Tuesday, December 28, 2021

Be careful when replying to online reviews; but also when reading about cases on replies to online reviews

 I have posted a number of times on the issues that arise when lawyers reply to negative online reviews.  (Here are links to the more recent comments on opinions from the ABA (also here and here) and from Florida, and North Carolina.)

I am writing about this again today because I saw a headline in the Legal Profession blog that read "Reciprocal Censure For Response To Negative Online Review" and thought that it would be a novel case.  But it wasn't and the problem is the headline is worded wrong.

As written, it suggests that the lawyer was disciplined for replying to the review; or, in other words, that it would be misconduct to reply to an online review.  That is not the case.  The problem is not that the lawyer replied but HOW the lawyer replied.  The story is not that the lawyer replied, but that the lawyer replied improperly (in this particular case, by disclosing confidential information).

So the story is not that the lawyer was disciplined for replying to the review, but that the lawyer was disciplined for violating the duty of confidentiality.  

And the bottom line is that unless a particular jurisdiction has decided otherwise, lawyers are allowed to reply to negative reviews, but lawyers have to be careful not to violate other rules when they do so.

Short article on new Ohio rules regarding Rule 5.5 and practice of law remotely

Back in August I reported that Ohio amended its ethics rules to make clear what is required of lawyers who are physically located but not licensed there.  The ABA recently published a short article commenting on the new rules.  You can access it here.

Sunday, December 19, 2021

ABA Committees solicit comments on discussion draft document on possible amendments to the Model Rules

The ABA Standing Committees on Ethics and Professional Responsibility and Professional Regulation have developed a Discussion Draft of possible amendments to the Comments of Model Rules of Professional Conduct 1.0 (Terminology), 1.1 (Competence), and 1.2 (Scope of Representation and Allocation of Authority between Client and Lawyer). The amendments contained in the Discussion Draft provide guidance on lawyers’ client due diligence obligations under the ABA Model Rules of Professional Conduct.  The Discussion Draft is available here.

The Committees have not yet decided whether to present any Model Rule amendments on this subject to the House of Delegates. Your comments will assist the Committees in determining whether and how to proceed.  

You may provide comments in one of two ways:

First, the Committees will host a roundtable discussion on Friday, February 11, 2022, from 1:30 to 3:30 p.m. at the Grand Hyatt Seattle, 721 Pine Street (room location forthcoming in January 2022). If you would like to comment at this roundtable, please RSVP to Natalia Vera (Natalia.vera@americanbar.org).

Second, you may communicate your thoughts and suggestions by providing written comment to the Committees.  Written comments on the Discussion Draft must be submitted by email to Natalia Vera by February 15, 2022.  Please note that the Committees may post your written comments on the ABA website.

Sunday, December 12, 2021

Oregon State Bar proposal would permit paralegals to represent clients in landlord/tenant and family law cases

The Oregon State Bar recently announced it is considering a proposal to approve a program for what it will refer to as "Licensed Paralegals," akin to the groundbreaking (but recently abandoned) LLLTs program in Washington state.  

The proposal in Oregon would allow paralegals to represent clients in certain family law matters and in landlord/tenant disputes.  The idea behind the program is familiar:  most people don't have access to legal representation and it should be possible for paralegals to provide some services, just like a nurse practitioner provides some health services, in order to lower costs and enhance access to representation.  The Bar explains the principle in a short video available in its website. 

The website also offers copies of the Board of Governors report that suggests the adoption of the proposal (here) and a more detailed summary of the program here.

Monday, December 6, 2021

Federal Judge reiterates (and revises) the sanctions on Trump lawyers for filing frivolous lawsuits -- UPDATED

December 5, 2021

Back in September I reported that a judge had imposed sanctions on several lawyers for the Trump campaign for the frivolous lawsuits filed in Michigan challenging the results of the election.  See here.

Today, I am writing to point out that the judge has affirmed the imposition of sanctions, and added an amount for attorney's fees but has reduced the amount of sanctions by a little over $28,000.  You can read the opinion here

According to the order, attorneys Sidney Powell, L. Lin Wood, Howard Kleinhendler, Gregory Rohl, Stefanie Lynn Junttila, Emily Newman, Julia Z. Haller, Brandon Johnson, and Scott Hagerstrom, must pay, jointly and severally $21,964.75 to Gretchen Whitmer and Jocelyn Benson, and $153,285.62 to the City of Detroit. 

The ABA Journal has more information and links on the story here.

UPDATE 12/12/21

NY Times editorial criticizes lack of accountability for prosecutorial misconduct

 About three weeks ago I reported that the organization "Accountability New York" filed a lawsuit in federal court in Manhattan arguing that the basis for the city’s pushback against the organization's work to hold prosecutors accountable for misconduct was unconstitutional.  See here

The issue has not gone unnoticed.  Two days ago, the New York Times published an editorial critical of the City's position and of the lack of accountability for prosecutorial misconduct in general.  It also suggests that the Justice Department’s office of professional responsibility needs an overhaul.  You can read the article here. It is called "How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?"

Monday, November 29, 2021

Does the duty to know the benefits and risks associated with relevant technology (also known as technology competence) include a duty to watch and be aware of the news?

Long time readers of this blog know that I have posted many stories about the implications of comment [8] to Model Rule 1.1 on Competence.  According to this comment, the duty of competence includes a duty to "keep abreast of" the benefits and risks associated with relevant technology.

So, how does one "keep abreast" or anything?  Well, one way is to read and watch the news.  So, does the duty to know the benefits and risks associated with relevant technology (also known as technology competence) include a duty to watch and be aware of the news?  

My friend Lucian Pera, one of the most respected members of the Center for Professional Responsibility, recently published an article arguing that the answer is "Yes."  You can read the article here.

Thanks to Michael Kennedy for the information and link.

Sunday, November 28, 2021

How not to practice law: Text your client how to answer questions during a deposition, then try to cover it up by claiming incompetence -- UPDATED

November 28, 2021

The Legal Profession Blog recently published a summary of a decision in Florida suspending a lawyer for 91 days for texting a client during a deposition (that was being taken through Zoom).  See here.  Interestingly, the lawyer taking the deposition corroborated the texts when the lawyer who has sent them, sent them to the other lawyer by mistake.... So, add lack of competence regarding technology to the list of examples of misconduct in the case.

Lawyer Ethics Alert Blog has more on the story here.

UPDATE 3/13/22:  Legal Ethics Lawyer published a comment on the case here.

Sunday, November 21, 2021

Complaint filed challenging Connecticut's recently adopted version of Model Rule 8.4(g)

An organization called the New Civil Liberties Alliance recently filed a complaint in Connecticut seeking to enjoin the implementation of the state’s recently adopted version of Model Rule 8.4(g).  The NCLA’s stated mission is to protect constitutional violations by “the Administrative State,” which they describe as an unconstitutional administrative state within our U.S. government.  

As you may recall, a similar complaint was successful in Pennsylvania last year.  In that case, the court declared Pennsylvania’s version of the rule unconstitutional.  After appealing, the state dropped the appeal and amended the rule instead.  See here.

Just like the plaintiff in the Pennsylvania case, the plaintiffs in Connecticut argue that the rule imposes content-based and viewpoint-based discrimination and that the rule is so vague that lawyers are unable to tell what is prohibited and what isn’t.  

The problem with the case in Connecticut is that the text of the rule (and its comment) adopted there is not the same as the one adopted originally in Pennsylvania.  

