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

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.

Tuesday, July 13, 2021

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

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.  

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.  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.  Anyway 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.

Tuesday, June 15, 2021

Podcast with Arizona Supreme Court Justice on the regulatory changes adopted in Arizona

Last August, Arizona became the first state to eliminate the ban on non-lawyer ownership of law firms.  See here, here and here.  This significant change in the state's regulatory structure was suggested by a task force chaired by Arizona Supreme Court Vice Chief Justice Ann A. Scott Timmer.

In a recent podcast Justice Timmer discusses why the task force recommended such sweeping changes, why the court adopted them, the status of their implementation, and the implications for access to justice. You can listen to the podcast by clicking on the play button below or by going here.

Monday, June 14, 2021

New York and Connecticut approve their own versions of Model Rule 8.4(g)

Back in April, I reported that the New York State Bar Association Committee on Standards of Attorney Conduct (“COSAC”) presented a proposed version of Rule 8.4(g) which I thought was much better than the Model Rule originally adopted by the ABA.  See here.

Now, I am reporting that a few days ago, the New York State Bar Association House of Delegates officially voted to adopt the proposed version of Rule 8.4(g).  

In addition, just a day apart, Connecitcut also adopted a version of the rule, originally proposed by the Connecticut Bar Association.  

Connecticut’s version of the rule is more similar to the Model Rule and includes a comment which explains that discrimination “...includes harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories.” 

This is a terrible way to describe the type of speech the rule is meant to regulate since it makes no distinction between protected and unprotected speech.  Were it all the comment said, the rule would likely not survive a Constitutional attack, much like the rule in Pennsylvania. See here, here and here.

Fortunately, the drafters of the rule added a statement in the comment that says that the rule is not intended to interfere with conduct protected by the First Amendment.  Hopefully, this will result in the correct interpretation and application of the rule.  

Sunday, June 13, 2021

Texas State Bar is investigating the state's Attorney General for filing frivolous lawsuit in attempt to attack the result of the presidential election

Last week, the AP reported that the Texas State Bar of Texas is investigating the Attorney General Ken Paxton based on the argument that Paxton's attempt to attack the result of the presidential election was both frivolous and unethical.  Law & Crime has more information here.  The Dallas Morning News has more here.  The ABA Journal has more here.

Sunday, June 6, 2021

Recent developments on the law of practicing law remotely

 Over at The Law for Lawyers Today, Karen Rubin has published a short comment on the recent developments on whether it is ethical to practice law remotely.  As she explains, "[i]n New York, the state senate last month unanimously passed a bill that would remove the requirement — dating to 1909 — that New York-licensed lawyers residing outside New York keep a physical office in the state.  And in Florida, the state supreme court gave final approval to an ethics opinion permitting out-of-state lawyers to carry out their practices remotely from Florida."

You can read the full comment here.

Sunday, May 23, 2021

State Accuses Attorneys of Filing ‘Entirely Meritless’ Court Documents to ‘Harass and Discredit’ Prosecutors, Inject ‘a False Narrative in the Public Domain’

Defense attorneys for former Minneapolis police officer Tou Thao recently filed a motion arguing that the Hennepin County Medical Examiner’s report into the death of George Floyd was “coerced” by outside influencers.  The reply by the state affirms that “This is yet another bad-faith attempt by Defendant Thao to debase the State, disqualify members of the prosecution team, and divert attention from his role in the death of George Floyd..."

Law & Crime has details on the story here.

Louisiana Supreme Court Amends Lawyer Advertising Rules

On May 6, 2021, the Louisiana Supreme Court issued an order revising the Louisiana Rules of Professional Conduct provisions governing lawyer advertising. The court’s revisions become effective on January 1, 2022. The Louisiana Legal Ethics blog has a summary of the major changes here:

Florida Supreme Court approves advisory opinion permitting out of-state lawyer to practice federal law remotely from Florida home

The Florida Supreme Court recently approved an Advisory Opinion issued by the Florida Bar’s Standing Committee on the Unlicensed Practice of Law stating that an out-of-state licensed attorney who is working remotely on federal intellectual property rights matters (and not Florida law) from his or her Florida home for an out-of-state law firm and no public presence or profile in Florida as an attorney would not be engaging in the unlicensed practice of law.  The advisory opinion will be filed with the Florida Supreme Court on August 17, 2020.   You can read the opinion here

For more on this story go to the Lawyer Ethics Alert Blog and the Legal Profession blog.

Saturday, May 22, 2021

Supreme Court reviewing cert petition in mandatory bar membership case

In the last couple of years we have seen a number of challenges in different states to mandatory bar membership rules.  I have posted a few stories on the subject here.

Back in June 2020, the US Supreme Court denied review to a case attacking the rule in Wisconsin. The Court had also declined to grant review in cases involving the state bar in North Dakota.

Yet, I just heard that the Court is in the process of deciding whether to review the question based on a constitutional challenge to Oregon’s mandatory bar membership and dues.  

