Chicago Bar Association and Chicago Bar Foundation publish report and recommendations on the future of the practice of law

Last week the Chicago Bar Association and Chicago Bar Foundation published a report that provides recommendations for reforming attorney regulations to meet the changing legal market. The recommendations are the result of nine months of work by a Task Force on the Sustainable Practice of Law & Innovation. Public comments will be accepted through August 21.

You can read the full report here.

The task force was created in October 2019 to address failures in the consumer legal market, in which many lawyers are struggling to make ends meet, while many people are also going without legal help.

The task force brought together a diverse group of more than 50 lawyers and legal professionals from across Illinois to develop a series of regulatory reform recommendations to address these challenges. The recommendations seek to meet three main goals: (1) Help lawyers connect to more potential clients and offer more affordable and accessible solutions, (2) Help people to recognize they have a legal problem and identify where they can turn for affordable and reliable legal help and (3) Spur more innovation in the profession and the delivery of services.

The recommendations include:

• Allowing lawyers to provide technology-based products to help meet the demand for legal services through an “approved legal technology provider.” The provider could be owned in whole or in part by nonlawyers.

• Recognizing licensed paralegals who can provide expanded services to legal consumers while working under the supervision of a lawyer.

• Streamlining confusing legal advertising rules to focus on the core principle that lawyers should refrain from making false, misleading, coercive or harassing communications.

• Expanding the rules on limited scope representation to allow lawyers to participate in technology-based legal solutions and to streamline the process for limited-scope court appearances.

• Creating a community justice navigator to help the public identify legitimate sources of legal information and to connect people to lawyers and other appropriate forms of legal help. The web-based information hub would be similar to resources provided to the public by the IRS.

• Giving the Illinois Rules of Professional Conduct a “plain language overhaul” that also rethinks “overly prescriptive or unnecessary regulatory provisions.”

• Evaluating whether broader changes are needed to relax limits on outside ownership of law firms. “a majority of the task force believes that preventing people who are not attorneys from having an ownership stake in law firms is unduly stifling innovation and preventing solo and small firm lawyers from reaching the scale necessary to reach the consumer legal market,” the report says.

I have not had a chance to read the report so I can't comment on anything specifically.  However, I can say that the report is long, detailed and thoughtful.  Some of the suggesting do indeed support some significant changes in the regulation of the profession, and it is refreshing to see that the authors have recommended specific changes to the rules of professional conduct to match the recommendations.

This last point is important.  It always bothers me when I see recommendations that go against the current rules but no suggestion to change the rules.  If you are going to suggest new approaches, we will need new rules to match them.

But, like I said, I don't have the time right now to read the report so I can' comment on the details.  I will eventually get to it and let you know what I think. 

ABA issues opinion on Model Rule 8.4(g)

Long time readers of this blog know that I have written many times about Model Rule 8.4(g) and that I have expressed concerns about its breadth and vulnerability to attack under First Amendment grounds.  I wrote most of those comments when the rule was in the process of being enacted and adopted.  Since then seven states have adopted some version of the rule and a few others are currently considering doing so.  I have also had the chance to teach the rule and discuss the debate about it with my students every semester since it was proposed.

So I am glad to report that the ABA Standing Committee on Ethics and Professional Responsibility has published a formal opinion offering some guidance on how the rule should be interpreted and applied. 

I will comment more in detail when I have a chance to read it, but I wanted to let you know that the opinion is now available so you can read it too.  You can read it or download a copy of the opinion here.

Here is a copy of its summary:

This opinion offers guidance on the purpose, scope, and application of Model Rule 8.4(g). The Rule prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of various categories, including race, sex, religion, national origin, and sexual orientation. Whether conduct violates the Rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline.

Rule 8.4(g) covers conduct related to the practice of law that occurs outside the representation of a client or beyond the confines of a courtroom. In addition, it is not restricted to conduct that is severe or pervasive, a standard utilized in the employment context. However, and as this opinion explains, conduct that violates paragraph (g) will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.

The Rule does not prevent a lawyer from freely expressing opinions and ideas on matters of public concern, nor does it limit a lawyer’s speech or conduct in settings unrelated to the practice of law. The fact that others may personally disagree with or be offended by a lawyer’s expression does not establish a violation. The Model Rules are rules of reason, and whether conduct violates Rule 8.4(g) must necessarily be judged, in context, from an objectively reasonable perspective.

Besides being advocates and counselors, lawyers also serve a broader public role. Lawyers “should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Discriminatory and harassing conduct, when engaged in by lawyers in connection with the practice of law, engenders skepticism and distrust of those charged with ensuring justice and fairness. Enforcement of Rule 8.4(g) is therefore critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.