The comment in Connecticut’s version limits the notion of “discrimination” to harmful speech or physical conduct directed at individuals and that makes an important difference.  The invalidated rule in Pennsylvania was broader and therefore could be interpreted to regulate protected speech.  The Connecticut rule is more focused and it might just survive the attack.  For example, a statement expressing bias toward a protected group in general would have been a violation of the original rule in Pennsylvania but it would not be a violation of the rule in Connecticut.  Although the notion of what is “harmful” is vague, I expect the defendants to argue that it is not much different than the type of language used in the analysis of employment cases in which courts have to determine if the working environment is “hostile.”

Evidently, the case is important and the result can be very influential in the continuing debate over Model Rule 8.4(g).

Monday, November 15, 2021

Podcast on civility in the practice of law

The podcast Reimagining Law dedicated a recent episode to discussing the difference between being a client advocate and overly aggressive, how aggressive behavior impacts legal outcomes and the bottom line, and how the Illinois disciplinary authority is addressing acts of incivility that don’t rise to the level of discipline or an ethical violation.  

Some of the topics covered include:  What is the difference between being a zealous advocate for your clients and being overly aggressive?  How can aggressive behavior impact the bottom line or case outcomes?  Are there issues related to incivility transactional matters for lawyers?  How do clients respond to overly aggressive attorneys?  How do judges respond to such attorneys? What happens when an act or the behavior of an attorney doesn’t quite reach the level of an ethical violation?   You can watch the episode below by clicking the "play button" or you can go to YouTube here.

Sunday, November 14, 2021

NY City reacts against law professors who filed complaints against prosecutors; law professors respond by filing lawsuit

Last May I wrote about a new organization in New York called "Accountability New York" created by lawyers and law professors to pursue complaints against prosecutors for misconduct. The organization started its work by filing 21 complaints to New York’s court-appointed grievance committees tasked with investigating attorney wrongdoing.  Go here to read that original post. 

You would think that having a group of lawyers seeking accountability prosecutorial misconduct would be a good thing; but not everyone agrees.  

When the law professors of Accountability New York filed the grievances against the prosecutors they published everything online.  But, because in New York disciplinary issues are supposed to be secret until (and if) until discipline is recommended, as reported by the New York Times, “the blowback from New York City was swift.”

In a letter sent directly to the grievance committee responsible for disciplining lawyers, a lawyer for the city accused the professors of politicizing the process and of violating the law by making the grievances public.

Accountability New York responded, though, and earlier this month, they filed a lawsuit in federal court in Manhattan in which they argue that the city’s pushback against the professors included the threat of further action if they continued to file grievances.  The lawsuit seeks declaratory and injunctive relief.  Here is a copy of the complaint.

The New York Times’ article quotes a spokesman for the city’s law department who claims that while prosecutors who committed misconduct should be held accountable, the professors’ attempted use of the grievance process was contrary to the law.  

The lawsuit asks the court to declare unconstitutional the law that forces disciplinary proceedings to be secret as a violation of the First Amendment.  The suit claims that the law is unconstitutional on its face and as applied to the law professors, whose complaints relied on allegations in judicial decisions and the public record.

The ABA Journal has more on the story here.  The Queens Daily Eagle also has more here.

Sunday, November 7, 2021

Reinventing Witness Preparation

Litigation Radio has a posted a podcast on witness preparation (sponsored by the ABA section on litigation).  You can listen to the program by clicking on the play button below or by going here.  Here is the description of the program: "Many trial lawyers believe that the less their client says to opposing counsel the better… but is that really true? Kenneth Berman, author of ‘Reinventing Witness Preparation’, joins Dave for a deep dive conversation on how you and your client can take control the narrative even during a line of deceptive questioning. Teaching your client how to answer clearly and completely can be the salvation of your case. Tune in to hear all about it."

Thursday, October 28, 2021

Florida Supreme Court finds that company that provided help with traffic tickets engaged in unauthorized practice of law -- UPDATED

October 17, 2021 (Updates at the end)

Back in 2018, I wrote about a couple of complaints filed in Florida that I argued could challenge the very notion of professional regulation.  In one of them a law firm argued that a technology company was practicing law, while in the other the company challenged the notion of the regulation of the profession under antitrust laws. This second lawsuit (the anti-trust lawsuit) was dismissed, but the Florida Supreme Court just decided the first case.  My original post about this topic is here, and I wrote an update here.

In my original post I explained that "TIKD is a company that promises consumers to take care of their traffic tickets (with a money back guarantee).  The consumer pays a fee to the company and the company takes care of everything, including hiring a lawyer to represent the consumer.   Based on this business model, a law firm in Florida filed a complaint with the Florida Bar alleging that TIKD was practicing law without a license."

At some point between then and now, the company went out of business apparently, but the case continued and in a 4 to 3 opinion issued on October 14, the Florida Supreme Court found that the company did engage in the unauthorized practice of law.  You can read the full opinion here.  The Legal Profession Blog has a good summary here.  Faughnan on Ethics has a comment here.

The court provided a number of reasons to support its conclusion, but, to me, this is the more interesting one:  "an inherent conflict and corresponding risk to the public arises whenever a nonlawyer like TIKD controls and derives its income from the provision of legal services. Like any other business entity, TIKD is motivated by a desire to maintain and increase profitability. When coupled with the provision of legal services to the public, there is a risk that such motives will eventually give rise to a conflict between the profit demands of the nonlawyer and the professional obligations of attorneys to act in the interests of a client. . . .  TIKD is not subject to the Bar’s jurisdiction and, other than Bar discipline proceedings against individual attorneys, there is no means by which to protect the public or guard against such conflicts."

As you can see, this is the "traditional" argument in favor of banning lawyers from forming partnerships with non-lawyers for the provision of legal services.  It is also the argument used against adopting new regulatory schemes such as the ones recently adopted in Utah and Arizona.  A company like the one at issue here probably would be allowed to provide legal services as an alternative business structure in those jurisdictions today.  (This is why I said back in 2018 that the issues raised by the case in Florida went to the core of the regulation of the practice of law.)

But, evidently, a slim majority of the Florida Supreme Court justices are not ready for such regulatory changes and imposed a permanent injunction.

In contrast, Justice Couriel offered a different view in dissent, arguing in part that TIKD did not practice law because it did not provide any legal services to the consumer.  It merely provided a "portal" through which consumers could get (and pay for) legal services provided by Florida lawyers.  

I understand this argument and it makes sense, but it does not quite address the issue of whether the connection between the lawyers and TIKD somehow created a relationship which allowed a non-lawyer to participate with the lawyer in the provision of legal services.  

In the end, I think the question is more complicated than what the dissenters make it sound because of the limiting regulatory scheme within which lawyers in Florida are allowed to practice.  

The question to address is not really whether this case is correctly decided -- it may very well be given the rules that apply now.  The question is whether those rules should be changed.  And the answer to THAT question is playing out in Arizona and Utah.  

UPDATE 10/27/21:  Lawyer Ethics Alert Blog has a comment here.

UPDATE 10/28/21:  The Legal Ethics Advisor Blog has a comment on the decision here.

Sunday, October 17, 2021

New Jersey finds that practicing law remotely is not unauthorized practice of law

New Jersey’s Committee on the Unauthorized Practice of Law joined with the Advisory Committee on Professional Ethics to issue Joint Opinion 59/742 which holds that lawyers who work remotely from a state in which they are not admitted do not necessarily engage in the unauthorized practice of law.  You can read the opinion here, and comments on it here and here.

