One hundred and six "renowned legal ethics scholars" (including myself) signed an amicus brief to the Missouri Court of Appeals urging the court to determine that St. Louis Circuit Attorney Kimberly M. Gardner acted completely within the “best traditions” of the exercise of appropriate prosecutorial power in seeking a new trial for Lamar Johnson.
The St. Louis Post Dispatch has the story here.
Thursday, October 31, 2019
DC Legal Ethics Committee opinion on duties related to impaired lawyers -- UPDATED
The District of Columbia Bar Legal Ethics Committee has issued an opinion on the duties owed to clients and the profession when an impaired lawyer leaves a law firm or government agency, particularly when the lawyer may continue to practice law, regardless of whether clients are, or may be, terminating their relationship with the firm in order to remain clients of the departing lawyer.
You can go here to read the full text of Ethics Opinion 377: Duties When a Lawyer is Impaired.
UPDATE 10/31/19: Over at The Law for Lawyers Today, Karen Rubin provides a detailed review of the opinion.
You can go here to read the full text of Ethics Opinion 377: Duties When a Lawyer is Impaired.
UPDATE 10/31/19: Over at The Law for Lawyers Today, Karen Rubin provides a detailed review of the opinion.
Podcast on paralegal ethics
Because paralegals hold vulnerable information in trust, competence in ethical rules is crucial to protecting their firm, clients, and even themselves. But what exactly are paralegal ethics and why do they matter?
Those are some of the questions that are addressed in this recent podcast of the Paralegal Voice, in which the hosts discuss a broad overview of basic ethics definitions and then zero in on best practices for conscientious adherence to ethics rules.
You can listen to the podcast by clicking on the button below, or (if you can't see the controls below) by going here.
Those are some of the questions that are addressed in this recent podcast of the Paralegal Voice, in which the hosts discuss a broad overview of basic ethics definitions and then zero in on best practices for conscientious adherence to ethics rules.
You can listen to the podcast by clicking on the button below, or (if you can't see the controls below) by going here.
Tuesday, October 29, 2019
Discipline for attempting to violate the rule on sex with clients
Model Rule 8.4, which is the basis of Rule 8.4 in most, if not all states, holds that it is professional misconduct for a lawyer to "violate or attempt to violate" the Rules of Professional Conduct. Yet, you rarely see cases imposing discipline for an attempted violation of the rules.
This makes Lawyer Disciplinary Board v. Sayre interesting. In this case, the Virginia Supreme Court imposed discipline on an attorney for a number of offenses and one of them involved an attempt to violate the rule against sex with clients. The lawyer admitted that he knowingly engaged in inappropriate and sexually suggestive communications with the intent of initiating a sexual relationship with a client. Because his attempt was unsuccessful, the Court ruled the conduct was not a violation of rule 1.8, but it was a violation of rule 8.4.
The Legal Profession blog has a summary here.
This makes Lawyer Disciplinary Board v. Sayre interesting. In this case, the Virginia Supreme Court imposed discipline on an attorney for a number of offenses and one of them involved an attempt to violate the rule against sex with clients. The lawyer admitted that he knowingly engaged in inappropriate and sexually suggestive communications with the intent of initiating a sexual relationship with a client. Because his attempt was unsuccessful, the Court ruled the conduct was not a violation of rule 1.8, but it was a violation of rule 8.4.
The Legal Profession blog has a summary here.
Sunday, October 27, 2019
Can a law firm file competing amicus briefs in one same case?
A couple of weeks ago, the New York State Bar Association issued an ethics opinion with an answer to this interesting question: can the same law firm file amicus briefs on both sides of a Supreme Court case?
And the answer is, as it so often is,... "it depends."
The question originated when a law firm asked its lawyers if any of them would be interested in preparing an amicus brief for filing with the Court. The problem was that some lawyers wanted to argue one side of the issue, while others wanted to argue the opposite side.
Given the division of opinions, the firm management decided to create two separate teams to work on their respective positions and then to ask the NY State Bar Association Ethics Committee if they could file both briefs.
In it opinion (Opinion 1174), the Committee concludes that the firm can't file either brief if two clients ask the firm to submit amicus briefs on opposing sides of an issue because New York’s Rule 1.7 bars a lawyer from representing clients on both sides of the same litigation.
However, in this case the interest in filing the briefs did not come from a client request. Here, the lawyers were to appear pro se. Thus, as long as the attorneys appeared in their own name, rather than in the firm's name, the Committee found no ethical reason why attorneys may not file amici briefs on opposing sides of a question before the Court.
You can read the opinion here. The Law For Lawyers Today has a post on the opinion here.
