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.

Wednesday, March 10, 2021

Tuesday, March 9, 2021

New Jersey Supreme Court on arbitration clauses in attorney retainer agreements

Late last year, the New Jersey state supreme court held that law firms that want to include mandatory arbitration provisions in their client engagement agreements must explain to the client the benefits and disadvantages of arbitrating a prospective dispute.  The case is called Delaney v. Dickey, and you can read it here.

The Law for Lawyers Today has a comment here.

Monday, March 8, 2021

New ethics opinion in Pennsylvania on practicing law from a state in which a lawyer is not admitted

 About a week ago, the Pennsylvania Bar Association and the Philadelphia Bar Association issued a joint ethics opinion on whether a lawyer licensed in Pennsylvania may work remotely from another jurisdiction, even if the lawyer is not licensed in that jurisdiction.  The opinion concludes that the answer is YES, as long as it is OK with the jurisdiction where the attorney is located.

This conclusion is consistent with the ABA’s Formal Opinion 495, issued last December, but it does not really provide a lot of guidance to lawyers practicing from home in a different jurisdiction that the jurisdiction where they licensed.

Let’s say that a lawyer lives in New Jersey, where she is not licensed, but has an office in Philadelphia, where she is licensed.  Typically, the lawyer commutes to the office and practices law in Pennsylvania.  But due to the pandemic, she is now working from home in New Jersey.  The question is whether the lawyer is engaged in the unauthorized practice of law in New Jersey, and the Pennsylvania opinion does not answer that question.  To find and answer to that question, the lawyer will have to research what the law is in New Jersey.  

LawSites has a short comment here.  

Sunday, March 7, 2021

How not to practice law: ask your paralegal to lie for you to cover your mistakes, and then fire the paralegal when they refuse

Here is a little piece of advice: don’t ask your paralegal to lie for you, particularly to cover your mistakes.  

Common sense, right? Apparently not for everyone.  Here is the story of a case called Sieranski v. TJC Esq, decided a few days ago by the Appellate Court of Connecticut.  The case involved a complaint for wrongful termination filed by a paralegal against her lawyer boss.  In the complaint, the plaintiff alleged that after the attorney she worked realized that he had missed the deadline to appeal an arbitrator's decision on a case, the lawyer asked the plaintiff to prepare an affidavit stating that he had never received the arbitrator's decision.  This was a lie, and the plaintiff refused to notarize the document because she knew it was false.  The lawyer then fired the paralegal arguing that she “was not a good fit” for the office.  I suppose that if lying is a job requirement, refusing to lie is, indeed, a sign that you are not a good fit for the job.

The paralegal sued and, not surprisingly, the court found that the alleged facts are sufficient to support a finding that the plaintiff's employment was terminated because she refused to assist the defendant in misleading the court and others involved in the subject litigation. 

The question for us now is whether the lawyer should be disciplined.  In my opinion, the answer is yes.  I don’t know the rules in the specific jurisdiction, but using the Model Rules as a guide, I would say that the conduct violates several sections of Rule 8.4.  For example, the conduct constitutes an attempt to violate the rules “through the acts of another” in violation of Rule 8.4(a).  It also constitutes conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c), and conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d).   

Thanks to Roy Simon for alerting me to this new case!

Friday, March 5, 2021

California creates Commission to look into bias in disciplinary system

About a month ago I read a short article about two things happening in California related to the appearance of bias in the state's disciplinary system.  I meant to write about it, but for one reason or another I didn't...  So now I am.

Back in 2019, the California State Bar discussed a study that concluded that there is evidence of disparities in the disciplinary process based on race and law firm size.  The study found significant differences between discipline rates of Black male and white male attorneys and between those of sole practitioners and attorneys in large firms.  You can read a summary of the study here.  A second study, commissioned to review the first one, confirmed the findings and made some recommendations.

In response, the Board of Trustees of the State of California created an Ad Hoc Commission on Lawyer Discipline to review the disciplinary system and to make recommendations for changes.  Presumably, that commission is active.  That's the first thing that is happening.

Meanwhile, the other thing that is happening, is that a disciplinary case has made its way through the courts and was recently remanded to the State Bar Hearing Department for further evidentiary hearings to determine whether the State Bar’s disciplinary practices had the effect of discriminating against the lawyer on the basis of race. 

