Monday, November 29, 2021

Does the duty to know the benefits and risks associated with relevant technology (also known as technology competence) include a duty to watch and be aware of the news?

Long time readers of this blog know that I have posted many stories about the implications of comment [8] to Model Rule 1.1 on Competence.  According to this comment, the duty of competence includes a duty to "keep abreast of" the benefits and risks associated with relevant technology.

So, how does one "keep abreast" or anything?  Well, one way is to read and watch the news.  So, does the duty to know the benefits and risks associated with relevant technology (also known as technology competence) include a duty to watch and be aware of the news?  

My friend Lucian Pera, one of the most respected members of the Center for Professional Responsibility, recently published an article arguing that the answer is "Yes."  You can read the article here.

Thanks to Michael Kennedy for the information and link.

Sunday, November 28, 2021

How not to practice law: Text your client how to answer questions during a deposition, then try to cover it up by claiming incompetence -- UPDATED

November 28, 2021

The Legal Profession Blog recently published a summary of a decision in Florida suspending a lawyer for 91 days for texting a client during a deposition (that was being taken through Zoom).  See here.  Interestingly, the lawyer taking the deposition corroborated the texts when the lawyer who has sent them, sent them to the other lawyer by mistake.... So, add lack of competence regarding technology to the list of examples of misconduct in the case.

Lawyer Ethics Alert Blog has more on the story here.

UPDATE 3/13/22:  Legal Ethics Lawyer published a comment on the case here.

Sunday, November 21, 2021

Complaint filed challenging Connecticut's recently adopted version of Model Rule 8.4(g)

An organization called the New Civil Liberties Alliance recently filed a complaint in Connecticut seeking to enjoin the implementation of the state’s recently adopted version of Model Rule 8.4(g).  The NCLA’s stated mission is to protect constitutional violations by “the Administrative State,” which they describe as an unconstitutional administrative state within our U.S. government.  

As you may recall, a similar complaint was successful in Pennsylvania last year.  In that case, the court declared Pennsylvania’s version of the rule unconstitutional.  After appealing, the state dropped the appeal and amended the rule instead.  See here.

Just like the plaintiff in the Pennsylvania case, the plaintiffs in Connecticut argue that the rule imposes content-based and viewpoint-based discrimination and that the rule is so vague that lawyers are unable to tell what is prohibited and what isn’t.  

The problem with the case in Connecticut is that the text of the rule (and its comment) adopted there is not the same as the one adopted originally in Pennsylvania.  

The comment in Connecticut’s version limits the notion of “discrimination” to harmful speech or physical conduct directed at individuals and that makes an important difference.  The invalidated rule in Pennsylvania was broader and therefore could be interpreted to regulate protected speech.  The Connecticut rule is more focused and it might just survive the attack.  For example, a statement expressing bias toward a protected group in general would have been a violation of the original rule in Pennsylvania but it would not be a violation of the rule in Connecticut.  Although the notion of what is “harmful” is vague, I expect the defendants to argue that it is not much different than the type of language used in the analysis of employment cases in which courts have to determine if the working environment is “hostile.”

Evidently, the case is important and the result can be very influential in the continuing debate over Model Rule 8.4(g).

Monday, November 15, 2021

Podcast on civility in the practice of law

The podcast Reimagining Law dedicated a recent episode to discussing the difference between being a client advocate and overly aggressive, how aggressive behavior impacts legal outcomes and the bottom line, and how the Illinois disciplinary authority is addressing acts of incivility that don’t rise to the level of discipline or an ethical violation.  

Some of the topics covered include:  What is the difference between being a zealous advocate for your clients and being overly aggressive?  How can aggressive behavior impact the bottom line or case outcomes?  Are there issues related to incivility transactional matters for lawyers?  How do clients respond to overly aggressive attorneys?  How do judges respond to such attorneys? What happens when an act or the behavior of an attorney doesn’t quite reach the level of an ethical violation?   You can watch the episode below by clicking the "play button" or you can go to YouTube here.

Sunday, November 14, 2021

NY City reacts against law professors who filed complaints against prosecutors; law professors respond by filing lawsuit

Last May I wrote about a new organization in New York called "Accountability New York" created by lawyers and law professors to pursue complaints against prosecutors for misconduct. The organization started its work by filing 21 complaints to New York’s court-appointed grievance committees tasked with investigating attorney wrongdoing.  Go here to read that original post. 

You would think that having a group of lawyers seeking accountability prosecutorial misconduct would be a good thing; but not everyone agrees.  

When the law professors of Accountability New York filed the grievances against the prosecutors they published everything online.  But, because in New York disciplinary issues are supposed to be secret until (and if) until discipline is recommended, as reported by the New York Times, “the blowback from New York City was swift.”

In a letter sent directly to the grievance committee responsible for disciplining lawyers, a lawyer for the city accused the professors of politicizing the process and of violating the law by making the grievances public.

Accountability New York responded, though, and earlier this month, they filed a lawsuit in federal court in Manhattan in which they argue that the city’s pushback against the professors included the threat of further action if they continued to file grievances.  The lawsuit seeks declaratory and injunctive relief.  Here is a copy of the complaint.

The New York Times’ article quotes a spokesman for the city’s law department who claims that while prosecutors who committed misconduct should be held accountable, the professors’ attempted use of the grievance process was contrary to the law.  

The lawsuit asks the court to declare unconstitutional the law that forces disciplinary proceedings to be secret as a violation of the First Amendment.  The suit claims that the law is unconstitutional on its face and as applied to the law professors, whose complaints relied on allegations in judicial decisions and the public record.

The ABA Journal has more on the story here.  The Queens Daily Eagle also has more here.

Sunday, November 7, 2021

Reinventing Witness Preparation

Litigation Radio has a posted a podcast on witness preparation (sponsored by the ABA section on litigation).  You can listen to the program by clicking on the play button below or by going here.  Here is the description of the program: "Many trial lawyers believe that the less their client says to opposing counsel the better… but is that really true? Kenneth Berman, author of ‘Reinventing Witness Preparation’, joins Dave for a deep dive conversation on how you and your client can take control the narrative even during a line of deceptive questioning. Teaching your client how to answer clearly and completely can be the salvation of your case. Tune in to hear all about it."