Long time readers of this blog will remember that in recent years a few states have adopted programs to allow non lawyers to provide limited legal services. The first was Washington, whose program made the term LLLTs (for limited licence legal technicians) the big debate at the time. (If you click on the labels Washington and Utah on the right, you can scroll down and find lots of posts on this subject).
Now comes news that the New Mexico Supreme Court recently formed the group – comprised of lawyers, educators and advocates – to look into implementing an LLLT program in the state in order to create changes to court rules and programs that would improve the availability of legal services in the state. Courthouse News Service has the story.
Update 5/30/10: Illinois Lawyer Now has a story and links here.
Thursday, May 30, 2019
Tuesday, May 28, 2019
Another challenge to the notion of a "unified bar" -- this one in Oklahoma -- UPDATED
A few days ago I posted a story about a challenge to the constitutionality of the unified bar system in Texas. See here.
Today's news is that a similar lawsuit has been filed in Oklahoma.
The lawsuit, in a case called Schell v. Williams, filed on March 26, alleges that Oklahoma's requirement that attorneys join the state bar association to practice in the state is unconstitutional because by forcing attorneys to join the Oklahoma Bar Association, the state violates their First Amendment rights to free speech and association
As I discussed in my previous posts on this, this is not a new argument but it is not a frivolous argument. The question really goes to the core of whether such a requirement is necessary to regulate the legal profession or improve the quality of legal services. As of right now, there are similar challenges pending in, at least, Texas and North Dakota and the results in these cases will have national implications.
UPDATE 4/5/19: As I have said elsewhere, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback. In addition to the cases I reported recently, I was recently reminded by a reader of the blog that there are two separate lawsuits filed on similar grounds in Oregon as well as ongoing longstanding litigation against the Washington State Bar.
In Oregon, at least one of the lawsuits contends that the fact the state bar published a statement condemning White Nationalism and, what it called the "normalization of violence" was "blatantly political" and unconstitutional.
UPDATE 5/28/19: Another lawsuit claiming requiring lawyers to be members of the state bar association violates the First Amendment has been filed. The case is called Jarchow v State Bar of Wisconsin (Case No. 3:19-CV-00266) was filed, you guessed it, in Wisconsin on May 21.
Today's news is that a similar lawsuit has been filed in Oklahoma.
The lawsuit, in a case called Schell v. Williams, filed on March 26, alleges that Oklahoma's requirement that attorneys join the state bar association to practice in the state is unconstitutional because by forcing attorneys to join the Oklahoma Bar Association, the state violates their First Amendment rights to free speech and association
As I discussed in my previous posts on this, this is not a new argument but it is not a frivolous argument. The question really goes to the core of whether such a requirement is necessary to regulate the legal profession or improve the quality of legal services. As of right now, there are similar challenges pending in, at least, Texas and North Dakota and the results in these cases will have national implications.
UPDATE 4/5/19: As I have said elsewhere, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback. In addition to the cases I reported recently, I was recently reminded by a reader of the blog that there are two separate lawsuits filed on similar grounds in Oregon as well as ongoing longstanding litigation against the Washington State Bar.
In Oregon, at least one of the lawsuits contends that the fact the state bar published a statement condemning White Nationalism and, what it called the "normalization of violence" was "blatantly political" and unconstitutional.
UPDATE 5/28/19: Another lawsuit claiming requiring lawyers to be members of the state bar association violates the First Amendment has been filed. The case is called Jarchow v State Bar of Wisconsin (Case No. 3:19-CV-00266) was filed, you guessed it, in Wisconsin on May 21.
Monday, May 27, 2019
Should an attorney be disciplined for engaging in animal cruelty
We all know that lawyers can be disciplined for conduct outside of the practice of law; and we all know that criminal conduct outside the practice of law will likely result in discipline. But whether lawyers can or should be subject to discipline for non-criminal, yet somehow "bad" conduct, is not always clear.
