Sunday, September 27, 2020

Pennsylvania's newly adopted anti-discrimination rule (based on Model Rule 8.4(g)) won't go into effect until December but a lawsuit has already been filed claiming it is unconstitutional - UPDATED

Back in June, the Pennsylvania Supreme Court adopted a revised version of the controversial anti-discrimination Model Rule (ABA Model Rule 8.4(g)). Last week a lawyer sued the state disciplinary authorities, saying the new rule (scheduled to go into effect in December) violates his free speech rights.

You can read the text of the rule here and a critique of if here, which explains that over the last four years, the Disciplinary Board of the Supreme Court of Pennsylvania proposed three different versions of an anti-harassment.  According to this author, the approved version disregards earlier concerns about whether the rule may violate the First Amendment.

And now it is possible the courts will have to address that precise question because in early August an attorney with a non-profit legal group, filed a lawsuit in federal district court seeking an injunction to block enforcement of the rule.  The complaint alleges that Pennsylvania’s Rule 8.4(g) will force the lawyer “to censor himself to steer clear of an ultimately unknown line so that his speech is not at risk of being incorrectly perceived as manifesting bias or prejudice.”

UPDATE 9/27/20:  You can read the complaint here.   The complaint alleges, among many other things that "the fear of misuse of Rule 8.4(g) is far from hypothetical. Activists have frequently used anti-discrimination rules and accusations of bigotry to harass speakers for political reasons" and that the plaintiff will have to self censor as a result.  The complaint also lists instances in which judges, including justices of the US Supreme Court, have been criticized for expression that some might have found offensive and that arguably might subject them to discipline under the newly approved rule.  

Saturday, September 19, 2020

Puerto Rico Supreme Court invalidates statute of limitations for disciplinary proceedings

Back in 2016, the Puerto Rico legislature adopted by statute a statute of limitations for disciplinary proceedings.  See here.  I felt so strongly against this that I actually wrote a letter to the Governor urging him not to sign the bill into law.  He didn't listen.  Then, after the bill became law, I published a short article arguing many reasons why the bill should have been rejected.  See here.  But nothing happened.  Then I published a law review article explaining everything I thought was wrong with the bill.  See here.  But nothing happened.  Until last month.

On August 11, the Puerto Rico Supreme Court issued an opinion in a case called In Re Pellot Córdova, in which it invalided the statute of limitations for violating the principle of separation of powers.

So I guess it took four years, but finally someone got it right in the end.  

Tuesday, September 15, 2020

Third Circuit issues opinion on whether a prosecutor can be sued for conduct that resulted in wrongful conviction

Prosecutors are usually protected from possible civil liability because they can claim immunity.  However, immunity only applies to their conduct as litigators, not as investigators and defining the line between one and the other is a matter of much debate.  

There are many cases out there that discuss the issue and now the Court of Appeals for the Third Circuit has added a new one.  In a case Weimer v. County of Fayette, Pennsylvania, the court examines the claim of plaintiff Crystal Dawn Weimer who spent more than eleven years in prison, and then, after her convictions were vacated, filed suit under 42 U.S.C. § 1983, alleging that the County of Fayette, Pennsylvania; its former District Attorney, Nancy Vernon; the City of Connellsville; and several city and state police officers violated her rights under the U.S. Constitution and Pennsylvania law. 

The Court found that certain aspects of the prosecutors conduct were protected by immunity, but many others were not and remanded the case for further  proceedings.

You can read more about the case here, where you can also find an embedded copy of the opinion. 

Saturday, September 12, 2020

Tennessee disbars a lawyer permanently for the first time

As you probably know, contrary to popular belief, in most states disbarment is not permanent. In most jurisdictions disbarred lawyers can ask to be reinstated after a specified period of time, and, in fact, many are.  

This used to be the case in Tennessee until back in January when the Supreme Court amended the disciplinary rules to state that attorneys who are disbarred are not longer eligible for reinstatement, or, simply stated that they can no longer ask the Court to reinstate their law license.  Ever. Disbarred lawyers in Tennessee will never again practice law in the State.  Period.

This new rule went into effect on July 1 and just a few days ago, the Court announced the name of the lawyer (now former lawyer) who was "honored" to be the first permanently disbarred lawyer in the state.  The Legal Profession blog has the story here.

How Black female prosecutors are challenging the status quo and fighting for reform

 The ABA Journal has a good short article on prosecutors here.

Utah Supreme Court approves five first entities under new regulatory scheme

The Utah Supreme Court announced that it has approved five entities to enter the legal market under its new regulatory scheme.  The Lawyer Ethics Alert Blog has more on the story here.These entities are:

LawHQ: A Salt Lake City law firm which plans to offer equity ownership to certain software developers in the firm and a software application called CallerHQ, which is designed to allow consumers to report spam telephone calls, text messages and voicemails. Consumers who sign up may then be included in a mass tort litigation brought by LawHQ against the spammers.