Sunday, October 10, 2021

ABA issues new formal opinion on the duty of communication with a client when the attorney and client have difficulties understanding each other -- UPDATED

 The ABA Standing Committee on Ethics and Professional Responsibility recently issued a new Formal Opinion (No. 500, October 6, 2021) on an attorney’s duty to communicate with a client when the lawyer and client have difficulty understanding each other.  The summary of the opinion reads as follows:

Communication between a lawyer and a client is necessary for the client to participate effectively in the representation and is a fundamental component of nearly every client-lawyer relationship. When a client’s ability to receive information from or convey information to a lawyer is impeded because the lawyer and the client do not share a common language, or owing to a client’s noncognitive physical condition, such as a hearing, speech, or vision disability, the duties of communication under Model Rule 1.4 and competence under Model Rule 1.1 are undiminished.  In that situation, a lawyer may be obligated to take measures appropriate to the client’s circumstances to ensure that those duties are capably discharged. When reasonably necessary, a lawyer should arrange for communications to take place through an impartial interpreter or translator capable of comprehending and accurately explaining the legal concepts involved, and who will assent to and abide by the lawyer’s duty of confidentiality. The lawyer also should use other assistive or language-translation technologies, when necessary. In addition, particularly when there are language considerations affecting the reciprocal exchange of information, a lawyer must ensure that the client understands the legal significance of translated or interpreted communications and that the lawyer understands the client’s communications, bearing in mind potential differences in cultural and social assumptions that might impact meaning.

You can read the full opinion here.   

Ethical Grounds has a comment on the opinion here.  The ABA Journal has a story here.

UPDATE 10/30/21:  The Legal Ethics Advisor has a comment on the opinion here.

Should Louisiana adopt MR 8.4(g)?

 The Louisiana Legal Ethics blogs recently posted a comment on Model Rule 8.4(g) and on whether Louisiana should adopt it.  It concludes:

In my view, Louisiana either should do nothing at all (like what the committee did), or adopt a simpler anti-discrimination standard that is directly tethered to anti-discrimination laws applicable to Louisiana lawyers. Such anti-discrimination laws would include those enacted by the federal government, the State of Louisiana, and local governments. Doing so would avoid the need for the LSBA to “keep up” with changing notions of what personal characteristics are worthy of class protection. Doing so would also avoid imposing discipline on innocent and merely negligent lawyers. Here is my proposed language:

It is professional misconduct for a lawyer to: . . . (h) engage in conduct in connection with the practice of law that the lawyer knows is unlawful discrimination prohibited by federal, state, or local law. This Rule does not prohibit legitimate advocacy when a protected personal characteristic is relevant to the representation, nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

You can read the full comment here

Monday, September 27, 2021

Pandemic-Related Legal Ethics Opinions: A Compendium

LawSites has a short list of recent ethics opinions generated because of the pandemic and the fact that so many lawyers are practicing law remotely.  Go here for the story.  It mentions (and provides links to) opinions from Florida, New York, the District of Columbia, Pennsylvania, Wisconsin and the ABA.  

In addition the San Francisco Bar Association has issued Ethics Opinion 2021-1 on working remotely.  See here also.

Sunday, September 26, 2021

How not to practice law: alter the dates on emails

It has been a while since I added an entry to our running "how not to practice law" department, so here I am today with an easy one.

Do you want to make sure you get in trouble? Go ahead and alter the dates on emails to make it look like you did something when you were supposed to (but didn't), or for any other reason for that matter...  This is dishonest, but it is also stupid since the, obviously, the other people in the email sender or recipient list will have a copy and can prove the scam.  Dumb!  

So here is the story:  Attorney Altered The Date Of Emails To Make It Look Like He Was ‘Keep[ing] Up With Work,’ Gets Booted From Profession .

Saturday, September 18, 2021

Data regarding regulatory changes in Utah shows promise according to new report

As I am sure you know, last year Utah and Arizona adopted significant changes to their approach to the regulation of the practice of law.  Chief among these changes was the elimination of the ban on partnerships of lawyers and non-lawyers for the provision of legal services.  The debate over measures like this one and over allowing "alternative business structures" for providing legal services has been going on for years, and much of the debate was based on data obtained by studying similar programs in the UK and Australia.

Now, about a year into the new era of regulation in Utah and Arizona, it is time to start looking at the date from the US.  The Institute for the Advancement of the American Legal System (IAALS) is leading the way and in its initial report regarding Utah it says that numerous businesses and collaborations are up and running, providing a wide range of much-needed legal services.  Of the 30 entities that have been approved by the Utah Supreme Court, 13 are considered as moderate risk, and one as high risk (considering both the likelihood of harm—as well as the degree of harm—that they might pose to consumers), but the IAALS considers the overall data so far to be very positive.

According to the recent report, "Utah’s sandbox has opened up a world of possibilities when it comes to how to practice law, and demonstrates how innovation, technology, and professionals who aren’t lawyers can work alongside attorneys and ensure consumers have real access to the entire spectrum of legal needs" and the report concludes that 

We still have a long way to go and a lot of data to collect, but what we’ve seen so far does suggest that re-regulation has the potential to meaningfully increase access to justice and, importantly, the data shows that these kinds of innovations can be done safely. In just nine months, more than 2,500 people have received help with housing, immigration, healthcare, discrimination, employment, and a gamut of other issues. Lawyers are partnering up with other professionals to create new types of businesses, and technology is enabling them to do their jobs more efficiently. Instances of harm are rare—and, when they do occur, are being monitored and utilized by the Office of Legal Services Innovation to continually improve. As more states look to re-regulation as a means to increase access to legal services, the data from Utah’s sandbox—and the real people’s lives it is impacting—should be a strong push in that direction.

You can read more about the IAALS evaluation in their website

Friday, September 10, 2021

ABA issues new opinion on lawyers passive investment in law firms that include non-lawyer owners -- UPDATED

The ABA's Standing Committee on Professional Responsibility and Ethics recently issued a new Ethics Opinion on whether lawyers may invest in law firms with non-lawyer owners. The opinion's summary reads as follows:  

A lawyer may passively invest in a law firm that includes nonlawyer owners (“Alternative Business Structures” or “ABS”) operating in a jurisdiction that permits ABS entities, even if the lawyer is admitted to practice law in a jurisdiction that does not authorize nonlawyer ownership of law firms. To avoid transgressing Model Rule 5.4 or other Model Rules and to avoid imputation of conflicts under Model Rule 1.10, a passively investing lawyer must not practice law through the ABS or be held out as a lawyer associated with the ABS and cannot have access to information protected by Model Rule 1.6 without the ABS client’s informed consent or compliance with an applicable exception to Rule 1.6 adopted by the ABS jurisdiction. The fact that a conflict might arise in the future between the investing lawyer’s practice and the ABS’s work for its clients does not mean that the lawyer cannot make a passive investment in the ABS. If, however, at the time of the investment the lawyer’s investment would create a personal interest conflict under Model Rule1.7(a)(2), the lawyer must refrain from the investment or appropriately address the conflict under Model Rule 1.7(b).

You can read the full opinion (Formal Opinion 499) here

You can read more about the opinion in LawSites and the ABA Journal.

UPDATE 9-19-21:  

Faughnan on Ethics has a comment here.

The San Diego County Bar Association has a comment here.

UPDATE 10/10/21

Legal Ethics Advisor has a comment here.

