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Just days before his impeachment trial is set to begin, Donald Trump's entire new legal team has withdrawn from his representation.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."


(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.

Article by the plaintiff in the case that declared that Pennsylvania's recently adopted anti discrimination rule (modeled after Model Rule 8.4(g) is unconstitutional

 About a month ago I reported that a Federal Court in Pennsylvania declared the state's recently adopted version of Model Rule 8.4(g) unconstitutional.  See here.

As a follow up to that story, here is a short article by the named plaintiff in that case in which he comments on the case and explains his reasons for bringing the claim.

Monday, January 4, 2021

Federal Judge considers referring lawyer behind Trump election lawsuit to disciplinary agency

A lot has been written and said in the past few weeks about the incompetence and improper conduct of lawyers working for Trump, but none of them have been disciplined for their conduct. 

It is possible that will change soon.  Law & Crime is reporting that "[a] federal judge was so dismayed by a . . . lawsuit that bizarrely attempted to sue the Electoral College and Vice President Mike Pence—among many others—that he wrote in a memorandum opinion . . . that he’s considering referring the attorney behind it for “potential discipline.”  Go here for the full story and more quotes from the opinion.

It will be interesting to see if the judge follows through.  I would not hold my breath.