On October 29, 2019, the New York State Bar Association Committee on Professional Ethics issued an advisory opinion, Opinion 1176, which addresses whether a lawyer may “make a nominal deposit of the lawyer’s own funds to avoid having the lawyer’s trust or escrow account closed for inactivity or failure to maintain a minimum balance.”
Given that most states allow lawyers to use their own money to pay for trust account fees and transactions (see Model Rule 1.15(b)), not surprisingly, the answer to the question is that it is acceptable for a lawyer to use firm money to keep the trust account alive. You can read the opinion here.
Tuesday, January 28, 2020
Monday, January 27, 2020
Podcast on legal issues related to the regulation of the profession
In the most recent "Lawyer 2 Lawyer" podcast, podcast Professors Deborah L. Rhode and Scott Cummings talk about issues affecting the practice of the profession today. You can listen to the program by clicking on the play button below or, if you can't see it, by going here.
Sunday, January 26, 2020
Did one of Trump's lawyers lie to the Senate, and if so can he be disciplined for it?
Did Trump’s lawyer Pat Cipollone lied to the Senate when he stated that Republicans weren’t allowed to participate in House depositions? And if he did, can he be disciplined for it? Here is a short discussion on these questions.
Saturday, January 18, 2020
Florida Bar seeks comments on program to regulate online service providers
Lawyer Ethics Alerts Blog is reporting that on December 12, 2019, The Florida Bar filed a petition with the Florida Supreme Court requesting the court to approve the creation a voluntary registration program for online legal services providers.
The proposed program was approved by the Florida Bar’s Board of Governors in September 2019 and would permit online legal service providers to market themselves as “Registered with The Florida Bar” if they agree to comply with various regulations, including submitting to the jurisdiction of Florida for the resolution of consumer complaints.
The proposed program would specifically require the registered online providers to provide the Bar with copies of all consumer complaints and state how they were resolved, and agree that “registration and revocation of the registration. . . is solely at the discretion of The Florida Bar.”
The proposed program would also require that registered online providers use only forms that are approved by the Florida Supreme Court, or have been reviewed and approved by Florida Bar attorney.
The deadline for comments is January 13, 2020 and any comments must be filed directly with the clerk of the Florida Supreme Court, and a copy served on the executive director of The Florida Bar.
I understand there is an interest in providing a way for people to have access to legal services but I am confused about this one. It sounds like the service providers are able to provide their services currently without regulation, and I guess this initiative is an attempt to create some regulation over the currently unregulated market of online legal services.
What I don't understand is why those who are currently operating free of regulation would prefer to submit themselves to regulation. If they can provide services now, what's their incentive to join the program?
Of course, maybe I am wrong in my assumption and the current situation is different. Maybe, currently the providers are not allowed to provide services in Florida and joining the program would be the only way for them to be able to do so. That would be an incentive to join. If that is the case, the program makes sense.
The proposed program was approved by the Florida Bar’s Board of Governors in September 2019 and would permit online legal service providers to market themselves as “Registered with The Florida Bar” if they agree to comply with various regulations, including submitting to the jurisdiction of Florida for the resolution of consumer complaints.
The proposed program would specifically require the registered online providers to provide the Bar with copies of all consumer complaints and state how they were resolved, and agree that “registration and revocation of the registration. . . is solely at the discretion of The Florida Bar.”
The proposed program would also require that registered online providers use only forms that are approved by the Florida Supreme Court, or have been reviewed and approved by Florida Bar attorney.
The deadline for comments is January 13, 2020 and any comments must be filed directly with the clerk of the Florida Supreme Court, and a copy served on the executive director of The Florida Bar.
I understand there is an interest in providing a way for people to have access to legal services but I am confused about this one. It sounds like the service providers are able to provide their services currently without regulation, and I guess this initiative is an attempt to create some regulation over the currently unregulated market of online legal services.
What I don't understand is why those who are currently operating free of regulation would prefer to submit themselves to regulation. If they can provide services now, what's their incentive to join the program?
Of course, maybe I am wrong in my assumption and the current situation is different. Maybe, currently the providers are not allowed to provide services in Florida and joining the program would be the only way for them to be able to do so. That would be an incentive to join. If that is the case, the program makes sense.
Virginia ethics opinion on communicating with a person who is represented by counsel
On January 9, 2020, the Supreme Court of Virginia approved a new formal ethics opinion to clarify the scope of Rule 4.2, which regulates the ability of lawyers to communicate directly with people who are represented by counsel. You can read the full opinion here, but here are some of the highlights.
-- The rule applies only if the communication is about the subject of the representation in the same matter.
-- The rule applies only if the lawyer knows that the person is represented by counsel.
-- Represented persons may communicate directly with each other regarding the subject of the representation, but the lawyer may not use the client to circumvent Rule 4.2.
-- A lawyer may not use an investigator or third party to communicate directly with a represented person.