Wednesday, September 8, 2021

Recently exonerated man sues prosecutor

 A recently exonerated man who spent 23 years in prison has filed a complaint against a longtime Mississippi district attorney alleging various violations of the U.S. and Mississippi state constitutions.  The plaintiff was tried six times for the 1996 murders of four people.  The defendant prosecuted all six trials, none of which resulted in a legally valid conviction.  Four of those murder trials resulted in convictions and death sentences but all convictions were vacated due to prosecutorial misconduct.  One of the opinions reversing one of those convictions was written by now Supreme Court Justice Brett Kavanaugh who wrote that “The state’s relentless, determined effort to rid the jury of black individuals strongly suggests that the state wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” 

The background story is very compelling but the case will be an uphill battle.  I expect that the prosecutor will argue qualified immunity and will cite Supreme Court precedent which makes it very difficult if not almost impossible for exonerated plaintiffs to win claims against former prosecutors.  For this reason, cases like this often settle out of court, which provides some level of compensation.

For more information on the case go to Law&Crime, NPR, and Courthouse News Service.

Tuesday, September 7, 2021

More coverage on sanctions on Sydney Powell and other lawyers in Michigan

 I recently reported on the sanctions imposed on the lawyers for the Trump campaign in Michigan (more recently here; but for all the coverage on Trump's lawyers go here and scroll down.)

Today I am just here to give you a couple of links to some analysis on the sanctions imposed in the case originally filed in Michigan. The first one is at Tech Dirt and then there is more at ethicking.com.

Monday, September 6, 2021

More Trump lawyers sanctioned

I have been following the reports on sanctions imposed on lawyers for the Trump campaign recently (go here and scroll down for those stories), and today I am reporting on sanctions imposed on lawyers who filed a case in Colorado.

The sanctions order describes the case: "The original Complaint purported to be a class action lawsuit on behalf of all American registered voters, alleging a vast conspiracy between four governors, secretaries of state, and various election officials of Michigan, Wisconsin, Pennsylvania and Georgia; along with Dominion, a private supplier of election and voting technology; the social media company Facebook; CTCL, a non-profit organization dedicated to making elections more secure and inclusive; as well as Facebook founder Mark Zuckerberg and his wife Priscilla Chan."

Well, to make a long story short, you know where this is heading...  A federal court recently decided to impose sanctions holding that "[i]t should have been as obvious to Plaintiffs’ counsel as it would be to a first-year civil procedure student that there was no legal or factual basis to assert personal jurisdiction in Colorado for actions taken by sister states’ governors, secretaries of state, or other election officials, in those officials’ home states." and that "[f]iling a lawsuit against an out-of-state defendant with no plausible good faith justification for the assertion of personal jurisdiction or venue is sanctionable conduct."

The judge also comments on the affidavits filed "in support" of the complaint and about the conduct of the lawyers involved.  About the affidavits, the judge states:   "Despite the numerous additional plaintiffs and the addition of RICO conspiracy claims, nothing about the proposed Amended Complaint addressed one critical deficiency emphasized in all Defendants’ dismissal motions: Plaintiffs’ lack of standing to bring suit under Article III of the Constitution. Also absent from the proposed Amended Complaint was any effort to address the conspicuous personal jurisdictional problems raised by suing, in federal court in Colorado, state government officials from Pennsylvania, Wisconsin, Georgia, and Michigan, for acts taken in connection with their official duties in those respective states."

So, the judge imposes sanctions based on the lawyers' "woeful lack of investigation into the law and (under the circumstances) the facts"  which the judge called  "recklessness."

You can read the full order here to get the full story, including the specific things the judge says the lawyers should have done before filing the complaint, including hiring an expert or three to assess and verify the truth of the information contained in the materials from other lawsuits which were copied into the Complaint, rather than copying inflammatory and damaging allegations from failed lawsuits and media reports.

For more information and a copy of the order you can go to TechDirt.  

Sunday, September 5, 2021

Texas state bar faces new challenge over membership requirement to state bar association

The ABA Journal is reporting that the State Bar of Texas is facing a new lawsuit claiming that it has continued to require lawyers to join and pay dues, despite a recent federal appeals court ruling finding that the practice violated their First Amendment rights.  You can read the ABA Journal article here.  You can read the complaint here.  In it, the plaintiffs allege that the State Bar Association has ignored a ruling of the Court of Appeals for the 5th Circuit.  I wrote about that ruling here and the ABA has a story on it here.

Tennessee adopts rules amending rules on attorney advertising

Just a few days ago, the Tennessee Supreme Court adopted proposed revisions to the lawyer advertising rules. You can read all about the amendments here.

Arizona rejects requirement for diversity and inclusion CLE

 On August 30, the Arizona Supreme Court rejected a petition that proposed to require Arizona licensed attorneys, who are not otherwise exempt, to dedicate one hour of continuing legal education (“CLE”) to training on diversity and inclusion, as part of the current requirement that attorneys receive three hours of education in professional responsibility each year. 

The Court rejected the petition stating that ...

The Court supports legal education addressing diversity and inclusion issues, just as it supports education concerning other important topics, such as mental health, sex trafficking, and victim’s rights. But it has historically refrained from setting a curriculum for attorneys to achieve their educational goals, believing it preferable for them to do so. The Court continues to take this approach.  

Mandatory Continuing Legal Education Regulation 101(L) provides that “Professional Responsibility (Ethics) Hours” maybe satisfied by attending programs that “address diversity and inclusion in the legal system of all persons regardless of race, ethnicity, religion, national origin, gender, sexual orientation, gender identity, or disabilities, as well as, the elimination of bias.” Such content has been, and continues to be, available. The Court invites State Bar members to take advantage of these educational opportunities.


Tuesday, August 31, 2021

Lucian Pera for President -- UPDATED

 A few days ago I provided a link to an article in which Lucian Pera, who is running for President of the ABA, explains his vision for the ABA. See here.  Since then, he has posted several more short articles.  You can access them here.

Monday, August 30, 2021

Ohio amends rules to allow out of state lawyers to practice remotely in Ohio

 The Legal Profession Blog is reporting that the Ohio Supreme Court has adopted an amendment that will allow a lawyer admitted to practice in another state to provide legal services remotely from Ohio.  This is a big deal and appears to be a trend among jurisdictions which are finally recognizing the reality that given advances in technology, lawyers can easily work remotely from anywhere.

The amendment will go into effect Sept. 1.  You can read a copy of the "redline" version of the rule here.

According to the new rule, a lawyer admitted and in good standing in any United States jurisdiction may practice the law of that jurisdiction while working remotely in Ohio as long as the lawyer is providing services that the lawyer is providing services that are authorized by the lawyer’s licensing jurisdiction and provided the lawyer does not (1) solicit accept clients for representation within Ohio, (2) appear before Ohio tribunals, except as otherwise authorized by rule or law; (3) state, imply, or hold himself or herself out as an Ohio lawyer or as being admitted to practice law in Ohio; or (4) share fees with non-lawyers for the provision of legal services (ie, violate rule 5.4) or (5) violate the provisions of Rules 7.1, and 7.5.

Sunday, August 29, 2021

More coverage on the opinion imposing sanctions on lawyers' for the Trump campaign in Michigan

 As I reported a few days ago, a judge in Michigan issued an order imposing sanctions on nine lawyers for filing a frivolous lawsuit for an improper motive in violation of Rule 11 of the Federal Rules of Civil Procedure, Rules of Conduct and other statutes.  See here. As you can imagine, the story has received quite a bit of coverage.  Here are just three links to some of the stories:  Law & Crime, Above the Law, Courthouse News Service.  And here is the 6 minute report from the Rachel Maddow Show:

Comments on recent developments in the regulation of the profession

 As I am sure you know, one of the (if not the) hottest topics in Professional Responsibility today is the development of new approaches to regulation of the profession, including the significant changes approved in Utah and Arizona.  The topic continues to be debated and here are two good sources of information.