I am really interested to see what happens next in this case.  The debate on whether there is some type of bias based on race, gender and/or firm size is not new, and I am happy to see that something is being done about it.  

Stay tuned...

Thursday, March 4, 2021

Sunday, February 28, 2021

Ninth Circuit Sends Mandatory Bar Membership Question Back to Lower Court

 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. (Go here for my most recent post on the issue, which has links to more posts.)

I am writing about this again today because a few days ago, Courthouse News reported that the Oregon case that had been making its way up the courts has been remanded to the lower federal court for trial. The case raises the issue of whether the Oregon State Bar can require a lawyer to join the State Bar Association, if the lawyer objects to the Association's political commentary.

The case was filed lawyers who objected to commentary published in the Bar Association's newsletter.  When the lawyers objected, the Association refunded $1 and change to the lawyers, arguing that was the amount their membership fees contributed to the publication of the newsletter.  Back in December 2018, the lawyers responded by filing the lawsuit.  

The case was dismissed by the lower court, and on appeal, a three-judge panel of the Ninth Circuit agreed with the dismissal of all of the claims except the one on the basis of the right to free association.  

You can read the opinion here.

Washington DC lawyer files bar complaint against lawyers who brought lawsuit seeking to overturn the 2020 presidential election

Law & Crime is reporting that a Washington DC lawyer has filed complaints before the District of Columbia Court of Appeals Office of Disciplinary counsel arguing that several lawyers should be disciplined for having participated in a frivolous lawsuit seeking to overturn the 2020 presidential election.  

The lawyers had represented Rep. Louie Gohmert (R-Tex.) in a lawsuit that named then Vice President Mike Pence as the defendant (Gohmert v. Pence).  The case was quickly dismissed by a federal district court. Later, the decision was affirmed by the appellate court and the U.S. Supreme Court denied review in early January.

Even if you can argue that the lawsuit was frivolous, I highly doubt that the complaint will result in any type of sanctions. You can read the story here.

Judge finds practice of using a waiting list to assign cases to public defenders is unconstitutional

Ten days ago, a judge in Missouri found that the state’s practice of putting poor criminal defendants on a waiting list to be appointed a public defender is unconstitutional.  However, the judge issued a stay to give legislators more time to remedy the situation.  You can read the opinion here and a summary here.

Saturday, February 27, 2021

Recently released documents in New York show communications among prosecutors in case of possible misconduct

NPR is reporting that "[n]ewly disclosed documents from inside the U.S. attorney's office in Manhattan capture a sense of panic and dread among prosecutors and their supervisors as one of their cases collapsed last year amid allegations of government misconduct."  Go here for the full story.

Monday, February 8, 2021

Another Trump lawyer tries to distance himself from the team of lawyers he joined to file a lawsuit in Michigan - UPDATED

February 7, 2021

Law & Crime is reporting that a lawyer who joined Sidney Powell‘s so-called “Kraken” lawsuit in Michigan is now attempting to avoid sanctions by arguing that he was merely a “conduit” for Powell’s overall litigation scheme.  Go here for the full story.  Isn't that convenient!  As in the case of the lawyers who claimed they should not be sanctioned because they did not sign the documents they filed in court (see here), the lawyer would rather make an argument that makes him look incompetent than admit what he did.  

UPDATE 2/8/21:  Above the Law has a comment on the case here, and they provide examples to illustrate my point that the lawyer is essentially using his own incompetence as a "defense."

Saturday, February 6, 2021

Almost 150 law professors sign letter dismissing Trump's arguments against impeachment; but they don't all agree on what the letter says

Yesterday I posted a link to a review of the briefs filed in Trump's upcoming impeachment trial.  See here.  Today, the New York Times is reporting that 144 law professors have signed a letter providing further analysis and concluding that Trump's arguments have no merit.  

However, if you read the letter signed by the law professors more carefully, you will see that they do not all agree on the content.  You can read the letter for yourself here, and then you can read an analysis of what it says here.