Stay tuned!

Friday, May 21, 2021

New organization in New York (called "Accountability NY") Is A Coalition Of Law Professors And Public-Interest Groups Seeking Professional Consequences For Prosecutorial Misconduct

Long time readers of this blog know that I have complained many times that not enough is done to combat prosecutorial misconduct.  This is the case, in part, because defense lawyers who come across misconduct know that the prosecutors they would have to report are the same prosecutors who they will have to deal with in other cases, and they fear that reporting them to the authorities could come back to "bite them" and their clients later.

So what if the defense lawyers could get other lawyers to present and argue the complaints of misconduct for them?  

This seems to be the idea behind a new group in New York called "Accountability New York."  You can read more about the group in its website or listen to a report below by clicking the "play button."
 

The organization is beginning its work by filing 21 complaints to New York’s court-appointed grievance committees, which are tasked with investigating attorney wrongdoing.  Two of the complaints relate to a finding last March, by a Queens judge that three men had served 24 years in prison after they had been wrongfully convicted because of misconduct by two prosecutors who had made false statements at trial and who failed to turn over exculpatory evidence.

As a result, Accountability NY has filed professional complaints against those prosecutors and nineteen other current and former prosecutors who have been criticized by judges for misconduct in the past. Some of the group’s complaints seek disbarment. Others recommend suspensions.

You can read more about the organization and the case decided last March here.


 

Thursday, May 20, 2021

Can a lawyer pay a non-expert witness for time spent testifying at a deposition or a trial, preparing for such testimony, and other related costs?

Can a lawyer pay a non-expert witness for time spent testifying at a deposition or a trial, preparing for such testimony, and other related costs?   Brian Faughnan explains the answer here.

Wednesday, May 19, 2021

Arizona and Utah continue to approve entities to provide some legal services as "alternative business structures"

As I am sure you know by now, Utah and Arizona recently became the first two states to make changes to their regulatory structure to allow, among other things, lawyers to partner with non-lawyers, non-lawyer ownership of law firms and alternative business structures.  For my previous comments on this go to the section of the blog on news from Utah and the one for Arizona and scroll down for lots of stories.

In one of those stories I reported that Utah had approved the first non lawyer owned law firm in the state back in March, and that Arizona had approved some alternative business structures.

Today I am reporting that the Arizona Supreme Court has approved three entities to be licensed as alternative business structures, enabling businesses owned by non-lawyers to deliver legal services.

The first two, approved back in March are Trajan Estate, LLC, a legal service provider focused on estate planning and Payne Huebsch, PLC, a firm that provides transactional legal services combined with tax and accounting advice.

The most recent entity, approved on April 22, is Arete Financial LLC. which will provide accounting and tax services, and legal services in the areas of trust, probate and corporate transactional.

Law Sites has more details.

It is interesting to note that the main argument to allow for alternative business structures is always that it will result in better/more access to legal services to those whose needs are not met. Yet, if you look at all the alternative business structures created so far, it really does not sound that any of them are dedicated to do that.  They all seem to be boutique firms to provide services for wealth management (ie, clients with wealth).   

Meanwhile, Utah seems to be taking a different approach.  There, two non-profit pilot programs secured approval this week under Utah’s regulatory sandbox to provide non-lawyer legal assistance to individuals with medical debt.  That sounds more like providing access to justice.

Tuesday, May 18, 2021

Judge imposes $21,000 in sanctions on Devin Nunes' lawyer for filing frivolous lawsuit

I often complain that judges do not do enough to discourage misconduct in litigation.  My complaint is usually related to stories on discovery abuse, but it also applies to discouraging frivolous lawsuits.  So I am happy to report today that at least one judge is dong his part.

Law & Crime is reporting that U.S. District Judge Richard Bennet ruled recently that attorney the attorney for Representative Devin Nunes had “unreasonably and vexatiously” attempted to continue litigating a lawsuit against CNN after the case had already been dismissed with prejudice for failing to state a claim.  Despite that ruling, the lawyer filed an amended complaint that the court went on to describe as “nothing more than a repetition of the original complaint with no new material factual allegations.”  The judge ordered the lawyer to pay $21,000 to CNN as a sanction. 

You can read the full story here and here; and you can read the judge's order here.  

Monday, May 17, 2021

Arizona Supreme Court rejects draft ethics opinion on surrepticious recordings

Two years ago, I published a short magazine article on whether it is ethical for a lawyer to secretly record a conversation with a client. (See here.)  In it, I pointed out that whether it is unethical to record a conversation in a state that does not require all parties to the conversation to consent to the recording is not entirely clear.  Some state advisory opinions have held that the conduct should be considered to be inherently unethical, but that is not the view of the ABA Standing Committee on Professional Responsibility nor is it the law in many states.

