A few days ago I provided a link to an article in which Lucian Pera, who is running for President of the ABA, explains his vision for the ABA. See here. Since then, he has posted several more short articles. You can access them here.
Tuesday, August 31, 2021
Monday, August 30, 2021
The Legal Profession Blog is reporting that the Ohio Supreme Court has adopted an amendment that will allow a lawyer admitted to practice in another state to provide legal services remotely from Ohio. This is a big deal and appears to be a trend among jurisdictions which are finally recognizing the reality that given advances in technology, lawyers can easily work remotely from anywhere.
The amendment will go into effect Sept. 1. You can read a copy of the "redline" version of the rule here.
According to the new rule, a lawyer admitted and in good standing in any United States jurisdiction may practice the law of that jurisdiction while working remotely in Ohio as long as the lawyer is providing services that the lawyer is providing services that are authorized by the lawyer’s licensing jurisdiction and provided the lawyer does not (1) solicit accept clients for representation within Ohio, (2) appear before Ohio tribunals, except as otherwise authorized by rule or law; (3) state, imply, or hold himself or herself out as an Ohio lawyer or as being admitted to practice law in Ohio; or (4) share fees with non-lawyers for the provision of legal services (ie, violate rule 5.4) or (5) violate the provisions of Rules 7.1, and 7.5.
Sunday, August 29, 2021
As I reported a few days ago, a judge in Michigan issued an order imposing sanctions on nine lawyers for filing a frivolous lawsuit for an improper motive in violation of Rule 11 of the Federal Rules of Civil Procedure, Rules of Conduct and other statutes. See here. As you can imagine, the story has received quite a bit of coverage. Here are just three links to some of the stories: Law & Crime, Above the Law, Courthouse News Service. And here is the 6 minute report from the Rachel Maddow Show:
As I am sure you know, one of the (if not the) hottest topics in Professional Responsibility today is the development of new approaches to regulation of the profession, including the significant changes approved in Utah and Arizona. The topic continues to be debated and here are two good sources of information.
In a short article published by the solo practitioners division of the ABA, the authors argue that Model Rule 5.4 is unnecessary because it causes more harm than it provides benefits to the profession and the public.
The article is one of several published in the magazine on subjects related to regulation reform, and Law Sites hosted a podcast in which five of the articles published in the magazine discuss their articles and ideas. You can listen to the podcast here or click on the play button below. The panelists discuss, among other things, Model Rule 5.4, whether lawyers should be allowed to share fees and partner with non-lawyers, the regulatory changes in Utah and Arizona, and the now abandoned Legal Technicians program in Washington state.
Thursday, August 26, 2021
Back in July and earlier this month I reported that a Michigan judge held a hearing on whether to impose sanctions on the lawyers who represented Trump's campaign in a lawsuit challenging the results of the presidential election. See here.
Earlier tonight, the judge issued her opinion and in it she imposes sanctions on Sidney Powell, Lin Wood and seven other pro-Trump lawyers. The opinion is 110 pages long and everyone seems to agree that it is "scathing." You can read it here.
In the end, the judge holds that the lawyers engaged in misconduct for filing a lawsuit for an improper motive and imposes sanctions under Rule 11 of Civil Procedure, 28 U.S.C. § 1927 and as justified by the inherent power of the court. Here is the beginning of the opinion (excluding footnotes):
... America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.
Specifically, attorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.
This matter comes before the Court upon allegations that Plaintiffs’ counsel did none of these things. To be clear, . . . the question before the Court is whether Plaintiffs’ attorneys engaged in litigation practices that are abusive and, in turn, sanctionable. The short answer is yes.
The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required pre-filing inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.
And this case was never about fraud – it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.
While there are many arenas – including print, television, and social media—where protestations, conjecture, and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney’s freedom of speech is circumscribed upon “entering” the courtroom.
Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not. And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way. As such, the Court is duty-bound to grant the motions for sanctions filed by Defendants and Intervenor-Defendants and is imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its own inherent authority.
The sanctions included the payment of a reasonable amount for attorneys fees and costs, mandatory continuing legal education in the subjects of pleading standards and election law, and a referral for investigation and possible suspension or disbarment to the appropriate disciplinary authority for every state bar and federal court in which each attorney is admitted.
UPDATE (August 29): More coverage here.