Excellent review of the briefs filed in Trump's upcoming impeachment trial

Over at Verdict, Professor Dean Falvy (University of Washington School of Law) has published a very detailed review of the briefs filed by both sides in the Trump impeachment proceeding.  You can read it here.  

As you know, Trump's original team of lawyers quit suddenly, leaving his new team just a few days to prepare for the case.  They had very little time to work on their answer to the brief, and it shows.  

Thursday, February 4, 2021

How not to practice law: have sex on camera during a hearing on Zoom

Need I say more?   This actually happened.  Here is the story:  Above the Law and Law & Crime have more details.

Wednesday, February 3, 2021

Short update and comment on the regulatory changes in Utah

 Back in September of 2020 I posted a few comments and links on the recent regulatory changes in Arizona and Utah which opened the possibility of allowing non-lawyers to provide some legal services and to partner with lawyers to provide legal services.  See here, here and here.  As you know, the debate on whether it is a good idea to allow such partnerships goes back a long time and relates to the prohibition in rules like Model Rule 5.4, originally thought to be needed to protect the public from the dangers of having lawyers forming partnerships with non-lawyers.

I am writing about this today because I just saw a a short article from a few days ago that provides a little bit of background and commentary on the changes in Utah.  It is published in Law 360 and you can read it here.

Tuesday, February 2, 2021

More news on why Trump's lawyers quit over the weekend: money

As I am sure you know by now, the five lawyers who had originally agreed to represent Trump in his upcoming impeachment trial quit over the weekend.  (See here.)  Initial reports indicated that they did so because they disagreed with what Trump asked them to do (argue the case based on allegations of voter fraud and that the election was "stolen" from him).  But new reports claim that this disagreement was not the only reason for the attorneys' withdrawal.

Axios is reporting today that Trump argued with one of the leading lawyers over fees, which Trump thought were too high.  In all fairness, this is a common complaint among clients, so it is not an unusual claim.  But it is a little unusual that the lawyers had already agreed to represent the client before finalizing the agreement about fees.  Business Insider has a little more on the story.

According to the report, Trump was initially open to paying $250,000 individually to the lawyer in question but balked after being presented with a total price — including "more lawyers, researchers, and other legal fees" — of $3 million.  Reportedly the parties agreed to lower the fee to $1 million, but evidently that did not prevent the lawyers from walking away.

Trump quickly announced had obtained a new team of lawyers (see here) and now I am curious how much he is paying them.

Trump announces new team of lawyers

Trump has announced a new team of two attorneys who will represent him in the impeachment trial after his original team quit on him over the weekend.  For more, see Courthouse News, Law & CrimeNPR, the New York Times and Politico.

Freedman Institute program on the disciplinary process and Trump's legal team

 Last week the Freedman Institute of Legal Ethics (at Hofstra Law School) hosted an excellent panel discussion (on Zoom) on whether it is a good idea (or good policy) to use the disciplinary process to regulate the conduct of lawyers who were recently involved in the representation of the Trump campaign in its efforts to challenge the results of the election.  The panel included one of the lawyers who signed a complaint arguing that Rudy Giuliani should be disciplined in New York, law professors and a professional responsibility and criminal defense lawyer.

You can watch the full program here.

Monday, February 1, 2021

More breaking news: Top Michigan Officials File Complaints Seeking Disbarment of Sidney Powell and Her ‘Kraken’ Team -- UPDATED

February 1, 2021

As you know, the "Kraken team" of lawyers for the Trump campaign is facing possible procedural sanctions in a case in Michigan.  That's the case in which some of the lawyers are arguing they should not be sanctioned because they failed to sign the documents they filed in court. See here.

Now comes news that Governor Gretchen Whitmer, Attorney General Dana Nessel and Secretary of State Jocelyn Benson have filed complaints arguing for the disbarment of Sidney Powell, the lead attorney in that case and three other lawyers.

Law & Crime has more information.

UPDATE 2/4/21:  Here is a copy of the complaint.

Trump lawyers argue they should not be disciplined because they did not sign the documents they filed in court

The different Trump teams of lawyers are the gift that keeps on giving.  

In yet another interesting twist, in response to a motion asking for sanctions against lawyers who brought a lawsuit challenging the results of the election in Michigan, some of the lawyers have argued they should not be disciplined because they did not sign the documents they filed in court.  

