Thursday, August 29, 2019

Tennessee vacates ethics opinion, now holds that duty to disclose exculpatory evidence is not broader than the duty imposed by Brady v Maryland.

Long time readers of this blog might remember that I have posted a few times about the split among jurisdictions on whether Rule 3.8 imposes a duty on prosecutors to disclose exculpatory evidence that is broader than the duty imposed by the constitutional doctrine adopted by the Supreme Court in Brady v Maryland.  (See here, and here.)

For example, California, Washington DC and New York have found that the ethical duty to disclose exculpatory evidence is broader than the duty established by Brady v. Maryland (see here and here).   Wisconsin, Ohio and Colorado, on the other hand, have held that both duties are the same.

Last year, the Tennessee Supreme Court's Board of Professional Responsibility issued an opinion holding that the duty under the Rule of Professional Conduct is broader.  You can read its ethics opinion on the issue here.  You can read a comment on it, here.

Soon after the opinion was published, however, the Tennessee District Attorney's General Conference petitioned the state supreme court to vacate the ethics opinion, and the Court responded by doing so last week.

The Court held that Tennessee ethics opinion doesn’t impose a higher duty on state prosecutors to disclose evidence favorable to criminal defendants than the U.S. Supreme Court has said is necessary to provide due process because two inconsistent sets of rules would create conflict and confusion.

You can read the opinion here, or here.

Thursday, August 22, 2019

New report on the profile of the profession

The 2019 ABA Profile of the Legal Profession was published recently.  It contains data on lawyer demographics, wages, legal education, pro bono, lawyers use of technology, lawyer discipline, lawyer well being, and more.  You can read, print or download a copy here.

Wednesday, August 14, 2019

Bloomberg Law: California reportedly "inundated" with negative comments regarding proposed new rules on who can practice law, while getting support at a public hearing for those that allow sharing fees with non lawyers

A few days ago I wrote that the California Bar’s Task Force on Access Through Innovation of Legal Services submitted its recommendations for a period of public comment.

Today, I read that, according to a report in Bloomberg Law, "[t]he State Bar of California has been inundated with more than 400 comments in response to a series of sweeping proposed rule changes that include allowing nonlawyers to share in law firm profits and provide legal advice."  More than 100 comments were filed to the bar in the first 24 hours after the group issued notice that the comment period had begun.

Again, according to the story, the individual rule change that has received the most comments is the one that would authorize nonlawyers, with appropriate regulations in place, to provide certain types of legal advice and services. The new approach, suggested in order to provide access to legal services in areas of “critical need,” including evictions, and domestic violence and immigration cases, would provide an exemption to the rules banning unauthorized practice of law. As of Aug. 5, the state bar had received 12 comments in support of the proposal, but more than ten times that number against it.

Meanwhile, Bloomberg also reports in a separate story that "[t]he proposals . . . to allow nonlawyers to share in law firm profits and provide legal advice received vigorous backing from notable law professors and several other speakers at a public hearing Aug. 10."

The comment period runs through September 23.

Tuesday, August 13, 2019

Utah holds criminal defendant does not have to show actual innocence to support malpractice claim against lawyer

As you probably know, jurisdiction are divided on the issue of whether a convicted criminal defendant should be required to show actual innocence as a requirement to support a malpractice claim against his or her former criminal defense lawyer.

I recently wrote that Mississippi and Kentucky adopted an exoneration requirement, while Iowa and Idaho rejected it.  (For more stories on the issue, go here and scroll down.)

Today I am writing about this because I just read that the Utah Supreme Court has affirmed and clarified its holding that a criminal defendant can sue counsel for malpractice without proving actual innocence in a case called Paxman v King, available here.

The Legal Profession Blog has more details here.

Tuesday, August 6, 2019

Alaska asks for comments on whether to adopt Model Rule 8.4(g)

The Alaska Bar Association recently announced that it is considering adopting a rule equivalent to Model Rule 8.4(g), although the rule would be codified as Rule 8.4(f).  The Bar Association will be taking comments on whether to adopt the new rule until August 15. Comments may be sent by email to, or by mail to the Alaska Bar Association at 840 K Street, #100, Anchorage, Alaska 99501, or by calling Bar Counsel At (907) 272-7469.

As you probably remember, Model Rule 8.4(g) has generated a very robust debate, and has proven to be controversial.  The controversy arises out of the fact that, at least as originally adopted by the ABA, the rule in part imposes a threat of discipline for otherwise protected speech outside the practice of law based on a standard of negligence. 

Since its adoption by the ABA in 2016, nine or ten jurisdictions have rejected adopting the Model Rule while only two have adopted it, and one of those (Maine) adopted it after making several important amendments.  See here.

I have written a lot about the rule and the controversy behind it.  You can click here to see my posts since it was proposed in reverse order, meaning that they will be listed with the most recent one on top.  Scroll down, and read from the bottom up if you want to read them in chronological order.

Illinois, where I live, has had an anti discrimination rule since 2010 or so (IRPC 8.4(f)), and I believe it is better than Model Rule 8.4(g) because it bases the evaluation of the conduct on a finding of violation of the law, rather than on a subjective evaluation by the disciplinary agency.  You can read the text of Illinois rule 8.4(f) here.

For a chart prepared by the ABA identifying the status of Model Rule 8.4(g) among all jurisdictions go here.

Monday, August 5, 2019

Ohio imposes discipline on lawyer for criticizing judges without reasonable factual basis

I have discussed in the past whether it would be constitutional to discipline attorneys for expressing their views when criticizing judges.  (See here, and here for example.) Clearly, there is a distinction between speech that may be a threat to someone's reputation (which may be protected by the First Amendment) and speech that actually expresses a threat of physical harm (which would not be).  (See here.) But even when the speech is merely a threat to someone's reputation, it may give rise to civil liability for defamation, and in such a case, should it also justify discipline?

