Sunday, September 10, 2023

How not to practice law: ask another to take your CLE courses for you

 It has bee a while since I posted to the ongoing "how not to practice law" series, which highlights particularly shocking misconduct that you would think is obvious to all.

In today's installment we meet a lawyer who asked his assistant to take his continuing legal education classes for him.  Isn't it obvious that you should not do that?  The lawyer was suspended 1 year.  

You can read more about the case here.

New ABA Formal Opinion on witness preparation

About two weeks ago, the ABA Standing Committee on Ethics and Professional Responsibility issued a new Formal Ethics Opinion (No. 508) on the ethics of witness preparation.  Its abstract reads: 

A lawyer’s role in preparing a witness to testify and providing testimonial guidance is not only an accepted professional function; it is considered an essential tactical component of a lawyer’s advocacy in a matter in which a client or witness will provide testimony. Under the Model Rules of Professional Conduct1 governing the client-lawyer relationship and a lawyer’s duties as an advisor, the failure adequately to prepare a witness would in many situations be classified as an ethical violation. But, in some witness-preparation situations, a lawyer clearly steps over the line of what is ethically permissible. Counseling a witness to give false testimony or assisting a witness in offering false testimony, for example, is a violation of at least Model Rule 3.4(b). The task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously “coach” witnesses in new and ethically problematic ways.

You can read the full opinion here. You can read more about it over at Ethical Grounds.

UPDATE 9-17-23:   Lawyer Ethics Alert Blog has a comment on the Opinion here.

Monday, September 4, 2023

Court of Appeals for the Third Circuit does NOT decide on the constitutionality of Pennsylvania Rule 8.4(g); it simply dismissed the challenge for lack of standing

Long time readers of this blog know I have been following the debate about Model Rule 8.4(g) since it was merely a proposal before within the ABA and that I have been critical of its text as being vulnerable to attack under the First Amendment.  Only a few jurisdictions have adopted the rule, and almost all that have have amended the Model Rule’s text to try to improve its defects.  Some versions are better than others, though, and there are still some cases out there litigating the validity of different states’ versions.  For all my posts related to Model Rule 8.4(g) go here and scroll down (over several pages of posts).  

One of those cases came to an end last week when the Court of Appeals for the Third Circuit reversed a decision from a District Court in Pennsylvania for lack of standing.  The case is called Greenberg v. Lehocky, and you can read the opinion here.  

This is important, and I will get back to it in a minute, but let me repeat it now: The decision of the Court of Appeals did NOT (as has been reported elsewhere) find that the rule in Pennsylvania is Constitutional.  It simply found that the plaintiff did not have standing to challenge it and therefore that the lower court should not have decided the case to begin with.  

But let’s not get ahead of ourselves and start at the beginning.  Back in 2020, the Federal District Court for the Eastern District of Pennsylvania decided in Greenberg v. Haggerty, 491 F.Supp.3d 12 (ED PA 2020), that the Pennsylvania version of Rule 8.4(g) was unconstitutional because it violated the First Amendment.  The plaintiff in that case, Greenberg, argued that the rule infringed on Constitutionally protected speech and created a chilling effect over his ability to speak publicly about matters of important public concern.  The court agreed.  I wrote about the opinion here, here and here.  

Rather than wait for a decision on appeal, the State Bar abandoned the appeal and amended the rule.  However, Greenberg challenged the new rule again, and it was again found unconstitutional and the State appealed.  Now under the title Greenberg v. Lehocky, the challenge to the rule found its way up to the Court of Appeals for the Third Circuit and last week it issued its opinion dismissing the case for lack of standing.  The court found that because the plaintiff was trying to get the court to rule on the constitutionality of the rule before there had been any attempt by the state to enforce it, the plaintiff needed to show that (a) the rule would apply to the type of speech the plaintiff was planning to engage in, and (b) that there was a credible threat of enforcement in a way that would violate the speaker’s Constitutional rights.  And the court held that the plaintiff could not do either.

