Podcast: How to practice law remotely and efficiently during the COVID-19 crisis

Here is a podcast on "How to practice law remotely and efficiently during the COVID-19 crisis" originally posted by the show Asked and Answered in the Legal Talk Network.  If you can see the play controls below, you can go here.

Lawyers behaving badly during crisis

Yesterday I posted a link to advice on how to behave responsibly during the crisis.  Today I bring you two examples of the opposite.

In two separate opinions, judges chastised lawyers for making unreasonable requests in litigation during the pandemic.

In the fist one, a company that creates life-like images of fantasy subjects such as elves and unicorns asked the court for an emergency hearing in a trademark infringement case.  In what has now come to be known as "the unicorn order," the judge denied the request, stating

Plaintiff recognizes that the community is in the midst of a “coronavirus pandemic.” . . . But Plaintiff argues that it will suffer an “irreparable injury” if this Court does not hold a hearing this week and immediately put a stop to the infringing unicorns and the knock-off elves. . . . 

. . . .  

Thirty minutes ago, this Court learned that Plaintiff filed yet another emergency motion.  They teed it up in front of the designated emergency judge, and thus consumed the attention of the Chief Judge. . . . The filing calls to mind the sage words of Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” See Hill v. Norfolk and Western Railway Co., 814 F.2d 1192, 1202 (7th Cir. 1987) (quoting 1 Jessup, Elihu Root 133 (1938)). 

The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied. 

You can read the full order here; and more details here and here.

Similarly, in another case the plaintiff unilaterally scheduled a deposition and defendants filed an emergency motion for a protective order.  The judge denied the order as follows:

The entire world is in the midst of a pandemic. Thousands of people worldwide have contracted the Corona virus and there have been hundreds of virus-caused deaths in the United States. Millions of Americans have been ordered to remain in their homes. Millions more have lost their jobs in the past two weeks. The stock market has taken a brutal beating in the last two to three weeks. Many people are scared. Others are panicked. Everyone is unsure about the future. Cruises have been canceled and all the major airlines have severely curtailed their flights.
We are living in an unprecedented situation.

Nevertheless, the lawyers in this case have been exchanging snippy emails over the past two weeks over the scheduling of a corporate representative deposition. Moreover, defense counsel certified that this routine discovery dust-up is so important that it merits “emergency” status.

No, it doesn’t.

Moving past the incorrect and, frankly, reckless designation of this dispute as an “emergency,” the Undersigned is shocked that counsel could not on their own resolve the issue. Given the health and economic crisis we are in, not postponing the deposition scheduled for next week is patently unreasonable.
If all the issues we are currently facing were to be organized on a ladder of importance, this deposition-scheduling dispute would not even reach the bottom rung of a 10-rung ladder.

For more on that story, go here.

Some thoughts on practicing reasonably during a public health crisis.

Michael Kennedy, Vermont's bar counsel offers some quick and sound advice on practicing law reasonably during a public health crisis.

Does a plaintiff always need an expert in a malpractice case?

Because the practice of law is considered to be a profession, and a profession is defined, among other things by the fact that it requires special knowledge, education and training, courts usually require that plaintiffs in malpractice actions provide an expert witness to support their arguments as to duty and breach to the jury.  But what if there is no jury?  What if the case is going to be a bench trial?  Should a plaintiff be required to have an expert to explain to the judge what the standard of care of the profession is?  Or can we assume that the judge - obviously a lawyer himself or herself - knows the law that applies to the practice of the profession they belong to?

In a recent case in Delaware (Cannon v. Poliquin), the court decide no help from an expert is needed.  Go here for a short summary.