Missouri Supreme Court finds that public defenders have immunity for discretionary functions

In a case called Laughlin v. Perry, decided on June 30, 2020, the Missouri Supreme Court found that public defenders are immune for legal malpractice liability under the doctrine of discretionary functions.   You can read the opinion here.   The court summarized its conclusion as follows:

As public defenders, Perry and Flottman are entitled to official immunity because they are public employees whose official statutory duties concern the performance of discretionary acts. . . . One need not be a public official engaged in the essence of governing to be entitled to official immunity; such immunity extends to protect public employees from liability for alleged acts of negligence committed during the course of performing discretionary acts requiring exercise of a degree of reason and judgment. There is no dispute Perry and Flottman were acting pursuant to their constitutionally and statutorily mandated duties in representing Laughlin, and . . .  choosing which defenses to raise and which arguments to pursue on appeal on behalf of indigent clients constitutes a discretionary act entitled to official immunity.

NY may soon require training in "cyber security" as part of CLE

As you probably know already, many jurisdictions have adopted the ABA Model Rule's view that knowledge or understanding of technology should be an element of the duty of competence under rule 1.1.

Also Florida and North Carolina currently require mandatory CLE on issues of technology.  Florida was the first state to do so (in 2016) (see here). 

I am writing about this today to let you know that the New York State Bar Association has approved a committee report that recommends amending the mandatory continuing legal education rule to require one credit in cybersecurity.

LawSites has the story here.

What is the proper sanction?

In class, we often discuss whether the cases we read resulted in a proper sanction and we also discuss how inconsistent courts often are when imposing sanctions.  A new case reported by the Legal Profession Blog caught my eye that illustrates the issue.

In this case, the court imposed a suspension of no less than three years for numerous and varied acts of misconduct that included "engaging in a pattern of incompetent representation, neglect, failure to communicate with clients, and failure to return unearned fees; failing to properly supervise a non-lawyer assistant and take reasonable steps to prevent the known misconduct of this assistant that resulted in the theft of client funds; failing to safeguard client funds and maintain all trust-account related records; representing a client with a conflict of interest; and failing to cooperate in multiple disciplinary investigations."  In addition, there were multiple aggravating factors and no mitigating factors.  The overwhelming majority of the 24 clients harmed by the lawyer's misconduct were immigrants facing immigration proceedings who made significant sacrifices to save the necessary funds to retain him and for most of whom the lawyer performed nominal or no work.

A dissenting judge argued the conduct deserved disbarment.

Pennsylvania adopts a modified version of Model Rule 8.4(g)

About a month ago, the Pennsylvania Supreme Court issued an Order adopting a modified version of ABA Model Rule 8.4(g). The new rule makes it professional misconduct for a lawyer to “by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination” against anyone.

Pennsylvania had been trying to figure out what to do about this rule since 2016.  First it rejected it entirely, opting for a different approach.  I wrote about that decision here. But then they changed their minds, I guess, and considered other proposals.  One proposal expressed some concerns about the rule's possible violation of the First Amendment, but evidently that concern was abandoned at some point before the recent adoption of the new rule.  In fact, it is remarkable that the text of the rule would say "by words" where the most important debate about the Model Rule is whether it regulates speech in violation of the First Amendment. 

You can read the new rule here; and for a comment tracing the trajectory of the issue in Pennsylvania and a critique of the adopted rule, go here.  The conclusion:  "In many regards, the April 2019 proposal is worse than the May 2018 proposal. The earlier version showed some concerns about the First Amendment. The adopted version threw those cautions to this wind.  This rule can be used to censor protected speech, and worse, will chill attorneys who seek to engage in protected speech."

Improper comments by prosecutor lead to conviction reversal

Long time readers of this blog know I have posted many stories on prosecutorial misconduct including many in which convictions have been reversed simply because of improper comments by prosecutors.  Here is another one, recently reported in the Legal Profession Blog.  Take a look an you tell me if you think the comment deserved a reversal.

As reported in the LPB, here is how the court explained the issue:

In her closing argument, the prosecutor asked the jury, “Did you watch [Defendant] in the courtroom when [Victim] took the stand? He wouldn’t even look at her. He looked at every other witness in the eye, but he wouldn’t look at her.” The argument had no purpose other than to invite the jury to draw an adverse conclusion from Defendant’s failure to get on the stand and explain why he would not look at Victim as she testified. After Defendant objected, the jury heard the district court overrule the objection, which placed the “stamp of judicial approval” on the improper argument, further magnifying the prejudice. . . .  Having obtained the district court’s stamp of judicial approval, the prosecutor compounded the prejudice by repeating the statement and adding, “And why wouldn’t he look at her? Because he knew what he’d done. He knew what he did.” . . . The prosecutor’s accusatory tone was tantamount to pointing a finger at Defendant.

And based on this argument, the court held that the prosecutor’s arguments violated Defendant’s Fifth and Fourteenth Amendment rights and deprived Defendant of a fair trial, resulting in reversible error; adding that "Prosecutors do not have license to make improper and prejudicial arguments with impunity. We reverse the Court of Appeals holding that Defendant received a fair trial, and we remand to the district court for a new trial."

If this conduct justifies a reversal of a conviction shouldn't it also justify sanctions for violation of Rule 8.4(d) on conduct that is prejudicial to the administration of justice?

What do you think?