Wednesday, February 26, 2020

Character and fitness question

Assume that an adult man was convicted of 3 counts of attempting to have sex with girls under the age of 15.  Now, almost 20 years later, the man graduated from law school and passed the bar.  Should he be admitted to practice?

Ohio has decided that the answer is not now, not ever.  There are more details to the story, which you read here.

Sunday, February 23, 2020

Illinois launches pilot pro bono program to help State Appellate Defenders Office

The Illinois Supreme Court has launched a pro bono pilot program to reduce the backlog of criminal appeals in the state. During the six-month pilot, which was announced on Feb. 11, volunteer pro bono attorneys will substitute as counsel for lawyers in the Office of the State Appellate Defender (OSAD) in certain criminal appeals.

Illinois Lawyer Now and 2 Civility have the story.

ABA Journal article on malpractice claims against former criminal defense lawyers

As you probably know, jurisdictions are divided on whether a convicted criminal defendant has to argue and prove actual innocence as a requirement to maintain a legal malpractice action against his or her former lawyer.  In the past few years, I have reported that Utah, Iowa, (also here), Indiana, Idaho, and Kansas (here and here) have abandoned the requirement of showing actual innocence.

I am writing about this today because I just saw that the most recent issue of the ABA Journal has a short article on the debate on this issue.

You can access the article here.  Legal Ethics in Motion has a comment here.

Wednesday, February 19, 2020

ABA adopts resolution urging states to reconsider certain aspects of the regulation of the profession after it is amended to eliminate reference to the possibility of non-lawyers participating as owners in law firms -- UPDATED

A few days ago I reported on the opposition to a proposal by the the ABA’s Center for Innovation and four standing committees seeking to promote the provision of legal services by non-lawyers and on the response by the proponents of the proposal.  Go here for that post and for links to the proposal and the letter explaining the position of those who opposed it.

I am writing today to report that two days ago, the ABA House of Delegates approved the resolution by a voice vote at the ABA Midyear Meeting after the resolution was amended to state that "nothing in this Resolution should be construed as altering any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to non-lawyer ownership of law firms, the unauthorized practice of law, or any other subject."  (The report that supported the resolution was also substantially revised, most notably to eliminate any reference to Rule 5.4 and to the delivery of legal services by anyone other than a lawyer.)

The main opposition to the proposal originates in the fact that although the resolution claims to be an attempt to deal with a real lack of accessibility to affordable legal services for many people in the U.S., there is no evidence that the only "innovations" the resolution seems to support would work to enhance access to services or that it would lead to lower their costs.   These types of initiatives might lead to the creation of multi-professional operations, in which accounting and financial firms will offer a "one shop experience" including legal services to clients who can afford services; but may not do much, if anything, to create more access to those who can't afford legal services.

Some have also expressed that the big proponents for “access to justice” are entities with interests in the tech fields who are interested in commoditizing legal work so the tech companies can make money at the expense of the lawyers.  This was one of the reasons why back in 2012, a Commission of the American Bar Association considered but later abandoned a proposal to allow non-lawyers to own shares in law firms.

Interestingly, California, Arizona, and Utah are currently considering changes to their versions of Model Rule 5.4 to perhaps allow non-lawyers to participate as owners in law firms.

Law Sites has a comment on the effect of the amendments to the proposal here (including the fact that the revision seems to suggest that certain legal needs should be met only by lawyers, and that the reference to Rule 5.4 can be seen as a roadblock to many of the innovations currently being considered in Utah, Arizona and California) and a comment on the proposal as a whole, here.

Faughnan On Ethics also has a comment here, which includes an update on the efforts in Utah, California and Arizona.

UPDATE 2/23/20:  2Civility has a comment here.

Sunday, February 16, 2020

Arizona joins other jurisdictions in recognizing limited legal technicians to provide some legal services

The Innovation for Justice Program at the University of Arizona James E. Rogers College of Law, in partnership with the Arizona Supreme Court and Emerge! Center Against Domestic Abuse has announced a new program for survivors of domestic violence in Arizona.

From fall 2020 to fall 2021, the pilot program will evaluate civil legal assistance provided by Licensed Legal Advocates. Licensed Legal Advocates are a new tier of legal professionals who are not licensed attorneys but who will be equipped to provide legal advice to domestic violence survivors with respect to critical domestic-violence-related legal issues, such as the need for a protective order, divorce, child custody, consumer protection or housing assistance.

Prior to the creation of this pilot, only licensed attorneys could provide legal advice to domestic violence survivors. The pilot will be authorized by an Arizona Supreme Court administrative order, so that the LLAs can provide legal advice within unauthorized practice of law regulations.