First, the court found that the Pennsylvania rule, unlike the Mode Rule, requires the state to show actual knowledge on the part of the lawyer and that the speech in question was targeted at specific individuals.  Greenberg’s argument was based on the possibility that his discussion of controversial topics might lead someone who found his views objectionable to complain to the Bar.  The court found that this possibility was not enough to support standing to sue over the yet to be enforced rule.

Second, the court found that the plaintiff could not show a credible threat of unconstitutional (future) enforcement of the rule because, somewhere along the timeline of the litigation, the State Bar affirmed that it would not enforce the rule for speech in the circumstances described by the plaintiff.  As the court put it, the defendant “disavow[ed] enforcement for any of plaintiff’s planned conduct.”

Now, before we go any further, I have a question.  What does that mean?  Is it now a written policy of some sort that the Bar will not enforce the rule against unpopular speakers, or speakers that others complain about because they find them offensive?  How can this “promise” by the Bar be enforceable?  Is it written in the comment to the rule? Is it published as accepted policy by the state? What happens if the members of the disciplinary board change and they start enforcing the rule differently?  Where is the record that says that the Board “disavowed” of this?  

I am sorry but I don't like this.  Unless this "statement" by the Bar that they will not abuse the discretion they have to enforce the rule comes with some enforceable mechanism against the possible misuse of the rule, I don't trust it.  You can read my views on this type of argument here.

Interestingly, the court based its conclusion partly on the fact that the plaintiff could not show a pattern of enforcement of the rule against constitutionally protected speech.  Yet, it recognized a case that proves that this practice is not only possible, but that it may support the argument that the fear of possible enforcement is valid.  The speech for which a lawyer was disciplined in that case (from a different jurisdiction) was Constitutionally protected, and as I have discussed in this blog before, there are other examples out there.  Not a lot, true, but enough for me to think that there may be a credible fear of enforcement, or, at least, that reasonable people might disagree on this.   (I commented on the case the court cites when it was originally reported here.)

I will admit that my opinion on this is also based on my own personal experience working for a state and fearing that what I say in the classroom will result in negative consequences.  The plaintiff in Greenberg made a similar argument, but the court said that that fear is based on the “political climate” in the country and not on the text of the rule.  

Finally, back to the most important part of the decision and the lesson to learn from it.

It is important to note, again, that the court did not decide whether the rule is constitutional or unconstitutional.  The court did not “uphold the constitutionality of the rule” (as I saw reported elsewhere).

In fact, the court explicitly states that all it can say is that it is too early to tell if the rule is unconstitutional.  Essentially, it suggests we have to wait and see how the rule is interpreted, applied and enforced before we can pass judgment on that.  And the concurring opinion goes further actually hinting that the rule might well be unconstitutional.  Both suggest that one day a lawyer with standing will challenge the rule and then the court will have a chance to decide on the Constitutionality of the rule.  

But the best lesson to learn in all this comes from the Concurring Opinion and that is that we can save ourselves the trouble by simply doing what I have been suggesting should be done from day one: take the time to draft a better rule!  

A few other states have adopted rules similar to Model Rule 8.4(g) but explicitly stated (either in the text of the rule or its comment) that the rule will not apply to regulate Constitutionally protected speech.  This solves the problem related to this question.  (There may be other problems, but those are not for today.)

As I have discussed elsewhere, I think the best rule so far is the one recently adopted in New York.  So, take note Pennsylvania, don’t wait for a lawyer with standing to start this fight again (a fight that the concurring judge says you will be fighting “against the current").  Listen to the concurring judge and fix the rule.  Call me or call the folks in New York and ask them how to do it properly. 

There is no reason to adopt a rule that is Constitutionally vulnerable ab initio (as the ABA did).  There is a way to draft a better rule that addresses the problem of discrimination and harassment that does not violate the First Amendment.  Just do it! 

