How not to practice law: steal files from your firm when departing

The ABA Journal is reporting that a St. Louis lawyer was held in contempt, jailed for two days and ordered to pay more than $775,000 to her law firm for expenses incurred in its lawsuit to gain return of electronic files that the attorney was accused of taking before her resignation.  For more details go here.

Tennessee Supreme Court proposes changes to rules which would raise the maximum duration of a suspension and which would make disbarment irrevocable

Currently, the maximum length of a suspension from practice in Tennessee is five years.  The only harsher punishment is disbarment. Disbarment, however, was not permanent. A disbarred lawyer can apply for reinstatement after five years.

This may change in the near future.  The Tennessee Supreme Court recently asked for public comments on a proposal to revise the rules of disciplinary enforcement.  The new rules would make disbarment permanent and irrevocable and would extend the potential length of a suspension from 5 years maximum to 10 years maximum.

You can read the proposed changes here.  Faughnan on Ethics questions whether these changes are necessary.

The whistleblower complaint

If you have not read the whistleblower complaint, you can listen to it by hitting the play button below or go here.

Two short posts on ethics and the use of technology

Over at Ethical Grounds, Michael Kennedy has posted a short comment on duties that a lawyer owes to clients regarding their social media use.  You can read it here.  In it he summarizes opinions from Pennsylvania, Florida, North Carolina, West Virginia and the District of Columbia. 

Meanwhile, at Above the Law, Nicole Black published "Lawyers, Cybersecurity, And Data Breaches: Your Ethical Obligations"  which you can read here.

How not to practice law: engage in all types of misconduct during a deposition

As I am sure you know, there are many cases out there that describe inappropriate conduct during discovery in general, and during depositions in particular, but if you are looking for a new one, here you go. 

Last month, William Gallo, a US Magistrate Judge in the US District Court for the Southern District of California, issued a long opinion in a case called La Jolla Spa MD, Inc v. Avidas Pharmaceuticals, in which he orders the defendant’s lawyer to pay out of her own pocket, almost $30,000 in sanctions for conduct the judge referred to as “atrocious.”  The judge also ordered the lawyer to report the sanctions to her home state bar.

The opinion starts by stating that “[t]he lay perception of a “good” attorney is someone who engages in the obstreperous, scorched-earth tactics seen on television and makes litigation for the opposing side as painful as possible at every turn. However, outside the fictional absurdities of television drama, attorneys in the real world—presumably educated in the law and presumably committed to upholding the honor of the profession–should know and behave much more honorably.”

The opinion then goes into great detail to illustrate six different types of conduct that are common to cases in which courts impose sanctions for misconduct during discovery: (1) instructing a witness not to answer based on impermissible grounds, (2) interrupting the deposition to tell the attorney taking the deposition how to ask their questions, (3) engaging in unnecessary colloquy, (4) interrupting the deposition with unnecessary (and long) objections, (5) using objections to suggest to the witness how to answer questions and (6) engaging in harassing and aggressive behavior toward the witness.

Competence regarding technology, again

I am sure that by now you know that the Model Rules were amended a few years ago to include a comment about the use of "technology" in the practice of law.  Specifically, it says that it is part of the duty of competence to understand how to use, and the risks of using, "technology" in the practice of law.  And, I am sure you have heard of instances of lawyers making mistakes when using technology, such as hitting reply all when sending e-mail, or disclosing confidential information by mistake by sending a word document with visible comments/corrections, or losing stuff because the lawyer did not back up the files etc

I am writing about this today because today's news have another example of a common mistake:  not understanding how to redact a document in a word processing program or as a pdf file.

The ABA Journal is reporting today that U.S. Magistrate Judge Pamela Meade Sargent has ordered Jones Day and another firm to show cause why they shouldn’t be sanctioned after they filed a document that was incorrectly redacted in a criminal case against their pharmaceutical client.

As you may know, if a document is not redacted properly, all you need to do is copy the portion of the document you can't see, and then cut and paste it into a blank document.  If the document was not redacted properly, the originally hidden text will appear in the new document after you paste it.

This is what happened in the case and the error allowed others to get access to protected grand jury information.

You can read the story here.

Update on challenges to mandatory bar association membership around the country

As I have written before, 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.  At one point I think I labeled it the "hot issue" of the year because I kept seeing reports of lawsuits being filed around the country.

A few days ago, a decision from the 8th Circuit may have slowed down the trend a bit (in a case originating in North Dakota), but there are still a bunch of cases pending out there.  At last count, there were challenges filed in Texas, Oklahoma, Oregon, Wisconsin, Louisiana, Washington and Michigan.


Thanks to Mauricio Hernandez for the update and links.

Chief Judge for Eastern District of Tennessee tells AUSAs that ethical duty requires more than Brady, regardless of what the state Supreme Court has ruled -- UPDATED

A few days ago I reported that the Tennessee Supreme Court vacated an ethics opinion and held that the duty to disclose exculpatory evidence is not broader than the duty imposed by Brady v Maryland.  See here.

The Federal District Court chief judge is not happy about it.  Today the Tennessee Bar Association posted this notice:

In a rare public rebuke, the chief judge of the Federal District Court for the Eastern District of Tennessee says Tennessee’s Supreme Court justices have set the ethical bar for prosecutors too low.... The state Supreme Court recently sided with the three U.S. attorneys in the state and the Tennessee District Attorneys General Conference in rejecting a Tennessee Board of Professional Responsibility opinion requiring prosecutors to turn over all evidence helpful to the accused as soon as possible. The prosecutors had argued there was no ethical duty to turn over evidence beyond what the U.S. Supreme Court required in the Brady decision, which allowed prosecutors to withhold evidence in certain situations. Writing for the federal eastern district, Chief Judge Pamela Reeves said prosecutors who appear before that court will be expected to comply with the Board of Professional Responsibility opinion.