Lawyer Ethics Alert Blogs has more information and links here

Illinois considers regulation for private lawyer/client "matchmaking" services

The Illinois Attorney Registration and Disciplinary Commission (ARDC) has adopted a proposal to amend a number of rules related to the practice of law to better regulate the practices of what it calls "intermediary connecting services," which is another way of saying services that (for a fee) provide customers with ways to find a lawyer for the customers needs.  In other words, services like LegalZoom, Rocket Lawyer and others like them.

Some of these services have been operating in Illinois for some time, but without specific oversight by the ARDC.  The proposed changes would create specific requirements to provide oversight.  In its introduction, the proposal explains that with it, the ARDC’s proposal seeks to:

(1) Amend Rule of Professional Conduct 7.2. Proposed amendments to Rule 7.2 would guide Illinois lawyers in their participation and payments to intermediary connecting services. Lawyers would be permitted to participate only in those services that maintain an active registration with the ARDC, provided that certain conditions are met, including that the fees of the service and the lawyer are not contingent on the outcome of matter, the lawyer makes certain disclosures to the client, and the lawyer does not permit the intermediary connecting service to interfere with the lawyer-client relationship or with the lawyer’s professional judgment.
(2) Amend Supreme Court Rule 730. Proposed amendments to Rule 730 would create a registration and regulatory framework to protect the legal profession and the public. Intermediary connecting services would have to satisfy certain eligibility requirements in registering with the ARDC. In light of the longstanding concern of for-profit nonlawyer interference with or control over lawyers, registered intermediary connecting services would have to adhere to certain minimum ethical and business standards. These would include not interfering with or controlling a lawyer’s representation or judgment, not charging or collecting a fee that is calculated or expressed as a percentage of the lawyer’s anticipated or actual legal fees, and not holding or placing restrictions on a lawyer’s legal fee.
(3) Add Supreme Court Rule 220. This new rule would extend the attorney-client privilege and Rule of Professional Conduct 1.6(a) protection to communications between potential clients and a broad swath of lawyer-client connecting services for the purposes of seeking legal representation or legal services.
You can read the full proposal here.  for more information go here and here.

The ARDC invites you to provide comments on its proposal by email to

ABA Amends Proposal on Access to Justice and Regulation of the Profession in Reaction to Opposition

Last week I reported on the opposition to a proposal by the the ABA’s Center for Innovation and four standing committees seeking to advance the discussion of proposals that would open the provision of legal services to non-lawyers. Go here for that post, which includes the text of a letter expressing opposition to the proposal.

Today I am writing again about this because Bloomberg Law is reporting that the resolution has been amended a second time "in order to gain support from state bar leaders aligned against the proposal." 

According to the report, the proposal was criticized as a "wink, a nod, and a green light” for the ABA to back the proposed reforms that would allow nonlawyers more latitude in co-owning legal operations which is opposed by lawyers concerned about preserving the independence of the legal profession, and in particular about protecting the profession from "side effects" of allowing the so-called "Big Four" accounting firms and other alternative legal service providers more regulatory latitude to compete directly with law firms. Bar rules currently disallow such companies from opening their own legal operations, or from joining forces with existing law firms.

Tuesday, February 11, 2020

New opinion on when an attorney can speak directly to in house counsel when the entity for which in house counsel works is represented by another lawyer

According to Model Rule 4.2, and its state equivalents, with a few exceptions, an attorney can’t communicate directly with someone the lawyer knows to be represented by counsel.  But how do these rules apply to in-house counsel?  Can a lawyer communicate with in-house counsel when the lawyer knows the entity for which in-house counsel works is represented by another lawyer?

Last month, the Virginia Supreme Court addressed these and other questions in its Legal Ethics Opinion 1890 (available here).  The Law for Lawyers Today has a comment here.

Monday, February 10, 2020

Local efforts to address issues related to access to legal services

Yesterday I wrote about the debate at a national level on proposals to change certain aspects of the regulation of the profession.  Today I have news about developments at a local level.

First, there is a Washington D.C. Bar committee press release announcing a review regarding the potential relaxing of that jurisdiction’s non-lawyer law firm ownership rules, including potential fee sharing/splitting.  The January 23, 2020 D.C. Bar press release announcing the review is available here.  For more details go here.

Second, the New Mexico Supreme Court recently endorsed proposals to expand civil legal services in the state, particularly to lower- and middle-income residents and those living in rural areas.  The proposals were based on recommendations from the New Mexico Supreme Court-established Ad Hoc Licensed Legal Technicians Workgroup, which recently released an Innovation to Address the Access to Justice Gap report. For details and links go here.