Meanwhile, over at Faughnan on Ethics, Brian Faughnan argues that it is not clear what the answer would be if one lawyer from the firm was filing on behalf of a client and then another lawyer in the same law firm wanted to file an opposing brief pro se. If it is true that lawyers are "as free as anyone" to file pro se briefs in any cases, it would seem that the answer is that the pro se lawyer would be allowed to file the amicus brief. Yet, this situation would look too similar to having an attorney from a firm arguing on both sides of the "v." in a litigation matter.
And the answer is, as it so often is,... "it depends."
The question originated when a law firm asked its lawyers if any of them would be interested in preparing an amicus brief for filing with the Court. The problem was that some lawyers wanted to argue one side of the issue, while others wanted to argue the opposite side.
Given the division of opinions, the firm management decided to create two separate teams to work on their respective positions and then to ask the NY State Bar Association Ethics Committee if they could file both briefs.
In it opinion (Opinion 1174), the Committee concludes that the firm can't file either brief if two clients ask the firm to submit amicus briefs on opposing sides of an issue because New York’s Rule 1.7 bars a lawyer from representing clients on both sides of the same litigation.
However, in this case the interest in filing the briefs did not come from a client request. Here, the lawyers were to appear pro se. Thus, as long as the attorneys appeared in their own name, rather than in the firm's name, the Committee found no ethical reason why attorneys may not file amici briefs on opposing sides of a question before the Court.
You can read the opinion here. The Law For Lawyers Today has a post on the opinion here.
Meanwhile, over at Faughnan on Ethics, Brian Faughnan argues that it is not clear what the answer would be if one lawyer from the firm was filing on behalf of a client and then another lawyer in the same law firm wanted to file an opposing brief pro se. If it is true that lawyers are "as free as anyone" to file pro se briefs in any cases, it would seem that the answer is that the pro se lawyer would be allowed to file the amicus brief. Yet, this situation would look too similar to having an attorney from a firm arguing on both sides of the "v." in a litigation matter.
Saturday, October 26, 2019
PLI upcoming program on innovation and the practice of law
In case you have not heard, the Practicing Law Institute is hosting a program next Wednesday you might be interested in. The concept is simple: they are bringing together ethics lawyers and innovators to discuss how lawyers and others can do innovative things in delivering legal services under the current law and ethics rules. In other words, it is not a discussion on how we should change the law so that we can practice in the future; it is a program on what innovations can be implemented right now. You can attend in person or through the magic of the internet. For more details you can go here.
Friday, October 25, 2019
How not to practice law: mock President Trump in a brief
The lawyers for a group of mayors in Puerto Rico have been ordered to refile an amicus brief because of what a federal judge considered indecorous conduct. And what was the conduct, you ask? Putting quotation marks around the word honorable when referring to President Trump (ie, as in the "Honorable" President Trump.) The judge also held that “A court of law is no place to mock, ridicule, or politically attack the president.” No other sanctions were imposed on the lawyers, though. The case is called Club Gallistico de Puerto Rico Inc. v. U.S. , D.P.R., No. 19-cv-1481, 10/15/19.
The Court's order reads, in full:
The Court's order reads, in full:
The Court hereby STRIKES the Brief of Amicus Curiae in Support of Plaintiffs filed by
amicus party Asociación de Alcaldes (Docket No. 43). Rule 12(f) of the Federal Rules of Civil Procedure allows considerable discretion to a district court in striking “any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f); see also Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613, 618 (1st Cir. 1988). To insert ironic quotation marks in a brief’s heading when referring to the President of the United States’ official title (“Hon.”) constitutes an indecorous action by the Asociación. A court of law is no place to mock, ridicule or politically attack the President. The Asociación de Alcaldes shall file a corrected version of its brief by Friday, October 18, 2019 at 12:00 p.m.
Thursday, October 24, 2019
A quick comment on Indiana's anti-discrimination rule
A blog reader from Indiana wrote to me to tell me that Indiana adopted a version of the proposed Model Rule 8.4(g) before it was adopted by the ABA. It says that it is misconduct to “engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.”
I was not aware of this rule in Indiana and now that I see it, I have a few comments. First, it explicitly says it regulates speech, which leads me to wonder if it would survive a constitutional attack. In contrast, the Model Rule tries (unsuccessfully, in my view, but at least it tries) to limit its reach to conduct in order to avoid regulating speech. Second, it limits the rule’s application to conduct “in a professional capacity” but it doesn’t define what it means by “professional capacity.” Third, the rule does not recognize an exception to allow lawyers to exercise discretion when choosing clients like the Model Rule does.