New ABA Formal Opinion on Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts

The ABA Standing Committee on Ethics and Professional Responsibility just released a new formal opinion (Formal Opinion 490) on the ethical obligations of judges in collecting legal financial obligations and other debts.  The summary is as follows:

This opinion addresses the ethical requirement of judges under the Model Code of Judicial Conduct, Rules 1.1 and 2.6, to undertake a meaningful inquiry into a litigant’s ability to pay court fines, fees, restitution, other charges, bail, or civil debt before using incarceration as punishment for failure to pay, as inducement to pay or appear, or as a method of purging a financial obligation whenever state or federal law so provides. Meaningful inquiry is also required by Rules 1.2, 2.2, and 2.5 as a fundamental element of procedural justice necessary to maintain the integrity, impartiality, and fairness of the administration of justice and the public’s faith in it. According to the same Rules, a judge may not set, impose, or collect legal financial obligations under circumstances that give the judge an improper incentive either to multiply legal financial obligations or to fail to inquire into a litigant’s ability to pay. The opinion also discusses innovative guidance on best practices for making ability to pay inquiries, including model bench cards, methods of notice, and techniques for efficiently eliciting relevant financial information from litigants.

You can read the opinion here.

How not to (start the) practice of law -- UPDATED

Original post: March 22, 2020

It has been a while since I posted a story to our running count of "how not to practice law" category, so I here is one.  Unfortunately, this is not the first time I have seen a case with the same or similar facts.

So you say you want to start working as a lawyer in a good firm.  Presumably a great firm, even.  But your resume is not quite up to par.  Here is what not to do:  Lie.  Cheat.  Alter your transcripts.

Yes, folks, once again, we have another winner in our ranks.  This wanna be lawyer altered the law school transcripts 26 times to make it look better. The lawyer falsified the transcript to reflect, among other things, grades that were higher than he had received, high grades in courses that he had never taken, and a cumulative GPA of 3.825, rather than the 3.269 that he had actually achieved.

For that he was charged with multiple violations of rule 8.4, and the Disciplinary Review Board recommended a two year suspension.  The New Jersey Supreme Court, however, lowered the sanction to one year.  Which penalty would you have voted for?

The case is In re Seth Asher Nadler (March 13, 2020).  The Legal Profession blog has more details.


UPDATE March 24, 2020:  Above the Law has a comment on the case here.

Recent discipline case based on conflicts of interest

I often tell my students that disqualification is a more common consequence to conflicts issues than discipline.  Yet, every now and then we see a discipline case based on conflicts.  And here is a recent one that got some attention among Professional Responsibility blogs.  The case, In the Matter of Foster (3/16/20) involved both concurrent and successive conflicts of interest.

The Legal Profession Blog has more details here; California Legal Ethics also has a story.

Florida opinion on replying to negative online reviews

A few weeks ago I wrote about an opinion from North Carolina on whether attorneys could (or should) reply to negative online reviews.  See here.

Today, I am writing to let you know that the Florida Bar’s Professional Ethics Committee (PEC) recently agreed to publish formal Ethics Advisory Opinion 20-1, which provides guidance to lawyers in responding to negative online reviews for comment by Florida Bar members. 

Lawyer Ethics Alert Blog has a comment on the opinion here. 

Ethical Grounds has a comment on the issue in general here.  The conclusion is simple:  “You will have many opportunities in life to keep your mouth shut: You should take advantage of every one of them.”

Technology competence news: civil liability for incompetence involving technology; the need for technology competence during the coronavirus crisis

Long time readers of this blog know I have posted many stories related to the notion of competence related to the use of "technology" in the practice of law.  Go here and scroll down for many stories on the subject.  And, as you probably know also, many jurisdictions have adopted the notion of knowledge or understanding of technology as an element of the duty of competence under rule 1.1.

I am writing about this today because I recently saw two stories of interest related to technology and the practice of law.

The first one relates to the fact that the measures taken to address the health crisis created by the spread of the COVID-19 coronavirus has forced many lawyers to practice remotely. For many, this is a new experience that has forced them to learn how to use new technology.  The story is called Coronavirus Could Be Tipping Point For Tech Competence In Law and you can read it here. 

The second story discusses a related issue.  Once we recognize that the duty of competence includes competence in using technology we open the door to possible civil liability for a violation of that duty.  The Law For Lawyers Today recently discussed a decision that recognized a cause of action along those lines here.  In the case, the plaintiff alleged that the law firm failed to adequately protect his personal data from hackers.

Civility and courtesy in times of crisis

Statement by the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee:

In light of the unprecedented risks associated with the novel Coronavirus, we urge all lawyers to liberally exercise every professional courtesy and/or discretional authority vested in them to avoid placing parties, counsel, witnesses, judges or court personnel under undue or avoidable stresses, or health risk.

