Professor Alberto Bernabe - The University of Illinois-Chicago School of Law
A bar discipline committee in Washington, D.C., has concluded that Rudy Giuliani violated at least one professional rule in his efforts to help former President Donald Trump challenge the results of the 2020 election — a preliminary finding that could result in the suspension or loss of his law license.
Above the Law has a comment here. Politico has more details here.
December 10, 2022
The United States Supreme Court has agreed to hear a case that raises the issue of whether a communication involving both legal and non-legal advice is protected by attorney–client privilege where obtaining or providing legal advice was one of the significant purposes behind the communication.
The case is called In Re Grand Jury. You can find a summary and links to relevant documents here.
The ABA has filed an amicus brief (available here) in which it urges the Court to consider client-lawyer communications privileged, even if the purpose of some of those communications is not to request or give legal advice. The ABA Journal has a short article discussing the case and the brief here.
The blog Presnell on Privileges has a comment here.
UPDATE: Dec 18, 2022
Presnell on Privileges has more commentary on the case here.
In its annual Profile of the Legal Profession for 2020, the American Bar Association defined a legal desert as a county with fewer than one lawyer per 1000 people, which is 75% lower than the national average of four lawyers per 1000. So how can we address that problem? Bill Henderson, Professor of Law at Indiana University Maurer School of Law provides some analysis in his blog Legal Analysis.
Here is a short article on ethical considerations for judicial law clerks.
November 13, 2022
Back on September 25 I reported (here) that a federal judge had dismissed a lawsuit brought by Donald Trump against Hillary Clinton, former FBI Director James Comey, Rep. Adam Schiff, and others that alleged that the defendants conspired to spread disinformation about his campaign during the 2016 presidential election. The judge found the claims to be frivolous but did not impose sanctions, although suggested that sanctions might be imposed later.
Well, finally the other shoe dropped. Last week, the judge imposed sanctions on several members of Trump’s legal team, saying the claims in the case were political grievances masquerading as legal claims.
As a result, lawyers Alina Habba, Michael T. Madaio, Habba Madaio & Associates, Peter Ticktin, Jamie Alan Sasson, and The Ticktin Law Group, were ordered to jointly and severally pay $50,000 into the registry of the Court and $16,274.23 in attorney's fees to one of the defendants.
You can read the 19 page order here, and you can find more information and commentary at the ABA Journal, Jurist and Politico.
UPDATE 11/17/22: Tech Dirt has a comment on the order here.
November 3. 2022
Let's assume that Lawyer Larry sends an e-mail message to Attorney Andrea about a case in which Larry is representing Client Carlos. Because Larry wants to keep his client informed about what's happening in the case, Larry "copies" Carlos in the message (meaning that Larry included Carlos' email address in the "cc" spot of the message, thus sending the message to Carlos just as he sent it to Andrea). Then assume that Andrea wants to reply to the message and she hits "reply all" instead of just "reply." By doing this, she sends her reply to both Larry and his client Carlos. Has Andrea violated Rule 4.2 which says attorneys shall not contact directly people they know to be represented by counsel?
This is a question that has been addressed by several states and this week, the ABA Standing Committee on Professional Responsibility and Ethics issued a formal opinion on the topic. You can read the full opinion here. The abstract of the opinion states:
In the absence of special circumstances, lawyers who copy their clients on an electronic communication sent to counsel representing another person in the matter impliedly consent to receiving counsel’s “reply all” to the communication. Thus, unless that result is intended, lawyers should not copy their clients on electronic communications to such counsel; instead, lawyers should separately forward these communications to their clients. Alternatively, lawyers may communicate in advance to receiving counsel that they do not consent to receiving counsel replying all, which would override the presumption of implied consent.
Ethical Grounds explains why the opinion is important here.
On the other hand, Faughnan on Ethics opines that the opinion "creates unnecessary complexity for the position it wants to stake out by trying to spitball about what a sending lawyer could do — besides … like NOT cc’ing their client — to create the “special circumstances” that would prevent implied consent from being given." You should read the comment here.
UPDATE (11/8/22)
Law Sites has posted a comment on the opinion here.