Typically, rules or cases limit discipline for non criminal/non professional conduct to conduct that in some way shows the lawyer should not be trusted to do what lawyers typically do.
Which brings me to today's post. A few days ago, several outlets reported that the Florida Bar has opened an investigation into the conduct of a lawyer who "shooed" a raccoon off his boat after finding the animal had stowed away on board. Given that the boat was 20 miles from the coast and that I am not sure raccoons can swim that well, the presumption is that the raccoon did not survive.
Oh, and if this happened on a boat 20 miles out to sea, how did we come to know about it? Well, the lawyer thought it would be a good idea to post a video of the incident on social media in which you can hear someone (presumably the lawyer) using profanity and then laughing at the poor raccoon yelling "so long sucker" when it fell in the water.
If there is a crime here, then the first paragraph of this post applies and that will be that. Yet, for the sake of argument, let's assume that there is no crime. Let's say there's simply ...whatever you want to call what the video shows (cruelty, stupidity, profanity, obnoxiousness... ??). Is this the type of conduct for which a lawyer should be disciplined? It may say something about the person, but does it say something about the lawyer as a lawyer? Should there be a difference?
How do these facts compare to cases in which lawyers have acted foolishly or abusively in public while intoxicated? ... or taken money from trusts when serving as trustees but not as lawyers?... or expressed obnoxious, even racist ideas, ... or engaged in other conduct outside the practice of law?
You can read more about this particular story here, and here.
Typically, rules or cases limit discipline for non criminal/non professional conduct to conduct that in some way shows the lawyer should not be trusted to do what lawyers typically do.
Which brings me to today's post. A few days ago, several outlets reported that the Florida Bar has opened an investigation into the conduct of a lawyer who "shooed" a raccoon off his boat after finding the animal had stowed away on board. Given that the boat was 20 miles from the coast and that I am not sure raccoons can swim that well, the presumption is that the raccoon did not survive.
Oh, and if this happened on a boat 20 miles out to sea, how did we come to know about it? Well, the lawyer thought it would be a good idea to post a video of the incident on social media in which you can hear someone (presumably the lawyer) using profanity and then laughing at the poor raccoon yelling "so long sucker" when it fell in the water.
If there is a crime here, then the first paragraph of this post applies and that will be that. Yet, for the sake of argument, let's assume that there is no crime. Let's say there's simply ...whatever you want to call what the video shows (cruelty, stupidity, profanity, obnoxiousness... ??). Is this the type of conduct for which a lawyer should be disciplined? It may say something about the person, but does it say something about the lawyer as a lawyer? Should there be a difference?
How do these facts compare to cases in which lawyers have acted foolishly or abusively in public while intoxicated? ... or taken money from trusts when serving as trustees but not as lawyers?... or expressed obnoxious, even racist ideas, ... or engaged in other conduct outside the practice of law?
You can read more about this particular story here, and here.
Saturday, May 25, 2019
Washington State Bar Association rejects proposal to require lawyers to carry malpractice insurance
Not long after the State Bar of California’s board decided against requiring lawyers to carry malpractice insurance, the Washington State Bar Association’s board has rejected a similar recommendation. Oregon and Idaho remain the only two states with a malpractice requirement for attorneys.
The task force that studied the issue in Washington had concluded that the lack of an insurance requirement “poses a distinct risk to clients.” Yet, the Board voted down the proposal.
One of the reasons behind the decision was the concern that a malpractice insurance requirement would hurt access to justice because lawyers would be required to raise their fees to cover the cost of insurance.
Above the Law has more on the story here.
The task force that studied the issue in Washington had concluded that the lack of an insurance requirement “poses a distinct risk to clients.” Yet, the Board voted down the proposal.
One of the reasons behind the decision was the concern that a malpractice insurance requirement would hurt access to justice because lawyers would be required to raise their fees to cover the cost of insurance.
Above the Law has more on the story here.
Thursday, May 23, 2019
Lawyers duties and technology
As you know the Model Rules, and now at least 36 states, consider that understanding and keeping up with developments in "technology" is part of a lawyer's duty of competence.
