Sunday, October 11, 2020

ABA issues new formal ethics opinion on conflicts of interest

Last week, the ABA's Standing Committee on Ethics and Professional Responsibility issued a new opinion on "conflicts arising out of a lawyer’s personal relationship with opposing counsel."  (The opinion was released on October 7, but for some reason, it is dated July 29.)

The opinion is not too long, it is well written and logical.  It applies the analysis that we all know related to "material limitations" out of Model Rule 1.7(a)(2) to circumstances involving relationships between lawyers, suggesting that the answer to the question whether a relationship can material limit the representation of a client is "it depends."  On the relationship:  the opinion uses three categories of relationships and suggests that they vary in terms of the risk of material limitation that they present.

You can read the full opinion here, but meanwhile you can check its summary, as it appears on the opinion itself:
Model Rule 1.7(a)(2) prohibits a lawyer from representing a client without informed consent if there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer. A personal interest conflict may arise out of a lawyer’srelationship with opposing counsel. Lawyers must examine the nature of the relationship to determine if it creates a Rule 1.7(a)(2) conflict and, if so, whether the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client who must then give informed consent, confirmed in writing.

To assist lawyers in applying Rule 1.7(a)(2), this opinion identifies three categories of personal relationships that might affect a lawyer’s representation of a client: (i) intimate relationships, (ii) friendships, and (iii) acquaintances. Intimate relationships with opposing counsel involve, e.g. cohabiting, engagement to, or an exclusive intimate relationship. These relationships must be disclosed to clients, and the lawyers ordinarily may not represent opposing clients in the matter, unless each client gives informed consent confirmed in writing. Because friendships exist in a wide variety of contexts, friendships need to be examined carefully. Close friendships with opposing counsel should be disclosed to clients, and, where required as described in this opinion, their informed consent obtained. By contrast, some friendships and most relationships that fall into the category of acquaintances need not be disclosed, nor must clients’ informed consent be obtained. Regardless of whether disclosure is required, however, the lawyer may choose to disclose the relationship to maintain good client relations.

You care read more about the opinion in the ABA Journal, which has a short summary, on Faughnan on Ethics and on the Lawyer Ethics Alert Blog.

Tuesday, October 6, 2020

Minnesota Supreme Court approves new rule that allows paralegals to provide certain legal services

As you probably know, earlier this year Utah and Arizona approved new regulatory systems that allows for some non-lawyers to provide some legal services (see here, here, here and here), while Washington, the first state to do so, ended its program.  See here and here.

Now, Minnesota is joining the states allowing nonlawyers to handle some legal tasks in hopes of providing greater access to legal representation.  According to a new rule adopted by the Minnesota Supreme Court, “legal paraprofessionals” will be allowed to provide legal services in landlord-tenant disputes and family law as long as the legal paraprofessionals enter into an agreement with a licensed Minnesota lawyer who agrees to serve as the paraprofessional’s supervisory attorney.

The paraprofessionals will be able to provide advice and make court appearances on behalf of tenants in housing disputes in certain jurisdictions. They will also be able to appear in court in some family law matters and handle family law mediations that are “limited to less complex matters.”

The legal profession has more on the new rule here.  The ABA Journal has a story here.

Monday, October 5, 2020

Court of Appeals for the 9th Circuit reverses conviction because of improper comments by prosecutor

Long time readers of this blog know that I have posted many stories over the years on prosecutorial misconduct including many in which convictions have been reversed simply because of improper comments by prosecutors.  Here is another one.  

The US Court of Appeals for the Ninth Circuit recently overturned a first-degree murder conviction the prosecutor said that the jury could dispense with notions of the presumption of innocence.  Go here for the story.

Reversal of convictions for inappropriate comments is by no means rare, so why does it keep happening?  Because other than reversing the conviction, courts usually don't impose any sanctions on the prosecutors themselves.  Maybe if there was more attention paid to sanctions, there would be less misconduct.  Isn't that the point of saying the deterrence is one of the goals of the disciplinary system?

The case is called Ford v Perry and you can read the opinion here.

Sunday, October 4, 2020