Sunday, December 29, 2019

May a Louisiana Lawyer Assist a Client with Marijuana Distribution?

A few days ago I posted that the NY State Bar Association issued an opinion saying that lawyers are allowed to represent client's in the medical marijuana business.  See here.

Today, the Louisiana Legal Ethics blog is offering analysis on the same question for Louisiana lawyers.  To the question "May a Louisiana Lawyer Assist a Client with Marijuana Distribution?", they answer "probably not."  You can read the full analysis here.

Friday, December 27, 2019

Utah begins its licensed paralegal practitioners program

Back in September and again in November I reported on Utah's move to allow non-lawyers to provide certain legal services.  See here and here

Today, I want to add that Above the Law is reporting that Utah’s first group of licensed paralegal practitioners has only four members, but state officials expect the program to grow significantly in the years to come. According to the report, Utah Supreme Court Justice Deno Himonas said he anticipates there will be 20 LPPs in two years and 200 in a decade.  Go here for more information.

Thursday, December 26, 2019

NY State Bar Association finds lawyers are allowed to represent client's in the medical marijuana business

Last month, the New York State Bar Association Committee on Professional Ethics issued Opinion 1177, reaffirming that the New York Rules of Professional Conduct “permit a lawyer to assist a client in conduct designed to comply with state medical marijuana law,” even though the client’s conduct is prohibited by federal narcotics laws.

The Law for Lawyers Today has a summary and discussion of the opinion here

Tuesday, December 24, 2019

A really dumb way to get your license suspended: try to save a few bucks at Walmart (by cheating)

An Ohio attorney who put price tags from cheaper items on more expensive ones at Walmart and then checked them out was given a one-year stayed suspension by the state supreme court, which held that the conduct violated professional conduct rules prohibiting a lawyer from committing an illegal act that reflects adversely on the lawyer’s honesty and from engaging in conduct involving fraud.

The case is Disciplinary Counsel v. Scott.

Monday, December 23, 2019

Puerto Rico Bar Association has filed an injunction petition in federal court to halt the implementation of new regulation that imposes mandatory pro bono and low paying mandatory appointment to represent clients in both civil and criminal cases

At some point in 2018, the Puerto Rico Supreme Court adopted a set of rules for the assignment of cases to court appointed attorneys (“Reglamento para la AsignaciĆ³n de Abogados y Abogadas de Oficio de Puerto Rico “) which is set to come into effect on January 1st, 2020.

According to this new system, some lawyers in private practice in Puerto Rico are obligated to be available to provide legal services to clients in both civil and criminal cases when appointed to do so.  The first 30 hours of service must be provided free of charge.  Thereafter, lawyers will be paid at the rate of $30.00 per hour for out of court work and $60.00 per hour for in court or appellate work.  These fees, however, are not to be recovered from a line item in the government’s budget and it is unclear as to whether the government will be able to generate the money to pay them.

In anticipation to the implementation of the new regulation, the Puerto Rico Bar Association (El Colegio de Abogados y Abogadas de Puerto Rico (CAAPR)) has filed a complaint and request for injunction in Federal District Court alleging that the regulation is unconstitutional.

Among other things, the complaint argues that the regulation exempts or excludes broad categories of attorneys from having to provide free legal services including lawyers in public service and those that provide ad honorem services for the judicial branch.

In addition, the complaint argues that forcing only some lawyers to provide legal services for free or for such low rates of compensation that are not enough to cover overhead expenses constitutes deprivation of life, liberty, or property, without due process of law, and a violation of the equal protection of the law.

You can read the complaint here

Wisconsin: mandatory bar membership is not unconstitutional

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional. 

Today I am here to report that we now have a decision on the subject.  About two seeks ago, the State Bar of Wisconsin won dismissal of a suit alleging its requirement that attorneys pay bar dues to practice in the state unconstitutionally compels them to participate in the state bar’s advocacy.  The case is called Jarchow v. State Bar of Wis. and you can read it here.