I am writing about this today because I just found out that the Arizona Supreme Court has rejected the Attorney Ethics Advisory Committee’s attempt to upend this state’s decades-long position that surreptitious recording by lawyers is per se unethical even though it may be legal.  The Committee had proposed a new ethics opinion, but the Court rejected it and ordered that it not be posted.  

Ethics at Law has the story here.

Sunday, May 16, 2021

Florida Committee approves proposal to amend confidentiality rule to allow disclosure to reply to online criticism

Back in March I reported that Florida Bar’s Professional Ethics Committee requested comments on a formal Ethics Advisory Opinion to provide guidance to lawyers in responding to negative online reviews.  

I am writing today to let you know that the Committee has agreed to publish the opinion; but more importantly also that the committee approved an amendment to Florida Bar Rule 4-1.6 Confidentiality that would allow a lawyer to reveal confidential information that the lawyer deems reasonably necessary to respond to an allegation of criminal wrong doing posted on the internet by a former client.  The Committee will next send the amendment to the Florida Bar Board of Governors. 

The Legal Ethics Advisor blog has the story.

Friday, April 23, 2021

More on Sydney Powell's frivolous defense to a motion for sanctions for a frivolous lawsuit

Yesterday I commented on Sidney Powell's recent reply to a motion for sanctions for her complaint related the presidential election results in Wisconsin.  See here.  Here is an update: Law & Crime has more on the story here and given this new reporting, I can totally see the support for the state's argument.

Apparently, the main point of Powell’s argument is that her failed complaint cannot be found frivolous because it was rejected on procedural grounds such as standing and timeliness.  

This argument is itself frivolous.  Any second year law student can tell you that according to both rules of procedure and rules of professional conduct, lawyers have a duty to avoid frivolous litigation.  The most common source of sanctions for frivolous claims are the state equivalents of Rule 11 of the Federal Rules of Civil Procedure, which provide that all pleadings must be well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that they must not be filed for any improper purpose.  The Model Rules of Professional Conduct mirror the duties expressed in the procedural rules in Model Rules 3.1 and 4.4(a).

If a lawyer files a complaint that is not well grounded in fact or warranted in law, the filing is frivolous, regardless of the reason for which it is eventually dismissed.  It is the fact that the court and the other parties brought to the suit have to waste time, effort and money for the filing that justifies the sanctions.  Lawyers can also be subject to discipline under both procedural and ethical rules  for pursuing claims for an “improper purpose.”   

If the claim is frivolous, there is no right to bring the claim to begin with and the lawyer is subject to sanctions for helping the client to do so.  

In her recent motion, Powell apparently is asking for an evidentiary hearing.  She shouldn't get one; but if she does, she is going to lose.  Badly.  The standard for imposing sanctions for frivolousness is based on an objective determination of whether the attorney made a reasonable inquiry into the facts and the law before filing the claim, for which the court could consider whether the attorney had sufficient time for investigation before filing, the extent to which the attorney had to rely on his or her client for the factual foundation underlying the claim, the complexity of the facts, and whether discovery was necessary to develop the underlying facts.  Many courts have made clear, however, that it is not permissible to use discovery as a “fishing expedition” or as the sole means to find out whether the claim is well grounded in fact or law. 

Does anyone really think that an objective application of this standard benefits Powell's position?  

Thursday, April 22, 2021

Lawyers for Wisconsin Governor argue Sydney Powell's reply to motion seeking action against Sydney Powell is so improper it deserves its own sanctions

About two weeks ago I reported that Wisconsin filed a motion seeking hundreds of thousands of dollars in attorneys’ fees from Donald Trump and Sidney Powell for their attempts to overturn the state’s election results via lawsuits that were “frivolous, dilatory, and without merit.”  

Now, there is news that Powell filed a reply which the lawyers representing Wisconsin Gov. Tony Evers claim is so improper that the filing merits its own sanctions.  Law & Crime has the story here.

Wednesday, April 21, 2021

Lawyer in Utah files lawsuit challenging mandatory bar association membership

One recurring story last year was the number of lawsuits filed throughout the country challenging the authority of states to mandate membership in bar association groups in order to be allowed to practice law.  Go here and scroll down for the stories I posted on this topic.  Typically, the claims are based on the fact that the bar association supports causes the individual complaining member would rather not.

Well, it happened again.  Courthouse News Service is reporting that a Utah attorney has sued the state bar association claiming it spent mandatory dues on political and ideological speech she disagrees with in violation of her First and 14th Amendment rights.

At last count, I have heard of current challenges filed in Texas, Oklahoma, Oregon, Wisconsin, Louisiana, Washington and Michigan.  The Wisconsin challenge was defeated and the Supreme Court denied cert.  The Oregon case was recently remanded by the Court of Appeals.  I do not know the status of the others.


Tuesday, April 20, 2021

DC Bar Rules Committee proposes new rule akin to Model Rule 8.4(g)

On the same day that the New York State Bar Association Committee on Standards of Attorney Conduct submitted a proposal to adopt a rule akin to Model Rule 8.4(g), the District of Columbia Bar Rules of Professional Conduct Review Committee submitted its own proposal to do the same.  

