Tuesday, May 19, 2020

Illinois State Bar Association issues three new ethics opinions

The Illinois State Bar Association’s Board of Governors approved three new Professional Conduct Advisory Opinions on May 15 during its regularly scheduled Board meeting.

The opinions address the duties of an in-house counsel when confronted with conduct that may be harmful to his or her employer; the prohibition on a lawyer threatening criminal charges to gain an advantage in a civil matter; and the propriety of a firm name of “X and Y” when one of the named lawyers has changed careers and no longer practices law.

Opinion 20-02

Opinion 20-02 relates to the duties of an in-house counsel when confronted with conduct that may be harmful to his or her employer. It discusses Illinois Rule of Professional Conduct 1.13 and the in-house counsel’s reporting obligations. It also covers the in-house counsel’s authority under Illinois Rule of Professional Conduct 1.13 and 1.6 to disclose confidential information outside of the entity in certain circumstances.

Opinion 20-03

Opinion 20-03 addresses prohibition of a lawyer threatening criminal charges to gain an advantage in a civil matter. The opinion concludes by indicating that in a demand letter, a lawyer may accurately set forth the law, including the possibility of civil and criminal liability, as well as including a copy of the applicable statute. However, a lawyer would be prohibited from stating that criminal liability could be avoided by complying with the demand.

Opinion 20-04

Opinion 20-04 addresses the propriety of a firm name when one of the named lawyers has changed careers and no longer practices law. The opinion also discusses the availability of the designation “of counsel” to a lawyer no longer practicing law with the firm, finding that such a designation would be inappropriate.

Thank you to Illinois Lawyer Now for this update, the summaries and the links.

Sunday, May 17, 2020

New Jersey Supreme Court reiterates generally accepted notion that even if information is available to the public it is confidential if it is not generally known

As I am sure you know, subject to some exceptions that are not relevant here, lawyers have a duty to keep confidential information secret.  Yet, students and lawyers sometimes have a hard time defining what is considered to be "confidential information."  In particular, sometimes they think that if the information is "public," it is by definition not confidential.

The problem is that it is not that simple.  It depends on what you mean by "public." One thing is to say that the information is "public" because it is widely known to the public; but is a different thing to say that information is "public" because it is contained in a public record that is available to the public.

For this reason, the generally accepted definition of confidential information does not use the adjective "public."  According to this definition, confidential information is information related to the representation that is not generally known.  (A couple of years ago, the ABA issued an ethics opinion clarifying the notion of generally known information.)

Thus, information can be public (in the sense that it is available to the public) but not generally known, in which case, the fact that the information is public does not change the fact that it is still confidential.  

I am writing about this today because a recent decision by the New Jersey Supreme Court, again reiterates that this distinction is important and can result in problems for lawyers, often when the lawyers discuss information about former clients.  

The case is called In the Matter of Calpin, and the facts are similar to many other cases that have raised this issues in recent years.  A client (or former client at the time) wrote a negative review about the lawyer in Yelp! and the lawyer decided to reply by, among other things, disclosing some information about the client.  The information was "public" in the sense that it was available in public records, but is was not generally known and for that reason the court held that the lawyer violated the duty of confidentiality.

You can read more about the case here; and you can read the opinion here.

To my knowledge, only on case (Hunter v Virginia State Bar, 744 S.E.2d 611 (Va. 2013)) has held that the state can not discipline a lawyer who discloses public information that is not generally known.

Saturday, May 16, 2020

Illinois State Bar Advisory Opinion on the Types of Legal Services Law School Graduates Awaiting Bar Exam Can Perform Under Supervision of Licensed Lawyer

The Illinois State Bar Association has approved an ethics opinion that says recent law school graduates who have not yet taken the bar exam can perform many of the services normally performed by licensed first-year associates as long as they are being properly supervised by a licensed lawyer.

You can read the full opinion here.