Sunday, February 9, 2020

Debate on regulation of the profession intensifies as we near ABA mid-year meeting

Last November I reported that the ABA’s Center for Innovation and four standing committees adopted a resolution seeking to advance the discussion of proposals that would open the provision of legal services to non-lawyers and that the draft would be brought up for discussion at the ABA House of Delegates' meeting in February. You can download the resolution and the report here.

As I reported back then, the report is essentially based on the proposition that “traditional solutions” (such as increased funding for civil legal aid, more pro bono work, and the creation of the equivalent of a public defenders system for civil cases) have not come close to fixing the problem of lack of adequate access to affordable legal services and that the existing regulatory structure for the legal profession acts as a barrier to innovative alternatives like allowing involvement of other professionals, both within and outside of law firms.

Given this, the report suggests that states should concentrate efforts in three broad areas of regulatory reform: (1) authorizing and regulating new categories of legal services providers, including non-lawyers; (2) modifying the rules that ban lawyers from partnering and sharing fees with non-lawyers; and, (3) developing more permissive approaches to the notion of unauthorized practice of law to allow lawyers more freedom to practice across state borders.

These ideas have not gone unchallenged, though.  Just a few days ago, for example, I commented on a short column in which the author, although not opposing the resolution, argues there are other options to consider (see here).  And then there are those who actually do oppose the resolution, or at least some of its suggestions or premises.

In a published statement directed at the members of the ABA House of Delegates by individual members of the delegations from New York, New Jersey, Illinios, Iowa, Pennsylvania, and Nevada, for example, the authors argue as follows:
We ask you to join us in opposing Resolution 115.

Resolution 115 and its underlying report call for states to consider sweeping changes to fundamental principles of legal independence and ethics.  This proposal by the ABA’s “Center for Innovation” would allow non-lawyers to provide legal services and would encourage the repeal of professional conduct regulations that prohibit lawyers from partnering and sharing fees with those who are not lawyers.

On its face, Resolution 115 could appear to be a salutary effort to promote consideration of “regulatory innovations” that are aimed at improving access to justice.  However, the only such innovation covered by the report is the authorization of new forms of legal services providers to be achieved by revising Model Rule 5.4 (entitled “Professional Independence of a Lawyer”) and unauthorized practice laws in order to allow nonlawyers to practice law and to allow nonlawyer ownership of law firms.  The report is misleading as it fails to disclose that this House for at least three decades has opposed any such eradication of the prohibition on nonlawyer ownership of law firms because doing so would be inconsistent with our profession’s core values.  Moreover, nowhere does the report identify any evidence that the adoption of nonlawyer ownership in other jurisdictions has done anything to ameliorate access to justice concerns.

Back in 1999, this House roundly rejected a proposed multi-disciplinary practice regime under which lawyers would have been permitted to form business relations with nonlawyers or entities owned by nonlawyers for the purpose of practicing law.  The House chose to preserve the independence of our profession by opposing this change.

Again in 2011, the ABA’s Ethics 20/20 Commission released a discussion draft which sought comment on a limited form of nonlawyer ownership of law firms.  In response, the Illinois and New Jersey bars passed resolutions opposing this measure.  New York formed a Task Force that studied the nonlawyer ownership issue extensively and issued a comprehensive report on the subject. ... This detailed report is nowhere mentioned in the report that was submitted in support of Resolution 115.  Included in the Task Force report was a survey of New York lawyers who (across all walks of the profession) overwhelmingly opposed nonlawyer ownership.  While the New York Task Force’s work was ongoing, the ABA Ethics 20/20 Commission withdrew its nonlawyer ownership proposal, concluding that there was not a sufficient basis for recommending any change in the ABA’s policy against nonlawyer ownership.

Although the report in support of Resolution 115 cites a 2016 report by the ABA’s Commission on the Future of Legal Services, which supported gathering evidence on alternative law firm structures, that quotation is seriously misleading as it was never adopted by this House as ABA policy.  In fact (and not mentioned in the 115 Report), the Commission’s proposed resolution was expressly amended by this House, which resolved to add language to the resolution making clear that nothing in the resolution abrogated ABA policy against nonlawyer ownership of law firms or other core values of our profession.

Thus, this House’s steadfast opposition to nonlawyer ownership and its commitment to our profession’s core value of protecting the independence of lawyer judgments has been repeatedly recognized by this body, but is consistently ignored by the report.