Sunday, August 22, 2021
As I am sure you know by now, last year Arizona and Utah became the first jurisdictions in the US to allow lawyers to partner with non-lawyers to form alternative business structures to provide legal services. This is a significant change in the way the legal market functions but it is still too early to tell what all the consequences (positive and negative) of it are. For more on the changes in Arizona go here and scroll down for lots of stories, links, podcasts and comments.
As I am sure you also know, this type of regulatory shift has been part of a debate for a long time and needless to say, the changes adopted in Arizona and Utah have been somewhat controversial. As stated in an article in the ABA Journal, "[t]raditionalists and unauthorized practice of law regulators in the U.S. have long feared the possibility of a legal technology company like LegalZoom becoming a publicly traded law firm-like entity with its own attorneys serving clients. They have argued that such a business setup would result in the company’s economic interests being put before the best interests of its clients."
Actually, the old debate was always about whether "department stores" like Sears or Walmart should be allowed to offer legal services (like they offer optical services departments), but that is another story.
The news today is that, to no one's surprise, LegalZoom is seeking to be admitted to the practice of law so to speak in Arizona. And if permitted, which I would expect will happen, it may finally provide some empirical evidence on whether the "traditionalists'" worries are legitimate.
In case you did not know, and unlike what it appears to do from its commercials, LegalZoom does not provide legal services. It is not allowed because it is not a law firm, and does not employ lawyers. What it does is it provides a platform to connect people seeking legal representation with lawyers who are available to provide that representation. In essence, it is a matchmaking service and makes its profit from collecting fees from those who use it. Importantly, it does not have control over the quality of the lawyers or the services they provide.
The reason LegalZoom can't provide legal services is the generally accepted notion (reflected in Model Rule 5.4) that lawyers can't partner with non-lawyers to provide legal services. Now that this rule has been abandoned in Arizona, companies like LegalZoom (or Walmart, for that matter) are free to hire attorneys to provide legal services as long as they meet the requirements set up by the new rules in those states. And that is what LegalZoom is seeking to do in Arizona. They want to become a registered legal services provider even though the company is not a law firm and it is owned and funded by non-lawyers.
The ABA Journal has a good short article on the issue here.
Thursday, August 12, 2021
My friend Lucian Pera, one of the most well known and respected members of the ABA Center for Professional Responsibility, is running for President of the ABA. The individual members of the ABA don't have a vote in the election which is limited to 69 members of the ABA’s Nominating Committee. However, you may be interested to know what the candidates stand for and why they are interested in the position. Also, maybe some of you are voters, or maybe some of you out there know some of the voters. So, in case you are interested, here is a link to a short article in which Lucian talks about his views for the future of the ABA.
Wednesday, August 11, 2021
California Lawyers Association Ethics Committee Provides Guidance on the Elements of Effective Ethical Screens
Hinshaw has a report on the California Lawyers Association Ethics Committee Formal Opinion 2021-1, which identified the "Elements of Effective Ethical Screens" that comply with the California Rules of Professional Conduct ("California Rules"). The Committee identified six mandatory elements of effective screens, along with several non-mandatory factors. The Committee noted that its opinion applies to circumstances where the ethical screen is implemented without client consent. Ethical screens implemented with client consent are governed by independent agreement rather than the California Rules. Go here to read the opinion or Go here for a summary of the opinion.
Tuesday, August 10, 2021
Back in March I commented on a pending case in Florida in which the state requested the Supreme Court to impose sanctions on an attorney for describing himself as a pit bull lawyer and using an image of a pit bull on a blog, a Facebook page, on business cards and on the door to his office. As I said back then, I find the use of the word and imagery tacky but the attempt by the state to impose sanctions is contrary to First Amendment principles and, as I said back then, complete nonsense. You can read my my comment here.
I am writing about this again today because I just heard that the Court decided the case against the lawyer and imposed a reprimand, which, as you can imagine what I said in the previous paragraph, is wrong. The ABA Journal has the story here, which includes links to the complaint and other documents.
Unless the constitutional standards to determine how the state can justify regulating commercial speech have changed while I wasn't paying attention, the Court's decision can't be justified. Unfortunately, it is also not surprising. Remember this is the same court that decided Florida Bar v. Went for it, later affirmed by the US Supreme Court in one of the worst opinions in First Amendment jurisprudence ever.