Yet, only two states require that lawyers' CLE programs include hours devoted to issues related to technology and the practice of law. Two recent articles touch on these subjects:
Law Technology Today has a recent article on why every state should require technology CLEs. You can read it here.
Also, Above the Law has a comment on a recent Ethics Opinion in Louisiana which the author of the comment argues misses the point on tech competence. First, he argues that the opinion wrongly presumes that using technology in law practice is optional and that a lawyer must be competent in technology only if the lawyer chooses to use technology. Second, he argues that the opinion also presumes that a lawyer's competence only relates to the lawyers’ direct use of technology on behalf of a client. As he argues, and I agree, "that misses a critical component of the duty of technology competence — understanding the client’s use of technology. A lawyer cannot competently represent a client if the lawyer does not understand the client’s technology usage and systems and how they may relate to the matter at hand."
I agree on both points, and I would add that a lawyer needs to be competent in the use of technology also because lawyers need to understand other lawyers' use of technology.
Yet, only two states require that lawyers' CLE programs include hours devoted to issues related to technology and the practice of law. Two recent articles touch on these subjects:
Law Technology Today has a recent article on why every state should require technology CLEs. You can read it here.
Also, Above the Law has a comment on a recent Ethics Opinion in Louisiana which the author of the comment argues misses the point on tech competence. First, he argues that the opinion wrongly presumes that using technology in law practice is optional and that a lawyer must be competent in technology only if the lawyer chooses to use technology. Second, he argues that the opinion also presumes that a lawyer's competence only relates to the lawyers’ direct use of technology on behalf of a client. As he argues, and I agree, "that misses a critical component of the duty of technology competence — understanding the client’s use of technology. A lawyer cannot competently represent a client if the lawyer does not understand the client’s technology usage and systems and how they may relate to the matter at hand."
I agree on both points, and I would add that a lawyer needs to be competent in the use of technology also because lawyers need to understand other lawyers' use of technology.
Tuesday, May 21, 2019
Illinois regulators' annual report
The Attorney Registration and Disciplinary Commission (ARDC), the administrative agency that regulates licensed Illinois lawyers, has filed its year 2018 Annual Report with the Supreme Court of Illinois. You can read the full report here or a summary here.
The summary has some interesting findings. For example:
Of the complaints filed with the ARDC, the majority involve claims of neglect. The second most common claim: failure on the part of the lawyer to communicate with the client.
10% of the complaints were filed by lawyers reporting on the conduct of other lawyers under rule 8.3. Of these, 44% resulted in disciplinary complaints.
Illinois Lawyers Now has a comment here.
The summary has some interesting findings. For example:
Of the complaints filed with the ARDC, the majority involve claims of neglect. The second most common claim: failure on the part of the lawyer to communicate with the client.
10% of the complaints were filed by lawyers reporting on the conduct of other lawyers under rule 8.3. Of these, 44% resulted in disciplinary complaints.
Illinois Lawyers Now has a comment here.
Monday, May 20, 2019
Tennessee Supreme Court imposes sanctions for improper contingency fee
A few days ago I saw a report on a case out of the Tennessee Supreme Court on a topic that you don't see that often: an unreasonable contingency fee agreement. The practice of using contingency fees is, of course, common; and the practice of structuring the contingency itself as a percentage of the recovery is standard. In most cases, the percentage is about 33%. That is also pretty standard. And that is why I don't think we see many cases on this topic. Everybody pretty much does the same thing because the market regulates itself.
Yet, here we have a new case with a twist on the practice of using contingency fees.
The lawyer in the case entered into a contingent fee agreement with his client, which provided that if the client refused to accept a settlement offer that the lawyer advised was reasonable and should be taken, the client would be required to pay the lawyer the contingency fee “on the basis of that offer” unless waived by the lawyer.
As you would expect given the end result of the case, the defendant made an offer, the lawyer advised the client to take it, but the client refused. The lawyer then withdrew from representation and asked for a lien against his client’s eventual recovery in her personal injury case for fees and expenses based on the original agreement.