As I reported here, I really like the NY proposal which I think addressed the most important concerns regarding the Model Rule.  The proposal in Washington is better than the Model Rule in at least one important respect, but it is not as limited as than the one in New York.

The Executive Summary of the report accompanying the proposal explains the background: 

The D.C. Rules of Professional Conduct currently contain two rules that address harassment and/or discrimination: D.C. Rule 9.1, which prohibits discriminatory conduct that violates employment law; and D.C. Rule 8.4(d), which prohibits conduct that “seriously interferes with the administration of justice.” Comment [3] to Rule 8.4 clarifies that paragraph (d) prohibits “offensive, abusive or harassing conduct that seriously interferes with the administration of justice,” and may include words or actions that “manifest bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.” 

. . . .

In 2016, the D.C. Bar Rules of Professional Conduct Review Committee began studying whether the District should amend the D.C. Rules to adopt a provision similar to Model Rule 8.4(g). For reasons detailed in this report, the Rules of Professional Conduct Review Committee recommends adopting new proposed Rule 8.4(h) to expand the scope of the existing anti-harassment and anti-discrimination provision found in D.C. Rule 8.4(d), similar to Model Rule 8.4(g), but with some modifications.

The Committee reached this final proposal after publishing for public comment in 2019 a proposal to essentially adopt ABA Model Rule 8.4(g) as a revised D.C. Rule 9.1. The Committee received 52 comments in response which were largely critical of the 2019 proposed rule, principally, although not exclusively, on First Amendment grounds. Upon careful consideration of the issues identified in the comments, the Committee revised its proposal.

The new proposal leaves Rule 9.1, a rule that has existed in the District for 30 years without issue, unchanged. As with ABA Model Rule 8.4(g), proposed Rule 8.4(h) moves the D.C. Rules’ current prohibition on harassing and discriminatory conduct from a comment to Rule 8.4 to a “black-letter rule” that, like Model Rule 8.4(g), sets a standard for how members of the D.C. Bar should interact with others with respect to the practice of law.

Currently, D.C. Rule 8.4(d) addresses discrimination and harassment only in the context of the administration of justice, which narrows the reach of the rule to a lawyer’s conduct while representing a client before a tribunal. Proposed Rule 8.4(h) includes harassing and discriminatory behavior by a lawyer directed at another person with respect to the practice of law, which would include such abusive conduct that occurs outside of a courtroom and/or the representation of a client.

. . . . 

Proposed Rule 8.4(h) is not intended to chill speech on controversial topics, but rather to prohibit harassing and discriminatory conduct directed at another person or persons by a lawyer with respect to the practice of law.

As proposed, the new Rule 8.4(h) and its comment read:

It is professional misconduct for a lawyer to:

.... 

(h) engage in conduct directed at another person, with respect to the practice of law, that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, family responsibility, or socioeconomic status. This Rule does not limit the ability of a lawyer to accept, decline or, in accordance with Rule 1.16, withdraw from a representation. This Rule does not preclude providing legitimate advice or engaging in legitimate advocacy consistent with these Rules.

Comment

. . . . 

[3] Paragraph (h) reflects the premise that the concept of human equality and respect for all individuals lies at the very heart of our legal system. A lawyer whose conduct demonstrates hostility or indifference toward the principle of equal justice under the law may thereby manifest a lack of character required of members of the legal profession. Discrimination and harassment by lawyers in violation of the Rule undermine confidence in the legal profession and the legal system.

[4] Discrimination includes conduct that manifests an intention to treat a person as inferior, to deny a person an opportunity, or to take adverse action against a person, because of one or more of the characteristics enumerated in the Rule. Harassment includes derogatory or demeaning verbal or physical conduct based on the characteristics enumerated in the Rule. In addition, sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. Antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (h).

[5] Conduct with respect to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers, and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association events and work-related social functions.

[6] A lawyer’s use of peremptory challenges is exclusively addressed by Rule 3.4(g). A lawyer does not violate Rule 8.4(h) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b), and (c). A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).

As in the proposal in New York, this proposed rule tries to solve the vagueness and First Amendment issues by limiting it to conduct “directed at another person.”  This attempts to eliminate the possible interpretation of the rule as regulating protected speech about general topics or even general groups of people simply because someone in the audience may find the comment offensive.  That is a good thing, but I am not so sure the language is clear enough.  I would prefer it if the rule said "at another individual person."

The new proposed rule, however, includes two categories that may be problematic.  It is not clear to me what is meant by “family responsibility,” and “socioeconomic status.”  Suppose a lawyer made a comment at a firm meeting discussing a specific client saying “we should stop representing that rich bastard.  I am tired of seeing them get all the breaks.”  That statement expresses bias against rich people because of their socio economic status, and, therefore, seems to violate the rule.  Yet, it seems to me that statement is protected speech.  That is a problem.