Rather than address the issues head on, however, the court held that U.S. Supreme Court precedent requires dismissal of the plaintiffs’ First Amendment challenge. It cited a 1990 opinion in which the high court upheld similar requirements imposed by the California bar against free speech and free association challenges.  The trial court said it’s bound by the 1990 decision, and only the Supreme Court can say otherwise. “Plaintiffs must seek relief in a higher court,” it said.

Lawyer who allowed client to write her own brief, and which resulted in the court calling it complete gibberish gets sanctioned -- UPDATED

About a month ago I posted a note about a case in which the court found one of the briefs in the case to be total "gibberish."  See here.

More recently we have found out that the brief was actually written by the client and that the lawyer was sanctioned for it.

The story apparently began when a plaintiff filed a pro se 386-paragraph complaint.  After the defendant moved for summary judgment, the plaintiff filed a response that the appeals court called “woefully noncompliant” with the local rule governing summary judgment briefs.  At some point, a lawyer began to represent the plaintiff, and, eventually, the lawyer allowed the client to write and submit an appellate brief that the court found to be "a monstrosity," “incoherent,” and “utterly frivolous.”

An now comes news that the Federal Appeals Court for the 7th Circuit has ordered the lawyer to pay attorney fees and double costs to his opponent.

You can read more about this case in Bloomberg Law, The ABA Journal, and The Law For Lawyers Today.

UPDATE (12/27/19): Lawyer Ethics Alerts Blog has a comment on the case here.

$4 million in sanctions for discovery abuse

Bloomberg law is reporting that a California federal judge recently imposed sanctions on a party for nearly $4 million for discovery misconduct that was “as egregious as anything” the court “has ever seen.”  This is one of the largest sanctions for discovery abuse I have seen.  You can read the story here.

Sunday, December 8, 2019

Did Rudy Giuliani threaten to violate his duty of confidentiality on live TV?

It sounds like it!  Go here to read about it.

Judge reprimanded for refusing to perform same sex marriages

Back in April I reported that the ABA Standing Committee on Ethics and Professional Responsibility released a Formal Opinion (No. 485) concluding that a judge for whom performing marriages is a mandatory obligation of judicial office may not decline to perform marriages of same-sex couples and that a judge for whom performing marriages is a discretionary judicial function may not decline to perform marriages of same-sex couples if the judge agrees to perform opposite-sex marriages.  See here.

I am writing about this today again, because I just read that on November 12, 2019, the Texas State Commission on Judicial Conduct “publicly warned” a judge who performed opposite-sex marriages, but who “declined to perform same-sex weddings.” In “warning” the judge, the Commission cited Texas Code of Judicial Conduct Canon 4A(1), which requires a judge to handle extra-judicial activities in a manner so as to “not cast reasonable doubt on the judge’s capacity to act impartially as a judge.” The case is called In re Hensley, Tx. CJC No. 17-1572 (Nov. 12, 2019).

Go here for more on this story.

Saturday, December 7, 2019

South Carolina adopts a limited version of the duty to understand technology as part of the duty of competence -- UPDATED

About a month ago I noted that Georgia was in line to become the 38th state to adopt the notion of understanding "technology" as part of the duty of competence, as suggested by comment [8] to Model Rule 1.1.

Now comes news that will Georgia is still in the process of doing this, South Carolina has in fact become the 38th state.  However, South Carolina’s version of the comment differs from the model rule's one.  The model rule states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”  In contrast, South Carolina's version adds that the duty extends only to “technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client.”

Law Sites has a comment, and criticism of the added restriction, here.

UPDATE 12/8/19:  Louisiana Legal Ethics has more here.

How not to practice law: be insulting, use foul language, curse... and make sure you put it all in writing!