The Law For Lawyers Today has a comment here.
The Louisiana Supreme Court recently amended Louisiana Rule of Professional Conduct 1.15(d) to clarify a lawyer’s duty with respect to the interests of third parties in funds or other property in the lawyer’s possession. The rule change becomes effective on December 1, 2022. For a summary of the changes go here.
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.
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.
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.
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.
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."
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.
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.
Here is another installment on the "how not to practice law" series...
In today's story, the lawyer lied to the client and the court claiming to be suffering from cancer in order to have the court agree to let the lawyer withdraw from representation.
And for this the lawyer is now agreeing to getting disbarred.
Moral of the story: don't lie. And especially, don't lie to the court. Simple.
Mike Kennedy, Vermont's Bar Counsel, reports that about two weeks ago, the Vermont Supreme Court approved several amendments to the Vermont Rules of Professional Conduct. The Court’s order is here. Some of the amendments are pretty significant. They include:
Paragraph (c) of Rule 1.2 has been amended to require a lawyer who assists a person to prepare documents that the lawyer knows the person will file in court to comply with any court rules that might require a seemingly self-represented litigant to disclose having received legal assistance.
Rule 1.6 has been amended to create exceptions to the duty of confidentiality that allow disclosure of information to secure guidance from bar counsel and to detect conflicts of interest when changing jobs.
Rule 1.6 was also amended to adopt an affirmative duty to make reasonable efforts to prevent the inadvertent disclosure of or unauthorized access to client information. This provision is in Model Rule 1.6(c).
The duty (in Rule 4.4) to notify the sender upon receiving information that the lawyer knows or should know was inadvertently sent has been expanded to “information” from “document.”
A paragraph was added to the comment to Rule 5.5 to clarify that lawyers who are not admitted to practice law in Vermont do not necessarily engage in the unauthorized practice of law by working remotely from Vermont.
Rule 8.4(b) prohibits lawyers from engaging in conduct that involves a “serious crime.” The amendment broadens the definition of “serious crime.”
For the complete run down, go to Mike's post or watch this video in which he discusses amendments (which had not yet been adopted at the time of the video).
If you have been watching the news lately you know that former President Trump has been having a terrible week in terms of legal matters. Most the attention has focused on the reversal of part of the lower court's ruling in the Mar-a-Lago search case and on the civil claim filed in New York. But there is another story that is more interesting to PR nerds like me and that has been mostly overlooked by the general media.
On September 8, a federal judge dismissed a lawsuit brought by Trump against Hillary Clinton, former FBI Director James Comey, Rep. Adam Schiff, and others that alleged that the defendants conspired to spread disinformation about his campaign during the 2016 presidential election.
In the opinion (available here), the judge explicitly finds that many of the complaint’s allegations and claims lack factual support and that having filed the case was a violation of rules of civil procedure (which in turn would make it a violation of rules of professional conduct).
Citing Rule 11 of the Federal Rules of Civil Procedure, the court states that “[i]n presenting a pleading, an attorney certifies that it is not being presented for any improper purpose; that the claims are warranted under the law; and that the factual contentions have evidentiary support.”
The judge then concludes that “[b]y filing the Amended Complaint, Plaintiff’s lawyers certified to the Court that, to the best of their knowledge, “the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying or reversing existing law or for establishing new law.” and that “the factual contentions have evidentiary support[.]”... I have serious doubts about whether that standard is met here.”
Having concluded this, however, the judge did not impose sanctions. Instead, at the very end of the opinion he asserts "I reserve jurisdiction to adjudicate issues pertaining to sanctions."
I have not heard whether the judge has made a decision on sanctions, nor whether the conduct of the lawyers, has been or will be referred to disciplinary agencies. I hope the judge decides to do both.
With Trump's legal troubles mounting, there has been a lot of attention on Trump's lawyers lately. Here are some of the headlines:
Trump’s Lawyers Might Think They Just Won. They Still Botched the Case (Politico)
All the former president’s lawyers (that we know of) (Politico)
Donald Trump Has The Kind Of Lawyers You Get When You Offer To Pay Your Attorneys In Livestock, If At All (Above the Law)
Trump Lawyer Alina Habba Complains Of 'Litigious' Prosecutors Trying To Frame Her Client For The Crime Of Having A Messy Office (Above the Law)
New Mexico will no longer deny licenses to practice law solely because of an applicant’s citizenship or immigration status, including some aspiring law students who arrived in the U.S. as children and don’t have a clear path to citizenship. Go here for the full story.