I was not aware of this rule in Indiana and now that I see it, I have a few comments. First, it explicitly says it regulates speech, which leads me to wonder if it would survive a constitutional attack. In contrast, the Model Rule tries (unsuccessfully, in my view, but at least it tries) to limit its reach to conduct in order to avoid regulating speech. Second, it limits the rule’s application to conduct “in a professional capacity” but it doesn’t define what it means by “professional capacity.” Third, the rule does not recognize an exception to allow lawyers to exercise discretion when choosing clients like the Model Rule does.
New Mexico becomes third state to adopt Model Rule 8.4(g)
Long time readers of this blog know that I have been following the developments on Model Rule 8.4(g) way back since it was proposed in 2016. Go here and scroll down to see my posts, in reverse chronological order.
As you probably remember, Model Rule 8.4(g) has generated a very robust debate, and has proven to be controversial because, at least as originally adopted by the ABA, some argue the rule imposes a threat of discipline for 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. The state that adopted it most recently (Maine) adopted it after making several important amendments. See here. Reportedly, Missouri, and Colorado have also amended their rules to reflect some aspect of the Model Rule, but I have not seen the extent of these amendments.
I am writing about this today because I just read a short announcement in Bloomberg Law stating that New Mexico has formally adopted Model Rule 8.4(g).
As you probably remember, Model Rule 8.4(g) has generated a very robust debate, and has proven to be controversial because, at least as originally adopted by the ABA, some argue the rule imposes a threat of discipline for 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. The state that adopted it most recently (Maine) adopted it after making several important amendments. See here. Reportedly, Missouri, and Colorado have also amended their rules to reflect some aspect of the Model Rule, but I have not seen the extent of these amendments.
I am writing about this today because I just read a short announcement in Bloomberg Law stating that New Mexico has formally adopted Model Rule 8.4(g).
Tuesday, October 22, 2019
Wisconsin Appellate Court disqualifies judge because of a "Facebook friendship"
At the end of last year, I reported that the Florida Supreme Court issued an opinion holding that sometimes, the relationship between a judge and a litigant or lawyer might be a basis for disqualification of the judge but that there is no reason that Facebook “friendships” should be singled out and subjected to a per se rule of disqualification.
More recently, I reported that the ABA Committee on Ethics and Professional Responsibility issued a new Ethics Opinion on whether judges’ social or close personal relationships with lawyers or parties should be considered grounds for disqualification, in which the Committee did not discuss the issue of "Facebook friendships." See here and here.
I am writing about this today because I just read that the Wisconsin Appellate Court has issued an opinion disqualifying a judge because of an undisclosed "Facebook friendship."
Although the court decided not to create a bright-line rule regarding the use of social media by Wisconsin judges, it ultimately concluded that a judge’s undisclosed social media connection with a party in the case created an appearance of impropriety, and thus, was enough to disqualify the judge.
The court held that the use of social media is not, by itself, enough to disqualify a judge, but on this particular instance, the judge's acceptance of the friendship request amounted to an ex parte communication and “created a great risk of actual bias resulting in the appearance of partiality.”
The case is called In re Paternity of BJM, and you can read the opinion here.
More recently, I reported that the ABA Committee on Ethics and Professional Responsibility issued a new Ethics Opinion on whether judges’ social or close personal relationships with lawyers or parties should be considered grounds for disqualification, in which the Committee did not discuss the issue of "Facebook friendships." See here and here.
I am writing about this today because I just read that the Wisconsin Appellate Court has issued an opinion disqualifying a judge because of an undisclosed "Facebook friendship."
Although the court decided not to create a bright-line rule regarding the use of social media by Wisconsin judges, it ultimately concluded that a judge’s undisclosed social media connection with a party in the case created an appearance of impropriety, and thus, was enough to disqualify the judge.
The court held that the use of social media is not, by itself, enough to disqualify a judge, but on this particular instance, the judge's acceptance of the friendship request amounted to an ex parte communication and “created a great risk of actual bias resulting in the appearance of partiality.”
The case is called In re Paternity of BJM, and you can read the opinion here.
Monday, October 21, 2019
Rudy Giuliani and the practice of law, part 2
About 3 weeks ago I posted a comment on issues raised by some of Rudy Giuliani's recent comments and actions. In it I suggested that there are problems with the argument that his testimony is protected by the attorney-client privilege. Yet, I did not address the issues regarding confidentiality. So, to complete that picture, here is an article published in LawFare discussing the issue.
Sunday, October 20, 2019
Challenges facing inhouse counsel
In the most recent Thinking Like a Lawyer podcast, hosts Joe Patrice and Elie Mystal, two popular contributors to Above the Law discuss a number of issues that face inhouse counsel, including a recent comprehensive survey of corporate legal departments which reveals confusion over privacy requirements and complaints over outside counsel costs. (Note that the discussion begins with a completely different issue but eventually gets to the issues related to inhouse counsel at the 9:40 minutes mark.). You can listen to it by clicking on the "play button" (triangle) below, or by going here.