Sunday, April 18, 2021

New York State Bar Committee proposes new anti-discrimination rule akin to Model Rule 8.4(g), but it is very different and the best yet

As I am sure you know, I have been writing about Model Rule 8.4(g) since way back when it was first proposed.  See here. Over time, I have expressed my concerns about its vulnerability to attack under First Amendment principles, and my concern was proven valid when recently a similar rule was declared unconstitutional in Pennsylvania.  See here, here and here, for more on that story in particular.

But that is not what I want to talk about today.  Today I am more optimistic.  

On Friday afternoon the New York State Bar Association Committee on Standards of Attorney Conduct (“COSAC”) posted for public comment a proposed version of Rule 8.4(g).  Comments are welcome until May 28 deadline and they want comments from inside and outside of New York.  I am trying to find a link, and will post it here when I do.  

You can read the proposal here and its accompanying report here.  

In my opinion, this version of the rule is much better than the Model Rule originally adopted by the ABA.  It is carefully drafted to limit the reach of the Model Rule, and to avoid the potential problems regarding its constitutional validity.

First, the proposed rule rejects the Model Rule’s language of "conduct related to the practice of law" and instead applies to "conduct in the practice of law" which is much more limited.  This simple change addresses the possible issue of overbreadth in the Model Rule.

But the most important improvements over the Model Rule are in the way the proposed rule refers to or defines the type of conduct it regulates.

For example, the proposed rule starts by adding the word “unlawful” to the word discrimination.  Thus, the drafters of the rule recognize that there can be discrimination that is not unlawful and that the legal authorities that define that distinction are going to be relevant to determine how to apply the rule.

This simple addition of one word also guards against the possible unconstitutional application of the rule.  Because the Model Rule does not make that distinction, it is possible to interpret it to allow regulation of protected speech.  By limiting the application of the rule to “unlawful discrimination” the authority of the state to regulate speech is more limited, and presumably will be understood to allow only regulation of speech that is not constitutionally protected.

In addition, the proposal provides a good definition of harassment, which also limits the application of the rule, thus, also making it less vulnerable to constitutional attacks.  

The proposed rule defines harassment as conduct, whether physical or verbal, that is severe or pervasive and directed at an individual or specific individuals in one or more of several specific protected categories. Again, this description limits the application of the rule tremendously when compared to the Model Rule.  And that is a good thing.  By limiting the notion of "verbal conduct" to speech directed at specific individuals, the proposal avoids the interpretation that it can be used to regulate protected speech that is offensive but constitutionally protected.

In terms of the protected categories, the proposed rule in New York adds a few but eliminates the most problematic of the one in the Model Rule (socio-economic status).  Thus, the proposed rule adds pregnancy, gender expression, status as a member of the military, and status as a military veteran, none of which I have a problem with; but it also adds the word “color” which I am not sure is needed since the rule already mentions race and ethnicity.  For the sake of clarity, I would at least suggest to say “skin color” rather that just “color.”   

All told, the proposed new rule in New York is the best version of an anti-discrimination Model Rule 8.4(g) type rule I have seen yet.  

If you want to send comments to the committee, you can contact Professor Roy Simon directly.

Monday, April 12, 2021

Article on regulatory changes in Utah and Arizona

 As you probably know, last year Utah and Arizona adopted new rules to fundamentally change the way the practice of law is regulated, including allowing lawyers to partner with non lawyers to practice law and allowing certain non lawyer owned entities to provide legal services.  For more on this go here, and here.

I am writing about this again today because Law360 just published a short comment on the situation in Utah, where . . . "the group of approved participants includes LawPal, an entity planning to offer a "TurboTax-like" platform for divorce and eviction disputes, and 1LAW, which helps clients complete court documents and offers related legal advice through tech including chatbots. A pro bono service provider in Utah is also seeking approval to permit domestic abuse victim advocates to give legal advice while filling out protective order requests. . ."

Sunday, April 11, 2021

Michigan AG files supplemental brief arguing Sidney Powell’s defense in defamation case supports argument for sanctions in election case

In case you don't remember, Sidney Powell is the former lawyer for the Trump campaign who at one time promised to "release the Kraken," argued that the Dominion vote counting machines had somehow been rigged to favor Venezuela's Hugo Chavez and that Dominion had bribed public officials in Georgia, among many other things. 

Some time later, Dominion sued her for defamation and in reply Powell argued that her statements could not constitute defamation because they were so crazy that no one would believe them to be true.  

This defense is somewhat problematic for her because if the statements were so unbelievable, then she herself must have known they were not true when she affirmed them.  And, since she affirmed them in support of litigation, by making the defense in the defamation case she is admitting to either being incompetent or to having instituted litigation improperly, both of which can subject her to professional discipline.