Sunday, September 3, 2023

Rudy, that's not how anything works, Part III: Giuliani found liable for defamation by default

A few days ago, I posted a story questioning why Rudy Giuliani would concede the main elements of a cause of action for defamation he had been fighting (based on his comments about two election workers).  Giuliani -- or perhaps, more accurately, the lawyer representing him -- apparently thought that it was a good tactic in order to avoid complying with a discovery request, but that made no sense.  My original comment explaining why the tactic was likely to fail is here.  

As I predicted, the tactic not only failed, it backfired spectacularly.  See here.  First it resulted in an order to explain his argument and eventually in a finding of liability by default.

Maybe Giuliani and his lawyer did not realize that what they did amounted to conceding the main elements of the cause of action and for that reason, and because of the fact that they did not comply with discovery, the court has found Giuliani liable by default.   

Now that default judgment has been imposed, the case will move to trial on the question of the value of the injury, ie, on the damages issue alone.  And if you have been paying attention to the story in the news and have watched some of the testimony by the plaintiffs, you know it is fair to say that the value will likely be high.  Plus, Giuliani will have to pay attorneys' fees to the plaintiff's lawyers and more in sanctions.

Giuliani is in real trouble.  He is reportedly in dire financial trouble and a huge verdict against him in this case will cause him a lot of distress.  He has been trying to find funding for his legal bills, which include pending disbarment proceedings in New York and Washington DC, the indictment in Georgia, and at least one other defamation case.  Reportedly, Trump is not contributing to his defense fund and Giuliani has put up his NY condo up for sale and is hosting events in attempts to raise funds.  (Trump apparently agreed to appear in one of them, although I won't be surprised if he makes the appearance all about himself and ends up trying to get contributions for his legal defense fund rather than for Giuliani, but that's another story for another day.)

You can read the court's opinion here.  You can find reports and commentary on the default judgment against Giuliani in the following:

Courthouse News Service

The Legal Profession Blog


The Guardian

Above the Law

NPR audio



Sunday, August 27, 2023

California judge denies Eastman request to postpone disbarment litigation

As you probably know, John Eastman, one of Trumps co-conspirators in the criminal case filed in Georgia, is also facing disciplinary proceedings in California.  I reported about it here and here

After being indicted in Georgia, Eastman filed a motion to delay the disciplinary proceedings in California and now we know that that request has been denied.  The Hill and Politico have coverage here and here respectively.

Saturday, August 19, 2023

Rudy, I told you that's not how anything works! -- UPDATED

 Last Friday I posted a story about how Rudy Giuliani attempted to prevent having to comply with discovery in a defamation case by conceding all the elements of the cause of action against him and, at the same time, trying to raise defenses in the case.  And, after explaining the situation I concluded "Unfortunately for Giuliani, that’s not how anything works."  My original story is here.

I fully expected Giuliani's tactic to be rejected and that is just what happened.  Reportedly, the judge overseeing the case has given Giuliani the following options.  He can:

1.  submit a new stipulation conceding liability to the claims “all factual allegations ... as to his liability for plaintiffs’ defamation, intentional infliction of emotional distress, and civil conspiracy claims, and his liability as to plaintiffs’ claim for punitive damages” and that a default judgment as to his liability is appropriate, or

2.  explain why he is declining to submit such a stipulation by clarifying “what precisely his original stipulation conceded regarding the plaintiffs’ factual allegations and legal claims.”

Should Giuliani fail to choose one or two, the judge will convene a hearing (on August 15) to determine how, if at all, he has complied with her prior order to search and produce all materials responsive to the plaintiffs' discovery requests. 

Stay tuned!

MSNBC has coverage here.  TechDirt has a comment here.

UPDATE: 8-19-23:  Courthouse News Service reports (here) that "The judge in the Smartmatic suit ordered Giuliani to complete discovery production in two weeks, by August 30, or risk an order to a judgment of the company's legal fees arising from the particular motion for an order to show cause."