Friday, October 18, 2019
Ethical issues related to leaving a firm
A few days ago I posted a link on "how not to practice law" about a case involving a lawyer accused of stealing files from a firm when departing from it (here). A few days later, Ethical Grounds posted a short follow up discussing issues related to the ethics of departing from a firm. Take a look at it here.
Wednesday, October 16, 2019
Arizona task force proposes change to rules to allow firms to have non lawyer co-owners -- UPDATED x2
Long time readers of this blog will remember that there has been a lot of debate in recent years about whether it is a good idea to continue to prevent law firms from generating capital by allowing non-lawyer investors.
I am writing about this today because I just read that the Arizona Task Force on the Delivery of Legal Services has recommended that the state’s supreme court end the restrictions on non-lawyer co-ownership of law firms. The task force's (very long) report is here.
And, Arizona is not alone. As reported in an article in Bloomberg Law, the "Arizona panel’s actions are part of a growing movement of state and national bar groups currently acting to loosen or repeal law firm ownership and related regulations."
Not everyone is happy with the trend, though. As the article continues, "Big Law leaders have expressed concern about the trend, which could allow the Big Four—EY, Deloitte, KPMG, and PwC—and other alternative legal service providers to take a more direct competitive stance against U.S. law firms, especially if several larger states adopt such changes."
Likewise, one member of the Arizona task force (the chief judge of one of the divisions of the Arizona Court of Appeals) argued that allowing non lawyers to share ownership of law firms would pose “a serious threat to the long-term health of the justice system" and "would not benefit the public"
To become final, the proposal has to be approved by the Arizona Judicial Council, the policy-making body that oversees the state’s justice system, after which the public will have a chance to comment on it. Finally, the proposal would have to be adopted by the seven-member Arizona Supreme Court. If approved, the changes are not likely to be effective before January of 2021.
UPDATE 10-16-19: Law Sites has an article on this topic here.
UPDATE 11/9/19: The Institute for the Advancement of the American Legal System has a comment on the proposals here.
I am writing about this today because I just read that the Arizona Task Force on the Delivery of Legal Services has recommended that the state’s supreme court end the restrictions on non-lawyer co-ownership of law firms. The task force's (very long) report is here.
And, Arizona is not alone. As reported in an article in Bloomberg Law, the "Arizona panel’s actions are part of a growing movement of state and national bar groups currently acting to loosen or repeal law firm ownership and related regulations."
Not everyone is happy with the trend, though. As the article continues, "Big Law leaders have expressed concern about the trend, which could allow the Big Four—EY, Deloitte, KPMG, and PwC—and other alternative legal service providers to take a more direct competitive stance against U.S. law firms, especially if several larger states adopt such changes."
Likewise, one member of the Arizona task force (the chief judge of one of the divisions of the Arizona Court of Appeals) argued that allowing non lawyers to share ownership of law firms would pose “a serious threat to the long-term health of the justice system" and "would not benefit the public"
To become final, the proposal has to be approved by the Arizona Judicial Council, the policy-making body that oversees the state’s justice system, after which the public will have a chance to comment on it. Finally, the proposal would have to be adopted by the seven-member Arizona Supreme Court. If approved, the changes are not likely to be effective before January of 2021.
UPDATE 10-16-19: Law Sites has an article on this topic here.
UPDATE 11/9/19: The Institute for the Advancement of the American Legal System has a comment on the proposals here.
Thursday, October 10, 2019
Supreme Court of Oklahoma imposes a bizarre sanction: barring an attorney from representing, or even meeting with, females
A few days ago, the Oklahoma Supreme Court issued a short opinion in which it imposes the most bizarre sanction I have ever seen in a disciplinary case. It generated a great exchange in the Professional Responsibility professors' list serv and many of the points I am going to make below are taken from that discussion. The case is called State ex rel. Okla. Bar Ass’n and the opinion is available here.
But before we get to all that, let's review the facts of the case. The lawyer in question, one Richard Stout, was charged with three counts of misconduct. In one, it was alleged (and later proven) that he represented a woman in her divorce case. While the representation was ongoing, he sent her sexually suggestive text messages but because she wanted her divorce completed as quickly as possible she didn’t fire him. In another, it was alleged (and also later proven) that he had sex with a client who said she did it because she was “in a desperate situation” financially. Finally, in the third one, it was alleged - and proven - that, about a year later, Stout made unwanted sexual advances and sent sexually suggestive messages to another female client who ultimately terminated the representation.
Based on these facts, the court found that Stout’s actions violated several rules of professional conduct, including the prohibition on representing a client when there’s a conflict of interest, the prohibition against having sexual relations with a client (which has exceptions but none of which were applicable in this case), and a rule of the Oklahoma Rules Governing Disciplinary Proceedings which subjects an attorney to discipline for any acts by that attorney that are contrary to prescribed standards of conduct, and "which would reasonably be found to bring discredit upon the legal profession."