For this reason, it is not surprising to learn that the Michigan attorney general has filed a supplemental brief in the case in which the judge is considering imposing sanctions to draw the judge’s attention to Powell’s latest defense against the defamation lawsuit.  Law & Crime has more on the story.

Over at Verdict, Michael Dorf (Cornell Law) has published a good comment on the defamation case.

UPDATE:  TechDirt picked up the story here.

UPDATE 4/27/21:  Law & Crime has more on the story here. Above the Law has more here.

Monday, April 5, 2021

Wisconsin is seeking attorneys' fees from Trump and Sidney Powell for frivolous litigation attempting to overturn the results of the presidential election

Wisconsin is seeking hundreds of thousands of dollars in attorneys’ fees from Donald Trump and Sidney Powell for their attempts to overturn the state’s election results via lawsuits that were “frivolous, dilatory, and without merit.”  Above the Law has the details here.

Sunday, April 4, 2021

NPR: When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased

 NPR has published a short article on threats to the attorney-client privilege by surveillance of by prison authorities.  The article is available here.  Below you can listen to a short summary by clicking on the play button.

Friday, March 26, 2021

California Becomes 39th State To Adopt Duty Of Technology Competence

 Back in November of 2019 I reported that Georgia became the 38th state to adopt the Model Rules proposition that the duty of competence must include a duty to be knowledgeable about technology.  See here.  And for all other posts on "technology" generally go here and scroll down.

Today I am writing to report that California is the next state to adopt the notion of technology competence.  For details go here.

Sunday, March 21, 2021

On the new business structures in the market of legal services

 A few days ago I reported that the era of non-lawyer owned firms is here, now that Arizona and Utah have approved some version of such an alternative business structure.  

As I have written elsewhere, the debate on whether this is a good idea is not new. (See here, for example).  What is new is that these two states have decided to give it a try.  And, not surprisingly, this has reinvigorated the debate again.

One of the main arguments used to justify opening up the practice of law to non-lawyers (whether by allowing non-lawyers to provide some types of legal services or by allowing lawyers to get capital from and to partner with non-lawyers, or by allowing non-lawyers to “own” law firms) is that it will provide more “access to justice.”

This notion of “access to justice” is, of course, a misnomer, since there is no guarantee of that.  What we should be asking is whether the new regulatory system will provide more access to legal services, or, better yet, to affordable legal services.

Unfortunately, there is no evidence that it will, and if we go by the experiment with Legal Technicians in Washington state, there is evidence that it won’t work. 

Although the new business models may provide more access to consumers, they won’t necessarily reduce the cost of legal services, prevent conflicts of interest or guarantee competent representation.  That is so because the new non-lawyer owners of the law firms are in the business to make a profit.  They need a good return for their investment and that margin is likely to come out of the difference between costs to provide the services and the fees that can be generated.  

Unfortunately, maybe this means that companies more interested in making a profit than in providing wide ranging legal services will devote their attention to reviewing would be clients’ claims in order to find only high value cases, while the others will be swept aside or will not be given the attention they deserve.  Thus, depending on how the new model is structured, it may result in clients with smaller cases actually getting less access to legal services.

But, let’s not rain on the parade.  We won’t know how it will work until we try it so let’s see what happens in Utah and Arizona.  Maybe they can make it work better than Washington could. I am sure we will be talking about this for a long time.  And, as some have said, maybe this is an inevitable shift in the legal services market, in which case, just wait, it will soon be coming to a jurisdiction near you.

ABA issues new formal opinion defining "materially adverse interests" for purposes of conflicts of interest analysis -- UPDATED x2

February 14, 2021  (updates at the end)

Last week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (number 497) on conflicts involving materially adverse interests.  Its summary states as follows:

Rules 1.9(a) and 1.18(c) address conflicts involving representing a current client with interests that are “materially adverse” to the interests of a former client or prospective client on the same or a substantially related matter. But neither Rule specifies when the interests of a current client are “materially adverse” to those of a former client or prospective client. Some materially adverse situations are typically clear, such as, negotiating or litigating against a former or prospective client on the same or a substantially related matter, attacking the work done for a former client on behalf of a current client, or, in many but not all instances, cross-examining a former or prospective client. Where a former client is not a party to a current matter, such as proceedings where the lawyer is attacking her prior work for the former client, the adverseness must be assessed to determine if it is material. General economic or financial adverseness alone does not constitute material adverseness.

You can read the opinion here

UPDATE 3/4/21:  Faughnan on Ethics has a short comment here.  I agree with his conclusion that the terminology in the rule is a mistake and that the opinion does not really say anything particularly new or interesting.  The terminology is a mistake because it is inconsistent with the terminology used in other rules related conflicts of interest.  Rule 1.7 defines conflicts as involving either direct adversity or material limitation.  Rule 1.9 merged those two terms into "material adversity"  and I honestly believe that was by mistake.  But it has never been corrected and here we are...

UPDATE 3/21/21:   The Louisiana Legal Ethics blog has a comment here.

