Thursday, December 31, 2020

New York Suspends Prosecutor For Discovery Violations

 Discipline for prosecutorial misconduct is relatively rare which is why I am reporting on this story, which you can find in the Legal Profession blog.

Arizona's recently created Ethics Advisory Committee issues its first few opinions

 The Arizona Supreme Court’s two-year-old Attorney Ethics Advisory Committee has issued its first four ethics opinions. They deal with significant topics lawyers routinely face: client files, termination of representation, and liens.  You can read more about the story (and get links to the opinions) here.

How not to practice law: try to get your client to pay a fee by providing sexual services

We have seen stories like this before but it is notable that the discipline imposed is for an attempt to violate the rules of professional conduct.  That is not so common, although we did see another example last year in a similar case (see here).

In this new case, the client apparently did not have enough money to pay the lawyer what he said his services would cost, so he told the client she could pay him by having sex with him.  Like I said, we have seen cases like this before, but in this one we have the transcript of the actual conversation in which the lawyer explained the transaction he had in mind.  Don't follow the link if you are easily offended by language of a sexual nature.  Here is the link to the story which includes the transcript of the conversation. The decision of the court, which also includes the transcript, is here.

Eventually, the lawyer had his law license "annulled" which I assume is akin to a permanent disbarment.

Monday, December 28, 2020

Lawyer disciplined in New York for offensive speech

Some of you might remember an incident caught on video about two years ago in which a lawyer went on an offensive/racist tirade at a restaurant in New York when he heard some employees speaking in Spanish among themselves.  The incident was caught on video and posted on social media.  See here.

Well, more than two years later, I am writing about it because just a few days ago the lawyer was publicly censured for his conduct under New York’s Rule of Professional Conduct 8.4 (h) which describes as misconduct “conduct that adversely reflects on the lawyer’s fitness as a lawyer.”

This decision raises a number of interesting issues.  First, it should be noted that New York has an “anti-discrimination” rule, akin to Model Rule 8.4(g), but it did not apply in this case because the conduct was not related to the practice of law.  

For that reason, this is a case of purely private conduct, or conduct “outside the practice of law” and that conduct is expressive conduct or, simply, speech.  

In other words, the question here is whether it is proper for the state to impose discipline for conduct, or speech, merely because that speech is offensive.  

According to the traditional analysis under the First Amendment, the answer to that question is no.  But, apparently, things have changed.  Apparently, in New York, expressing an offensive statement raises enough concern about a lawyer's fitness as a lawyer to warrant discipline even if the statement is protected under the First Amendment.  

Evidently, New York has no tolerance for lawyers who express ideas that some might find to be racist.  But, at what point does a constitutionally protected expression cross the line and becomes so offensive that a lawyer can be disciplined for it?

Is it proper for the state to conclude that someone is not fit to be a lawyer because of their racist views or expressions?  Maybe the lawyer in this case has an issue related to anger management or mental illness.  If that is the case, then the disciplinary agency needs to say that the discipline is imposed because the lawyer is not fit to practice for those reasons.  But that is not what happened.  The decision is based on what the lawyer said, not on his competence or ability to practice law.  

The implication that engaging in offensive expression makes a lawyer unfit to practice law has significant consequences for First Amendment analysis, and I don’t think the decision in the case acknowledges that.

The Legal Profession blog has more information.


Sunday, December 27, 2020

NJ Supreme Court validates use of mandatory arbitration clauses in retainer agreements

The New Jersey Supreme Court in Delaney v. Sills has validated the use of retainer agreements that provide that all disputes between attorney and client shall be subject to arbitration. On the other hand, the court emphasizes that the fiduciary nature of the attorney-client tie requires candid explanation to the client of the advantages and disadvantages of the arbitral forum.

In my opinion, mandatory arbitration agreements are inherently bad for consumers and lawyers should not be allowed to impose them on their clients.  I am glad that the court says lawyers have an obligation to explain the pros and cons of arbitration, but what good does that do when prospective clients are all but forced to accept it if they want the lawyer of their choice?  

The court summarized its decision as follows:

For an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. . . . That information can be conveyed in an oral dialogue or in writing, or by both, depending on how the attorney chooses best to communicate it. The Court refers the issues raised in this opinion to the Advisory Committee on Professional Ethics (ACPE), which may propose further guidance on the scope of an attorney’s disclosure requirements. The new mandate will apply prospectively, except as to Delaney, who must be allowed to proceed with his malpractice action . . .. 

George Conk (a member of the ACPE) has a detailed comment on the decision here.  The Louisiana Legal Ethics Blog has a comment comparing the decision with the current state of the law in Louisiana.

Sunday, December 20, 2020

How not to practice law: sign your complaint affirming that the complaint is based on perjury

 Attorney Lin Wood has filed a lawsuit challenging the election results in Georgia in which he asserts that his claim is based on "plenty of perjury."  Go here for the full story.


