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.

Sunday, February 14, 2021

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

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...

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.