In the end, the position of the state of Florida is that it can ban the speech because someone may find it offensive. But if we know one thing about the First Amendment, it is that it is there precisely to prevent the state punishing speech because someone finds it offensive.
Monday, August 9, 2021
US Magistrate for District of Colorado imposes sanctions on lawyers who challenged the presidential election results in a lawsuit based on "enormous conspiracy theory"
While we await the result of the debate over whether to impose sanctions on the lawyers involved in an election challenge case in Michigan by the "Kraken team" of lawyers for the Trump campaign (see here), the ABA Journal and Politico are reporting that a federal magistrate judge in Colorado has imposed sanctions on lawyers who challenged 2020 election methods (rather than the result) in an order that criticized their “woeful lack of investigation” into the law and the facts and which characterized the claims as "one enormous conspiracy theory.” You can read the court's order here.
The opinion states that although the lawsuit did not aim to challenge or reverse the election results, “the effect of the allegations and relief sought would be to sow doubt over the legitimacy of the Biden presidency and the mechanisms of American democracy (the actual systems of voting) in numerous states.” The magistrate judge said that the filing was in bad faith, and that “no reasonable attorney” would have believed the plaintiffs had standing to bring the suit.
The sanctions seemed mild to me since the judge simply ordered the lawyers who filed the lawsuit to pay attorney fees to cover the cost of their opponents’ motions to dismiss the lawsuit and to oppose an amended complaint. Go here for the ABA Journal story. Go here for Politico.
Sunday, August 8, 2021
July 13, 2021
In case you don't remember, a number of attorneys for the Trump campaign filed a lawsuit in Michigan challenging the results of the election. The case later came to be known as the "Kraken lawsuit" because attorney Sydney Powell promised to "release the Kraken."
Well, the Kraken never made an appearance, and the complaint was not supported with any real evidence. In response, the city of Detroit and state of Michigan requested sanctions, including fines and referral for disbarment for Trumps' lawyers.
The hearing to discuss possible sanctions was held today and it did not go well, apparently. As reported by Above the Law, "[d]uring a six-hour slugfest sanctions hearing in the Michigan “Kraken” case, the [court's] team worked to corral a dozen screaming, interrupting, crying, filibustering lawyers. It was worse than herding cats — at least cats are cute."
In a separate story Law & Crime is also reporting that one of Trump's lawyers violated a court order immediately after the hearing ended.
UPDATE August 8, 2021
Law & Crime is reporting that "[i]n a blistering final salvo in their request for sanctions, the city of Detroit held back nothing against pro-Trump conspiracy theorist lawyers Sidney Powell, Lin Wood and more than a half dozen other attorneys behind the so-called “Kraken” litigation in Michigan." Read the report here.
Tuesday, August 3, 2021
NY and Georgia issue opinions on advising clients in the marijuana industry which reach opposite conclusions - UPDATED
Ethics authorities in New York and Georgia recently issued opinions on whether lawyers can advise clients on matters related to both recreational and medical marijuana that reach opposite views. The problem relates to the fact that marijuana use is now legal in many states while it remains illegal under federal law.
The New York opinion, issued on July 8, 2021, states that attorneys are free to provide advice for clients in the medical cannabis industry, while the Supreme Court of Georgia took the exact opposite position in an order issued on June 21, 2021.
The Law for Lawyers Today has a comment here.
Update 8/11/21: Legal Ethics Advisor has a comment here.
Sunday, August 1, 2021
As you know by now, Rudy Giuliani's law license was suspended in New York and Washington DC as a result of his involvement in the frivolous lawsuits seeking to overturn the election. See here and here .
Now comes news that a complaint similar to the one filed against Giuliani in New York has been filed against Ken Paxton in Texas. Paxton, who is under indictment for securities fraud and also facing allegations from his own staff that he took bribes and abused his office, filed a lawsuit in the Supreme Court of the United States seeking to invalidate the electoral votes in Pennsylvania, Michigan, Georgia, and Wisconsin. The Supreme Court dismissed the suit almost immediately for lack of standing.
The complaint against Paxton, filed by 31 legal professionals including several past presidents of the Texas state bar, alleges that Paxton violated the Texas Disciplinary Rules of Professional Conduct by filing a frivolous suit, making false statements of fact and law to a tribunal, engaging in deceitful conduct, and failing to uphold the Constitution.
Above the Law has more information here.