UPDATE: 9/3/23:  The Court has now entered a judgment by default against Giuliani and ordered him to pay attorneys' fees and other sanctions.  The case will now proceed to trial on the question of damages only which is likely to result in a very high verdict for the plaintiffs.  Go here for my post on this new development.

Thursday, August 17, 2023

Competence includes tech competence

Over at Ethical Grounds, Michael Kennedy reminds us that earlier this month, the ABA House of Delegates adopted Resolution 609 to remind lawyers of their duty to protect client data “from unauthorized access.”  The resolution also reminds us that, as Michael explains, "competence includes tech competence" by urging lawyers "to keep informed about new and emerging technologies” and “to enhance to enhance their cybersecurity and infrastructure to protect confidential client information.”  This is also reflected in Model Rule 1.6(c) which states that lawyers "shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

You should read Michael's post here.

Where are they now? Recent article on the fate of Trump's "elite strike force team" of lawyers -- UPDATED

I have updated the list below in italics.

New article in Politico called "Trump’s ‘Elite Strike Force Team’ Falls on Hard Times". 

You should read the full story, but, from my own blog posts, here is some (not all) of the answers:

Sydney Powell was sanctioned in Michigan and was recently indicted in Georgia.

Rudy Giuliani is facing disbarment in New York and Washington DC and was recently indicted in Georgia.  He is also the defendant in two civil defamation cases.  In at least one of them he is in real trouble.  See here and here.  He is reportedly in dire financial trouble.  See here.

John Eastman is facing disbarment (also here) in California and was recently indicted in Georgia.

Jenna Ellis avoided discipline by admitting to misconduct in Colorado (only to immediately continue to engage in the same conduct, but that's another storyand was recently indicted in Georgia.

Lin Wood retired from practice to avoid discipline in Georgia.

Alina Habba was sanctioned to the tune of more than a million dollars for filing a frivolous case (which she later seemed to admit to have done over the objection of her client).

For my posts on all of these stories go here and scroll down.

Saturday, August 12, 2023

Podcast regarding the story about the ABA Center for Innovation

 A few days ago I published a story (originally discussed in LawSites) questioning whether the ABA Center for Innovation was actually serious about discussing innovation.  See here.  

Then LawSites posted a podcast discussing the story in more detail with the authors of the article that the Center refused to publish.  Here is the link to the podcast.  You can also find it here.

Lawyers who used ChatGPT to draft brief get $5000 fine in sanctions -- UPDATED

June 24, 2023

On June 1, I posted a story about two lawyers who asked ChatGPT to draft a brief which they later filed in court without revisions.  After it turned out the brief included cases and citations that did not exist - were totally made up - the court cited the lawyers to a hearing to determine whether to impose sanctions for their conduct.

The hearing took place and the court did not take long to decide to impose sanctions.  Both lawyers must pay a $5,000 fine.  The sanction is not a disciplinary sanction, just a procedural one.  And it can be argued that $5,000 is not a particularly severe sanction - one article called it a slap on the wrist - but it is a good reminder of the dangers of relying on a chatbot to do your work.

As it should, the opinion makes clear that the problem was not the use of technology. It was bad lawyering:

Needless to say, the case has generated a lot of publicity.  Here are some links:

And for a comment on using chatbots to draft your work in general, see this article in Above the Law.

UPDATE: August 12, 2023:  The San Diego County Bar association blawg has a short comment on the case here.

Friday, August 11, 2023

Former Assistant District Attorney: "Trump’s newest lawyer John Lauro seems confused about what his job actually is"

 In an interesting, short, Op-Ed piece, Glenn Kirschner, a former assistant U.S. attorney for D.C., writes about John Lauro, Trumps newest attorney who has been making appearances on TV all over the place.  Kirschner argues that Lauro is "confused about his job" because he has taken the position that he is representing "the American people" by representing Trump.

You can read the article here.