I have not seen the documents in this case, but according to one report, the argument is based on an interpretation of Rule 11 of the Rule of Civil Procedure, the rule upon which the request for sanctions was based, which is fine.  

But the problem is that the argument is based on the version of the rule that was abandoned in 1993.  Since 1993, the notion of “signature” has been interpreted to mean more than the mere actual act of putting pen to paper.  

Law & Crime and Above the Law have very good analysis of the arguments.

Saturday, January 30, 2021

Breaking news: Trump's legal team quits just days before impeachment trial! -- UPDATED

 January 30, 2021

Just days before his impeachment trial is set to begin, Donald Trump's entire new legal team has withdrawn from his representation.  According to one report, they left because Trump “wanted the attorneys to argue there was mass election fraud and it was stolen from him rather than focus on proposed arguments about constitutionality.”  Whether the lawyers objected to this specifically because they thought the arguments are frivolous is not clear, but, evidently, they felt the disagreement was important enough to withdraw from representation.  

Given that so many other lawyers and law firms withdrew from representing Trump in litigation over the elections after it was clear that the cases had no merit, the news of a new group of lawyers withdrawing is not entirely surprising.  

Trump now has a little over a week to find a new legal team to build a defense.  One report suggested Trump thinks the case is "simple" and that he could represent himself, which apparently is something that Steve Bannon is suggesting he should do.  Others have denied that Trump is considering representing himself. Stay tuned!

For more on the story, including quotes from the reporters who interviewed the original sources, and from the lawyers involved go to Law & Crime, PoliticoYahoo! News and the New York Times.

Interestingly, it is not clear who disclosed that the reason for withdrawing was a disagreement over what to argue as part of the defense strategy.  If it was the lawyers, it raises a question as to whether they have violated their duty of confidentiality which depends on whether they had consent to disclose the information.  Lawyers do not have to explain their reason to withdraw, unless they are seeking permission from the court to do so (which is not the case here), and even in that case, lawyers should not disclose more information than reasonably necessary.  

But when it comes to Trump, some lawyers want to distance themselves from the client so much that they suddenly feel the need to explain themselves on the way out.  For another example of this, remember the lawyer who filed a motion to withdraw stating in the motion that Trump had committed a crime.  See here.

UPDATE, Sunday 1/31/21:  Trump has announced a new team of two attorneys who will represent him in the impeachment trial.  For more, see Courthouse News, Law & CrimeNPR, the New York Times and Politico.

UPDATE, 2/1/21:  Above the Law has a comment on the withdrawal of the original team here.

Thursday, January 28, 2021

Judge sanctions lawyer and client $150K, citing ‘mountain of evasiveness’ and ‘outright lies’

 Long time readers of this blog know that I often complain that judges do not do enough to sanction attorneys who misbehave during the process of discovery in litigation.  So, it is refreshing to see a story that proves me wrong.  The ABA Journal is reporting that a Texas judge has ordered a Houston-area lawyer and his client to be jointly sanctioned $150,000 for the client’s “outright lies” in litigation and “a mountain of evasiveness” in discovery.  Go here for the story.

Lawyer fired because of his participation in the attack on the Capitol files what could be the craziest lawsuit related to Trump's presidency -- UPDATED, again

January 25, 2021 (updated, at the end)

A Texas lawyer who was fired from his in-house counsel job after it was determined that he recorded himself at the U.S. Capitol on Jan. 6, has filed a new lawsuit challenging the results of the 2020 elections which one article asserts "set[s] a new floor for legal embarrassment in U.S. jurisprudence."

As reported in Law & Crime, the "lawsuit bombastically attempts to assert that Joe Biden is not a legitimate president and that a rightful heir to that office will someday return. Until then, the case foolishly argues that a federal judge might be able to appoint a group of “stewards” from the cabinet of former President Donald Trump to run most of the government from the White House. That should occur, the lawsuit lawlessly speculates, after the Secret Service escorts Biden and his wife out of the executive residence at the order of a federal judge."