In a short article published by the solo practitioners division of the ABA, the authors argue that Model Rule 5.4 is unnecessary because it causes more harm than it provides benefits to the profession and the public.  

The article is one of several published in the magazine on subjects related to regulation reform, and Law Sites hosted a podcast in which five of the articles published in the magazine discuss their articles and ideas.  You can listen to the podcast here or click on the play button below.  The panelists discuss, among other things, Model Rule 5.4, whether lawyers should be allowed to share fees and partner with non-lawyers, the regulatory changes in Utah and Arizona, and the now abandoned Legal Technicians program in Washington state.

Thursday, August 26, 2021

Breaking News: Michigan judge imposes sanctions on nine attorneys for the Trump campaign

Back in July and earlier this month I reported that a Michigan judge held a hearing on whether to impose sanctions on the lawyers who represented Trump's campaign in a lawsuit challenging the results of the presidential election.  See here

Earlier tonight, the judge issued her opinion and in it she imposes sanctions on Sidney Powell, Lin Wood and seven other pro-Trump lawyers.  The opinion is 110 pages long and everyone seems to agree that it is "scathing."  You can read it here.  

In the end, the judge holds that the lawyers engaged in misconduct for filing a lawsuit for an improper motive and imposes sanctions under Rule 11 of Civil Procedure, 28 U.S.C. § 1927 and as justified by the inherent power of the court.  Here is the beginning of the opinion (excluding footnotes):

... America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.

Specifically, attorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.

This matter comes before the Court upon allegations that Plaintiffs’ counsel did none of these things. To be clear, . . . the question before the Court is whether Plaintiffs’ attorneys engaged in litigation practices that are abusive and, in turn, sanctionable. The short answer is yes.

The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required pre-filing inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.

And this case was never about fraud – it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.

While there are many arenas – including print, television, and social media—where protestations, conjecture, and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney’s freedom of speech is circumscribed upon “entering” the courtroom.

Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not. And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way. As such, the Court is duty-bound to grant the motions for sanctions filed by Defendants and Intervenor-Defendants and is imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its own inherent authority.

The sanctions included the payment of a reasonable amount for attorneys fees and costs, mandatory continuing legal education in the subjects of pleading standards and election law, and a referral for investigation and possible suspension or disbarment to the appropriate disciplinary authority for every state bar and federal court in which each attorney is admitted.  

For commentary, take a look at NPR, Politico, and Faughnan on Ethics.

UPDATE (August 29):  More coverage here.

Sunday, August 22, 2021

Legal Zoom seeks alternative business structure license in Arizona

 As I am sure you know by now, last year Arizona and Utah became the first jurisdictions in the US to allow lawyers to partner with non-lawyers to form alternative business structures to provide legal services.  This is a significant change in the way the legal market functions but it is still too early to tell what all the consequences (positive and negative) of it are.  For more on the changes in Arizona go here and scroll down for lots of stories, links, podcasts and comments.

As I am sure you also know, this type of regulatory shift has been part of a debate for a long time and needless to say, the changes adopted in Arizona and Utah have been somewhat controversial.  As stated in an article in the ABA Journal, "[t]raditionalists and unauthorized practice of law regulators in the U.S. have long feared the possibility of a legal technology company like LegalZoom becoming a publicly traded law firm-like entity with its own attorneys serving clients. They have argued that such a business setup would result in the company’s economic interests being put before the best interests of its clients."

Actually, the old debate was always about whether "department stores" like Sears or Walmart should be allowed to offer legal services (like they offer optical services departments), but that is another story.

The news today is that, to no one's surprise, LegalZoom is seeking to be admitted to the practice of law so to speak in Arizona. And if permitted, which I would expect will happen, it may finally provide some empirical evidence on whether the "traditionalists'" worries are legitimate.

In case you did not know, and unlike what it appears to do from its commercials, LegalZoom does not provide legal services.  It is not allowed because it is not a law firm, and does not employ lawyers.  What it does is it provides a platform to connect people seeking legal representation with lawyers who are available to provide that representation.  In essence, it is a matchmaking service and makes its profit from collecting fees from those who use it.  Importantly, it does not have control over the quality of the lawyers or the services they provide.

The reason LegalZoom can't provide legal services is the generally accepted notion (reflected in Model Rule 5.4) that lawyers can't partner with non-lawyers to provide legal services.  Now that this rule has been abandoned in Arizona, companies like LegalZoom (or Walmart, for that matter) are free to hire attorneys to provide legal services as long as they meet the requirements set up by the new rules in those states.  And that is what LegalZoom is seeking to do in Arizona.  They want to become a registered legal services provider even though the company is not a law firm and it is owned and funded by non-lawyers.

The ABA Journal has a good short article on the issue here.

Thursday, August 12, 2021

Lucian Pera for President

My friend Lucian Pera, one of the most well known and respected members of the ABA Center for Professional Responsibility, is running for President of the ABA.  The individual members of the ABA don't have a vote in the election which is limited to 69 members of the ABA’s Nominating Committee. However, you may be interested to know what the candidates stand for and why they are interested in the position.  Also, maybe some of you are voters, or maybe some of you out there know some of the voters.  So, in case you are interested, here is a link to a short article in which Lucian talks about his views for the future of the ABA. 

Wednesday, August 11, 2021

California Lawyers Association Ethics Committee Provides Guidance on the Elements of Effective Ethical Screens

Hinshaw has a report on the California Lawyers Association Ethics Committee Formal Opinion 2021-1, which identified the "Elements of Effective Ethical Screens" that comply with the California Rules of Professional Conduct ("California Rules"). The Committee identified six mandatory elements of effective screens, along with several non-mandatory factors. The Committee noted that its opinion applies to circumstances where the ethical screen is implemented without client consent. Ethical screens implemented with client consent are governed by independent agreement rather than the California Rules. Go here to read the opinion or Go here for a summary of the opinion.

Tuesday, August 10, 2021

Florida Supreme Court imposes sanctions for use of pitbull imagery in advertising

Back in March I commented on a pending case in Florida in which the state requested the Supreme Court to impose sanctions on an attorney for describing himself as a pit bull lawyer and using an image of a pit bull on a blog, a Facebook page, on business cards and on the door to his office.  As I said back then, I find the use of the word and imagery tacky but the attempt by the state to impose sanctions is contrary to First Amendment principles and, as I said back then, complete nonsense.  You can read my my comment here.

I am writing about this again today because I just heard that the Court decided the case against the lawyer and imposed a reprimand, which, as you can imagine what I said in the previous paragraph, is wrong. The ABA Journal has the story here, which includes links to the complaint and other documents.

Unless the constitutional standards to determine how the state can justify regulating commercial speech have changed while I wasn't paying attention, the Court's decision can't be justified.  Unfortunately, it is also not surprising.  Remember this is the same court that decided Florida Bar v. Went for it, later affirmed by the US Supreme Court in one of the worst opinions in First Amendment jurisprudence ever. 

In the end, the position of the state of Florida is that it can ban the speech because someone may find it offensive.  But if we know one thing about the First Amendment, it is that it is there precisely to prevent  the state punishing speech because someone finds it offensive.  

Monday, August 9, 2021

US Magistrate for District of Colorado imposes sanctions on lawyers who challenged the presidential election results in a lawsuit based on "enormous conspiracy theory"

While we await the result of the debate over whether to impose sanctions on the lawyers involved in an election challenge case in Michigan by the "Kraken team" of lawyers for the Trump campaign (see here), the ABA Journal and Politico are reporting that a federal magistrate judge in Colorado has imposed sanctions on lawyers who challenged 2020 election methods (rather than the result) in an order that criticized their “woeful lack of investigation” into the law and the facts and which characterized the claims as "one enormous conspiracy theory.”  You can read the court's order here.