For example, in one case that explores the fine line between the authority of the state to regulate attorney speech and an individual attorney's right to express his or her opinion about judges, the United States Court of Appeals for the Sixth Circuit ruled that the Kentucky State Bar violated and attorney's rights when it sent the attorney a warning letter after he criticized the state Legislative Ethics Commission.  See here.

In contrast, in other cases, courts have justified disciplinary action against lawyers for expressions about judges.  See here and here for example.

Model Rule 8.2(a) states, in part, that a lawyer "shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge..."  This standard resembles the standard used in defamation cases involving public figures because judges are public officials.  It would be unconstitutional for the state to impose discipline based on a lower standard.

Another important element of the standard, however, is that there is a distinction between statements of fact and statements of opinion.  A defamation action is not justified if the statement upon which it is based is merely an opinion.  A defamatory statement must be, by definition, false, and only a factual statement can be true or false.

For this reason, it is interesting to see how courts handle cases in which lawyers express their opinions about judges, while the state argues that the statement is based on a factual assertion.

I am writing about this today because I just read a short comment over at The Law For Lawyers Today  about a new case in Ohio in which an attorney was disciplined for expressing his opinion about certain judges.

In answering a complaint, the lawyer wrote that the appellate judges who had decided against his client had “contrived” their rationale “to justify a decision . . . premised apparently upon outside influences,” and had ruled in favor of him “for apparently undisclosed and non-legal reasons.”  In a different document, the lawyer also alleged that The lawyer alleged that “it is impossible to believe that the judicial decision” against his client in the appellate court “is not the result of undue influence and corruption,” and called it “a conspiracy to pervert justice.”

If the lawyer's statement had ended when he said the judges opinion was contrived, there would be no justification for discipline.  We say that often when criticizing opinions we think are wrongly decided, and it is an opinion.

The problem is in the rest of the statement which suggests a fact, ie, that the judges decided the case due to outside influences and for "non-legal reasons."  That is a statement of fact.  Either it is true or it isn't.  Thus, since this statement could give rise to a defamation action, it may give rise to a disciplinary inquiry.

Now the next question, however, is whether the state can meet the Constitutional standard of showing that the speaker issued the statement with knowledge of falsity or reckless disregard for the truth.

Here is where the case gets interesting.  In applying that standard, the board of professional conduct concluded that the lawyer here had no reasonable factual basis for his allegations.  Note how this is a lower standard than the one the board was supposed to apply.  Reasonableness is not recklessness, and it certainly is not knowledge.  I don't understand how an analysis based on reasonableness meets the constitutional standard.

Having said that, the ultimate decision was justified because of the lawyer’s own testimony admitting that he “did not actually know why the judges ruled as they did” and that he had not conducted “any investigation” before making his allegations.  The court could have said that this was evidence of recklessness.   Instead it suggested it was evidence of unreasonableness, which is not the same thing and which creates an unnecessary confusion about the proper analysis.

The case is called Disciplinary Counsel v. Oviatt, 155 Ohio St.3d 586 (2018) and you can read it here.

Sunday, August 4, 2019

In Court Without a Lawyer: The Consequences of Trump’s ‘Remain in Mexico’ Plan

The New York Times has published an article on how a new Trump administration immigration initiative is forcing many asylum seekers to navigate the court system without representation.  The article is called In Court Without a Lawyer: The Consequences of Trump’s ‘Remain in Mexico’ Plan  and you can read it here.

Friday, August 2, 2019

California task force issues report and recommendations on the future of the practice of law

If you are a reader of this blog you know that the legal profession in the United States has been involved in a long standing debate on whether to change a number of important approaches to the practice of law, most importantly on the notion of unauthorized practice of law, sharing fees with non lawyers, allowing non lawyers to provide certain types of legal services and alternative business structures.

Along these lines, about a year ago, the California Bar’s Board of Trustees formed the Task Force on Access Through Innovation of Legal Services to identify possible regulatory changes for enhancing the delivery of, and access to, legal services.

As I recently reported, a few weeks ago the task force submitted its recommendations for a period of public comment. The recommendations were described as “tentative,” and it is expected they may be revised based on the comments received. A report setting forth the final recommendations is expected to be submitted to the Board of Trustees no later than December 31, 2019.

I have not had a chance to read the recommendations, but according to a report I have read, the recommendations provide a general framework for lawyer regulation reform rather than specific amended language for the ethics rules. However, they do address two of the most debated issues in recent years: restrictions on the unauthorized practice of law by non lawyers and restrictions against fee-sharing reflected in Rule of Professional Conduct 5.4.

For the full text of the task force's report (250 pages) go here.  For a short summary and comment on the recommendations and similar efforts in other states go here.  According to this report, the more important highlights of the recommendations include:

- A recommendation to create exceptions to restrictions on the unauthorized practice of law to allow individuals who are not lawyers to offer certain types of legal services to consumers, subject to state regulation and to allow state-certified/regulated/approved entities to use technology-driven legal services to engage in authorized law practice activities subject to state ethical standards governing both the provider and technology.

- Recommendations intended to remove financial barriers to collaboration between lawyers and other non-lawyer professionals through the modification of rules like Model Rule 5.4.

My Shingle has a short comment on the proposals from the perspective of solo practitioners and small firms.  It explains some of the concerns related to the proposals but in the end concludes that  "[t]hese critiques aside, I strongly disagree that the California initiative will harm solo and small firm lawyers and our clients. To the contrary, the proposed reforms create enormous opportunities for us to develop new services that make our legal services more relevant and convenient to our clients’ lives."