However, the court also found that the lawyer expressed “sincere and deep remorse toward his clients,” voluntarily consented to therapy, and offered to not take on female clients in the future.
Based on these "mitigating" circumstances, the court decided to impose only a three-month suspension.
At this point we could stop and discuss whether that sanction is too lenient; but there are more interesting things to talk about.
Here is where it gets interesting. After stating the three month suspension, the court added that the lawyer had to abide by the following conditions: (1) Mr. Stout shall not accept female clients and will not meet alone with a female at any time associated with his practice of law; (2) he will remain in treatment as recommended by his counselor; (3) he will remain in contact with Lawyers Helping Lawyers; and (4) he will maintain site blocking protection on his electronic devices.
Let's start with number 4... So the court is telling the lawyer he can't access certain websites [I assume related to pornography]. I have two questions: how is the state going to monitor, or enforce that? But more importantly, isn't that a violation of the lawyer's first amendment rights? Can the state control the content of a lawyer's books, or magazine subscriptions as a condition to practice law?
Then let's talk about what the law professors were talking about today: condition number 1. The court is telling the lawyer that he can not be alone with females in relation to the practice of law.
This sanction raises many questions. For example, is the lawyer now going to be required to post notices in appropriate places (entrance to his office, his website, etc) warning, or at least informing, that females must be accompanied when contacting him in person? Can the lawyer hire female staff or associates (because there is always a chance he might find himself alone with them in the office)? How is he going to conduct business with female lawyers?
Then there is the question of whether the sanction becomes state mandated discrimination on the basis of gender. And if it is, would the Oklahoma Bar ever consider prohibiting a lawyer from accepting African-American clients in response to a lawyers misconduct involving racist conduct? And if the answer to that is no, how does the court justify saying it is okay to mandate discrimination on the basis of gender but it is not okay to mandate discrimination on the basis of race?
Now this question has several layers. First, it is a generally accepted proposition that lawyers can discriminate when choosing clients. Even the recently adopted Model Rule 8.4(g) recognizes this. However, at the same time, it is possible that lawyers may be subject to penalties for violating state or federal anti discrimination laws. For example, Illinois Rule 8.4 recognizes this, and makes it misconduct to violate these laws. In other words, in Illinois is it not misconduct to discriminate unless the discrimination is found to be a violation of the law. Thus, in many states, lawyers can choose to represent only people of one gender if they want. There are law firms out there that do so.
There are firms who represent only men in divorces cases. (See here, for example.) What is different in this case is that the lawyers in those firms have chosen to represent only men; in the Stout case, the court is forcing the lawyer to do so. As a penalty. Because he presumably can't handle it. And that, to me, makes a difference.
I don't like that this opinion, when published, will set a precedent that allows a court to micro manage the practice of a disciplined attorney. Can the court now tell lawyers that they can't get involved in certain types of cases, or represent certain types of clients?
And what if a woman wants Stout to represent her? Why does the court prevent her from choosing her lawyer? To protect her?
If this man is so out of control that he can't even be trusted to be in a room alone with a female in a professional setting, is he really fit to practice law at all?
If the lawyer is competent to practice law, he should be competent to represent the clients who want to hire him. If he is incompetent to represent women, he should be considered incompetent to represent anyone. He should have been suspended indefinitely until he was able to show he could be trusted to practice again.
But before we get to all that, let's review the facts of the case. The lawyer in question, one Richard Stout, was charged with three counts of misconduct. In one, it was alleged (and later proven) that he represented a woman in her divorce case. While the representation was ongoing, he sent her sexually suggestive text messages but because she wanted her divorce completed as quickly as possible she didn’t fire him. In another, it was alleged (and also later proven) that he had sex with a client who said she did it because she was “in a desperate situation” financially. Finally, in the third one, it was alleged - and proven - that, about a year later, Stout made unwanted sexual advances and sent sexually suggestive messages to another female client who ultimately terminated the representation.
Based on these facts, the court found that Stout’s actions violated several rules of professional conduct, including the prohibition on representing a client when there’s a conflict of interest, the prohibition against having sexual relations with a client (which has exceptions but none of which were applicable in this case), and a rule of the Oklahoma Rules Governing Disciplinary Proceedings which subjects an attorney to discipline for any acts by that attorney that are contrary to prescribed standards of conduct, and "which would reasonably be found to bring discredit upon the legal profession."
However, the court also found that the lawyer expressed “sincere and deep remorse toward his clients,” voluntarily consented to therapy, and offered to not take on female clients in the future.
