Tuesday, December 28, 2021

Be careful when replying to online reviews; but also when reading about cases on replies to online reviews

 I have posted a number of times on the issues that arise when lawyers reply to negative online reviews.  (Here are links to the more recent comments on opinions from the ABA (also here and here) and from Florida, and North Carolina.)

I am writing about this again today because I saw a headline in the Legal Profession blog that read "Reciprocal Censure For Response To Negative Online Review" and thought that it would be a novel case.  But it wasn't and the problem is the headline is worded wrong.

As written, it suggests that the lawyer was disciplined for replying to the review; or, in other words, that it would be misconduct to reply to an online review.  That is not the case.  The problem is not that the lawyer replied but HOW the lawyer replied.  The story is not that the lawyer replied, but that the lawyer replied improperly (in this particular case, by disclosing confidential information).

So the story is not that the lawyer was disciplined for replying to the review, but that the lawyer was disciplined for violating the duty of confidentiality.  

And the bottom line is that unless a particular jurisdiction has decided otherwise, lawyers are allowed to reply to negative reviews, but lawyers have to be careful not to violate other rules when they do so.

Short article on new Ohio rules regarding Rule 5.5 and practice of law remotely

Back in August I reported that Ohio amended its ethics rules to make clear what is required of lawyers who are physically located but not licensed there.  The ABA recently published a short article commenting on the new rules.  You can access it here.

Sunday, December 19, 2021

ABA Committees solicit comments on discussion draft document on possible amendments to the Model Rules

The ABA Standing Committees on Ethics and Professional Responsibility and Professional Regulation have developed a Discussion Draft of possible amendments to the Comments of Model Rules of Professional Conduct 1.0 (Terminology), 1.1 (Competence), and 1.2 (Scope of Representation and Allocation of Authority between Client and Lawyer). The amendments contained in the Discussion Draft provide guidance on lawyers’ client due diligence obligations under the ABA Model Rules of Professional Conduct.  The Discussion Draft is available here.

The Committees have not yet decided whether to present any Model Rule amendments on this subject to the House of Delegates. Your comments will assist the Committees in determining whether and how to proceed.  

You may provide comments in one of two ways:

First, the Committees will host a roundtable discussion on Friday, February 11, 2022, from 1:30 to 3:30 p.m. at the Grand Hyatt Seattle, 721 Pine Street (room location forthcoming in January 2022). If you would like to comment at this roundtable, please RSVP to Natalia Vera (Natalia.vera@americanbar.org).

Second, you may communicate your thoughts and suggestions by providing written comment to the Committees.  Written comments on the Discussion Draft must be submitted by email to Natalia Vera by February 15, 2022.  Please note that the Committees may post your written comments on the ABA website.

Sunday, December 12, 2021

Oregon State Bar proposal would permit paralegals to represent clients in landlord/tenant and family law cases

The Oregon State Bar recently announced it is considering a proposal to approve a program for what it will refer to as "Licensed Paralegals," akin to the groundbreaking (but recently abandoned) LLLTs program in Washington state.  

The proposal in Oregon would allow paralegals to represent clients in certain family law matters and in landlord/tenant disputes.  The idea behind the program is familiar:  most people don't have access to legal representation and it should be possible for paralegals to provide some services, just like a nurse practitioner provides some health services, in order to lower costs and enhance access to representation.  The Bar explains the principle in a short video available in its website. 

The website also offers copies of the Board of Governors report that suggests the adoption of the proposal (here) and a more detailed summary of the program here.

Monday, December 6, 2021

Federal Judge reiterates (and revises) the sanctions on Trump lawyers for filing frivolous lawsuits -- UPDATED

December 5, 2021

Back in September I reported that a judge had imposed sanctions on several lawyers for the Trump campaign for the frivolous lawsuits filed in Michigan challenging the results of the election.  See here.

Today, I am writing to point out that the judge has affirmed the imposition of sanctions, and added an amount for attorney's fees but has reduced the amount of sanctions by a little over $28,000.  You can read the opinion here

According to the order, attorneys Sidney Powell, L. Lin Wood, Howard Kleinhendler, Gregory Rohl, Stefanie Lynn Junttila, Emily Newman, Julia Z. Haller, Brandon Johnson, and Scott Hagerstrom, must pay, jointly and severally $21,964.75 to Gretchen Whitmer and Jocelyn Benson, and $153,285.62 to the City of Detroit. 

The ABA Journal has more information and links on the story here.

UPDATE 12/12/21

NY Times editorial criticizes lack of accountability for prosecutorial misconduct

 About three weeks ago I reported that the organization "Accountability New York" filed a lawsuit in federal court in Manhattan arguing that the basis for the city’s pushback against the organization's work to hold prosecutors accountable for misconduct was unconstitutional.  See here

The issue has not gone unnoticed.  Two days ago, the New York Times published an editorial critical of the City's position and of the lack of accountability for prosecutorial misconduct in general.  It also suggests that the Justice Department’s office of professional responsibility needs an overhaul.  You can read the article here. It is called "How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?"