If you need a reminder of your ethical duties when dealing with a client with diminished capacity, a recent post in Lex Blog has you covered. You can read "Ethical Considerations for Lawyers When Responding to Clients With Cognitive Decline" by Laura Bagby by going here.
Monday, October 24, 2022
Sunday, October 23, 2022
Whether nonlawyers should have ownership roles in law firms has been and remains a hotly debated topic. The debate concerns potential reforms to Rule 5.4 of the American Bar Association’s Model Rules of Professional Conduct, which sets guidelines for maintaining the professional independence of lawyers, as well as the impact of those revisions on the legal profession. Although advocates for such reform argue that nonlawyers must be allowed ownership roles in law firms in order to foster innovation and increase access to legal services, many lawyers have raised significant concerns about the impact that nonlawyer ownership would have on the independence of lawyers. Lawyers have concerns about allowing nonlawyers—who have not sworn to uphold the ethical obligations that attorneys promise to uphold when becoming members of the bar—to have decision-making authority in the day-to-day practice of law. There is also no evidence that nonlawyer ownership actually improves access to justice for the needy. This Essay argues against rewriting Rule 5.4 to allow nonlawyer ownership of law firms. It concludes that nonlawyer ownership not only fails to solve the problems that advocates of reform promise it will address but in fact creates meaningful risks for the legal profession.
You can read the article here.
Saturday, October 22, 2022
Jeffrey Clark argues disciplinary agency has no jurisdiction over his conduct because it violates the principle of separation of powers
As you may remember, the District of Columbia filed disciplinary charges against both Rudy Giuliani and former Justice Department attorney Jeffrey Clark for their efforts to help former President Donald Trump overturn his 2020 election loss. The case against Giuliani seems to be proceeding quickly since he recently announced the witnesses he intends to call. Likewise, last week there was an interesting development in the case against Clark.
Clark has filed a petition to remove the case to federal court arguing that the agency of the D.C. Bar responsible for filing and adjudicating disciplinary proceedings against attorneys and the D.C. courts do not have the jurisdiction to bring ethics charges against him. He argues that "no state possesses the power to supervise the internal operations and deliberations of any branch of the federal government" and that the ethics case against him represents a "direct attack on the fundamental principle of separation of powers." You can read his petition here.
So what happens when a lawyer tries to remove a state ethics discipline matter to federal court? Does the court have jurisdiction? Michael Kennedy, bar counsel for the state of Vermont, shares his experience on this matter here.
Above the Law has a comment on Giuliani's case and Clark's cases here.
Saturday, October 8, 2022
In our latest entry in the "how not to practice law" series, we have a quick practice tip: don't tell your clients to burn evidence. Here is the full story.
Thursday, October 6, 2022
The Institute for the Advancement of the American Legal System at the University of Denver (IAALS) recently released a new report highlighting key takeaways from a national 2021 conference on the benefits of unbundling legal services. You can read the report here.
In addition, the IAALS unveiled a resource center on its website, which will help consumers, lawyers, and courts get "how-to" information on promoting and utilizing unbundled legal services.
As the press release announcing these developments explains, "[u]nbundled legal services, or limited-scope representation, is one way that people who are unable to afford a lawyer—and would end up representing themselves in court—can still receive legal assistance in their case. While typically lawyers handle all aspects of a case from beginning to end, a lawyer providing unbundled legal services works on and charges for only certain legal tasks within the broader case, often based on what their clients can afford and need help with most. Unbundled legal services are becoming a more popular and less expensive way to help people get legal assistance, which usually leads to better legal outcomes than forgoing legal assistance altogether."
Tuesday, October 4, 2022
Long time readers of this blog know that one of the most debated issues in the past few years involves the question of whether the regulation of the profession should be reformed to allow lawyers to provide services in alternative business structures and whether to allow non-lawyers to provide some types of legal services.
You also know that the ABA continues to hold the position that lawyers should not be allowed to partner with non lawyers for the provision of legal services and that Utah and Arizona recently decided to take measures to depart from this traditional view.
What we do not yet know very well, however, is what effect have the regulatory changes in those states have had as it relates to the goal of providing more, better and more affordable access to legal representation.
Well, for those of you interested on the topic, more information is now available. Stanford Law School’s Rhode Center on the Legal Profession has drafted a report on the issue. The report, Legal Innovation After Reform: Evidence From Regulatory Change, is available here.
The report concludes, among other things, that the regulatory changes in Utah and Arizona are generating innovation in the ownership structure of legal services providers, which is not surprising since that was the idea to begin with.
This is a good thing, but on whether the other important goal has been met, the information is not so clear, nor consistent between the two states.
The main argument for broad regulatory reform is always that it will lead to more and better "access to justice", by which we really mean access to legal representation. But the experience in other states has shown that for varied reasons, the economics of the matter don't always lead to this result. Regulation that has opened the door to more service providers does not always result in lowering costs, and by extension, to more access to representation for those who can't afford it.
The new report has some data that suggests that the regulatory changes in Utah has resulted in more access than the changes in Arizona, and it is not clear (to me at least) that either has resulted in significantly more access to poor individuals.
None of this is to say that the regulatory changes should be rejected; I am only saying that we may need to think more about ways to achieve the goal of access to affordable representation.
You can read a comment on the report here.
Sunday, October 2, 2022
The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Ethics Opinion (No. 502), on communications with a represented person by a pro-se lawyer. You can read (and download) the full text here. The summary is as follows:
Under Model Rule 4.2, if a person is represented in a matter, lawyers for others in the matter may not communicate with that represented person about the subject of the representation but instead must communicate about the matter through the person’s lawyer, unless the communication is authorized by law or court order or consented to by the person’s lawyer.
When a lawyer is self-representing, i.e., pro se, that lawyer may wish to communicate directly with another represented person about the subject of the representation and may believe that, because they are not representing another in the matter, the prohibition of Model Rule 4.2 does not apply. In fact, both the language of the Rule and its established purposes support the conclusion that the Rule applies to a pro se lawyer because pro se individuals represent themselves and lawyers are no exception to this principle.
Accordingly, unless the pro se lawyer has the consent of the represented person’s lawyer or is authorized by law or court order to communicate directly with the other represented person about the subject of the representation, such communication is prohibited. In this context, if direct pro se lawyer-to-represented person communication about the subject of the representation is desired, the pro se lawyer and counsel for the represented person should reach advance agreement on the permissibility and scope of any direct communications.
For a comment on the Opinion, go to Ethical Grounds, the blog of the Bar Counsel for Vermont.
The ABA Journal also has a short post on the opinion, here.