Accordingly, we remind lawyers that the Guidelines for Civility in Litigation (LASC Local Rules, Appendix 3A) require that lawyers grant reasonable requests for extensions and other accommodations.

Given the current circumstances, attorneys should be prepared to agree to reasonable extensions and continuances as may be necessary or advisable to avoid in-person meetings, hearings or deposition obligations. Consistent with California Rule of Professional Conduct 1.2(a), lawyers should also consult with their clients to seek authorization to extend such extensions or to stipulate to continuances in instances where the clients’ authorization or consent may be required.

While we expect further guidance from the court system will be forthcoming, lawyers must do their best to help mitigate stress and health risk to litigants, counsel and court personnel. Any sharp practices that increase risk or which seek to take advantage of the current health crisis must be avoided in every instance.

Most proposals for big changes in California delayed by the Board of Trustees of the California Bar

A few days ago, the Board of Trustees of the California Bar delayed deciding (until May) on most of the proposals put forth by a legal tech dominated taskforce, including one which would have allowed non-lawyers and corporations to provide legal services directly to the public.  Two modest proposals which include a change to the rule on competence and a change to the rule prohibiting fee sharing with non-lawyers (allowing non-profits to share fees not just court-ordered fees) will be forwarded to the Standing Committee on Professional Responsibility and Attorney Competence.

Another proposal that survived relates to a program similar to the Legal Technicians in other jurisdictions which allow non-lawyers to provide certain types of legal services.  On this topic, the Board of Trustees set up a separate working group charged with providing its recommendations by December 2020.

Florida proposal to allow paralegals to provide limited legal services

Readers of this blog will remember the current discussion within a number of jurisdictions on whether to allow trained non-lawyers to provide limited types of legal services.  See here, and here for example, I am writing today with an update on the discussion in Florida.

Last year, the Florida Supreme Court Commission on Access to Civil Justice’s approved a proposal to create an “Advanced Florida Registered Paralegal” designation as part of the Florida Registered Paralegal Program.

According to the proposal, Advanced Registered Paralegals would be required to have additional education and work experience than is required to become a Florida Registered Paralegal in order to engage in the limited practice of law under a lawyer’s supervision in family law, landlord tenant law, guardianship law, wills, advance directives, and debt collection defense.

The proposed rule revisions also set forth a licensing and disciplinary process and states that the Advanced Registered Paralegals must be supervised by a lawyer who “maintains a direct relationship with the client and maintains control of all client matters.”

The proposal was sent to the Florida Bar’s Board of Governors for review and Bar President John Stewart announced at the Board’s January 31, 2020 meeting that he had referred the proposed program to the Florida Bar’s Rules Committee to consider objections that were made by the Bar’s Family Law, Real Property, Probate and Trust Law, Elder, and Public Interest Law sections.

Michael Flynn waives privilege

Lawfare is reporting that Donald Trump’s former national security adviser Michael Flynn has waived attorney-client privilege, allowing prosecutors to interview his former attorneys at Covington & Burling LLP. Flynn withdrew his guilty plea on Jan. 14, 2020, claiming that he received ineffective assistance from his lawyers at Covington. The U.S. Attorney’s Office stated that Flynn’s claims would require information from those attorneys.  You can read the filings here.

Discipline System Changes Proposed In Ohio

The Ohio Supreme Court is asking for public comments on proposed amendments to address the process for investigating and prosecuting allegations of professional misconduct by Ohio judges and attorneys.  The report includes a variety of recommendations to the Court aimed at improving and promoting trust in the disciplinary system.  Proposals include:

- Expanding the role and responsibilities of local bar counsel in certified grievance committee investigations and prosecutions

- Streamlining and improving the process for investigating, prosecuting, and adjudicating grievances against Supreme Court justices

- Creating procedures to address lawyer and judicial fitness questions that arise during a disciplinary investigation

- Expediting disciplinary cases, through measures such as service by electronical mail and the use of disciplinary orders in lieu of full opinions in certain cases

- Increasing the time limit for filing a claim for reimbursement with the Lawyers’ Fund for Client

- Increasing the maximum reimbursement amount to $100,000.

