for English to override McCoy’s decision.  McCoy’s decision may have been a bad decision, but it was a decision he had the right to make.

Having decided that the lawyer’s admission of the client’s guilt over the client’s express objection the conduct of the attorney was improper, the Court then decided that it was a violation of the client’s Constitutional rights and that, therefore, McCoy must be granted a new trial. 

In terms of the professional responsibility issue, this decision is correct, and consistent with precedent and logic.   The rules reserve the right to decide to the client.  The lawyer took away the right when he acted against the client’s instructions.  Thus, the lawyer acted improperly.

Yet, as you may recall, I was also interested in this case because I wanted the court to confront its decision in Florida v. Nixon, in which the court held that a lawyer can make a decision for the client if the client does not object.

Interestingly, Justice Ginsburg wrote the opinion in both cases, although  I guess that should not be surprising.  I assume that knowing the McCoy case would force the Court to address what it decided in Florida v Nixon, she would want to keep control of the discussion to protect her opinion in that case.

I was hoping the Court would use McCoy to admit its decision in Florida v. Nixon was wrong, but that did not happen.  Justice Ginsburg was very careful to distinguish the two cases:

Florida v. Nixon . . . is not to the contrary. Nixon’s attorney did not negate Nixon’s autonomy by overriding Nixon’s desired defense objective, for Nixon never asserted any such objective. Nixon “was generally unresponsive” during discussions of trial strategy, and “never verbally approved or protested” counsel’s proposed approach.  . . . Nixon complained about the admission of his guilt only after trial. . . . McCoy, in contrast, opposed English’s assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court. . . . If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant’s best interest. Presented with express statements of the client’s will to maintain innocence, however, counsel may not steer the ship the other way. 

I understand how the facts in the two cases are different, but I still think that the lawyer in Florida v. Nixon negated the client’s autonomy just as much as the lawyer in McCoy.  The fact that the client did not object, to me, does not justify a different result.

The decision in Florida v. Nixon is not as clear as Justice Ginsburg makes it sound today.  It is not clear whether the Court found that the lawyer had provided ineffective assistance of counsel (a) because, although the decision was for the client to make, the lawyer could make it because the client was incapable of communicating with the lawyer or (b) because the decision was for the lawyer to make because it was "tactical" in nature.

The first option goes against the rules of professional conduct.  The second is based on the position that conceding guilt to avoid the death penalty relates to “means” rather than objectives of the representation and therefore falls under the authority of the attorney.

Do you see the problem?  If the decision in Florida v. Nixon was based on the second argument (and that is what it seems to be the case), how can Justice Ginsburg now be saying in McCoy that the same decision is exclusively for the client to make? 

Once we get to that point, the only way to justify the decision in Nixon is to say that the fact that the client was unresponsive changed the character of the decision, making it possible for the attorney to make the decision for the client.  Yet, this is not what the rules of professional conduct say because the client had diminished capacity and the lawyer is not supposed to make decisions for the client.

The bottom line for me is this.  If we are going to accept that, as the Court concludes in McCoy, “the decision over whether to concede guilt at trial is ultimately the defendant’s to make. It goes to the very heart of the right to put on a defense–a right that personally belongs to the accused,” then we should conclude that the decision in Florida v. Nixon was wrong and should be overturned.

Thus, for me, McCoy is an incomplete victory.  It is the correct result for McCoy; but it did not correct the result in Nixon.

Finally, it should be noted that the three justices considered to be the most conservative (can you guess who they are?) dissented in McCoy, arguing that the Court should not have granted review in the case because the issue presented was so rare that it did not merit discussion by the court.

On the merits of the question, however, they argued, among other things that attorney English did not admit that McCoy was guilty of murder. Instead, they argued, he admitted that McCoy killed the victims.  Based on this distinction, they argued that English did not concede guilt of the crime, but rather, conceded just one of its elements, and they questioned what would be the decision if a lawyer concedes guilt of a lesser included offense.

Finally, they wondered what will happen if petitioner is retried, stating that “it will be interesting to see what petitioner’s . . . counsel . . . will do. It is a safe bet that no attorney will put on petitioner’s conspiracy defense.”

These last two questions might be interesting, but they are irrelevant.  The fact of the matter is that the attorney acted improperly in making a decision that is reserved for the client to make.  The real issue in the case was whether that conduct amounted to ineffective assistance of counsel.  The majority opinion found that it did; the dissenters did not rebut that conclusion.

You can read the full opinion here.

Verdict article on Formal Opinion 478 regarding judicial ethics

The most recent column at Verdict discusses ABA Formal Opinion 478, issued in December 2017, which warns that judges may risk violating the ABA’s Model Code of Judicial Conduct (“Model Code”) by going online and independently researching facts or parties pertinent to cases pending before them.  You can read it here.