As you probably know, in an attempt to provide better access to legal services, a few jurisdictions have allowed paralegals and other people not admitted to the profession (aka "non-lawyers") to provide limited legal services under certain conditions. Washington state was the first one, although it later abandoned the program.
Today I am writing about this to report that the Oregon Supreme Court recently approved a program that allows licensed paralegals to provide limited legal services in family law and landlord-tenant cases.
You can read the full story here or check this short "fact sheet" that lists the types of services that licensed paralegals will be allowed to provide. The ABA Journal has more on the story here.
A few years ago, when Model Rule 8.4(g) was proposed and was being debated everywhere, I thought I would write a short article I was planning to call “Three things I wish people would stop saying about Model Rule 8.4(g).”
At the time, those three things were: “the rule does not cover speech,” “we don’t need to worry about the rule being overused because enforcing it requires proof of knowledge” and “we should not worry about it because the rules are rules of reason and regulators are not going to try to enforce them randomly or in violation of people’s rights.”
I never got around to writing the article, but I am happy that it eventually became clear that two of these statements were wrong and most people stopped repeating them. The rule is based on a negligence standard (not knowledge) and it does apply to speech. In fact, the Pennsylvania version of the rule was declared unconstitutional because it was found to violate the First Amendment (as the Model Rule itself probably would be too.) (See here, here and here).
But that is not why I am writing about this today. I am writing because the third statement I wish people would stop repeating persists, and according to one comment I read recently, it is part of a proposal for a new rule in Illinios.
According to Faughnan on Ethics,
“[t]he Illinois State Bar Assembly has now approved a version to be sent to the Illinois Supreme Court for (hopefully) adoption that hews closely to the ABA Model Rule in a number of ways. This action by the ISBA is a reversal of their prior decision in 2017 to reject the rule. The proposed Illinois RPC 8.4(j) would, like the ABA version, apply to all contexts “in the practice of law,” including things such as bar activities and social events. The Illinois proposal would also highlight through language in comments the notion that this rule, like all other ethics rules, is still a rule of reason requiring a reasonable construction. The Illinois proposal says out loud what is just implicit as to the ABA Model: “The Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.””
I will leave aside the fact that Illinois already has a rule that regulates discrimination and harassment so my comment is only on this notion that the rules are rules of reason which then leads to the conclusion that we should not worry about the possible unconstitutionality of the rule because we should trust those in charge of applying it will always do the right thing.
I wish people would stop saying this! Not only is it a way to give up on the challenge to draft a rule that would survive a constitutional attack, which implies we are willing to live with a questionable rule, but it is also naive and dangerous. Constitutional protections exist to protect individuals from abuses by the government. You are telling me now we are willing to give up on our protections because we are confident the government will not abuse the rules it creates to regulate us?
How many opinions and examples of abuse do we need to realize this is naive, at best. Lawyers have been disciplined for engaging in Constitutionally protected conduct and speech before (see here and here, for example) and basing decisions on deference to the "reasonable perspective" of the regulators will inevitably result in more discipline for protected conduct that some find objectionable or offensive.
Now some might want to say that the conduct of those lawyers was reprehensible or offensive and that they should be disciplined for it. Ok, you can take that position but if you do, please recognize that you are saying that it is fine with you if the government is allowed to impose discipline for constitutionally protected conduct and speech.*
And this leads me to a fourth thing that I wish people would stop saying and that is that anyone who criticizes Model Rule 8.4(g), or its state equivalents, must be in favor of discrimination. This is a sign that the person making the statement has run out of arguments and the only thing left is to issue a personal attack.