When a motion filed in a case ends with "In a collective 75 years of legal practice, Allstate’s counsel have never seen behavior that even comes close to that of [opposing counsel] here. It is unlikely that the Court has either...." you know the motion will make for some interesting reading.  And it does.  You won't believe the language used by the lawyer in this case.  You can read the motion that explains it here.   Above the Law has more information here.

Friday, December 6, 2019

California Appellate Court finds that operates as a referral service

Long time readers of this blog know that one of the most important topics of discussion over the last couple of years has been whether it would be unethical for lawyers to share fees with internet “lead generators” and other services that seek to match people looking for legal services with lawyers who are available to provide those services.

Part of that discussion is based on the application of rules that ban lawyers from providing “anything of value” to someone as compensation for recommending the lawyer’s services, such as Model Rule MR 7.2(b), a version of which has been adopted in almost all jurisdictions.

For this reason, “lead generators” do not want to be considered to be “referral services.”  And this is why a recent opinion from an appellate court in California called Jackson v. is important (available here).

In this case, LegalMatch, an online company that connects people seeking legal representation with lawyers who pay a subscription, sued attorney Dorian Jackson after the attorney allegedly failed to pay his service subscription fees. In response, Jackson alleged the company was operating as an uncertified lawyer referral service, which would make it improper for the attorney to pay the fees.

The trial court found for the plaintiff LegalMatch, but the court of appeals reversed, thus preventing LegalMatch from being able to recover its fees and, also probably undermining LegalMatch’s ability to argue that is not a lawyer referral service in other states.

The opinion has re-generated an interest debate among the members of the Association of Professional Responsibility Lawyers, many of whom have expressed opposition to the type of ban imposed by rules like Model Rule 7.2 and support for the proposition that lawyers should be allowed to pay to participate in for-profit lawyer referral services.

California Legal Ethics has a comment on the case here.

Monday, December 2, 2019

How not to practice law: enter into a transaction with a client, don't make full disclosures and take advantage of a position against the client's interests

As you probably know, lawyers are allowed to enter into financial transactions with clients but there are significant requirements that need to be met.  Courts are typically not forgiving when a client, or former client, complains and a review of the transaction shows that the lawyer obtained an advantage over the client.  This is straight forward, but every now and then, we get a reminder of the problems that can arise, and of how unforgiving courts can be.

And here is the reminder:  In a recent case, the Supreme Court of Nebraska disbarred an attorney who entered into a business deal with a client without complying with the requirements of the rules of professional conduct.

According to the court, the case "provides a textbook example of the ethical mine-field that is laid when an attorney enters into a business transaction with clients whose interests are adverse, without providing the full disclosure required by the ethical rules."

The case is called State ex. rel. Counsel for Discipline of the Nebraska Supreme Court v. Chvala, and you can read the opinion here.

Thanks to Bill Freivogel for sending me the update!

Sunday, December 1, 2019

How not to practice law: "multi-task"

I always tell my students that there is no such thing as multi-tasking.  You can't do two things at the same time.  You can alternate doing one thing at a time and get more than one thing done at the end of the period of time you spend alternating between tasks, but that is not multi-tasking.  That is doing one thing at a time, and then doing something else, and then going back to what you were doing before.  One thing at a time.

And now I can add to my "rant" that if you think you can do two things at the same time, you might be on your way to get disciplined.

In a case involving facts I have to admit I had never seen before, the Supreme Court of Kansas disciplined a lawyer for making a “materially false statement” in reporting his attendance at an MCLE program.

Here is how this relates to the issue of "multi-tasking":  The false statement charge was based on the fact that the lawyer claimed more than eight hours of CLE in a single day. His explaination to MCLE authorites? He viewed an “online on-demand CLE program while sitting in live CLE program.   Efficiency by multi-tasking at its best!

The lawyer actually argued that he was “overconfident” in his “abilities to multitask.” The Court, however, found that the lawyer engaged in conduct “involving dishonesty, fraud, deceit or misrepresentation.

The case is In  re Mathews, No. 120,924 (Ks. Sep. 27, 2019).