Monday, July 29, 2019

Attorney gets reprimand for not trying to stop client's attempts to be evasive during deposition

Conventional wisdom states that lawyers should advise their clients (or other witnesses) to answer deposition questions "narrowly."  Yet, lawyers must be careful not to allow the witness to be too uncooperative.   In other words, lawyers have a duty to tell their clients to behave properly and to answer the questions.

Recently, the ABA Journal reported on a recent decision in Delaware which illustrates the point.  According to the story, the Delaware Supreme Court "called out" a Sullivan & Cromwell partner by name and said he apparently made no attempt to stop his client’s “flagrantly evasive, non-responsive and flippant answers.” According to the Court's opinion, a lawyer who represents a client who engages in deposition misbehavior “cannot simply be a spectator and do nothing."

This is a good decision with which I totally agree.  Lawyers need to know that the litigation process is not a game, and that the judicial system depends on lawyers playing by the rules.

When I was starting out as a lawyer many years ago, I took a deposition of an engineer in a products liability case.  All I was asked to do was to get the witness to describe the product's manufacturing process on the record.  I started the deposition by asking the witness what his name was.  As I recall, our dialogue went something like this:

Me:  "Can you tell us your name?"

Witness:  "Yes."

It went downhill from there; but after a while, his own lawyer realized the witness' games were causing everyone to waste their time.  The lawyer was not happy with his own witness and turned to the witness and told him to just answer the questions. 

According to the Supreme Court in Delaware, lawyers have a duty to do this.

Saturday, July 20, 2019

California task force has prepared report on whether to allow new forms of delivery of legal services

A task force on "access through innovation of legal services" appointed by the State Bar of California has prepared a report which includes proposals that according to some "could lead to sweeping changes to the delivery of legal services, including allowing private businesses to deliver legal services, without regard to whether the businesses have lawyer ownership or management, provided they are appropriately regulated."

In the report, which will be posted officially in the next few days to open a period of time for public commentary, the Task Force will make a number of controversial recommendations, including allowing non-lawyer legal technicians to provide legal advice and allowing non-lawyers to have an ownership interest in law firms.

The California Bar press release announcing the proposals is here.  The minutes of the Task Force's meeting on the proposals are here.

For more information and a good comment on the proposals, check out this article in Above the Law: here.

The underlying force for these proposals is a concern that something needs to be done to provide more and more affordable access to legal services to people in need.  As you probably know, there are many studies that show that many (perhaps most) people with legal needs don't have access to affordable representation.  Opening the door for some regulated provision of legal services by non-lawyers might help close the gap.  Yet, some argue this is not a good idea.  And so, the debate continues.

These are not new ideas nor is it a new debate.  As your probably know already too, some jurisdictions do recognize "legal technicians" who are trained and regulated to provide limited legal services.

The ABA Journal has more information here.  Lawyer Ethics Alert Blog has more here.

UPDATE 8/2/19:  for a short update go here.

Monday, July 1, 2019

Texas Bar Ethics Committee Opinion on a lawyer's duty to safeguard client funds for the benefit of a third party -- UPDATED

Back in September 2018, the Texas Bar Ethics Committee issued a short ethics opinion trying to explain the proper analysis attorneys should follow to determine if they owe a duty to a third party who claims to have an interest in client money in the lawyer's trust account.

More specifically, the opinion addresses these two questions:  "when does a third party have an interest in client funds sufficient to trigger a lawyer’s duty to disburse or safeguard those funds for the third party’s benefit?" and "[d]oes termination of the attorney-client relationship affect a lawyer’s duty to safeguard or disburse client funds in which a third party claims an interest?"

You can read the opinion online here or download it in pdf here.

UPDATE (7/1/19):  Ethical Grounds has posted a comment on the opinion here.