Based on these "mitigating" circumstances, the court decided to impose only a three-month suspension.
At this point we could stop and discuss whether that sanction is too lenient; but there are more interesting things to talk about.
Here is where it gets interesting. After stating the three month suspension, the court added that the lawyer had to abide by the following conditions: (1) Mr. Stout shall not accept female clients and will not meet alone with a female at any time associated with his practice of law; (2) he will remain in treatment as recommended by his counselor; (3) he will remain in contact with Lawyers Helping Lawyers; and (4) he will maintain site blocking protection on his electronic devices.
Let's start with number 4... So the court is telling the lawyer he can't access certain websites [I assume related to pornography]. I have two questions: how is the state going to monitor, or enforce that? But more importantly, isn't that a violation of the lawyer's first amendment rights? Can the state control the content of a lawyer's books, or magazine subscriptions as a condition to practice law?
Then let's talk about what the law professors were talking about today: condition number 1. The court is telling the lawyer that he can not be alone with females in relation to the practice of law.
This sanction raises many questions. For example, is the lawyer now going to be required to post notices in appropriate places (entrance to his office, his website, etc) warning, or at least informing, that females must be accompanied when contacting him in person? Can the lawyer hire female staff or associates (because there is always a chance he might find himself alone with them in the office)? How is he going to conduct business with female lawyers?
Then there is the question of whether the sanction becomes state mandated discrimination on the basis of gender. And if it is, would the Oklahoma Bar ever consider prohibiting a lawyer from accepting African-American clients in response to a lawyers misconduct involving racist conduct? And if the answer to that is no, how does the court justify saying it is okay to mandate discrimination on the basis of gender but it is not okay to mandate discrimination on the basis of race?
Now this question has several layers. First, it is a generally accepted proposition that lawyers can discriminate when choosing clients. Even the recently adopted Model Rule 8.4(g) recognizes this. However, at the same time, it is possible that lawyers may be subject to penalties for violating state or federal anti discrimination laws. For example, Illinois Rule 8.4 recognizes this, and makes it misconduct to violate these laws. In other words, in Illinois is it not misconduct to discriminate unless the discrimination is found to be a violation of the law. Thus, in many states, lawyers can choose to represent only people of one gender if they want. There are law firms out there that do so.
There are firms who represent only men in divorces cases. (See here, for example.) What is different in this case is that the lawyers in those firms have chosen to represent only men; in the Stout case, the court is forcing the lawyer to do so. As a penalty. Because he presumably can't handle it. And that, to me, makes a difference.
I don't like that this opinion, when published, will set a precedent that allows a court to micro manage the practice of a disciplined attorney. Can the court now tell lawyers that they can't get involved in certain types of cases, or represent certain types of clients?
And what if a woman wants Stout to represent her? Why does the court prevent her from choosing her lawyer? To protect her?
If this man is so out of control that he can't even be trusted to be in a room alone with a female in a professional setting, is he really fit to practice law at all?
If the lawyer is competent to practice law, he should be competent to represent the clients who want to hire him. If he is incompetent to represent women, he should be considered incompetent to represent anyone. He should have been suspended indefinitely until he was able to show he could be trusted to practice again.
Sunday, October 6, 2019
Michigan becomes 37th state to adopt notion that competence includes knowledge and understanding of "technology"
Last month Michigan adopted the standard of "technology competence" illustrated in the ABA's Model Rule Comment [8] to Rule 1.1. The Michigan amendment will take effect on January 1, 2020. Now there are 37 states that have adopted some version of the notion that to be competent, lawyers must know and understand modern "technology."
The amendment in Michigan is more detailed, and in my opinion, better than the comment in the Model Rules. You can get more information here.
The amendment in Michigan is more detailed, and in my opinion, better than the comment in the Model Rules. You can get more information here.
Article by lawyers for whistleblowers on whether Rudy Giuliani can claim the protection of the attorney client privilege
A few days ago I posted a short comment on Rudy Giuliani and the practice of law. In it, I questioned whether he understands the notion of the attorney-client privilege.
Now, here is a new article by several lawyers who represent whistleblowers on how they (the authors) have used the crime-fraud exception to the privilege in the past to deny the use of the privilege and on why they think that Giuliani will not be able to claim the privilege successfully.
Now, here is a new article by several lawyers who represent whistleblowers on how they (the authors) have used the crime-fraud exception to the privilege in the past to deny the use of the privilege and on why they think that Giuliani will not be able to claim the privilege successfully.
Oregon State Bar approves proposals to create program of non lawyer legal professionals and another to create a path to the bar exam that does not require going to law school
Long time readers of this blog will remember that over the past few years there has been a debate on whether jurisdictions should allow non-lawyers to provide certain types of legal services in order to provide better access to representation. I have posted many comments, links to articles and podcasts, most recently here.