As the lawsuit states:

During the course of the epic trilogy, the rightful King of Gondor had abandoned the throne. Since only the rightful king could sit on the throne of Gondor, a steward was appointed to manage Gondor until the return of the King, known as “Aragorn,” occurred at the end of the story. This analogy is applicable since there is now in Washington, D.C., a group of individuals calling themselves the President, Vice President, and Congress who have no rightful claim to govern the American People. Accordingly, as set forth in the Proposed Temporary Restraining Order, as a remedy the Court should appoint a group of special masters (the “Stewards”) to provide a check the power of the illegitimate President until this Constitutional Crisis can be resolved through a peaceful legal process of a Preliminary Injunction Hearing and a jury trial on the merits.

The defendants in the case include every single member of the 117th Congress, every state governor and secretary of state, and Mark Zuckerberg and in a completely off topic remedy request, it asks the court to bar the Department of Justice, the Federal Bureau of Investigation, or any other federal agency from taking either the lawyer who filed the complaint into custody for his actions on January 6th “absent a showing for good cause by clear and convincing evidence" that he committed some overt and intentional act of violence that directly resulted in substantial injury to the person of another.

The lawsuit also declares that the “entire 117th Congress is illegitimate” and that, therefore, Donald Trump’s impeachment is “null and void.” 

Law & Crime has detailed analysis of the allegations in the complaint. Above the Law has a short comment.

Law & Crime has a follow up post with more analysis here.


UPDATE: January 28, 2021: Law & Crime and Above the Law are reporting today that Judge Alan Albright has issued an order to show cause in which it states that the Plaintiff’s claims have no merit.   

UPDATE: February 28, 2021: Above the Law has the latest on this lawyer.

UPDATE: March 2, 2021: Above the Law has yet another update.

Tuesday, January 26, 2021

How not to practice law: advise your client how to make a murder look like self defense... and make sure you do it on Facebook so everyone can read it - UPDATED

The Tennessee Supreme Court has suspended a Nashville attorney after discovering that he posted advice on Facebook about how to make deadly force look like self-defense.

The Tennessean has the story here. For more on the story go to The Legal Profession blog, the Legal Ethics Lawyer blog and Law & Crime.

[UPDATE:  The ABA Journal also has an article here]

The Court's opinion starts by stating "This case is a cautionary tale on the ethical problems that can befall lawyers on social media."  

... No kidding!

Here is the summary of the opinion by the Court: 

The attorney had a Facebook page that described him as a lawyer. A Facebook “friend” involved in a tumultuous relationship posted a public inquiry about carrying a gun in her car. In response to her post, the attorney posted comments on the escalating use of force. He then posted that, if the Facebook friend wanted “to kill” her ex-boyfriend, she should “lure” him into her home, “claim” he broke in with intent to do her harm, and “claim” she feared for her life. The attorney emphasized in his post that his advice was given “as a lawyer,” and if she was “remotely serious,” she should “keep mum” and delete the entire comment thread because premeditation could be used against her “at trial.” In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the attorney’s conduct was prejudicial to the administration of justice in violation of Rules of Professional Conduct 8.4(a) and (d). It recommended suspension of his law license for sixty days. Under Tennessee Supreme Court Rule 9, § 15.4, this Court determined that the punishment imposed by the hearing panel appeared inadequate and, after briefing, took the matter under advisement. We now hold that the sanction must be increased. The attorney’s advice, in and of itself, was clearly prejudicial to the administration of justice and violated the Rules of Professional Conduct. In addition, his choice to post the remarks on a public platform amplified their deleterious effect. The social media posts fostered a public perception that a lawyer’s role is to manufacture false defenses. They projected a public image of corruption of the judicial process. Under these circumstances, the act of posting the comments on social media should be deemed an aggravating factor that justifies an increase in discipline. Accordingly, we modify the hearing panel’s judgment to impose a four-year suspension from the practice of law, with one year to be served on active suspension and the remainder on probation.

 

UPDATE 2-1-21:  The Louisiana Legal Ethics blog has a comment on the story.

UPDATE 2/2/21: Above the Law picked up the story here.


Thanks to Steven Angell for sending me the Court's opinion. 