Florida lawyer facing discipline for calling himself a pitbull lawyer and using image of a dog on his website -- UPDATED

March 13, 2021

The ABA Journal is reporting that a Florida lawyer is facing an ethics complaint for describing himself as a pit bull lawyer and using an image of a pit bull on a blog and a Facebook page. The lawyer also used the name “Pitbull” on business cards and on the door to his office.

The complaint apparently argues that using the pitbull image and nickname harms the legal profession and the public’s trust and confidence in our system of justice.

I don't like pitbulls and I think that calling yourself a pitbull lawyer in advertising is tacky, but trying to impose sanctions for it is nonsense.  I don't know what the specific Florida rules say, but the notion that the state can impose sanctions for protected speech merely because it harms "the image of the profession" and the "trust in the system" is a very weak argument.  

The standard by which commercial speech is evaluated has been established for ages.  As the US Supreme Court has explained: 

Our general approach to restrictions on commercial speech is . . . by now well settled. . . .  Commercial speech that is not false or deceptive and does not concern unlawful activities, . . .  may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. . . . Our application of these principles to the commercial speech of attorneys has led us to conclude that blanket bans on . . . advertising by attorneys and rules preventing attorneys from using nondeceptive terminology to describe their fields of practice are impermissible . . . but that rules prohibiting in-person solicitation of clients by attorneys are, at least under some circumstances, permissible.

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 (1985).  Arguing that protecting the image of the profession is a substantial governmental interest is akin to saying that the speech can be banned because someone may find it offensive, and if we know one thing about the First Amendment, it is that it is there precisely to prevent from punishing speech because someone finds it offensive.  


UPDATE (3/21/21):  The Louisiana Legal Ethics Blog has a comment here suggesting that the same conduct would probably not be subject to discipline in Louisiana because the rules in Florida are stricter.  I suspect this is the case pretty much everywhere else.

Breaking news: Pennsylvania Bar abandons fight over constitutionality of anti-discrimination Rule 8.4(g) -- UPDATED


 March 16, 2021  (update, below)


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.  

At the time, I said I was hoping the Pennsylvania Bar would appeal so we could get a decision from a Court of Appeals on the subject.  Then, as expected, in January, the Pennsylvania Bar field a notice of appeal to the Third Circuit. 

However, I just heard that yesterday, the Bar voluntarily dismissed the appeal.  I hope there will be more coverage about why in the next few days and I will surely report it when I see it.  

Now, presumably the Pennsylvania Bar will go back to try to draft a new version of the rule.  

I am sure the debate is not over.  Stay tuned.


UPDATE (3/21/21):   The ABA Journal has a short comment here.  In it, I noticed a common mistake regarding the debate on this topic.  Citing another source, the story attempts to distinguish the Pennsylvania rule from the Model Rule by suggesting that the model rule does not attempt to regulate speech.  This is nonsense.  The Comment to the Model Rule explicitly states that the rule applies to "verbal conduct" as well as "physical conduct."  And, if nothing else, let's be realistic.  Part of the motivation for the rule was clearly to get lawyers to stop saying bad things.   

Thursday, March 18, 2021

The era of alternative business structures and law firms owned by non-lawyers is officially here

 As I am sure you know by now, Utah and Arizona recently became the first two states to make changes to their regulatory structure of the practice of the profession to allow, among other things, lawyers to partner with non-lawyers, non-lawyer ownership of law firms and alternative business structures.  I reported on those developments here and here (regarding Arizona) and here, here, here and here (regarding Utah).

And, here is the latest:  Yesterday, the first entirely nonlawyer owned law firm in the United States opened for business in Utah while the Arizona Supreme Court announced (news release) that it has approved the first two alternative-business structure entities to operate in the state.  The ABA Journal has a story from Utah.

Tuesday, March 16, 2021

Mental Health and Bar Admissions

Many lawyers and recent law school graduates believe they would benefit from mental health or substance abuse treatment but do not seek help because they fear that doing so will affect their ability to practice law.

Some jurisdictions have stopped asking questions about mental health in their character and fitness applications to the bar, but others have not.

As explained in a recent article in Bloomberg Law, “[w]hile states like Vermont have taken steps to assure students that receiving treatment will not affect bar admission, . . . students planning to seek admission in other states are not guaranteed the same reception, an issue that weighs heavily on students’ minds.”  In Florida, for example, the Bar Examiners encourages treatment, but applicants with certain types of disabilities are required to submit treatment records even if they have no current issues which means that applicants may later be asked invasive questions by lawyers with no experience in mental health or substance abuse.

Other states have adopted a system of conditional admission. Once the conditions are met, the lawyer is fully admitted, but not everyone agrees this is a good alternative.  Some states do not offer conditional admission, in part because of a lack of resources to monitor those subject to conditions and because of concerns about the imposition of conditions not based on individualized assessments. 