-- Ex parte communications are permitted with employees of a represented organization unless the employee is in the “control group” or is the “alter ego” of the represented organization.
-- The rule does not apply to communications with former employees of a represented organization.
-- The fact that an organization has in house or general counsel does not prohibit another lawyer from communicating directly with constituents of the organization, and the fact that an organization has outside counsel in a particular matter does not prohibit another lawyer from communicating directly with in-house counsel for the organization.
-- Plaintiff’s counsel generally may communicate directly with an insurance company’s employee/adjuster after the insurance company has assigned the case to defense counsel.
-- The rule applies only if the communication is about the subject of the representation in the same matter.
-- The rule applies only if the lawyer knows that the person is represented by counsel.
-- Represented persons may communicate directly with each other regarding the subject of the representation, but the lawyer may not use the client to circumvent Rule 4.2.
-- A lawyer may not use an investigator or third party to communicate directly with a represented person.
-- Ex parte communications are permitted with employees of a represented organization unless the employee is in the “control group” or is the “alter ego” of the represented organization.
-- The rule does not apply to communications with former employees of a represented organization.
-- The fact that an organization has in house or general counsel does not prohibit another lawyer from communicating directly with constituents of the organization, and the fact that an organization has outside counsel in a particular matter does not prohibit another lawyer from communicating directly with in-house counsel for the organization.
-- Plaintiff’s counsel generally may communicate directly with an insurance company’s employee/adjuster after the insurance company has assigned the case to defense counsel.
Friday, January 10, 2020
Need a new year's resolution? Check out these five ways to stay out of ethics trouble in 2020
Over at The Law For Lawyers Today, Karen Rubin has some good advice for all lawyers. Her post Five ways to stay out of ethics trouble in 2020 can be found here.
Thursday, January 9, 2020
Should a public defender be protected by a state torts immunity act?
Just a few days ago, the New Jersey Supreme Court heard oral arguments in a case that should be called Chaparro Nieves v. Office of the Public Defender (but is being mistakenly identified as Nieves v. Office of the Public Defender)** in which the Court has been asked to decide whether the Office of the Public Defender should be covered by the state's Torts Claims Act.
In this case, the plaintiff had been incarcerated for twelve years on serious charges, including first-degree aggravated sexual assault, when the charges against him were dismissed on his petition for post-conviction relief. At some point thereafter, he filed a legal malpractice complaint against the public defender's office and an individual lawyer. The trial judge denied defendants' motion for summary judgment as to the legal malpractice claim but the Appellate Division reversed, holding, among other things, that it is clear that the office of the public defender is a public entity and public defenders are public employees that come within the Tort Claims Act’s immunities and defenses. You can read that opinion here.
The case is now before the Supreme Court where Professor George W. Conk, of the Louis Stein Center for Law & Ethics at Fordham University School of Law, argued on behalf of the New Jersey State Bar Association urging the Court to affirm the Appellate Division’s decision to apply the TCA to the legal malpractice claims. The Bar Association's statement concludes that "[c]ompetent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs. Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill served."
You can read the full statement of the Bar Association here.
** I say the case "should be called" that because I have seen it referred to everywhere as just Nieves v. Office of the Public Defender, which shows ignorance about the use of two last names in the Latin American tradition. The plaintiff's name is Antonio Chaparro, not Antonio Nieves. But that is just a pet peeve of mine and I will leave it at that.
In this case, the plaintiff had been incarcerated for twelve years on serious charges, including first-degree aggravated sexual assault, when the charges against him were dismissed on his petition for post-conviction relief. At some point thereafter, he filed a legal malpractice complaint against the public defender's office and an individual lawyer. The trial judge denied defendants' motion for summary judgment as to the legal malpractice claim but the Appellate Division reversed, holding, among other things, that it is clear that the office of the public defender is a public entity and public defenders are public employees that come within the Tort Claims Act’s immunities and defenses. You can read that opinion here.
The case is now before the Supreme Court where Professor George W. Conk, of the Louis Stein Center for Law & Ethics at Fordham University School of Law, argued on behalf of the New Jersey State Bar Association urging the Court to affirm the Appellate Division’s decision to apply the TCA to the legal malpractice claims. The Bar Association's statement concludes that "[c]ompetent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs. Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill served."
You can read the full statement of the Bar Association here.
** I say the case "should be called" that because I have seen it referred to everywhere as just Nieves v. Office of the Public Defender, which shows ignorance about the use of two last names in the Latin American tradition. The plaintiff's name is Antonio Chaparro, not Antonio Nieves. But that is just a pet peeve of mine and I will leave it at that.
New report on the market for legal services
Georgetown Law’s Center on Ethics and the Legal Profession and Thomson Reuters Legal Executive Institute recently released a new report on the "State of the Legal Market." It concludes that there are "revolutionary changes" afoot in the market for legal services.