Sunday, January 24, 2021

At least two different groups of lawyers file complaints asking for Rudy Giuliani to be disciplined in New York

 A few days ago I reported that the New York State Bar Association was considering expelling Rudy Giuliani from its membership.  See here.  However, the NYSBA is just not a regulatory agency so expulsion from the association would not affect Giuliani's ability to practice law in the state.

Since then, however, at least two groups of lawyers have filed complaints about Giuliani before the appropriate regulatory agency in New York, which could lead to discipline.  Obviously, all the complaints can do is advocate for the agency to take action.  The agency will decide whether to conduct an investigation and, then, what to do given the results of the investigation.  Like any other disciplinary complaint, it could be dismissed, or it could start a process that could result in disbarment.  But a lot has to happen before it gets to that point.

Meanwhile, the complaints do make for interesting reading.  One of them was filed by a group called Lawyers Defending American Democracy, Inc. You can read it here.  Forbes has a short summary.  

The 18 page document (plus appendices) essentially argues that Giuliani should be disciplined for violating the New York versions of Model Rules 8.4, 4.1, and 3.1, related to the duties of honesty, trustworthiness, and the duty not to pursue frivolous litigation.  The complaint argues that Giuliani engaged in dishonest conduct by knowingly lying about the results of the election and pursuing a court challenge with no support.  It concludes that “A lawyer who lies to the public and abuses the court system to undermine democracy and the rule of law is not fit to practice law.”

The other complaint, which makes very similar arguments, was brought on behalf of Michael Miller, a past President of both the New York State Bar Association and the New York County Lawyers Association and was signed by dozens of prominent lawyers and academics.  You can read that one here.   

For more discussion and commentary you can go to:  Forbes, The New York Times, Law & Crime and Otherwise.

ABA issues new ethics opinion on replying to online reviews -- UPDATED

January 18, 2021

With the increasing use of websites to contact lawyers and to provide feedback about their work, lawyers need guidance on how to address online criticism and negative reviews without violating duties in the rules of professional conduct.  A number of jurisdictions have issued ethics opinions on the subject already, and now the ABA Standing Committee on Ethics and Professional Responsibility has too.

The Committee's Formal Opinion No. 496 can be found here.  As usual it starts with a short summary of the full opinion.  It reads: 

Lawyers are regularly targets of online criticism and negative reviews. Model Rule of Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another. A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if it did, an online response that discloses information relating to a client’s representation or that would lead to discovery of confidential information would exceed any disclosure permitted under the Rule. As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.

As you can see, the opinion simply explains and expands on a general principle that we knew already: a lawyer can disclose confidential information if allowed by one of the exceptions to the rule and only to the extent reasonably necessary to advance the policy behind the exception.  What the opinion makes clear is that responding to a negative review is not justified by the exception to the rule that allows a lawyer to disclose confidential information in order to defend him/herself in a legal dispute.

For more commentary on the opinion you can visit: The ABA Journal, Law 360, Lex BlogLawyer Ethics Alerts Blog, Louisiana Legal Ethics and Ethical Grounds.

UPDATE 1/24/21:  

For more commentary go to The Law for Lawyers Today, California Legal Ethics, and My Shingle.

Sunday, January 17, 2021

Florida Bar document on best practices for electronic communications

The Florida Bar’s Henry Latimore Center for Professionalism  has published a document on Best Practices for Professional Electronic Communication.  The 25 page document provides guidance on various topics, including e-mail, texting, social media, telephone/cell phone, laptops, and electronic hearings and proceedings, and it is an important resource for lawyers and non-lawyers.  You can read it here.

Saturday, January 16, 2021

ABA issues new formal opinion on lawyers practicing law remotely -- UPDATED x2

Original post: 12/6/20

The ABA Standing Committee on Ethics and Professional Responsibility announced today a new formal ethics opinion on issues related to practicing law "remotely," by which they mean practicing law in a jurisdiction while being located in a different jurisdiction in which the lawyer is not admitted.  You can read the opinion here.

Here is the summary:  

"Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules."

UPDATES 

(12/17/20):  Given that the ABA's opinion only interprets the Model Rule, as opposed to the law of any one jurisdiction, it is important to consider how the rules of each jurisdiction have been interpreted so far and how the opinion might influence future cases.  Here is a comment on how the opinion might apply to cases in California. Ethical Grounds has a short comment on the opinion here concluding that the opinion "makes sense" and "reflects common sense."