Pennsylvania Superior Court rules lawyer can't serve as guardian ad litem and as lawyer for a child at the same time

Back in 2010 I posted a comment criticizing the practice of appointing attorneys for juveniles in delinquency proceedings to serve simultaneously as guardians ad litem and urging the Illinois Supreme Court to grant review in a case that challenged it.  I also published a law review article on the subject, available here.

Since then, the Court did review a case on the issue and decided that attempting to serve as a lawyer and as a guardian at the same time constituted an impermissible conflict of interest.  I wrote an article about the case (here).

Unfortunately, the practice of appointing lawyers to serve as lawyers and guardians simultaneously is still common in many jurisdictions, including, oddly, in Illinois.  (The ruling in Illinois banned the practice in delinquency cases but not in family law matters.)

I am writing about this again today because I just read that the Pennsylvania Superior Court issued a ruling in a case called In re J'K.M., 2018 BL 226337, Pa. Super. Ct., No. 1390 WDA 2017, 6/26/18, holding that an attorney appointed as a teen's guardian ad litem and as her lawyer in a neglect proceeding can't continue the dual roles because a divergence between what the child wants and what is best for them creates a conflict of interest.

Given my history on this issue, you will not be surprised to hear that I think this is definitely the correct decision. 

Office Depot Legal Services is back

Back in March I reported that Office Depot was set to start offering a pre-paid legal services plan.  Yet, when I went to check their website, I found out the program had been deleted.  I wondered if the idea had been scratched but could not find out more information.

Fast forward to this week.... and voila'.  The service is back up and running.  I still don't know what happened back when they first rolled out the website, but now it is back and functioning.  You can go check it out here.

If I understand it correctly, the program is a pre-paid legal services agreement for small businesses, not a referral service, which is an important distinction.  Services are provided by a firm with which the services seems to have an exclusive agreement.

If you go to the website, you can type in a zip code to "find your nearest firm."  I typed the zip code for the Chicago suburb I live in and the result was one law firm in the city of Chicago.  I typed in the zip code for downtown Chicago (which we call "The Loop" by the way), and got the same result.  I tried the zip code for Los Angeles and, again, the result was just one firm.

In other words, this program seems to have only one firm available for the consumer, which is very different from the Avvo Legal Services model in which the service would generate a list of options for the client from where the client could choose their favorite, and from a referral service which chooses (or at least helps choose) a lawyer for the consumer.

I have not seen any reaction or comments on the service in other blogs or legal ethics sites.  But that is not necessarily surprising.  Other than the fact that the service is owned by Office Depot, I am not sure there is anything new here.  Pre-paid legal services plans have been around for a long time and are mentioned in Model Rule 7.2 and its comment, which states that a lawyer who accepts assignments from a legal service plan must act reasonably to assure that the activities of the plan are compatible with the lawyer's professional obligations.

Avvo Legal Services is dead

Whether participating in Avvo Legal Services violates rules of professional conduct was one of the most debated questions in legal ethics recently.  Long time readers of this blog know I have written extensively, both here and in law reviews, on the subject, which is why I was dumbfounded when I saw the news today.

Internet Brands, the company that recently acquired Avvo has announced that Avvo Legal Services will be discontinued by the end of the month.  

That's it. No more explanation. They are not going to continue to argue there are no ethical issues to worry about.  They are not going to continue to try to convince that the rules should be changed. They are not going to continue to argue that the rules are unconstitutional.  They are done. Avvo Legal Services is dead.  

Evidently, whether that is a good thing or a bad thing depends on what your opinion is about the service, the company and the regulations involved.  That, we can debate some other time.  For now, the interesting question is simply "why?"  Why now?  (particularly because it seemed that the position to recognize and allow services like Avvo Legal Services seems to be gathering support.)    Was it the opinions of the bar associations that held it would be unethical to participate in Avvo Legal Services?  Was it that it was not profitable?

I don't know.  Others have concluded that Internet Brands did not want to fight the regulatory agencies, stating that "[f]rom a business perspective, it is understandable that Internet Brands didn’t want to continue this service given the regulatory obstacles it faced." 

But that's not exactly what the spokesperson for the company said in a letter disclosing they are discontinuing the service.  There, all they say is that "[a]s a part of our acquisition of Avvo, we have evaluated the Avvo product offerings, and adjusted the Avvo product roadmap to align more comprehensively with our business and focus. Accordingly, we have decided to discontinue Avvo Legal Services.”

Whether the closing of Avvo Legal Services is "good news" or "bad news" depends on your view of the service itself, and reasonable people can disagree about that (although, as your probably know, almost all the published ethics opinions that addressed it held it would be unethical for lawyers to participate).   

But I am sure that Avvo's demise will not mean the demise of entities trying to do what Avvo was doing, ie, profit by creating ways to connect prospective clients with lawyers.  This may be the last we hear of Avvo Legal Services, but I am sure it won't be the last we will hear of such matchmaking services.

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.

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.

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.

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.)

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.

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.

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.

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.

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.