Stop it! Criticizing the rule does not mean that one is in favor of allowing discriminatory conduct to continue. It means that one would prefer to see the regulation of that conduct be done properly. There is plenty of serious literature about why this is important and about how it might be possible but requires more work. If you are interested in the debate related to Model Rule 8.4(g) and the First Amendment, take a look at the articles by Margaret Tarkington, William Hodes, and Bruce Green and Rebecca Roiphe in Volume 50 of the Hofstra Law Review, available here. (Go download the articles now even if you don't have time to read them because they may not be available at this link for long.)
For all my previous posts on the debates about Model Rule 8.4(g) and other related developments go here and scroll down.
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*Another reason I am concerned about this type of reasoning is because it has implications for other aspects of our lives. As I am sure you are aware, there are statutes around the country now that seek to regulate how history is taught in our schools, and a recent US Supreme Court decision opened the door to religion in public schools (as long as it is the religion that the Court approves of, of course). Soon teachers like me may not be allowed to teach issues related to race and the law, and so on. I can't say that the government is not going to abuse its view of what it finds offensive and use that view to impose discipline on those who want to explore other views. If we leave it to those who are in charge of applying the rules to define what is "officially" offensive, history teaches us that, at least, the rules will be overused to impose their view of what is offensive.
Long time readers of this blog know that I have been following the ABA’s Model Rule 8.4(g) since it was first proposed for comment and since it has been adopted (mostly with changes) by several jurisdictions. (Go here and scroll down for all the stories) You might also remember that I have expressed doubts that the ABA’s version would survive a constitutional attack and that Pennsylvania’s version of the rule was, in fact, declared unconstitutional at one point (see here, here and here).
Finally, you may also remember that I expressed that the proposed version of MR 8.4(g) in New York was the best so far. See here.
Well... I recently found out that New York finally officially adopted an amendment to the rules to incorporate the proposal, BUT in the process of approval the actual text of the proposal was changed. Two of the changes improve the text of the proposal, which is very good. The other change makes it worse.
You can read the original proposal here and compare it to the adopted version here.
One good change is simple. It corrected the awkward construction of the part of the rule that lists the "protected categories" about which harassment would be improper. The language in the original proposal made it sound like a few of the categories were examples of "disabilities." The new language makes it clear that those categories are, in fact, categories in and of themselves. The new language also adds a new category: status as a member of the military.
The bad change is that the adopted language eliminated the requirement that to qualify as harassment, the conduct (including the use of speech) had to be shown to be "severe or pervasive." The adopted rule eliminated this requirement and, instead, says that "conduct that a reasonable person would consider as petty slights or trivial inconveniences does not rise to the level of harassment under this Rule."
This is a terrible standard because it is no standard at all. How do we determine what is considered a "petty slight" or a "trivial inconvenience" to the "reasonable person"? Evidently, what one person considers trivial might not be so for another, and some of the more troubling divisions in our society today are precisely based on the fact that people disagree on things like that.
Now, it can be argued that this language is no worse than the language that makes the whole rule depend on a negligence standard, or the language that gives rise to possible discipline in other rules which requires the charging agency to determine what is "reasonable" under the circumstances. But because this rule involves the regulation of speech, the language might also put the rule on a collision course with the First Amendment.
Yet, the drafters want to avoid this collision which leads me to the BEST of all the adopted changes in the rule and one that I am very happy to see: The adopted rule states as part of the rule itself that constitutionally protected speech continues to be protected. In other words, that it would be invalid for the state to use the rule to impose sanctions if the speech that gave rise to the complaint is constitutionally protected. I wish other jurisdictions would follow this example.
Of course, it remains to be seen how the rule is implemented and whether this principle is followed since New York already has a history of imposing sanctions for lawyers using constitutionally protected speech that some found offensive. See here.
Here are some other important highlights about the newly adopted rule in New York:
- the rule only applies to conduct or speech "in the practice of law" which is defined in the rule itself. In contrast, the Model Rule applies in circumstances that are more broadly defined and include conduct outside the practice of law (if "related to" the practice of law.)
- like the Model Rule, the new rule in New York is based on a negligence standard. There is no need for the state to show intent.
- the NY rule applies to both conduct and speech.
- as mentioned above, the new NY rule explicitly states that the rule does not apply if the conduct or speech is constitutionally protected.