(1/16/21):  Law 360 has analysis of the opinion in an article called ABA Approves Remote Practice, But Questions Remain.

In predictable turn of events Trump is reportedly refusing to pay Giuliani's legal fees

 You can't make this stuff up.  The Washington Post has the story here.  Also see Above the Law and Yahoo news.

And, there is a bit more to the story.  First, there is the fact that some according to some stories, Giuliani asked to be paid $20,000 a day, a fee that would most likely be held to be unreasonable under the rules of professional conduct.  

When asked about that story, Giuliani supposedly said that he had not asked for that amount.  Instead, he told the New York Times, he had not entered into a formal agreement with Trump but that they would "work it out in the end."

Agreeing to provide legal services without an agreement and expecting to work it out in the end with a client notorious for not paying his bills...  well, that's not very smart...  which raises the issue of Giuliani's competence, but that is yet another story for another day.

Trump lawyer Lin Wood disqualified because of his mendacity

A Delaware Superior Court judge ruled Monday that attorney L. Lin Wood, who filed a number of complaints challenging the results of the election, can't represent former Trump campaign adviser Carter Page in a state defamation case, saying it would be inappropriate to let Wood practice before the court because he has recently exhibited a "toxic stew of mendacity, prevarication and surprising incompetence."

In essence the judge is saying that Wood's reputation is so bad, he is either incompetent or unfit to practice law.  The judge's memo cited, among other things, recent social media posts attributed to Wood, including a tweet suggesting that Vice President Mike Pence should be arrested and executed for alleged treason.

Also remember, this is the lawyer who filed a complaint seeking to reverse the election and signed it "under plenty of perjury."

It sounds strange for a judge to disqualify an attorney like this, but Wood's appearance before the court was going to be by admission pro hac vice.  What the judge concluded was that a lawyer from a different jurisdiction should not be allowed to come to the judge's jurisdiction and practice given the attorney's history elsewhere.  In other words, the judge was denying Wood's petition to practice in just this one case, not his ability to practice law in general. 

 "I acknowledge that I preside over a small part of the legal world in a small state. However, we take pride in our bar," the judge said.

You can read more on the story here:  Law360, the Legal Profession Blog, Law & Crime, The ABA Law Journal, and Above the Law.

Over 7,000 Lawyers Sign Petition To Have Josh Hawley And Ted Cruz Disbarred

When Ted Cruz and Josh Hawley supported the effort to object to the electoral college, Yale and Harvard alums started internet petitions to have them disciplined.  Now, after their expressions related to the attack on the capitol have been exposed, a new petition has been published asking for their disbarment.  

The petitions are really an expression of frustration and political statements more than ethics arguments.  Whether the conduct deserves discipline depends, of course, on whether it violated the rules of professional conduct and the answer to that question is more complicated than the petitions make it appear.

First of all, if the argument is based on expressions made during the legislative process, I believe lawmakers are immune from liability and I don't know if there is any case law that explains whether that includes immunity from disciplinary sanctions.

Second, the arguments are based mostly, if not entirely, on speech which raises the question of whether the expressions are protected speech, which depends on the expressions on a case by case basis.

Having said that, let's assume that the expressions are considered not protected because they constitute incitement to violence or, worse incitement to overthrow the government.  If that is the case, do the expressions violate rules like Model Rule 8.4(b) which hold that it is professional misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects?

The petitions also argue that Hawley and Cruz violated rules like 8,4(c) which holds that it is misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation by repeating unsubstantiated statements regarding the election.

You can read one of the petitions against Cruz and Hawley here.  Jurist also has the story here.

New York State Bar Association considers expelling Rudy Giuliani

 The New York State Bar Association is launching an inquiry into expelling Rudy Giuliani from its membership over his comments ahead of the attack on the U.S. Capitol, and his efforts to cast doubt on the results on the presidential election.  The NYSBA is not a regulatory agency, however, so expulsion from the association would not affect Giuliani's ability to practice law in the state.

You can read more about the story here: NPRPolitico, Law & Crime, Above the Law, and the ABA Law Journal.