Comments should be submitted in writing by letter or via email by March 26 to ruleamendments@sc.ohio.gov or to John VanNorman, Chief Legal Counsel, Ohio Supreme Court 65 S. Front St., Seventh Floor, Columbus, OH 43215-3431.

Florida Supreme Court to hear oral arguments in case on whether company that provides help through an app is engaging in the practice of law

Almost a year ago, I wrote about a couple of complaints filed in Florida that I argued could challenge the very notion of professional regulation.  In one of them a law firm argued that a technology company was practicing law, while in the other the company challenged the notion of the regulation of the profession under antitrust laws. 

You can read my original post here, which begins with this background information:  "TIKD is a company that promises consumers to take care of their traffic tickets (with a money back guarantee).  The consumer pays a fee to the company and the company takes care of everything, including hiring a lawyer to represent the consumer.   Based on this business model, a law firm in Florida filed a complaint with the Florida Bar alleging that TIKD was practicing law without a license.  . . . . Meanwhile, TIKD went on the offensive and filed a federal lawsuit against the Florida Bar, the law firm, and others alleging, among other things, antitrust violations and that the Florida Bar and the law firm are engaged in a “concerted effort” to put TIKD out of business."

This second lawsuit (the anti-trust lawsuit) was dismissed, but the Florida Supreme Court will hear oral arguments today to consider whether TIKD's business model constitutes practicing law.

Bloomberg law has more details on the story here.

Georgia Supreme Court holds that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation

In a recent case summarized in the Legal Profession blog, the Georgia Supreme Court held that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation.  Go here for more details and links.

Illinois Supreme Court Commission on Professionalism launches free online CLE program on lawyer wellness

I have written about the notion of "wellness" before, including about a report on the negative effects of the practice of law and the fact that Vermont has adopted a comment [9] to its rule on competence which states that maintaining mental, emotional, and physical well-being necessary for practice is important aspect of competence.

Today I want to let you know that the Illinois Supreme Court Commission on Professionalism has created a free online CLE program on lawyer well-being that you can access by going here.

According to the website, attorneys who complete the CLE are eligible to receive 0.5 hours of mental health and substance abuse CLE credit in Illinois. During the 30-minute interactive eLearning attorneys will (1) understand the extent of the well-being crisis in the legal profession, (2) identify potential symptoms of stress, and (3) learn strategies to help maintain their well-being.

North Carolina ethics opinion on whether lawyers can reply to negative online reviews -- UPDATED

Original post 3/1/20

The North Carolina State Bar has issued a proposed ethics opinion on whether it is ethical for attorneys to reply to negative online reviews of their services.  Any interested person or group may submit a written comment – including comments in support of or against the proposed opinion – or request to be heard concerning a proposed opinion. The Ethics Committee welcomes and encourages the submission of comments, and all comments are considered by the committee at the next quarterly meeting. Any comment or request should be directed to the Ethics Committee c/o Lanice Heidbrink at lheidbrink@ncbar.gov no later than March 30, 2020.

The opinion does not really add much to what other similar opinions have concluded in other jurisdictions.  Essentially, it concludes that attorneys can reply to negative reviews but that they need to be careful not to disclose confidential information in the process.  As Brian Faughnan states in his blog, "Given the broad scope of confidentiality under the ethics rules, this outcome offers little room for lawyers to offer much of a response."

In his comment to the opinion, Faughnan also questions whether a lawyer can disclose confidential information in a response to a review prior to filing a lawsuit against the reviewer arguing based on the exception to the rule that allows disclosure in support of a claim by the lawyer against the client.  He concludes, and I agree, that this would still be a violation of the rules.

I am not familiar with the specific rule in North Carolina, but for a disclosure to be valid as an exception to the rule under Model Rule 1.6, the disclosure has to be only "to the extent reasonably necessary" to achieve the goal of the exception to the rule.  And a public disclosure is not necessary to support a lawsuit, let alone a lawsuit that is yet to be filed.

You can read the opinion here.   You can read Brian Faughnan's comment here.


UPDATE (3/8/2020)

Lawyer Ethics Alerts Blog has a comment here.

Legal Ethics Lawyer has a comment here.