- like the Model Rule, the new NY rule recognizes exceptions. If the circumstances fall within these exceptions conduct that would otherwise might be considered discriminatory would not subject the lawyer to discipline. However, this might not prevent the application of other applicable laws related to discrimination.
- the exceptions also recognize circumstances in which a lawyer may not be disciplined for expressing their views on matters of public concern.
Overall, the newly adopted rule in New York is an improvement over versions of the rule I have seen elsewhere.
If you are interested in the debate related to Model Rule 8.4(g) and the First Amendment, take a look at the articles by Margaret Tarkington, William Hodes, and Bruce Green and Rebecca Roiphe in Volume 50 of the Hofstra Law Review, available here. (Note that this link is to the "current issue" page of the law review so it may not take you to the right Volume once the new issue is published. So, go download the articles now even if you don't have time to read them now because they may not be available for long.) The same issue also has an article on the process that resulted in the adoption of New York's rule by Ellen Yaroshefsky.
Yesterday, I reported that a district court judge issued a preliminary injunction banning New York's attorney general from enforcing the state's law against the unauthorized practice of law against a company called Upsolve which provides help to clients facing debt collection problems.
Today, Bloomberg is reporting that the New York Attorney General has filed an appeal of the injunction before the US Court of Appeals for the Second Circuit.
As I said in yesterday's post, the result in this case can have significant implications for the regulation of the profession, so stay tuned!
Thanks to Roy Simon for the update!
If you follow professional responsibility news, you probably know by now that last month the Federal District Court for the Southern District of New York issued a preliminary injunction to prevent the state's Attorney General from instituting actions against a nonprofit company called Upsolve, which was created to provide free legal advice to individuals facing debt collection actions. Why would the state go after Upsolve? Because the legal advice would be provided by people who are not lawyers, and this might be considered to be a violation of the state's law against the "unauthorized practice of law."
I have not read the opinion in detail so I will just provide the background and give you some links to full commentary by other authors. You can read the full opinion here. For excellent comments on the case go here and here. For a podcast discussing the case, go here.
Upsolve plan is to train "Justice Advocates" (who are not lawyers) to provide limited legal advice to lower-income New Yorkers who face debt collection actions. The advocates' assistance would be limited to helping individuals fill out forms provided by the state for the purpose of helping those individuals avoid default. If a "client" were to need more legal services, the advocates are supposed to refer them to a lawyer.
Upsolve believed their services did not violate the UPL law, but just to make sure, it filed a petition for an injunction to prevent New York’s attorney general from trying to enforce the UPL law.
In support of its position, Upsolve argued that New York UPL law interfered with the plaintiffs’ right to associate in order to fulfill their objectives and that it infringed on the plaintiff's freedom of expression.
In the opinion, issued about a month ago, the judge dismissed the argument based on freedom of association, but granted the injunction on the basis of the argument related to freedom of expression stating that
. . . a preliminary injunction is warranted. The UPL rules cannot be applied to Plaintiffs’ program because the First Amendment protects their legal advice as speech, and the UPL rules are not narrowly tailored to satisfy strict scrutiny in this context. Further, the balance of equities favors an injunction because Plaintiffs’ program would help alleviate an avalanche of unanswered debt collection cases, while mitigating the risk of consumer or ethical harm. And enjoining enforcement against Plaintiffs alone, whose activities are carefully limited to out-of-court advice, will not threaten the overall regulatory exclusivity of the legal profession.
Before we go any further, note that the decision is not a decision on the merits. It is only a decision on whether to grant a preliminary injunction. It is possible that the plaintiffs will lose the action in the end and the injunction will be dissolved, but, obviously, the decision to grant the injunction is based on the fact that the judge believes the plaintiffs are likely to win on the merits.
Although I agree that there is a huge need to find ways to provide more access to legal representation, I am not sure that concluding that legal advice by people who are not lawyers is protected speech is a good way to do it. Unless this conclusion is limited (which the court tried to do), this could mean that anyone ignorant of the law can claim to have a right to give legal advice. This would not be a good result. It may actually result in more harm to the public. I think it is true that the notion of the regulation of the profession has an element of protectionism, but it also has an element of protecting the public. And since both the goal of protecting the public, and the goal of providing better access to representation are equally important, those in charge of the regulation of the profession need to find a compromise.