The opinion states that although the lawsuit did not aim to challenge or reverse the election results, “the effect of the allegations and relief sought would be to sow doubt over the legitimacy of the Biden presidency and the mechanisms of American democracy (the actual systems of voting) in numerous states.” The magistrate judge said that the filing was in bad faith, and that “no reasonable attorney” would have believed the plaintiffs had standing to bring the suit.

The sanctions seemed mild to me since the judge simply ordered the lawyers who filed the lawsuit to pay attorney fees to cover the cost of their opponents’ motions to dismiss the lawsuit and to oppose an amended complaint.  Go here for the ABA Journal story.  Go here for Politico.

Sunday, August 8, 2021

Michigan judge holds hearing on whether to impose sanctions on Trump's lawyers - UPDATED

July 13, 2021

In case you don't remember, a number of attorneys for the Trump campaign filed a lawsuit in Michigan challenging the results of the election.  The case later came to be known as the "Kraken lawsuit" because attorney Sydney Powell promised to "release the Kraken."  

Well, the Kraken never made an appearance, and the complaint was not supported with any real evidence.  In response, the city of Detroit and state of Michigan requested sanctions, including fines and referral for disbarment for Trumps' lawyers.

The hearing to discuss possible sanctions was held today and it did not go well, apparently.  As reported by Above the Law, "[d]uring a six-hour slugfest sanctions hearing in the Michigan “Kraken” case, the [court's] team worked to corral a dozen screaming, interrupting, crying, filibustering lawyers. It was worse than herding cats — at least cats are cute."

You can read the full account at Above the Law.  Others with coverage include Courthouse News Service, Law & Crime, and Politico.

In a separate story Law & Crime is also reporting that one of Trump's lawyers violated a court order immediately after the hearing ended.  

UPDATE August 8, 2021

Law & Crime is reporting that "[i]n a blistering final salvo in their request for sanctions, the city of Detroit held back nothing against pro-Trump conspiracy theorist lawyers Sidney Powell, Lin Wood and more than a half dozen other attorneys behind the so-called “Kraken” litigation in Michigan."  Read the report here.  

Above the Law also has a detailed comment on the latest developments after the hearing on sanctions here.  

Tuesday, August 3, 2021

NY and Georgia issue opinions on advising clients in the marijuana industry which reach opposite conclusions - UPDATED

Ethics authorities in New York and Georgia recently issued opinions on whether lawyers can advise clients on matters related to both recreational and medical marijuana that reach opposite views.  The problem relates to the fact that marijuana use is now legal in many states while it remains illegal under federal law.

The New York opinion, issued on July 8, 2021, states that attorneys are free to provide advice for clients in the medical cannabis industry, while the Supreme Court of Georgia took the exact opposite position in an order issued on June 21, 2021.

The Law for Lawyers Today has a comment here.

Update 8/11/21:  Legal Ethics Advisor has a comment here.

Sunday, August 1, 2021

Bar complaint filed against Texas AG Ken Paxton

 As you know by now, Rudy Giuliani's law license was suspended in New York and Washington DC as a result of his involvement in the frivolous lawsuits seeking to overturn the election.  See here and here .

Now comes news that a complaint similar to the one filed against Giuliani in New York has been filed against Ken Paxton in Texas.  Paxton, who is under indictment for securities fraud and also facing allegations from his own staff that he took bribes and abused his office, filed a lawsuit in the Supreme Court of the United States seeking to invalidate the electoral votes in Pennsylvania, Michigan, Georgia, and Wisconsin.  The Supreme Court dismissed the suit almost immediately for lack of standing.

The complaint against Paxton, filed by 31 legal professionals including several past presidents of the Texas state bar, alleges that Paxton violated the Texas Disciplinary Rules of Professional Conduct by filing a frivolous suit, making false statements of fact and law to a tribunal, engaging in deceitful conduct, and failing to uphold the Constitution.

Above the Law has more information here.

Wednesday, July 28, 2021

Discipline for replying to online reviews improperly

One topic that has received a lot of attention this year is the question of how to reply to negative online reviews.  

Earlier this year, the ABA issued an ethics opinion concluding, among other things, that lawyers should not disclose confidential information when replying to negative online reviews. See here. Some time later, a Committee in Florida proposed to amend confidentiality rule to allow disclosure to reply to online criticism.  See here.

I am writing today about this because earlier this month, the Oregon Supreme Court reprimanded an attorney for violating the duty of confidentiality in response to negative online reviews.  The case has attracted some attention around the internet and you can read commentary on it in Lex BlogThe Legal Profession Blog, The Chicago Legal Malpractice Lawyer Blog, The ABA Journal, and the Lawyers Ethics Alert Blog.

Tuesday, July 27, 2021

Pennsylvania announces amendments to rule 8.4(g) which had been declared unconstitutional last year

 As you probably remember, back in December, a federal district court declared unconstitutional Pennsylvania's version of ABA Model Rule 8.4(g) holding that it violated the First Amendment.  I wrote about the decision here and here.  

After appealing the decision, the Pennsylvania Bar voluntarily dismissed the appeal thus giving up the fight over the adopted version of the rule.  Instead, The Disciplinary Board of the Supreme Court of Pennsylvania set to work on finding a way to amend the rule in order to meet Constitutional scrutiny.  

Today, the Pennsylvania Supreme Court published the recommended changes, which will take effect on August 25.

The amended rule removes “by words” and “knowingly manifest bias or prejudice, or engage in,” provisions that were challenged in the suit. Several comments also were added defining harassment and discrimination. 

You can read the new version of the rule here.

How not to practice law: tell the judge "F@*! you"

 Do I really need to tell you this?  Really?   

I guess I do because a Missouri medical malpractice attorney has been ordered to spend a week in jail in a contempt order issued last week.

Above the law and the ABA Journal have the story.

Monday, July 26, 2021

Sixth Circuit rejects a challenge to Michigan's mandatory membership requirement

 Five days after I reported that the Court of Appeals for the Fifth Circuit held that the mandatory bar system used in Texas was unconstitutional, the US Court of Appeals for the Sixth Circuit rejected a challenge to the mandatory membership requirements imposed by the State Bar of Michigan. 

Jurist has the details here.

Sunday, July 25, 2021

Florida Committee files final report recommending regulatory changes, including non-lawyer ownership of firms and legal technicians -- UPDATED

On June 28, the Special Committee to Improve the Delivery of Legal Services submitted its final report to the Florida Supreme Court, recommending that Florida adopt a new regulatory approach that would adopt the two most common new approaches to regulation seen in other states.

Among other things, the report recommends amending Florida’s Rule 5.4 to allow nonlawyers to have a non-controlling equity interest in Florida law firms, with restrictions.  It also recommends the approval of a program to allow qualified registered paralegals to assist clients in preparing and filing legal forms, provide information to clients regarding their legal matters, and provide ministerial assistance in court proceedings. All services in the program would have to be provided within a law office and are limited to specific areas of law (those in which litigants are often self-represented and access is limited).

You can read the report here, and some commentary on it here.

UPDATE 8/22/21:  The Institute for the Advancement of the American Legal System (IAALS) has a short comment here.

Monday, July 12, 2021

Court of Appeals for the Fifth Circuit finds that mandatory bar system used in Texas is unconstitutional

Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional.  For my posts on this topic go here.