One interesting question I have that is not mentioned in the article, though, is at what point do Lauro's comments to the press violate a rule like Model Rule 3.6?

The rule states that a "lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

Everyone knows that it is "standard procedure" for lawyers in high profile cases to talk to the press; but everyone also knows that the efforts here are to "try the case in the court of public opinion" (ie, to influence the jury pool with misleading arguments and facts or alternative facts that may or may not make it to the trial).

If that is the case, isn't the conduct likely to be materially prejudicial to the administration of justice?

Wednesday, August 9, 2023

Breaking news: ABA House of Delegates approves changes to Model Rule 1.16

Last February, the ABA House of Delegates, which is comprised of 597 delegates from ABA entities and state, local and specialty bar associations, adopted a measure that updates the ABA’s policy that endorsed for the first time “reasonable and appropriate” federal government efforts aimed at combating money laundering. The policy seeks to balance the longstanding attorney-client privilege with the demands of governmental entities seeking access to information on criminal activities.

Following this policy, yesterday, the HoD adopted an amendment to Model Rule 1.16 "to protect lawyers from unwittingly becoming involved in a client’s or prospective client’s criminal and fraudulent activities."

Reportedly, there was a lengthy debate on the proposal but it was eventually approved by a vote of 216-102.

The amendment creates a duty to "inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation" and adds a new (a fourth) case in which lawyers are obligated to refuse to represent a client or to withdraw from representing a current client.  

This section of the amendment states that the a lawyer shall not accept the representation or shall withdraw from representation if "the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct.

As you probably know, Model Rule 1.16(a) lists the circumstances when a lawyer is required to withdraw, while 1.16(b) lists the circumstances in which a lawyer may withdraw.  Model Rule 1.16(b)(2) states that a lawyer may withdraw if "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent."

The original proposal before the House of Delegates eliminated this discretionary duty and essentially converted it to an obligation.  But, at some point in the process it was decided to keep section 1.16(b)(2), so now we have a mandatory duty related to a client's intent to engage in fraud, etc, and a separate discretionary duty.  

That can be confusing so we will have to wait and see how they are interpreted.

You can read the Resolution that was approved and its full report here.

Sunday, August 6, 2023

Story about ABA's Center of Innovation casts doubts about the ABA's commitment to the discussion of innovation

LawSites has published a very interesting story reporting (and commenting on the fact that) the American Bar Association’s Center for Innovation recently canceled publication of an op-ed arguing in favor of regulatory reform, supposedly because of “political challenges” within the ABA, and reportedly out of fear of budget cuts or even shutdown of the Center.

The Center was created in 2016 based on a recommendation of the ABA’s Commission on the Future of Legal Services.  Although I was not particularly impressed by the Commission’s final report (see my comments here), at the time, the idea of a Center for Innovation sounded, well, innovative, and hinted at a new approach to regulation of the profession.  

However, that has not been the case.  Since its creation, the Center’s work has been often criticized as too "wishy-washy," often sending mixed messages, although sometimes those mixed messages came from the ABA's leadership and not from the Center itself.  For some examples I have commented on over the years go hereherehere, and here.

The story in LawSites, sadly, aligns with the criticism that either the ABA in general or the Center in particular is/are just not too serious about debating, let along embracing, innovation as it/they claim to be.

Why would the Center for Innovation not want to post an article about innovation?  You should read the full story and commentary here, but here is an excerpt:

So why did the Center cancel the publication of this op-ed. Here is what I have been able to piece together.

First, it is no secret that the issue of regulatory reform remains controversial among lawyers generally and most certainly within the ABA. Particularly controversial is the issue of allowing the delivery of legal services by providers that are not lawyers, as Utah did when it approved sweeping changes in legal services regulation in 2020. 

This was evidenced at last year’s ABA annual meeting, when the House of Delegates voted . . . “to send a decidedly mixed message, approving a resolution to double down on its prohibition of non-lawyer ownership, while also amending the resolution to add a nod toward state innovation efforts.”