The good news is that, as one commentator has suggested, there are at least three other approaches that could be used to address the conflict between the regulation of the practice of law and the need to provide better access to representation. For example, we can redefine the “practice of law” to exclude the type of service that Upsolve is providing. Second, the state can develop a program to allow licensed nonlawyers to provide certain limited legal services, as has been done in other states. And, third, New York could follow Utah’s lead and develop a “regulatory sandbox,” where those who wish to explore legal services models outside our current regulatory structure can do so under tight supervision.
The Texas state bar has sued the state's Attorney General Ken Paxton arguing professional misconduct for trying to void Biden election. Courthouse News Service has the story here and Above the Law has a comment here.
Meanwhile, the District of Columbia office of disciplinary counsel has filed charges against Rudy Giuliani alleging that he made baseless claims in federal court filings about the results of the 2020 presidential election in Pennsylvania. You can read more about this story in The Guardian, Politico, Jurist and the Legal Profession Blog.
When I cover the duties owed to clients in class, I tell my students to remember the grades they do not want: Cs, Ds and Fs. This is a trick to get them to remember some basic concepts: Competence, Confidentiality, Communication, Conflicts, Candor, Diligence and Fiduciary. If you want another C, you can add civility.
I am writing about this today because Mike Kennedy, Vermont's Bar Counsel, recently posted a short video on the subject here.
Back in April I reported (here) that the Association of Professional Responsibility Lawyers (APRL) formally submitted a proposal to the ABA asking it to adopt a new version of Model Rule 5.5 that would eliminate the traditional state-based limitation on law practice, by which lawyers can practice only in the states in which they are admitted. According to the proposal lawyers should be allowed to practice anywhere in the country as long as they are admitted somewhere in the country.
This issue has been raised and debated many times and, unfortunately in my opinion, the prevailing view remains that jurisdictions should be allowed to close their borders to "outsiders." For this reason, I support the suggested changes.
If you want more information on the issue, here is a link to a podcast in which APRL President Brian Faughnan discusses the proposal. You can also listen to the podcast by clicking on the play button below or here.
A recent proposal has been presented to amend a number rules in Vermont. Vermont's Bar Counsel, Mike Kennedy, goes over the proposed changes in detail in a video posted to his YouTube channel here.
April 24, 2022
Because of the pandemic, many lawyers were forced to start practicing remotely and for some of them this meant practicing "across borders," meaning that the lawyer was located in a different jurisdiction than the one they were practicing in. This is not unusual. Lawyers who practice in New York may live in New Jersey; lawyers in Chicago may live in Wisconsin or Indiana, etc.
In response to this "new normal," a number of jurisdictions have issued recent opinions on practicing law remotely, and as much as I can remember they all said it would be allowed subject to some obvious restrictions (most notably that the lawyer could not pretend to be admitted in a jurisdiction in which they were not, or have a "presence" or an office, in a jurisdiction in which they were not admitted, and so on.)
But the situation also helped revive a very old debate: whether lawyers should be allowed to practice anywhere in the country as long as they are admitted somewhere in the country. This issue has been raised and debated many times and, unfortunately in my opinion, the prevailing view remains that jurisdictions should be allowed to close their borders to "outsiders."
I have never liked this approach and I am happy to report that the Association of Professional Responsibility Lawyers (APRL) is addressing the issue again. In a letter to the ABA, APRL has included a report and a proposal urging the ABA to adopt a new version of Model Rule 5.5 that would eliminate the traditional state-based limitation on law practice, by which lawyers can practice only in the states in which they are admitted. (Follow the links to the text of the letter, report and proposed amendment.)
You can read more on the story in Faughnan on Ethics (the blog of the current president of APRL), the ABA Journal, and LawSites.
Allowing lawyers to practice across borders will favor the bigger law firms with lots of resources, but I think it will also be beneficial for small firms and solo lawyers who want to move to new locations for any number of reasons. And it will likely have a positive impact in the ability of clients to find lawyers, thus improving access to legal representation -- a goal we have been casing after since forever.