The report gives the back of the hand to the principal concern that is raised by nonlawyer ownership – i.e., interference with lawyers’ independent professional judgments.  This approach is at odds with the resolution passed by this House in 2016 in response to the prior initiative proposed by the Commission on the Future of Legal Services.  As indicated above, that resolution specifically re-affirmed the need to protect this core value of our profession.  Nor does the report address what could happen if nonlawyers who control these sorts of alternative entities place their own business goals or personal interests ahead of the interests of clients.  Being a member of our noble profession is unique in that we often must put our clients’ interests ahead of our own.  Our highest priority ought to be advancing the profession’s duty to preserve uncompromised loyalty to our clients’ interests.  Outside ownership of legal providers would present a minefield for the profession by creating a dangerous tension between maintaining legal ethics and satisfying outside interests that are often motivated purely by profit.  A similar concern is raised by allowing nonlawyers who are not trained in legal ethics to provide legal services.  The report fails to grapple with this risk of eroding our profession’s critical values.

Noticeably absent from the report is any evidence that the embrace of nonlawyer ownership in the U.K. and Australia (or in the District of Columbia which has had a relaxed version of Rule 5.4 for many years) has had any impact whatsoever on the access to justice crisis.  Indeed, the typical alternative business structure in the U.K. competes with the same types of law firms that had been servicing the fee-paying public long before the U.K. recognized nonlawyer ownership, as opposed to providing services to the indigent.  Notably, a recent study concluded that the use of alternative business structures in the U.K. and Australia had been accompanied by no measurable improvement of those countries’ access to justice needs.  Robinson, Nick, When Lawyers Don't Get All the Profits: Non-Lawyer Ownership, Access, and Professionalism, 29 Georgetown Journal of Legal Ethics, 1, 1 (2016).  We should expect some concrete proof that this proposed change would actually help address the country’s access to justice needs before encouraging something that could jeopardize lawyer independence.

The report states that there has been “no evidence of public harm” in the few countries that have adopted nonlawyer ownership.  But that  misses the point.  The burden is on the proponents of this fundamental change to demonstrate the benefit that their proposal would achieve, something they have failed to do.  Moreover, the report does not cite any study that has scrutinized the question of potential public harm comprehensively.  Nor does the report confront the critical issue of how disciplinary authorities can police persons and entities that do not even hold a law license and thus have no duty to abide by ethical codes.

The report puts the cart before the horse by encouraging states to consider embracing these alternative structures and only then to collect data on the impact that their adoption will have.  The report cites recent recommendations made in a few states to ease restrictions on nonlawyer ownership.  However, those recommendations only came out last year and no experience is yet available as to whether such contemplated changes will prove to be beneficial or harmful.

To be sure, we are not opposed to innovation and particularly in ways that can address our country’s access to justice crisis.  However, innovation should not come at the expense of our profession’s core values.

Our Rules of Professional Conduct reflect these core values of our profession and they are designed to protect the public whom we are all privileged and licensed to serve.  As attorneys, we are sworn to serve as key members of a legal system on whom our society relies for justice and fairness.  Lawyers must complete a rigorous program of education just to be permitted to sit for a bar examination.  Our bar admission system is designed to test knowledge and competency, determine character and fitness to practice law, and assess adherence to a prescribed set of rules of professional conduct throughout an attorney’s tenure.  This licensing system not only serves to protect the public from untrained and unscrupulous would-be practitioners, but also far surpasses what is required for a typical business.  Fundamental change to our profession should not compromise our core values and enable profit-seeking by entrepreneurs who are unencumbered by our rules of ethical responsibility.
Since then, members of the Association of Professional Responsibility Lawyers (of which I am a member myself) have also had a chance to debate the resolution.  Some expressed skepticism about the resolution because it is not clear that there is evidence that the suggested reforms would actually increase access to justice for the disadvantaged or the middle class, while others seem to say that  until those opposing the types of reforms suggested in the resolution come up with a better alternative, we should be open to try something new.  And then there are those who don't seem to give the ABA a lot of credibility because, according to their position, regardless of the occasional lip service to this or that novel idea, the ABA has traditionally been a leading sponsor of the status quo.

Finally, there is the argument that the proposal is unfocused, or confusing, because while claiming to be about "access to justice," several items on the agenda do not seem to have much to do with access to justice.  Those making this argument ask, for example "how does allowing non-lawyers to become partners with lawyers translate into more access to legal services for the poor?"

On that last question, by the way, I can totally see how allowing non-lawyer investors may or may not have any effect whatsoever on the access to legal services because it all depends on how the firms use the newly acquired capital.  For that reason, the key question is how can new regulations be shaped so the changes do result in achieving the desired result.  That is what needs to be addressed.

For this reason, I am skeptical of some of the proposals, but I also agree with those who say that the effort to stifle all debate, study and discussion is not a good idea.