UPDATE:  Here is the text of the letter. In it, Chief Judge Pamela Reeves states, in part,

"...attorneys practicing before [the Federal District Court] should aspire to the highest standards of professional conduct, not the minimum standards.  ... We believe higher standards are especially important in cases where a person's freedom and liberty are at risk.

In this regard, the judges in our district have determined that ... Assistant United States Attorneys who appear before us will disclose exculpatory and mitigating material to a criminal defendant in the manner described in the ... ethics opinion, and certainly before any guilty plea."

Thanks to Michael Kennedy for the update.

New California law imposes changes to the program that provides free legal services for poor in some civil cases, including custody matters and housing

Last week, California Governor Gavin Newsom signed into law a bill that imposes some changes to an existing law that provides free legal counsel to be appointed to low-income Californians for any level of legal or physical child custody matters, probate conservatorships and housing-related issues including eviction.

The new law requires the California Judicial Council to develop and provide grants, which could be donations from public or private entities, for programs in selected courts that provide legal counsel to the poor. Child custody cases would receive the highest priority for funding, regardless of whether one side is represented and the other is not.

You can read the bill here.

ABA Committee on Ethics and Professional Responsibility issues new Ethics Opinion on Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure -- UPDATED

The ABA Committee on Ethics and Professional Responsibility has issued a new Ethics Opinion on Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure.  Here is the summary:

Rule 2.11 of the Model Code of Judicial Conduct identifies situations in which judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned including cases implicating some familial and personal relationships, but it is silent with respect to obligations imposed by other relationships. This opinion identifies three categories of relationships between judges and lawyers or parties to assist judges in evaluating ethical obligations those relationships may create under Rule 2.11: (1) acquaintanceships; (2) friendships; and (3) close personal relationships. 

In short, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances. Judges’ disqualification in any of these situations may be waived in accordance and compliance with Rule 2.11(C) of the Model Code.

The end result seems to be based on common sense, but it does not quite provide a way to deal with the tough cases since it seems to amount to saying that "it depends" and that it will be the judge who decides how much it depends.  The opinion also does not address an issue that had been in the news not too long ago regarding "facebook friendships."  For more on that go here.

You can read the opinion (No. 488) here.

UPDATE 10/24/2019:  Legal Ethics in Motion has posted a short comment on the opinion here.

Court of Appeals for the Eighth Circuit rules that State Bar Association of North Dakota's Mandatory Membership Fees Do Not Violate First Amendment

As you may remember I have been following the news about attacks in several states to the notion of a "unified bar."  Lawsuits have been filed in Texas, Oklahoma, Oregon and North Dakota.  (For some of my recent posts and links on this go here, here, and here).

Today's news is that on August 30, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit found that the North Dakota bar's procedures for collecting mandatory membership fees do not violate the First Amendment.  The case is called Fleck v. Wetch.

Comment on regulatory changes in California

Yesterday I reported on the recently approved report of a task force in Utah on proposed changes to the professional regulatory scheme, including allowing non lawyers to provide some legal services and eliminating the ban on sharing fees with non lawyers.  As I mentioned then, California has been working on similar proposals for some time now, and it was recently reported that there many more negative comments than positive ones filed already.

Today I am here with a link to a short article on the California proposals, that expresses some level of skepticism but concludes that "[c]hange is coming, whether we like it or not. If we are not part of the solution, we are part of the problem. Sticking our heads in the sand is not going to be the solution."

You can read the article here.

Utah approves significant changes to the notion of the practice of law and its regulatory scheme

Long time readers of this blog know I have been following the different task forces around the country considering sweeping changes to the way the practice of law is regulated and practiced.  The more common denominators in that discussion are proposed changes to allow non-lawyers to provide certain types of legal services and changes to Rules that ban lawyers from sharing fees with non-lawyers.  (I recently reported on California's proposal (here and here) and later posted on the report that California's task force has received a mixed bag of comments (some negative, some positive) on its proposals, for example.

But,while California and Arizona are busy trying to work through their proposals, Utah has surprised everyone by acting much faster.

So, today I am reporting that the Utah Supreme Court has unanimously approved pursuing the recommendations of a task-force report on legal reform, including allowing non-lawyers to share fees in legal operations.

You can read the task force's report here (or here).

The report proposes the creation of a new structure for the regulation of legal services that would allow lawyers to seek investors from outside the profession including non-lawyer investment in and ownership of law firms.  The report stated that this goal should be achieved in two ways: (1) substantially loosening regulatory restrictions on the corporate practice of law, lawyer advertising, solicitation, and fee arrangements, including referrals and fee sharing and; (2) simultaneously establishing a new regulatory body, under the supervision of the state's Supreme Court, to advance and implement a risk-based, empirically-grounded regulatory process for legal service entities.

If approved, this proposal would be a tremendous change for the notion of professional regulation and it is likely to be influential around the country.

However, even though the Court approved the proposal unanimously, proposals like this one are never without opponents.  In fact, the ABA itself has been very slow to adopt changes to allow the practice of law by non-lawyers and the sharing of fees with non-lawyers.

The Utah report comes on the heels of recommendations by a State Bar of California task force to make sweeping changes in the lawyer regulatory structure in that state. These moves and others signal increasing recognition by bar officials in the U.S. that addressing the justice gap will require significant changes in the regulation of legal services.

For more information and comments go to:

ABA Journal

2 Civility

Law Sites, here and here

Lawyer Ethics Alerts Blog

Faughnan on Ethics