Wednesday, May 6, 2020

Texas Supreme Court reiterates that former criminal defendants suing their lawyers for negligence must prove actual innocence

Long time readers of this blog may remember that I have posted many stories commenting on the fact that many (probably most) jurisdictions require former criminal defendants to prove actual innocence as a requirement to support malpractice claims against their criminal defense counsel. (Go here and scroll down for stories on this.)  In recent years, a number of jurisdictions have rejected this notion, but it still seems to be the majority approach.

Earlier this year, the Supreme Court of Texas reaffirmed its position on this in a case called Gray v. Skelton, which you can read here.

What makes this case interesting is that it clarifies that merely getting a conviction reversed, or being "exonerated" is not, by itself, enough to show actual innocence.  As the court explains, 
...exoneration . . . requires not only that the underlying criminal conviction be vacated but also proof of innocence. Innocence, however, can be established in more than one way. It can be established in the underlying criminal proceeding when the conviction is vacated on an actual-innocence finding. . . .Or, if the conviction is vacated on other grounds, formerly convicted individuals may prove their innocence in their malpractice suit against their criminal-defense attorneys. 

Tuesday, May 5, 2020

ABA issues new ethics opinion on the duty not to counsel clients about, or assist in, committing a crime or fraud

At the end of April, the ABA's Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (No. 491) titled "Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings." You can read the opinion here.

In my humble opinion, it does not add much that we did not know already but it is always nice to have guidance on important questions.  What it does, perhaps without realizing it, is provide support for an argument with regard to a number of other duties -- more about that below.  Here is the summary of the new opinion:
Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness to or conscious avoidance of facts. Accordingly, where facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity. Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish “knowledge” under Rule 1.2(d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct, and to advance the client’s legitimate interests. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4. If the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.
Now, why do I think that this opinion is important for rules not mentioned in the opinion?  Because it addresses the duty of the lawyer to act to "find out more" when the duty is expressed in a rule that takes effect if the lawyer has "knowledge."  Model Rules 1.9(b), 1.10(a), 1.13(b), 4.1 and 8.4(f) are all based on knowledge, for example.  

When I teach the duties related to perjury we discuss the notion of selective ignorance and how much investigation a lawyer has a duty to do before being able to claim they did not "know" something, given that knowledge is a subjective state of mind but can be proven with objective evidence of the circumstances.  This opinion provides some guidance on that issue.

[By the way, before anyone writes to me about this, No, Rule 8.4(g) is not based on knowledge.  8.4(g) is based on a negligence standard. Read it carefully.  So is 3.6.]

UPDATE: 1/18/21:  Louisiana Legal Ethics has a comment on the opinion here.

Monday, May 4, 2020

NY City Bar Association proposes humanitarian exception to rule that bans financial assistance to clients; ABA also considers similar proposal; do they go far enough?

Just over a week ago, the New York City Bar Association proposed an "urgent amendment" to Rule 1.8(e) of the New York Rules of Professional Conduct to provide a “humanitarian exception” while the ABA is also considering a similar proposal.

As you may remember this is the rule that in most jurisdictions bans attorneys from providing financial assistance to clients involved in litigation. It is a rule that has been around forever, but as old as it is, it has also been criticized for not allowing much flexibility.  Some jurisdictions have adopted exceptions for deserving circumstances and in other jurisdictions courts have interpreted the rule to allow humanitarian help, even if the rule does not say that.

So, partly - probably mostly - in response to the health crisis brought about by the Covid-19 pandemic, the New York City Bar Association has made a formal proposal for an amendment to the rule.  You can read the full text of the proposal here.

As the proposal states, the proposed amendment would create a “humanitarian exception” to the current rule, which prohibits lawyers from providing financial assistance to litigation clients. 

This proposal was originally approved back in January 31, 2020 by the NY State Bar Association which then sent its recommendation to the Administrative Board of the Courts for consideration.  The NYCBA is merely now urging the Courts to act quickly to approve the humanitarian exception.

It should be noted that the request makes clear that the need for the humanitarian exception is not limited to the current pandemic.