For a good discussion of the issue you can read the full article at Bloomberg law, here.*


*I am not sure if you need a subscription to be able to read the full article.  I can get access to it using one browser, but not Chrome for some reason.

Monday, March 15, 2021

Attorney fee award can be reduced because of attorney's incivility

Earlier this week in a case called Karton v. Ari Design & Construction, Inc., the California Court of Appeal decided that a court can deny the amount requested in attorney's fees in a case based on the fact that the attorney requesting the fee award was uncivil and "over litigated" the matter.

Ethical Grounds has a good summary of the case.  The lawyer in question requested “$271,530 in attorney fees, $52,021 in discovery sanctions, and $203,646 for proving matters at trial that had been denied in discovery.” The trial court determined that the lawyer had not provided sufficient evidence to assess whether the fee request was reasonable and gave the lawyer additional time to make the argument.  The trial court instructed the lawyer to limit the additional argument to 10 pages of text, plus any exhibits.  In turn, the lawyer submitted additional evidence – 11 pages of text, over 400 pages of exhibits – and requested an additional $16,000 in fees.  Yet, in the end, the trial court awarded $90,000 in fees and explained that it decided not to award the full amount requested because of the lawyer’s incivility and over-litigation of the matter.

You can read the opinion here.  The Volokh Conspiracy has a comment here.  

UPDATE 4/4/21:  Above the Law has a comment here.


Sunday, March 14, 2021

Today in Supreme Court History: Justice Benjamin Cardozo is sworn in as Associate Justice

Benjamin Cardozo is better known to my students as the New York Court of Appeals judge who wrote Palsgraf v. Long Island Railroad, which developed what has become the standard analysis for proximate cause in Tort law.  But in 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes.  Interestingly, Hoover, a Republican, appointed Cardozo even though he was a Democrat. I would be curious to know how many times that has happened since.

According to an article in The New York Times about Cardozo's appointment, "seldom, if ever, in the history of the Court has an appointment been so universally commended."

Cardozo was confirmed by a unanimous voice vote in the Senate on February 24 and was sworn in on March 14, 1932.

To celebrate and because I know you must be eager to know why I am writing about this today, here is a link to my article Ahead of his time: Cardozo and the Current Debates on Professional Responsibility34 Touro Law Review 101 (2018).

Saturday, March 13, 2021

Recent story makes me wonder if this is an example of a violation of the hot potato doctrine


NPR has a long story that reminded me of the "hot potato doctrine."  In case you don't remember, this is the doctrine that says that it is misconduct to dump a current client ("like a hot potato") in order to "convert" that client into a former client to clear the way to accept the representation of a new client with an interest adverse to that of the (now) former client.

The story in a nutshell is that a big law firm had been representing, pro-bono, a non-profit organization for several months.  At one point during that representation, the non-profit sought help from the firm because a government agency was trying to eliminate its only source of funding.  In response to the agency's threat, lawyers from the firm met with the non-profit organization's board and president to discuss a potential lawsuit against a federal agency.  

Later, however, the firm decided they did not want to get involved in the case because “the case might be too political” and withdrew from representation.  

Ok, nothing wrong there, I suppose.  The firm has a right to decided whether it wants to represent a client.  

But then, eight weeks later, the firm agreed to represent the Agency threatening to take away the nonprofit's money for the year.  And all this without ever asking for consent or even informing the (now) former client.

The general counsel for the non-profit organization is quoted in the story as saying "I was speechless." . . . "I had no idea that they would ever turn around and represent our actual adversary in a lawsuit, after an attorney in their practice had spoken to our board about our strategy and asked me for internal documents to help frame up the theory of our case."

Once the firm undertook the new representation, the lawyer and several staffers who had been representing the non-profit organization left the firm.  The firm continued to represent the agency and, according to the story, made well over $2 million dollars over the next five months.

Does this sound like a violation of the hot potato doctrine to you?   

You can read the full story here.

ABA issues opinion on practicing virtually

 The ABA Standing Committee on Ethics and Professional Responsibility has been busy issuing formal ethics opinions recently.  Formal Opinion 498 is the most recent one, issued March 10, and it deal with ethical concerns related to practicing law virtually.  Evidently, this is an important opinion now that so many lawyers are practicing law from home due to the pandemic.

The opinion's summary reads as follows:

The ABA Model Rules of Professional Conduct permit virtual practice, which is technologically enabled law practice beyond the traditional brick-and-mortar law firm.  When practicing virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology. In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information. Additionally, the duty of supervision requires that lawyers make reasonable efforts to ensure compliance by subordinate lawyers and non-lawyer assistants with the Rules of Professional Conduct, specifically regarding virtual practice policies.

I am not sure that says anything we did not know already, but there you go.  You can read the full opinion (or download it) here.  For more commentary you can go to LawSites, The ABA Journal, iPhone JD, Lawyers Ethics Alert Blog, 2Civility, LexBlog and My Shingle, which criticizes the opinion as a wasted opportunity.