Does the proposal have a chance of getting adopted? I don't know. A couple of years ago, I would have said definitely not. But back then I would also have said that proposals to allow partnerships with non-lawyers, alternative business structures and provision of legal services by non-lawyers did not have a chance and now we have two states that have adopted all of these and more states actively considering similar alternatives.... so what do I know. Change is slow in the legal profession, but it does happen sometimes...
UPDATE 5/4/22: Lex Blog has published a comment on this topic here.
One of the most debated issues in the Professional Responsibility arena in the past year has been whether states can force lawyers to join a bar association, or, in other words, whether it is a violation of a lawyer's constitutional rights to be forced to become a member of a bar association as a pre-requisite to practice law in the jurisdiction. I have been posting updates on cases from around the nation on this for over a year. See here, and scroll down for all the stories (from Texas, Michigan, Oregon and Utah, among others).
Today I am writing with an update related to the rules in Wisconsin.
The Seventh Circuit recently upheld a ruling against an attorney challenging rules enforced by the Wisconsin Supreme Court requiring all lawyers licensed to practice in the state to be members and pay dues to the state bar.
The opinion of the court starts with a summary, as follows:
Under rules adopted and enforced by the Wisconsin Supreme Court, all lawyers licensed to practice in the state must be members of and pay dues to the State Bar of Wisconsin, a professional association created by the court. Attorney Schuyler File contends that requiring him to join and subsidize the State Bar violates his free speech and associational rights under the First Amendment. Recognizing that Supreme Court precedent forecloses this claim, see Keller v. State Bar of Cal., 496 U.S. 1 (1990), File maintains that the Court’s more recent cases—particularly Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018)—implicitly overruled Keller.
The district court rejected this argument, and properly so. Keller may be difficult to square with the Supreme Court’s more recent First Amendment caselaw, but on multiple occasions and in no uncertain terms, the Court has instructed lower courts to resist invitations to find its decisions overruled by implication. Keller is binding. We affirm.
You can read the full opinion here.
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.
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.
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.
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.
A standing committee of the State Bar of Texas filed a complaint in the District Court of Dallas County, Texas against former president Donald Trump’s attorney Sidney Powell, claiming that she engaged in misconduct by pursuing baseless lawsuits alleging fraud in the 2020 presidential election. The complaint, which was filed on March 1, was released to the public on Tuesday. You can read the (very short) complaint here. Jurist has more on the story here.
In a recent report, a working group of the New York State Bar Association concluded that the New York Bar should not and perhaps legally may not ask applicants to the bar whether they have been arrested. (In New York, the question is known as "Question No. 26). The main reason appears to be the correlation between race and ethnicity, on the one hand, and interactions with the police, on the other.
This is an interesting issue that I must confess I have not given enough thought to. In contrast, over at Justicia, Joanna L. Grossman, the Ellen K. Solender Endowed Chair in Women and Law at SMU School of Law, has posted a thoughtful comment on this question. She proposes a compromise:
Accordingly, if Question 26 is reconsidered, I would propose the following substitutes for eliminating altogether an inquiry into arrests: (a) exempt groups whose membership correlates with arrest rates and therefore are suggestive of bias, or (b) take arrests of African Americans and Indigenous people with a grain of salt in reviewing Question 26, or (c) keep the question but only for domestic violence and rape (and all of their synonyms), or (d) keep the question but investigate more deeply the cases involving perpetrators who know their victims. At a time when more and more seemingly ordinary people turn out to be dangerous and violent con artists, the New York Bar must do its part to screen malefactors out of the profession.
Not too long ago, Lex Blog started posting links to a new Podcast called Legal Ethics Now & Next, and just a few days ago, the second episode became available.
This episode covers the so-called Utah's “regulatory sandbox," which they describe as a program that allows lawyers and other professionals to own legal service providers. The episode covers how the program works and what it might mean for the future of legal regulation.
You can listen to the program by going here.
A few days ago I posted a story about a lawyer who got in trouble for driving naked. Today the story is about a lawyer who apparently has been consuming too much alcohol recently, and the most recent time it happened, well, you guessed it... she got naked in public and was arrested...