Friday, December 11, 2020

US District Judge finds Pennsylvania's version of Model Rule 8.4(g) is unconstitutional

Long time readers of this blog know that I have posted many stories about Model Rule 8.4(g) since way back when it was first proposed.  Go here and scroll down to see all the posts on this subject (in reverse chronological order, meaning the most recent stories will be at the top).

You might also remember that I have expressed doubts as to the validity of the rule given that it regulates speech as well as conduct.  

For that and other reasons, the rule has been controversial and states have been very slow in adopting it, with only one state adopting it "as is", while only 5 or 6 other states adopting it with modifications. About ten states actually rejected proposals to adopt it.

Pennsylvania is one of the states that adopted a modified version of the rule.  There, the rule was adopted with some modifications and was scheduled to go into effect this month.  But almost as soon as it was adopted, the Hamilton Lincoln Law Institute filed a complaint challenging the rule's constitutionality.  (See here.)

And so, a few days ago, the US District Court issued an opinion in which it denied the state's motion to dismiss holding that the new rule is unconstitutional.  

The opinion is interesting and you should read it in full.  The case is called Greenberg v. Haggerty.  You can find the full opinion here.  

Here are some of the key passages:

There is no doubt that the government is acting with beneficent intentions. However, in doing so, the government has created a rule that promotes a government-favored, viewpoint monologue and creates a pathway for its handpicked arbiters to determine, without any concrete standards, who and what offends. This leaves the door wide open for them to determine what is bias and prejudice based on whether the viewpoint expressed is socially and politically acceptable and within the bounds of permissible cultural parlance. Yet the government cannot set its standard by legislating diplomatic speech because although it embarks upon a friendly, favorable tide, this tide sweeps us all along with the admonished, minority viewpoint into the massive currents of suppression and repression. Our limited constitutional Government was designed to protect the individual’s right to speak freely, including those individuals expressing words or ideas we abhor.

Therefore, the Court holds that the Amendments, Rule 8.4(g) and Comments 3 and 4, consist of unconstitutional viewpoint discrimination in violation of the First Amendment. . . . Defendants’ Motion to Dismiss is denied. 

The court also denied defendants’ motion to dismiss as to the count in the complaint that alleged vagueness.

The Volokh Conspiracy has commentary here and here.

Tuesday, December 8, 2020

Quick reminder on how to withdraw without violating the duty of confidentiality

 Over at Ethical Grounds, Michael Kennedy reminds us of the proper way to withdraw from representation without violating the duty of confidentiality.  Go read his comment here.

Monday, December 7, 2020

New article on the role of the prosecutor and its relation to the need to regulate the discretion related to charging decisions

Long time readers of this blog know that I have posted many stories on prosecutorial misconduct and, within that broad topic, on the issue of whether it is advisable to regulate prosecutorial discretion.  (Go here and scroll down to see all the posts on prosecutors)

I am writing about this today to let you know of a recently published article in which Professor Irene Joe argues that prosecutors' ethical duty should limit their discretion to pursue charges against defendants based on the systemic impact of charging decisions in producing public defender case overload. 

According to this view, because prosecutors have the duty to play the  role of a minister of justice Prof. Joe "makes a novel link between the ethics of prosecution and that of public defense, illuminating the “cumulative effect that . . . discretionary charging decisions have on the public defender’s ability to provide ethical and professional representation.” 

The article is called Regulating Mass Prosecution, 53 U.C. Davis L. Rev. 1175 (2020).  You can read the full article here, or a summary and commentary by Scott Cummings here.

Sunday, December 6, 2020

Article on Trump's legal teams violations of Rule 11

Unless you have been hiding somewhere with no access to the news, you know that there has been a lot of press recently on Trump's legal team's efforts to litigate issues related to the election results.  A lot has been written about the incompetence of the lawyers involved and about whether they should be sanctioned.  There is even an effort to get Rudy Giuliani disbarred, which is not likely to happen, even though he has proven to be incompetent and engaged in frivolous litigation.

One of the reasons there is likely not going to be sanctions is that judges tend not to get involved and not to impose sanctions for violations of the rules of civil procedure.  Obviously, if they did, in theory, lawyers would be deterred from engaging in that type of conduct; but the reality is that judges don't act as often as they could.

If you are interested in this discussion, you should take a look at an article by Elie Mystal (here) in which he makes the argument for sanctions under rule 11 of the Federal Rules of Civil Procedure and at this article by the ABA which argues there is a high standard for imposing sanctions.

Wednesday, December 2, 2020

Comment on ABA Formal Opinion 493 on Model Rule 8.4(g)

 Back in July I reported that the ABA Standing Committee on Ethics and Professional Responsibility published a new opinion in which it tried to clarify 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 am writing about this today again because the Louisiana Legal Ethics blog has published a short comment on the new opinion here.