For all that discussion on the topic, however, only two jurisdictions (Washington and Utah) have actually created programs to do something about it by recognizing and regulating "legal technicians" (or LLLTs for "limited license legal techinicians").
That is about to change. Last week I read that the Oregon State Bar’s Board of Governors has voted to approve a recommendation to create a paraprofessional licensing program and a proposal to enable individuals to become licensed lawyers without attending law school, by completing a four-year tutelage program.
The paraprofessional licensing proposal seems to be similar to the LLLT programs in Washington and Utah. The other proposal, referred to as a Writing for the Bar Program, would allow individuals to sit for the bar exam and be licensed to practice without having to attend law school. Its goal is to reduce law school debt and to enable more people — and a greater diversity of people — to enter the practice of law. Instead of going to law school, the program would require applicants to work under a tutor, at least 32 hours a week, in a law office, legal department or court for four years. The tutor would be required to provide instruction on certain specified subjects.
Both proposals require further actions to develop more-detailed plans and regulations for implementing them and, both programs will require approval by the Oregon Supreme Court before becoming final.
Law Sites has more details and links to the proposals.
For all that discussion on the topic, however, only two jurisdictions (Washington and Utah) have actually created programs to do something about it by recognizing and regulating "legal technicians" (or LLLTs for "limited license legal techinicians").
That is about to change. Last week I read that the Oregon State Bar’s Board of Governors has voted to approve a recommendation to create a paraprofessional licensing program and a proposal to enable individuals to become licensed lawyers without attending law school, by completing a four-year tutelage program.
The paraprofessional licensing proposal seems to be similar to the LLLT programs in Washington and Utah. The other proposal, referred to as a Writing for the Bar Program, would allow individuals to sit for the bar exam and be licensed to practice without having to attend law school. Its goal is to reduce law school debt and to enable more people — and a greater diversity of people — to enter the practice of law. Instead of going to law school, the program would require applicants to work under a tutor, at least 32 hours a week, in a law office, legal department or court for four years. The tutor would be required to provide instruction on certain specified subjects.
Both proposals require further actions to develop more-detailed plans and regulations for implementing them and, both programs will require approval by the Oregon Supreme Court before becoming final.
Law Sites has more details and links to the proposals.
Thursday, October 3, 2019
How not to practice law: tell the disciplinary agency it would be an honor to be disbarred -- UPDATED
So you want to get disbarred? Ask and you shall receive. According to a story in Above the Law, here is the text of an email message sent by a practicing lawyer to the D.C. Office of Disciplinary Counsel asking to be disbarred rather than respond to or participate in any of the four disciplinary matters that had been brought against him:
The ABA Journal has a post, with some links, on the case here.
UPDATE (10/3/19): Michael Kennedy of Ethical Grounds commented on the case here.
Please don’t kill trees, waste taxpayer resources and ODC personnel on me. ODC has no credibility or legitimacy to me. Or the drivel you generate. You are simply dishonest lawyers who do nothing to regulate dishonest lawyers. And racists to boot. Rather than wasting time, money, and paper on your sophistries, please disbar me. Disbarment by ODC would be an honor. To date, aside from competing in the triathlon world championships, my greatest honors are my PhD from UCLA and my law degree from Boalt. But a disbarment letter from ODC will be framed and go up right alongside those diplomas. Please do me the honor of disbarring me. I will be so very very proud.The D.C. Court of Appeals Board on Professional Responsibility obliged and recommended that the attorney be “disbarred without an analysis of the merits of his case.”
The ABA Journal has a post, with some links, on the case here.
UPDATE (10/3/19): Michael Kennedy of Ethical Grounds commented on the case here.
Rudy Giuliani and the practice of law
Unless you have been living under a rock for the past few weeks, you know that Rudy Giuliani who is often labeled to be "a personal counsel to Donald Trump" has been in the news a lot lately and that his appearances on TV have generated a lot of commentary, and jokes. From the Professional Responsibility perspective, here are a few interesting questions Giuliani's practice has generated:
Is Giuliani practicing law to begin with?
There has been much discussion on whether Giuliani is acting as a lawyer or as a public relations spokesperson. It is difficult to say because we don't know what is the content of the communications with Trump or Trump's team and what tasks he has been asked to perform specifically. But I think it can be said that he is doing both. I don't think that making personal appearances and operating as a spokesperson for a client means one is not practicing law at the same time. I am willing to give him the benefit of the doubt on this one. Yet, I am not so sure when it comes to taking a trip to Ukraine to meddle in an investigation, which he admitted to with those words!
Is Giuliani violating the rule regarding competence? Is he incompetent as a lawyer?