Today I am writing to report that the Court of Appeals for the Fifth Circuit recently invalidated the mandatory bar system used in Texas finding that because the State Bar of Texas engages in political activities that fall outside the scope of the interests of all its members, it cannot force attorneys to join it and pay mandatory dues.  But the court also provides some options to remedy the problem.  As the court explains:

In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in nongermane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.

The case is called Mcdonald v.  Longley and you can read the opinion here.  

Courthouse News Service has more information here.  The Louisiana Legal Ethics Blog has commentary and a link to the opinion here.

Sunday, July 11, 2021

Rudy Giuliani gets suspended in Washington DC

 About two weeks ago I reported that Rudy Giuliani's license to practice law was suspended by a court in New York.  One question that suspension raised, of course, was whether other jurisdictions in which he was licensed would suspend him "reciprocally" also.  Now we have the answer.

Last week a District of Columbia court suspended Giuliani from practicing law in the nation’s capital.  Because the suspension was just an order based on the fact that he was suspended already in another jurisdiction, the order was very short.  It essentially simply said that the D.C. court system had received a “certified copy” of New York’s decision to suspend Giuliani’s law license which triggered D.C. Bar Rule XI, § 11(d) related to “reciprocal discipline.”   Law & Crime has a good explanation here.  

For more coverage and commentary go to Above the Law, NPR, and Politico.

In addition, here is a short podcast discussing Giuliani's suspension and his possible future in the practice of law.  You can listen to it below by clicking on the play button or by going here.

Monday, July 5, 2021

Oregon's Board of Bar Examiners suggests supervised practice or law school experiential learning programs as bar exam alternatives for attorney licensure

The ABA Journal is reporting that the Oregon State Bar Board of Bar Examiners has adopted a task force report suggesting supervised practice or law school experiential-learning programs as bar exam alternatives for attorney licensure. The Oregon Supreme Court is now considering the recommendations in the report.

You can read the full report here.  

The report does not propose eliminating the use of a bar exam.  Candidates can still take the bar exam and use the results to gain admission, but the proposal now adds two alternative ways for admission.  For candidates who go to law school in Oregon, there is a law school experiential pathway, and for candidates who come from out of state, there is a supervised practice pathway. 

The ABA Journal has more details here.

Tuesday, June 29, 2021

Last Reminder: if you currently get this blog's updates by e-mail, you need to change "carrier"; here's how to do it

Hopefully, by now you don't need this last reminder, but just in case...

In case you have missed the previous posts on this, you should know that Google has announced changes that will affect your ability to get updates by e-mail after July 1 (in two days). So if you currently get your blog stories by e-mail, this message is for you.  

I already posted about this a few days ago and what follows is essentially the same message, including information on how to sign up for updates by e-mail from different websites.  If you already signed up with one of the new services, whatever services you picked should be working already and you do not have read any further.  

So, the bad news is that Google will terminate the system they use now to send updates by e-mail.  The good news is that there are other options you can use to re-subscribe so you don't miss the blog's content.  

Please take a minute to select a new e-mail delivery service so you don't risk missing content.  It really takes only a few minutes.  I explain how to do it in detail below.  Feel free to contact me by e-mail if you need more information.

As you know, there are two main ways in which readers can get updates when I post new stories.  One is to add the blog to a “news aggregator” such as “Feedly” which is the one I use myself to collect the stories from all the blogs I follow.  The changes announced by Google will NOT affect the use of an aggregator.

The other way to keep up with the new stories is to subscribe by email and that is the system Google is going to eliminate in two days.

So, if you want to continue receiving your updates by e-mail, you will need to sign up using a different service, and below I will describe two options in detail.  

The first option is Blogtrottr.  This is the easiest to set up BUT when you get the e-mail message with the blog stories, there will be a big ad at the top and another at the bottom.  I don't like ads, so this is not my preferred way to subscribe.  If you don't mind the ads, then feel free to sign up for the updates this way.  If you don't want ads, I recommend a service called Follow it.  It has ads but they appear at the bottom of the message and are not intrusive.

I also prefer Follow-it because you can set it up as a news aggregator just like Feedly.  So it is both an email subscription service and a news aggregator in one.  Here is what you need to do to sign up.  It only takes a few minutes but there are a few steps.  (I will also explain how to set up Blogtrottr below).

To sign up for email update through Follow it, here is what you need to do:

Go to https://follow.it/intro where you will see this page:

Click on "No, I am a reader..."  This will take you to this page:

Here, type in his blog's address (https://bernabepr.blogspot.com/) in the blank (as shown) and hit Go.  This will bring you to this page:

These are the different options on how to follow the blog.  If you want only one message per day with all the stories published the previous day, choose the first box (maroon) that says "Newspaper" by email.  If you want to use Follow it as a news aggregator, click on the purple box that says "News page."  You can sign up for more than one option.

Once you pick your options click on Follow it, and this will bring you to another page with more options

As you can see, these are optional, so you can decide what to do there.  I did not select any of these.  

Once you are done with all this, you will get a message by email asking you to confirm.  Make sure you do so because otherwise you will not be signed up and won't get the email updates.  If you don't get the message right away, make sure you check your junk or spam folder just in case.

The other option is easier to set up, but, as I said before, the e-mail messages you will get will have ads.  If you don't mind that, here is what you need to do: 

Go to Blogtrottr.com , where you will see this page 

Once there, enter the URL for this blog (https://bernabepr.blogspot.com/) in the first blank on the left (where you see "http://").

Then enter your email address in the blank in the middle.

Then select how you want the updates to be delivered by clicking on the drop down menu on the left, where it says "realtime".  Realtime means you will get a message by email the moment I post something.  This means you will get multiple messages if I publish more than one story on any given day.  Click on the down arrow to see the other options.  If you want only one message per day (if there is new content) pick the daily digest option.

Once you have filled out these blanks, click on "Feed me".  That will take you to this page:

Pick one of the two options (I picked the one that says Feed Type: RSS) and you will then get a message by email asking you to confirm your subscription.  Check your junk or spam folder if you don't see it right away and make sure you follow the instructions to confirm.  You won't get the updates unless you do so.

I hope this message helps you figure out how to re-subscribe so you continue to get the email updates you are used to.  There may be other options out there that I am not aware of too.  These two are the two I know of.  I tried them both and they work well.  I prefer Follow it for the reasons stated above but they both work.  

Please let me know by email or by leaving a comment here if I can help you make the transition.  

Monday, June 28, 2021

New York Court imposes interim suspension on Rudy Giuliani

 As I am sure you know by now, last week the First Judicial Department of the Courts in New York imposed an interim suspension on Rudy Giuliani for alleged violations of Rule 3.3(a), 4.1, and 8.4(c), all of which deal with dishonesty and makes false statements having found uncontroverted evidence that Giuliani communicated "demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer."  The court concluded that Giuliani's conduct warranted an interim suspension because the conduct "immediately threatens the public interest."  

Giuliani argued, first, that the investigation into his conduct violates his First Amendment right of free speech, and, second, that even if his statements were false, he did not make the statements knowing they were false when he made them.  The court rejected both arguments.  

Even though the court did not hold a hearing, the parties had the chance to file briefs to support their positions.  The court found that the disciplinary counsel met its burden to prove that Giuliani made false and misleading factual statements and then commented on whether Giuliani's argument demonstrated that there is some legitimate dispute about whether the statement is false or whether the statement was made by him without knowledge it was false.  The court concluded he did not. 

