Saturday, April 16, 2022

New Opinion from the ABA Committee on Ethics & Professional Responsibility on Solicitation

A few days ago, the ABA Standing Committee on Ethics and Professional Responsibility published Formal Opinion 501 in which it reminds us that not only must attorneys refrain from engaging in improper direct solicitation of potential clients, they also have an ethical duty to ensure that their employees do not engage in such misconduct.  You can read the full opinion here.  The summary is as follows:

ABA Model Rule of Professional Conduct 7.3(a), amended in 2018, contains a narrowed definition of what constitutes a “solicitation.”  Rule 7.3(b) delineates the type of solicitation that is expressly prohibited.  Rules 8.4(a) and 5.3 extend a lawyer’s responsibility for solicitation prohibitions not only to actions carried out by the lawyer directly but also to the acts of persons employed by, retained by, or associated with the lawyer under certain circumstances.

Rule 5.3(b) requires lawyer supervisors to make reasonable efforts to ensure that all persons employed, retained, or associated with the lawyer are trained to comply with the Rules of Professional Conduct, including Rule 7.3(b)’s prohibition. Partners and lawyers possessing comparable managerial authority in a law firm must make reasonable efforts to ensure that the firm has training that reasonably assures that non lawyer employees’ conduct is compatible with the professional obligations of lawyers. Under Rule 5.3(c), a lawyer will be responsible for the conduct of another if the lawyer orders or with specific knowledge of the conduct ratifies it, or if the lawyer is a manager or supervisor and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Rule 8.4(a) makes it professional misconduct for a lawyer to “knowingly assist or induce another, to violate the Rules or knowingly do so through the acts of another. Failing to train a person employed, retained, or associated with the lawyer on Rule 7.3’s restrictions may violate Rules5.3(a), 5.3(b), and 8.4(a).

Many legal consumers obtain information about lawyers from acquaintances and other professionals. The Model Rules of Professional Conduct are rules of reason. Recommendations or referrals by third parties who are not employed, retained, or similarly associated with the lawyer and whose communications are not directed to make specific statements to particular potential clients on behalf of a lawyer do not generally constitute “solicitation” under Rule 7.3.

Ethical Grounds has a comment on the opinion here. The ABA Journal has a comment here

Friday, April 8, 2022

Nebraska Supreme Court asks for comments on proposed amendment to adopt rule similar to Model Rule 8.4(g)

By now I am sure readers of this blog are familiar with Model Rule 8.4(g) and the debate on whether it would survive a Constitutional attack on First Amendment grounds.  (Pennsylvania's version of the rule was declared unconstitutional and a challenge has been filed in Connecticut.)   

Now comes news that the Nebraska Supreme Court has circulated for comment a proposed amendment to the state's Rule 8.4 which adopts much, but not all, of the language in Model Rule 8.4(g).  

Unfortunately, it does so in a way that also leave it open to the same type of Constitutional challenge.  States should look at the proposal in New York, which has not been officially adopted yet, for a better alternative that minimizes the rule's Constitutional vulnerability.

To read all my posts about this topic, including posts on the Model Rules itself, the cases in Pennsylvania and Connecticut and the proposal in New York, go here and scroll down for all the stories.

How not to practice law: start dating a client and then help him murder his "ex"

Above the Law is reporting on a case in Oklahoma in which the state is seeking the death penalty for a lawyer.  The lawyer is accused of three counts of deliberate and intentional first-degree murder and one count of first-degree burglary in connection with the murders of the lawyer's client ex-girlfriend and her parents.  You can read the story here.

Tuesday, April 5, 2022

Supreme Court will not review decision that found the Texas mandatory bar system unconstitutional

Back in July of 2021 I reported that the Court of Appeals for the Fifth Circuit ruled that the mandatory bar system used in Texas was unconstitutional.  See here and here.

I am writing about this again today because Bloomberg Law is reporting that the U.S. Supreme Court just announced that it will not review this ruling.  See here.

For other posts on challenges to mandatory bar systems go here and scroll down.