Above the law has a comment on the case; The ABA Journal has the story too.
Over the past year I have reported news about the important changes in Utah regarding the approach to the regulation of the practice of law, which include recognizing alternative business structures and the provision of certain legal service by people who are not lawyers. (Go here for all the posts on Utah.)
Along those lines, here is a short news item describing one of those new services. As the article explains, "[f]or individuals who cannot afford or otherwise don’t want to hire a lawyer, domestic violence victim advocates are now able to tell victims which protective order to apply for, how to correctly fill out forms, and what they should expect in court." Before Utah’s regulatory sandbox was adopted, these types of services could only be provided by lawyers.
Go here for the full story (which includes more links).
The Legal Profession blog is reporting (here) that the Butler (Ohio) County Bar Association has recommended an indefinite suspension of an already-suspended attorney for a series of incidents of public indecency that included driving while nude. The lawyer evidently suffers from a mental health issue (compulsion) that had driven him in the past to engage in inappropriate sexual behavior. The panel proposed a number of conditions for reinstatement.
I have not posted a new entry in the ongoing series on "how not to practice law," so here is a new installment.
A federal appeals court recently ordered an attorney to pay damages after he filed a brief that contained virtually the same text as his trial court summary judgment brief. In Conboy v. U.S. Small Business Administration, the court granted the appellee’s motion for damages pursuant to Federal Rule of Appellate Procedure 38 for filing a frivolous appeal. The ABA section on litigation has the story here (if you are an ABA member).
One of the most important stories of the last couple of years has been the debate over instituting changes to the regulatory regimes among the states. Washington stated abandoned its program of legal technicians while Utah and Arizona adopted significant changes allowing alternative business structures, non-lawyer services, and/or partnerships with non-lawyers. Other states, including California and Illinois have been considering proposals that include similar plans.
In that context, it is worth taking a look at a short article submitted to the State Bar of California in support of a proposed Paraprofessional Program which would authorize paraprofessionals to provide legal advice in areas such as family, consumer debt, landlord/tenant, employment/income, and collateral criminal cases, as well as represent parties in court (excluding jury trials). The article is called A Paralegal's Perspective on the Proposed California Paraprofessional Program and you can read it here.
In an interesting development, the Virgin Islands Supreme Court recently denied a petition of the jurisdiction's Bar Association to have the court amend its rules on multijurisdictional and unauthorized practice.
The court, in fact, appeared annoyed that the Bar Association dared ask it to consider the proposal, saying that "we note that the Bar Association cites to no authority to support the filing of its petition to amend the Rules of this Court" and that "we emphasize that we are under no obligation whatsoever to consider, or even docket, the Bar Association’s petition."
The Bar Association's request was apparently an attempt to make it easier for lawyers from the jurisdiction and lawyers from the US mainland to interact. But the Supreme Court rejected the proposal and referred the matter to the Advisory Committee on Rules, with the court's "sincere hope that our reasons for [denying the request to amend the rules] will . . . further clarify what acts do and do not, constitute the unauthorized practice of law in the Virgin Islands.
Presumably, the Advisory Committee on Rules will now take on the matter and prepare a new proposal. Stay tuned.
The Legal Profession Blog has the full story here.
The Legal Profession blog is reporting on a recent case in which the the Florida Supreme Court apparently imposed a public reprimand of an attorney because the attorney made what were deemed to be "unprofessional" and "sarcastic" remarks. This sanctionable comments included statements saying that opposing counsel was “out of control,” and “overly hostile,” and that the upcoming depositions of two of the witnesses in a case were “going to be epic” and great “entertainment.”
If that is all there is to it, that is ridiculous! What in the world is wrong with those statements? Unless the jurisdiction has a very strict civility code, I fail to see why those statements, without more, deserve any type of discipline. And if the jurisdiction has such a strict civility code according to which those statements deserve discipline, I suggest to you that the civility code is of questionable constitutional validity.
The report makes reference to other statements which allegedly questioned the integrity of two judges, but the statements are not provided so it is difficult to evaluate the court's decision regarding those.
You can read the story (with links) here.