I have not had a chance to read the report, so I can't comment, but you can read it here.
I have not had a chance to read the report, so I can't comment, but you can read it here.
Sunday, January 5, 2020
Top ten list
This is the time of the year when many blogs and websites start issuing their "top ten lists" (mostly of important events of the past year), and here is the first one I have seen. I expect there will be more.
You can find the The Louisiana Legal Ethics Blog's "Top Ten Legal Ethics Developments" of 2019 here. It includes the following, in no particular order:
1. ABA Issues New Formal Opinion on Changing Law Firms
2. Ethics Opinion Prohibits Lawyers from Incentivizing Favorable Online Reviews
3. ABA Anti-Discrimination Rule Continues to Meet Lukewarm Reception Around the Country
4. Lawyer Challenges to Mandatory Bar Association Membership
5. ABA Formal Opinion Prohibits Judges from Declining to Perform Same Sex Marriages
6. LSBA Rejects Rule Amendment to Clarify Prosecutors’ Brady Disclosure Obligations
7. Thirty-Eighth State Adopts Duty of Technology Competence
I agree that these are all important developments; and I would add that ones I would put at numbers 1 and 2 if I were to make a list of my own would be the increasing number of attacks on mandatory bar membership and the slow and still controversial reception by state authorities to Model Rule 8.4(g).
For Top Ten Lists from previous years go here.
You can find the The Louisiana Legal Ethics Blog's "Top Ten Legal Ethics Developments" of 2019 here. It includes the following, in no particular order:
1. ABA Issues New Formal Opinion on Changing Law Firms
2. Ethics Opinion Prohibits Lawyers from Incentivizing Favorable Online Reviews
3. ABA Anti-Discrimination Rule Continues to Meet Lukewarm Reception Around the Country
4. Lawyer Challenges to Mandatory Bar Association Membership
5. ABA Formal Opinion Prohibits Judges from Declining to Perform Same Sex Marriages
6. LSBA Rejects Rule Amendment to Clarify Prosecutors’ Brady Disclosure Obligations
7. Thirty-Eighth State Adopts Duty of Technology Competence
I agree that these are all important developments; and I would add that ones I would put at numbers 1 and 2 if I were to make a list of my own would be the increasing number of attacks on mandatory bar membership and the slow and still controversial reception by state authorities to Model Rule 8.4(g).
For Top Ten Lists from previous years go here.
Wednesday, January 1, 2020
New opinion by the ABA Standing Committee on Ethics addresses obligations related to lawyers changing firms -- UPDATED
Original post: December 8, 2019
The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 489 - Obligations Related to Notice When Lawyers Change Firms. You can read it here. Here is the summary:
Lawyers have the right to leave a firm and practice at another firm. Likewise, clients have the right to switch lawyers or law firms, subject to approval of a tribunal, when applicable (and conflicts of interest). The ethics rules do not allow non-competition clauses in partnership, member, shareholder, or employment agreements. Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm. Firms may require some period of advance notice of an intended departure. The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession. Firm notification requirements, however, cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter. Firms also cannot restrict a lawyer’s ability to represent a client competently during such notification periods by restricting the lawyer’s access to firm resources necessary to represent the clients during the notification period. The departing lawyer may be required, pre- or post-departure, to assist the firm in assembling files, transitioning matters that remain with the firm, or in the billings of pre-departure matters.
UPDATES:
UPDATE (12/8/2019): Ethical Grounds has a comment on the Opinion here.
UPDATE (12/23/2019): Bloomberg law has a comment here.
UPDATE (1/1/2020): Louisiana Legal Ethics has a comment here.
UPDATE (2/9/2020): The Legal Ethics Reporter has a comment here.
The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 489 - Obligations Related to Notice When Lawyers Change Firms. You can read it here. Here is the summary:
Lawyers have the right to leave a firm and practice at another firm. Likewise, clients have the right to switch lawyers or law firms, subject to approval of a tribunal, when applicable (and conflicts of interest). The ethics rules do not allow non-competition clauses in partnership, member, shareholder, or employment agreements. Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm. Firms may require some period of advance notice of an intended departure. The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession. Firm notification requirements, however, cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter. Firms also cannot restrict a lawyer’s ability to represent a client competently during such notification periods by restricting the lawyer’s access to firm resources necessary to represent the clients during the notification period. The departing lawyer may be required, pre- or post-departure, to assist the firm in assembling files, transitioning matters that remain with the firm, or in the billings of pre-departure matters.
UPDATES:
UPDATE (12/8/2019): Ethical Grounds has a comment on the Opinion here.
UPDATE (12/23/2019): Bloomberg law has a comment here.
UPDATE (1/1/2020): Louisiana Legal Ethics has a comment here.
UPDATE (2/9/2020): The Legal Ethics Reporter has a comment here.
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