Monday, April 26, 2021
Friday, April 23, 2021
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
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
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  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.
. . . .
 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.
 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).
 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.
 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.
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
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.
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 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.