. . . .Even before the current crisis, lawyers representing indigent clients pro bono have sought to provide financial assistance to clients in order to help them with basic necessities such as food, clothing, and access to healthcare.
      Under the current version of the ethics rules, a lawyer or law office could face disciplinary action for engaging in many of the activities described above.  But that should not be the case.  The humanitarian exception before the Courts is consistent with lawyers’ ethical and moral obligations to “seek improvement of the law; and to promote access to the legal system and the administration of justice.”  Especially now, lawyers should not be limited in their ability to provide assistance to clients who are struggling to make ends meet.
The proposal ends by suggesting that, as an alternative, if the Courts require more time to study the humanitarian exception and decide whether to fully amend Rule 1.8(e), the Courts should consider taking immediate short-term action, such as issuing a temporary order adopting the humanitarian exception until such a time as New York is no longer in a state of emergency that would expressly allow lawyers to provide financial assistance to indigent clients they are representing pro bono if the client has been financially impacted by the COVID-19 pandemic.

I understand the public policy behind rules that ban lawyers from providing financial assistance to clients but I agree that a humanitarian exception is a good idea.  In fact, I have argued that the rule should be amended rather than interpreted judicially to say something it does not say.  The proposal in NY takes the correct approach and it should be approved.

For comments on the issue go to The Law for Lawyers Today, Ethical Grounds, and Louisiana Legal Ethics.

Meanwhile, the ABA's Standing Committees on Ethics and Professional Responsibility and on Legal Aid and Indigent Defense have drafted a proposal to have the ABA House of Delegates approve a similar provision for the Model Rules.  The new exception would allow lawyers providing pro-bono services to provide financial assistance to clients under certain circumstances.  You can read the proposal here.

Note that neither proposal would allow a lawyer to provide financial assistance to a client if the legal services are being provided for a fee.  This means that a lawyer representing a client in financial need on a contingency fee would not be allowed to provide financial assistance.  If the client charged a contingency fee is in as much need as the one who is not charged a fee, why not allow the exception to apply?

Sunday, May 3, 2020

Utah Supreme Court proposes important regulatory reforms

I often tell my students that by the time they graduate and pass the bar the regulation of the profession might be different than what we cover in the class.  Most recently, I mentioned that in relation to the growing trend of allowing non-lawyers to provide some legal services as "legal technicians."

This year I mentioned it in class in relation to two other topics:  advertising regulation and business organizations (or the rules that prevent lawyers from partnering with non-lawyer).  And, a couple of weeks ago, the Utah Supreme Court took a decisive step forward in the direction of deregulation that may start a trend toward more changes in the near future.

The proposed changes, posted for a 90-day period of public comment, would amend Utah’s Rules of Professional Conduct to allow fee-sharing with non-lawyers and to allow non-lawyers to have ownership or partnership interest in law firms or other authorized legal services providers.  The rules would also amend advertising rules and eliminate Rule 1.5(e) which regulates how lawyers can share fees with lawyers in different firms.

The proposed changes would also establish a two-year pilot of a regulatory sandbox — a regulatory body under the oversight of the Supreme Court, to be called the Office of Legal Services Innovation, whose charge would be to license and oversee new forms of legal providers and services.

This is a significant development that will change the way law is practiced and regulated.  It will be interesting to see what the reaction is during the comment period. 

For a copy of the proposed changes go here.  For a summary of the proposal and comments go to LawSites, and Legal Ethics in Motion.

Saturday, May 2, 2020

Ethics Training with Kim Wexler (of Better Call Saul) -- UPDATED

Many of you know the TV show "Better Call Saul," now in its fifth season.  (If you don't go here first, then here.)  The show's website is here.

Kim Wexler is a character in the show, and as part of the promo campaign for the show's new season, there is an ongoing series on YouTube called Ethics Training with Kim Wexler:  

Conflicts of Interest

Marital Privilege


Attorney-Client Privilege
(unfortunately, this one makes the usual mistake of confusing privilege with confidentiality!)