Conclusory or vague arguments will not create a controverted issue as to whether there has been misconduct. Consequently, once the AGC has established its prima facie case, respondent’s references to affidavits he has not provided, or sources of information he has not disclosed or other nebulous unspecified information, will not prevent the Court from concluding that misconduct has occurred

Evidently, Giuliani's "defense" followed the same tactics he used when making his claims of voter fraud.  He made assertions but provided no proof or credible evidence to support them.  Was he trying to prove that his original lies were not lies, by using more lies to "prove" it?  Who knows?   As the court explains,

In opposition to this motion, respondent refers to affidavits he has not provided. He also relies on a “confidential informant”. We do not understand, nor does respondent explain why, as a private attorney seemingly unconnected to law enforcement he would have access to a “confidential informant” that we cannot also have access to. At yet another point respondent claims he relies on a Trump attorney who chooses not to be identified. Respondent also refers to hundreds of witnesses, experts, and investigative reports, none of which have been provided or identified and an Excel spreadsheet, also not provided, purportedly listing the names of thousands of deceased voters who allegedly cast ballots in Michigan. [citations omitted.]

I think the allegations against Giuliani are supported by the alleged facts. In particular, I think there is enough proof to impose discipline for his conduct before tribunals and legislative bodies.  That is, proof that he engaged in frivolous litigation and that he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.  

Having said that, let's talk about this "interim suspension" business.  Notice that the decision of the court is not to discipline Giuliani, but to prevent Giuliani from practicing law temporarily while the court decides whether to prevent him from practicing law permanently.  That's what an interim suspension means.  

This type of interim suspension is always a possibility; but it is rarely used for the type of conduct involved in this case.  More often it is used as a means to prevent harm (often imminent harm) to clients.

Knowing this, the court justified the interim suspension by claiming that Giuliani's conduct poses a risk to the public; the implication being that the public needs protection from Giuliani's lies.  Is that convincing?   Citing the “risk that respondent will continue to engage in future misconduct while this disciplinary proceeding is pending,” here is how the court justified it:

The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information. It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice. [Citations omitted.]

Is this convincing?  Consider this excerpt from an Op-ed in The Washington Post:

A New York appellate court has temporarily suspended former mayor Rudolph Giuliani’s law license, writing that he had made “demonstrably false and misleading statements to courts, lawmakers and the public at large.” Just as lawyers who participated in the Watergate scandal were held to account, so too should former president Donald Trump’s lawyers pay a price if they engaged in illegal or unethical conduct. As this case continues, however, the disciplinary agency and courts should be careful not to chill lawyers’ political speech.

As the case goes forward, courts should think more deeply about the First Amendment question. It is unlikely that the public credits media personalities who are attorneys more than others, or that, when these attorneys are caught in lies, the public sees it as a reflection on the entire legal profession. It seems likely, for instance, that the harm from Giuliani’s lies resulted from his proximity to the former president rather than his status as a lawyer.

Lawyers have the right as private citizens to engage in political debate. This includes a right to lie about the government — not because lies are desirable, but because it is too dangerous to give the state the power to determine which statements are true or false when it comes to political speech. Robust political debate would be chilled because people would fear misspeaking. Efforts to expose government wrongdoing would be abandoned out of concern about retribution.

You should read the full opinion suspending Giuliani here.

Obviously, the opinion has gotten a lot of press coverage.  Here are some links: New York Times, Law & Crime, Courthouse News Service, Politico, NPR, Above the Law, The Guardian, Law & Crime (again), ABA Journal, and The Legal Profession Blog.

Sunday, June 27, 2021

South Carolina lawyers beware: anything you say can and will be used against you; Court imposes discipline because it found certain private speech offensive

I know that the big news item of the week was Rudy Giuliani’s getting an interim suspension, and I will comment on that tomorrow, but I want to start the week with a comment on an opinion from South Carolina which did not get any press but which I think is more interesting (and problematic.)

In this case, called In the Matter of Traywick, the Court accepted an agreement between the Office of Disciplinary Counsel (ODC) and a lawyer and suspended the lawyer from practice for six months. The case is important because the conduct upon which the disciplinary action was based was Constitutionally protected speech.  The Court did not address the First Amendment issue, however, because the lawyer did not raise it.  It is not clear why that was the case, but the court should have examined the issue anyway.  

There are so many things wrong with the opinion it is difficult to decide where to start, but since I am getting ahead of myself, let’s just start at the beginning.  

As the court explains it, beginning in June 2020, the ODC received complaints from forty-six separate individuals regarding statements that the lawyer made on his personal Facebook page.  Let's repeat that last point:  his personal Facebook page. The ODC identified twelve statements on the lawyer’s Facebook page that the court found problematic.  Yet, the opinion only cites two of them, which makes it impossible for us to evaluate whether the court's evaluation of the basis of the complaint is actually justified.

But I guess the point of only citing two of the statements is to suggest that those two statements, in and of themselves, justified discipline.  I guess the court did not feel the need to look at the other ten statements because those two were enough.  

Here is the problem.  Both statements were made in the lawyer’s personal page, both were statements of opinion and neither was related to the practice of law.  And, more importantly, even though offensive, both were protected speech under the Constitution.  The court seems to suggest that the statements constituted “incitement” but cites no proof that the statements were either directed at anyone in particular, nor had any actual effect on anyone’s conduct as a result.  Any way you look at it, the court simply imposed discipline because someone thought the content of what the lawyer said was offensive.  And that is precisely what the Constitution says the state can't do.

Yes, the lawyer’s expressions were offensive, but if the First Amendment stands for something, it stands for the principle that the state can’t impose sanctions simply because someone finds the speech offensive.  The fact that 46 people complained that the speech was offensive is irrelevant.  It may as well have been 460 people.  The result should have been the same.  Shame on the lawyer for saying what he said, but the state can’t take his license away for expressing himself unless the state can justify it without violating the lawyer’s rights under the First Amendment.

I find it laughable that the court says in the opinion that it considered the case being “mindful of [the lawyer’s] right to freedom of speech under the First Amendment to the United States Constitution.”  If the court had been mindful, it would have made an independent examination of the issue in order to make sure that the state's attempt to impose discipline did not violate the lawyer's rights.  And, I suggest to you, the state would have had a very difficult time supporting its position.

Ultimately, the court based its conclusion on the fact that apparently South Carolina still has a rule that allows the state to impose discipline for conduct that “brings the legal profession into disrepute” which is a standard that has been abandoned by most jurisdictions precisely because it is vague, difficult to justify and probably unconstitutional when used to regulate speech, as in this case.

Now, why do I think this obscure case is important?   

One reason it is important is that it is another example of why one of the arguments we keep hearing (and that I wish people would stop saying) in relation to Model Rule 8.4(g) is problematic.  The argument is that we don’t need to worry about Rule 8.4(g) because the rules are “rules of reason” and regulators and courts will not interpret them to discipline protected speech.  Really?  How many examples do we need of regulators imposing discipline for protected speech outside the practice of law to realize that if they can get away with it when there is no rule that justifies it, they will definitely try to get away with it when they have a rule that appears to justify it?

The lawyer's expressions in the South Carolina case would not have violated any version of 8.4(g) that I am aware of, and, yet, the court feels perfectly comfortable imposing discipline because the speech was offensive.  That worries me. 

Another reason the case is important is that it does not seem to be based on an allegation of a violation of any specific rule of professional conduct.  The type of general allegation that certain conduct violates "the sprit" of the rules or "the oath" would not be sufficient to support a claim for discipline in Illinois, where I live.  I am not sure what the state of the law is in other states, though.