The court agreed with the hearing panel that the contingent fee agreement was unreasonable and violated the Rules of Professional Conduct because the Rules only allow a contingency fee on the outcome of the matter. The Court also agreed with the hearing panel that the contingency fee agreement violated the Rules of Professional Conduct because it gave the lawyer a proprietary interest in any settlement offer arising in the case. Thus, the Court affirmed the judgments of the trial court and the hearing panel imposing a public censure.
As it is often the case, whether public censure, one of the lightest possible sanctions out there, was the correct measure of discipline is debatable. But I supposed reasonable people can disagree on that and it is the subject of a different conversation.
The case is Moore v. Board of Professional Responsibility and you can read the opinion here.
Faughnan on Ethics has a comment on the case here. As he clearly explains, "[a]t its core, this case explains the limits on the ability of a plaintiff’s attorney to try to guard against what happens if their client rejects the attorney’s advice on whether to accept a settlement offer. There do, in fact, have to be limits on the ability to hedge against that because the ethics rules establish explicitly that the decision whether to settle a civil case or not is the client’s decision. RPC 1.2(a)."
Yet, here we have a new case with a twist on the practice of using contingency fees.
The lawyer in the case entered into a contingent fee agreement with his client, which provided that if the client refused to accept a settlement offer that the lawyer advised was reasonable and should be taken, the client would be required to pay the lawyer the contingency fee “on the basis of that offer” unless waived by the lawyer.
As you would expect given the end result of the case, the defendant made an offer, the lawyer advised the client to take it, but the client refused. The lawyer then withdrew from representation and asked for a lien against his client’s eventual recovery in her personal injury case for fees and expenses based on the original agreement.
The court agreed with the hearing panel that the contingent fee agreement was unreasonable and violated the Rules of Professional Conduct because the Rules only allow a contingency fee on the outcome of the matter. The Court also agreed with the hearing panel that the contingency fee agreement violated the Rules of Professional Conduct because it gave the lawyer a proprietary interest in any settlement offer arising in the case. Thus, the Court affirmed the judgments of the trial court and the hearing panel imposing a public censure.
As it is often the case, whether public censure, one of the lightest possible sanctions out there, was the correct measure of discipline is debatable. But I supposed reasonable people can disagree on that and it is the subject of a different conversation.
The case is Moore v. Board of Professional Responsibility and you can read the opinion here.
Faughnan on Ethics has a comment on the case here. As he clearly explains, "[a]t its core, this case explains the limits on the ability of a plaintiff’s attorney to try to guard against what happens if their client rejects the attorney’s advice on whether to accept a settlement offer. There do, in fact, have to be limits on the ability to hedge against that because the ethics rules establish explicitly that the decision whether to settle a civil case or not is the client’s decision. RPC 1.2(a)."
Sunday, May 19, 2019
Texas Attorney General sides with lawyers challenging mandatory bar membership
As you may remember I have been following the news about attacks in several states to the notion of a "unified bar." See here and here, for example. Lawsuits have been filed in Texas, Oklahoma, Oregon and North Dakota.
In one way or another, all the lawsuits are claiming that the states' requirement that attorneys join the state bar association is an unconstitutional violation of attorneys' First Amendment rights to free speech and association. More specifically, they argue that lawyers shouldn’t be forced to subsidize the state bar’s activities through mandatory membership dues if they don't agree with those activities for ideological or political reasons.
For example, in the lawsuit in Texas, the plaintiffs are alleging they do not want to be forced to subsidize the state bar's diversity initiatives, access to justice programs and programs that help prevent deportations, and that promote legislative drafting and advocacy.
The most recent development on this topic is that Texas Attorney General Ken Paxton has filed an amicus brief that sides with the plaintiffs in the case in Texas. He is the only AG to have taken this step so far in all the states where lawsuits have been filed.
