Wednesday, February 27, 2019

US Supreme Court finds for inmate in claim of ineffective assistance of counsel

The US Supreme Court announced a decision today in which it expanded the notion of ineffective assistance of counsel.  The court ruled for Gilberto Garza Jr., who waived his right to appeal in two plea agreements, then changed his mind and told his lawyer to file an appeal.  The lawyer did not file the appeal notice because of the waiver, and the deadline passed. In a petition for post-conviction relief, Garza argued that his lawyer had provided ineffective assistance.

To prove ineffective assistance, defendants must show that their lawyer’s representation fell below an objective standard of reasonableness, and that the deficiency was prejudicial to the defense.

The issue in the case was whether Garza was entitled to a presumption that his lawyer’s failure to file the notice caused prejudice, a presumption that had been recognized in a 2000 case in which there was no appeal waiver.

Idaho courts had ruled against Garza, finding that he could not make the necessary showing that the deficient performance at issue resulted in prejudice.

Reversing that ruling, the Supreme Court ruled 6-3 that this requirement goes against the rule that prejudice to the defendant should be presumed “when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued.”

The ABA Journal has a story here.

Courthouse News Service has a story here.

Florida opens investigation into whether Representative Matt Gaetz violated rules of professional conduct when he tweeted what some have interpreted to be a threat to Michael Cohen

The Daily Beast is reporting that the Florida Bar has opened an investigation into whether Rep. Matt Gaetz (R-FL) violated professional conduct rules by threatening former Trump lawyer Michael Cohen ahead of Cohen’s congressional testimony on Wednesday.  The full story is here.

Michael Cohen was disbarred yesterday, while he testified in Congress

Michael Cohen is making news everywhere today.  Yesterday he testified (in a private hearing).  Today, he is testifying in a public hearing before the House Oversight and Government Reform Committee.  Cohen's prepared opening statement is available here (in writing).  The video of today's opening statement is available here.  There are some interesting details about what Trump knew and when, but the gist of it is that Trump is a liar, a racist and a con man, or, in other words, nothing we have not heard before. 

But more important for readers of this blog, yesterday the New York Appellate Court issued its opinion officially announcing his disbarment based on his guilty pleas for evasion of assessment of income tax liability in violation of 26 USC § 7201, making false statements to a financial institution in connection with a credit decision in violation of 18 USC §§ 1014 and 2, causing an unlawful corporate contribution in violation of 52 USC §§ 30118(A) and 30109(d)(1)(A), and 18 USC § 2(b), making an excessive campaign contribution in violation of 52 USC §§ 30116(a)(1)(A), 30116(a)(7) and 30109(d)(1)(A), and 18 USC § 2(b), and making false statements to the United States Congress in violation of 18 USC § 1001(a)(2).

The full order is available here.  The Professional Responsibility blog has a summary here.

Sunday, February 17, 2019

The Ohio Board of Professional Conduct's recent advisory opinion on conflicts of interest

The Ohio Board of Professional Conduct has issued an advisory opinion which reiterates three basic and uncontroversial principles on conflicts of interest.  The opinion is Advisory Opinion 2019-01 and you can read it in full here

The opinion makes three points:

First, the opinion states that, absent informed consent, a lawyer may not undertake representation of an adverse party in an unrelated matter when the lawyer represents current clients with claims pending against the adverse party.  This conclusion should not be surprising.  It is just the basic principle against concurrent conflicts of interest expressed in Model Rule 1.7.

Second, the opinion states that a lawyer may not withdraw from the representation of a current client in order to undertake representation of an adverse party, even if the matters are unrelated.  This is another way of saying that the Board would apply the so-called "hot potato doctrine" which prevents a lawyer from trying to dump a client in order to "convert" the client from a current client into a former client before taking on a new client in a matter adverse to the interests of the converted former client.  I can't say how many jurisdictions have formally adopted the doctrine, but it is pretty well known so I am not surprised by the opinion's position on this.

Third, the opinion states that absent informed consent, a lawyer may not represent a former adverse party in a new matter against a former client if the new matter is the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.  Again, this is not news since it is simply stating the basic principle regarding successive conflicts of interests expressed in Model Rule 1.9. 

Monday, February 11, 2019

Why Lawyers May Not Ethically Be Able To Use Whatsapp

Have you ever tried to install an app, only to get a message saying the app wants to access your contacts?  Do you know why the app needs such access?  Are you violating the duty of confidentiality by providing access to your clients contact information?  If the app won't install unless you allow access to the contacts, do you need client consent to install the app?

Here is an interesting article on the subject.  The article also relates to the duty of competence about technology.

Sunday, February 10, 2019

Resolution before ABA House of Delegates regarding companies that offer legal documents online is withdrawn

At a recent meeting of the ABA, the ABA House of Delegates was due to consider a resolution that proposed model rules for companies that offer legal documents online, but the resolution was withdrawn after the ABA Center for Innovation, the Standing Committee on the Delivery of Legal Services, the Business Law Section and the Section of Dispute Resolution argued the proposed guidelines needed more work before going forward.

You can read the proposed resolution here.

According to a story in the ABA Journal, there were concerns regarding warranties, intellectual property and dispute resolution. There was also uncertainty over whether the proposed guidelines would apply to courts offering online forms.  The ABA Journal has more details here.

Friday, February 1, 2019

Report on alternative legal services providers

A recent report by Thomson Reuters concludes that the "alternative legal services provider" market grew approximately 25 percent from $8.4 billion in 2015 to $10.7 billion in 2017 amid growing demand from both corporations and law firms.

The report found that the five most common types of alternative legal service providers are litigation and investigation support, legal research, document review, e-discovery, and regulatory risk and compliance.

The ABA Journal has details, and a link to the report, here

Thoughts on the regulation of the profession

A recent column in Above the Law reflects on the regulation of the profession.  It concludes that "the legal profession is one of the best-regulated professions out there, and we can all kind of be happy that we have more safeguards against bad actors than other professions."

I generally agree with the underlying sentiment but the conclusion needs to be more nuanced than that.  It is true that the legal profession is highly regulated and that much of that regulation is in place for good reasons, but it is debatable whether all regulation is needed.  For example, I think there are good arguments to suggest that it is time to revise the limits to multijurisdictional practice, for example.  Also, whether we can be "happy" depends on how the regulation is implemented, which varies a lot from jurisdiction to jurisdiction.

Ohio Supreme Court continues trend of suspending lawyers for violation of rule against having sex with clients

The Law for Lawyers Today is reporting that "[t]he Ohio Supreme Court is continuing its trend of suspending lawyers who violate the disciplinary rule on sex with clients, and has again rejected arguments that pointed to the consensual nature of the relationship.  In a recent opinion involving sex between criminal defense counsel and his client, the court characterized the lower disciplinary Board’s analysis as “blaming the victim,” and increased the penalty above what the Board recommended."  Go here for details and analysis.

Can a paralegal (or other non-lawyer employee) cause a conflict that disqualifies a law firm when the paralegal joins the firm?

This is a question that is addressed in the comments to Model Rule 1.10, but it is not a bad idea to review it once more.  Michael Kennedy, of Ethical Grounds, did so earlier this week here.