Thursday, February 6, 2020

Short comment on the ongoing debate regarding the future of the profession, access to representation and regulation

As I am sure you know, there is a strong ongoing debate related to possible changes to the regulation of the profession due to a growing concern about the "justice gap" in this country, a phrase used to describe the fact that so many people don't have adequate access to legal representation.

Among the many topics discussed at different levels of the profession (state regulatory agencies, the ABA, academic circles, etc) are the suggestion that we should expand the use of programs that allow non-lawyers to provide some legal services, and the suggestion that we should eliminate the rules than ban lawyers from partnering with non-lawyers to provide legal services.  The ABA will discuss a resolution on the subject at its upcoming February meeting.  (I will have more on that later this week.)

I am writing today to draw your attention to a column by Dennis Rendleman, the Ethics Counsel for the ABA, in which he argues that "there are other ways" to improve the provision of legal services that we should consider.  The column is short and very thoughtful.  You can read it here

Wednesday, February 5, 2020

Podcast: Legal Ethics and Artificial Intelligence

Here is the most recent "Digital Detectives" podcast in which the hosts discuss the landscape of AI in the legal space and what is being done to ensure the ethical and accountable use of AI technologies in the profession.  You can listen to it by clicking on the play button below or by going here

Tuesday, February 4, 2020

New York's statute creating a commission on prosecutorial misconduct declared unconstitutional

Long time readers of this blog know that I have posted many articles and comments on prosecutorial misconduct over the years, and some may remember a case in which a Circuit Court judge referred to prosecutorial misconduct as an "epidemic" in this country.

To deal with the issue, in 2019, New York adopted a statute to create an independent commission to investigate prosecutorial misconduct in the state. To prevent an attack based on the concept of separation of powers, rather than being appointed by the legislature alone, the commission would include members chosen by the executive and the judiciary who would be able to review prosecutors’ activities, publicly censure them, and make recommendations to the governor should actions warrant a prosecutor’s removal.

Not all prosecutors were on board with the proposal and an association of district attorneys sued to prevent the implementation of the commission. They argued that the commission would interfere with the rights and core functions of their offices and give unconstitutional authority to the judiciary.

I am writing about this today because last week, the trial court granted the prosecutors' motion for summary judgment, declared the statute (Article 15-a of the Judiciary Law) unconstitutional and permanently enjoined the State from implementing the provisions of the statute including the formation of the State Commission of Prosecutorial Conduct.

You can read the opinion here.

Monday, February 3, 2020

Tennessee adopts revision to the rules of disciplinary enforcement making disbarment permanent

As you probably know, in the vast majority of jurisdictions disbarment is not permanent which means that disbarred lawyers can request for reinstatement after a period of time.

Well, that's not the case any more in Tennessee.

On January 23, the Tennessee Supreme Court adopted a series of revisions to the rules of disciplinary enforcement in Tennessee and one of them eliminates the possibility of reinstatement after disbarment.

Most of the comments received after the revision to the rule was proposed opposed the proposal, but the Court did not offer an explanation as to why the Court thought the revision was necessary nor as to why it disagreed with the majority of the comments.

For a critique of the Court's decision go here.  The text of the Court's order and of the revised rules is available here.

Sunday, February 2, 2020

Recent news about the debate on qualified immunity: the Institute for Justice joins the fight

As you know, the doctrine of qualified immunity recognizes a defense for certain government officials from liability for injuries caused by their conduct.  It applies, for example, to prosecutors when they engage in investigative or administrative tasks, which is often limited to conduct before an indictment.  And, of course, it applies to many other government officials when engaging in their official capacities.

The doctrine exists to provide protection to those officials so they can perform their duties without fear that their decisions will be later questioned or second-guessed by courts, a position that is justified by the principle of separation of powers.

The doctrine, however, is not particularly old and it is not universally accepted.  The Cato Institute has referred to it as "an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s" and as "a court‐​confected doctrine that provides rights‐​violating police and other government officials with an unlawful shield against accountability for their misconduct."

To do something about this, the Cato institute launched a strategic campaign to challenge the doctrine on March 1, 2018, the centerpiece of which has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. In addition, the Institute has organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity.  This "alliance" includes the ACLU, the NAACP Legal Defense Fund, the Alliance Defending Freedom and the Second Amendment Foundation.

I am writing about this today because yet another group has officially announced it will join the campaign.  About two weeks ago (on Feb 15), The Wall Street Journal published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the battle against qualified immunity.  You can read it here if you have a subscription.

For more on the CATO Institute's position on this issue go here.