1Law: An entity which plans to provide no-cost and low-cost legal services to assist clients in completing court documents and also offer related legal advice using chatbots, instant messaging, automated interviews, nonlawyer staff and technology-assisted lawyers. 1Law plans to have more than 50% nonlawyer ownership.

LawPal: An entity which plans to provide a TurboTax-like technology platform to generate legal documents in contested and uncontested divorce and custody cases, eviction cases and debt-related property seizure cases. It expects to feature 50% nonlawyer ownership.

Blue Bee Bankruptcy Law: The sole owner of this law firm states that he will give his paralegal employee a 10% ownership interest in the firm as an incentive to remain with the firm.

The last entity is better known.  It is Rocket Lawyer, a company that does not seem to understand (or at least does a very bad job of explaining) the difference between the notion of confidentiality and the attorney client privilege (see here), which offers to connect clients with available lawyers.  The ABA Journal has the story.  

The Court's full order is available here

Assistant attorney general loses job for racist social media posts

An assistant attorney general in Texas lost his job last week after reports surfaced that he referred to Black Lives Matter protesters as “terrorists” and promoted the QAnon conspiracy theory on Twitter.  The ABA Journal has the story here.

Tuesday, September 8, 2020

Another good comment on the recently approved changes to regulation in Arizona

 As predicted, the recently approved changes to regulation in Arizona continue to generate very good commentary.  Here is another good short comment.  

In it, the author expresses cautious optimism.  He explains the benefits that the new approach to regulation can lead to, but also admits that it is not guaranteed to work and that there is reason to be concerned it won't.  The article concludes, that the new regulatory approach

. . . will make it easier for lawyers and law firms to attract investors to their practices, allow technology companies to collaborate better with lawyers in introducing new products, and allow lawyers and nonlawyers alike to explore new ways to collaborate and provide affordable, enhanced legal services to members of the public.  If most people currently cannot afford a lawyer, let’s find a way to use technology to provide them with affordable legal services.  If most people can’t find a lawyer, let’s encourage technology companies to invest in referral services to match lawyers and clients.  If law firms want to give valued non-legal employees like office managers and comptrollers a stake in their businesses so they won’t leave, let’s allow them to do it. 

None of this is sure to work.  There is more than enough bad history, from non-lawyers who operated cut-rate “legal corporations” which prized volume over quality, to “runners and cappers” attracting personal injury clients in hospital rooms, to Avvo’s infamous “pay-to-play” legal referral model.  . . .  But all of these problems can be addressed by other Rules and careful regulation.  As lawyers, we are justifiably concerned about giving away our control to those who are not bound by our professional responsibility rules – rules designed to protect the public.  Yet the numbers don’t lie:  by keeping our current regulatory structure in place, we are losing ground.  The folks in Arizona recognize that, and have taken leadership, with their eyes wide open to the risks.  The rest of us should watch, learn and, as soon as possible, follow.

Monday, September 7, 2020

Arizona adopts significant changes to the regulation of the profession -- UPDATED

August 27, 2020

The Arizona Supreme Court announced today that it has voted to approve far-reaching changes that it claims "could transform the public’s access to legal services."

The changes come soon after a similar move by the Supreme Court in Utah and may be a sign of things to come around the country.

The most significant changes are the approval of a program to allow some non-lawyers to provide some legal services (similar to the program recently abandoned in Washington) and the elimination of rule 5.4 which bans lawyers from partnering with non-lawyers.  This will allow non-lawyers to invest in, and own part of, law firms.  A Press Release announcing the changes explains that 

The Court approved modifications to the court rules regulating the practice of law, which allows for two significant changes. One change is a licensure process that will allow nonlawyers, called “Legal Paraprofessionals” (LPs), to provide limited legal services to the public, including being able to go into court with their client. The other change is the elimination of the rule prohibiting fee sharing and prohibiting nonlawyers from having economic interests in law firms. With these modifications, Arizona is set to implement the most far-reaching changes to the regulation of the practice of law of any state thus far.

This last statement is definitely true.  The debate on whether to allow nonlawyers to invest or partially own law firms has been around for a long time, but this is only the second time any jurisdiction has acted on it. The other was also recently, in Utah.  See here.

Of course, the big question is whether the effects of the adopted changes will be positive.  The same press release affirms that the new approach adopted by the Court "will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help" and "will promote business innovation in providing legal services at affordable prices."  Evidently, that was not the case in Washington state where the state's supreme court decided to eliminate its legal paraprofessionals program after it decided it did not have the desired results.  

Needless to say, not everyone agreed with the decision to eliminate the program in Washington, and not everyone agrees with the decision in Arizona, so the debate will continue.  I am sure there will be multiple updates to this story in the next few days. 

You can read the full news release announcing and briefly explaining the recent changes here.

For more information on the new rules adopted in Arizona go the page on access to legal services.  

UPDATE (9/7/20):  As expected, there have been a few comments published since the announcement that Arizona will do away with the ban on partnerships with non-lawyers or the provision of legal services.  Here are a few links:  

Legal Evolution (in which the author considers whether allowing Walmart to offer legal services is an improvement over the way the legal market is currently regulated.)

2 Civility


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