Uf! That's a tough one. It is pretty clear he has committed some serious mistakes, during appearances on TV by contradicting himself, admitting to misconduct etc. So, on the one hand, he had made mistakes, but whether those mistakes rise to the level of misconduct because of incompetence, I guess would depend on the quantity, frequency and severity of the mistakes. I have not been keeping count, so I can't really offer an informed opinion. I would be interested to hear if anyone has been keeping a record and what they have to say.
Is Giuliani threatening frivolous actions?
Earlier today Pro. Jonathan Turley posted, in part, that Giuliani suggested he was considering suing members of Congress over their impeachment efforts. In response, Turley states:
Such a lawsuit would be frivolous and it is unsettling that Giuliani would put any credence into such fringe advice.
Calling the impeachment effort as “worse than McCarthy,” Giuliani revealed that he had sought legal advice on the issue: “I had a couple of talks with civil rights lawyers and a constitutional lawyer today and here’s what they’re recommending: that we should bring a lawsuit on behalf of the president and several of the people in the administration, maybe even myself as a lawyer, against the members of Congress individually for violating constitutional rights, violating civil rights.”
In a long parade of uniquely bad ideas, this would be the final climax. First, the allegation of self-dealing in the Ukrainian call would be a valid basis for an article of impeachment. It would still have to be proven and there are defenses for any such trial that I have previously discussed. This would be viewed by a court as a facially legitimate inquiry. Second, courts do not second guess the House on such efforts. While there continues to be a debate over what might be reviewable in an impeachment proceeding, it is exceptionally unlikely that a court would seriously question this effort.
The claim is that the impeachment interferes with a president’s inherent authority over foreign relations under Article II. That is facially frivolous.
Can Giuliani rely on attorney-client privilege to avoid Congressional testimony?
Giuliani has suggested that he is protected by attorney-client privilege in the impeachment inquiry by Democrats in the U.S. House of Representatives. There are a number of problems with this suggestion.
First of all, Giuliani can't be "protected" by the privilege. The privilege protects information, not an individual, and the privilege belongs to the client who is the one who has the right to claim it. Second, the privilege only covers communications between the attorney and the client which were shared for the purpose of obtaining legal advice, and if Giuliani is not practicing law (see above) or if the communications were related to tasks other than legal services, the privilege does not apply. Third, the information provided to an attorney by people outside the attorney-client relationship (such as foreign leaders) may not be protected.
Often Giuliani sounds like he thinks that anything told to him is protected merely because he has a law degree. If that's what he thinks, he does not understand the law (which may point to incompetence (see above)).
Fourth, it is not clear what information Congress has requested of Giuliani and, therefore, whether it is protected by the privilege. It is possible, for example, that the information can be considered not privileged because of the crime-fraud exception.
For more on whether Giuliani claims of privilege are valid, go to the ABA Journal, and Above the Law.
Comments on California proposals on the future of the practice of law
As you probably know, I have been posting updates on changes proposed (and some already adopted) in California. First, there was the adoption of new rules, and most recently on a task force's report and recommendations on the future of the practice of law (see here, here, here, and here.)
Now, here is a link to a short post at MyShingle with comments on the California proposals. The two comments I find more interesting are these:
-MyShingle does not oppose permitting nonlawyers to provide legal advice without running afoul of UPL. MyShingle recommends that any regulations governing licensing for legal technicians or advisors not be overly complicated or onerous.
-As a broad matter, MyShingle does not oppose outside ownership. In this regard, MyShingle recommends that the Task Force gain a greater understanding of the various business models for outside ownership and formulate rules regarding use of client data even in anonymized format and even, in some circumstances, with client consent. But as the Task Force works towards rules that would allow outside ownership on an entity-level, MyShingle strongly supports relaxing rules to allow lawyers to joint-venture and partner with non-lawyers on a project, product or service basis to develop innovative packaged services. In addition, MyShingle urges the Task Force to eliminate regulations that prohibit payment or sharing of referral fees to non-lawyers and to state clearly that lawyer-matching platforms are a payment mechanism and not fee-sharing arrangements with non-lawyers.
Tuesday, October 1, 2019
More on the issue of facebook friendships with judges
About three weeks ago I posted a comment on the ABA Committee on Ethics and Professional Responsibility's recent Ethics Opinion on Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure, and pointed out that the opinion did not address an issue that had been in the news not too long ago regarding "facebook friendships."
Thankfully, Karen Rubin of The Law For Lawyers Today, did a bit more research on the issue than I and posted this short comment. In it, she links several state ethics opinions on social media friendships. Go read it!
Thankfully, Karen Rubin of The Law For Lawyers Today, did a bit more research on the issue than I and posted this short comment. In it, she links several state ethics opinions on social media friendships. Go read it!
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