Sunday, May 23, 2021

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

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

Law & Crime has details on the story here.

Louisiana Supreme Court Amends Lawyer Advertising Rules

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

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

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

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

Saturday, May 22, 2021

Supreme Court reviewing cert petition in mandatory bar membership case

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

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

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

Stay tuned!

Friday, May 21, 2021

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

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

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

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

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

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

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


Thursday, May 20, 2021

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

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

Wednesday, May 19, 2021

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

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

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

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

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

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

Law Sites has more details.

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

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

Tuesday, May 18, 2021

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

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

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

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

Monday, May 17, 2021

Arizona Supreme Court rejects draft ethics opinion on surrepticious recordings

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

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

Ethics at Law has the story here.

Sunday, May 16, 2021

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

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

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

The Legal Ethics Advisor blog has the story.