Like I said in one of my previous posts, this is becoming the biggest topic in Professional Responsibility this year and the results of these lawsuits could have tremendous repercussions on how the profession continues to be regulated as well as on the viability of state programs that promote access to legal services.
In one way or another, all the lawsuits are claiming that the states' requirement that attorneys join the state bar association is an unconstitutional violation of attorneys' First Amendment rights to free speech and association. More specifically, they argue that lawyers shouldn’t be forced to subsidize the state bar’s activities through mandatory membership dues if they don't agree with those activities for ideological or political reasons.
For example, in the lawsuit in Texas, the plaintiffs are alleging they do not want to be forced to subsidize the state bar's diversity initiatives, access to justice programs and programs that help prevent deportations, and that promote legislative drafting and advocacy.
The most recent development on this topic is that Texas Attorney General Ken Paxton has filed an amicus brief that sides with the plaintiffs in the case in Texas. He is the only AG to have taken this step so far in all the states where lawsuits have been filed.
Like I said in one of my previous posts, this is becoming the biggest topic in Professional Responsibility this year and the results of these lawsuits could have tremendous repercussions on how the profession continues to be regulated as well as on the viability of state programs that promote access to legal services.
Tuesday, May 14, 2019
New ABA Formal Opinion on duties of prosecutors when negotiating plea bargain deals
Last week, the ABA Standing Committee on Ethics and Professional Responsibility issued a new formal opinion on duties of prosecutors. See Opinion 486, available here.
As you probably know, prosecutors have a special role in the judicial system because they do not only litigate on behalf of the state, they are also considered "ministers of justice." This puts them in what appears to be somewhat of a contradictory position in that they have to, at the same time, prosecute the defendant while protecting the defendant's rights.
According to the chair of the Committee, hundreds of times weekly, prosecutors negotiate plea deals with misdemeanor defendants who lack counsel and may agree to unfair dispositions, which creates a disproportionate risk of harm for the poor and minorities, who are disproportionately represented among the defendant population.
For this reason, the new opinion reminds prosecutors of their duties to ensure that the accused has a reasonable opportunity to obtain counsel, that decisions to resolve a case through plea bargaining are grounded in the prosecutor’s independent assessment of the case, and that prosecutors reveal known collateral consequences, which may include deportation and the loss of eligibility for a wide range of public services, including food assistance and public housing.
The ABA Journal has more on the story.
As you probably know, prosecutors have a special role in the judicial system because they do not only litigate on behalf of the state, they are also considered "ministers of justice." This puts them in what appears to be somewhat of a contradictory position in that they have to, at the same time, prosecute the defendant while protecting the defendant's rights.
According to the chair of the Committee, hundreds of times weekly, prosecutors negotiate plea deals with misdemeanor defendants who lack counsel and may agree to unfair dispositions, which creates a disproportionate risk of harm for the poor and minorities, who are disproportionately represented among the defendant population.
For this reason, the new opinion reminds prosecutors of their duties to ensure that the accused has a reasonable opportunity to obtain counsel, that decisions to resolve a case through plea bargaining are grounded in the prosecutor’s independent assessment of the case, and that prosecutors reveal known collateral consequences, which may include deportation and the loss of eligibility for a wide range of public services, including food assistance and public housing.
The ABA Journal has more on the story.
Monday, May 13, 2019
Racially charged closing argument leads to reversal of a first degree murder conviction
I have written a number of stories in the past about cases in which appeals' courts reverse convictions simply based on what prosecutors say in their closing arguments. In other words, cases in which improper arguments result in reversals of convictions.
Just a few days ago, I read another example. In this case, a prosecutor's racially-charged rebuttal closing argument led to a reversal of a first degree murder conviction by the North Carolina Court of Appeals. You can read a summary of the case here.
Just a few days ago, I read another example. In this case, a prosecutor's racially-charged rebuttal closing argument led to a reversal of a first degree murder conviction by the North Carolina Court of Appeals. You can read a summary of the case here.
Subscribe to:
Posts (Atom)