. . . . 

Some who are familiar with the Center believe that recent events suggest that higher-ups in the ABA are seeking to weaken or even shutter the Center. Two recent events, in particular, gave fuel to this belief:  Early in June, the ABA’s finance committee notified the Center that it would be conducting a review of the Center’s budget, with an eye toward determining whether the amount of its budget is justified. Some who are involved with the Center believe this was an attempt to cut its funding significantly or even entirely. . . . 

Following that, the president-elect of the ABA, Mary L. Smith, who will take office this week, nominated a slate to serve on the Center’s governing council that reportedly rejected the Center’s own recommended slate in favor of individuals who have been openly opposed to regulatory reform.

But there is more to it than that so, like I said, you should read the full story here.  And you can read the cancelled op-ed piece here.

Friday, July 28, 2023

Why did Rudy Giuliani concede that he made false and defamatory statements about the plaintiffs in a defamation case, thus conceding the elements of the claim?! -- UPDATED

 Last Tuesday Rudy Giuliani filed a two-page stipulation in a long-running defamation lawsuit by two Georgia election workers stating that he “does not contest” that his statements about the plaintiffs were “false” and “carry meaning that is defamatory.”  According to the reporting, Giuliani’s attorney added that Giuliani was not in fact “admitting” to the plaintiffs’ allegations against him but making a decision to stop contesting them, which he says should end the plaintiffs’ effort to seek further factual evidence – emails, text messages and other communications – from Giuliani.

Unfortunately for Giuliani, that’s not how anything works.

First of all, trying to make a distinction between conceding the allegations and not contesting them is nonsense.  You can’t have it both ways.  In the document, Giuliani conceded that he made the statements alleged in the complaint, that the statements were false and that they were defamatory per se.  That means he conceded all the elements of the cause of action. Period, end of story.  All Giuliani has left after that is arguing affirmative defenses.  And which ones are there?  I don’t see any.  

He apparently claims that either the statements were statements of opinion or that they were constitutionally protected.  Both arguments are wrong.  

Once he admits that the statements he made were “false” he has admitted they were not opinions.  By definition opinions can’t be true or false – that’s what distinguishes them from statements of fact.  But Giuliani has conceded they were statements of fact.  So that argument is out - he defeated it himself!  

The other possible argument – that the statements were constitutionally protected, is also flawed.  First, the notion of defamation is based on the doctrine that not all speech is protected and that if it is not protected, it can result in possible liability.  That’s what defamation law is all about.  So the question becomes whether the plaintiff can meet the standard needed to show that the speech is not protected and, therefore, should subject the defendant to liability.

On that, the doctrine has created different standards for different categories of plaintiffs.  If the plaintiff is a public official or a public figure, the plaintiff has to meet a higher standard because speech about them is more protected.  But the plaintiffs in this case were neither.  They were private persons performing a volunteer job as election officials.  I could be wrong about this, but I don’t think they were elected officials for that job, and they were not known celebrities before the elections and before Giuliani and others started accusing them of misconduct.  If I am correct in those assumptions, the plaintiffs in this case do not have to show actual malice on the part of the defendant and will have an easier time defeating the argument that the statements were constitutionally protected.   

Second, Giuliani can’t just say that he wants to end discovery because he does not want to disclose more information.  Discovery exists to allow the parties access to information and, as everyone knows, discovery is not limited to evidence that can be used at trial.  You can use discovery to get access to evidence that will likely lead to evidence that can be used at trial.  In this case, the plaintiffs may want to use discovery to determine if there are other potential defendants they can go after or to discover support for a claim for punitive damages, for example.

The fact Giuliani says he is conceding the elements of the claim to end the plaintiffs’ effort to seek further factual evidence just makes me wonder what he has that wants to hide so badly. 

And, further, defamation was not the only claim in this case.  The plaintiffs’ also sued for emotional distress which is a separate cause of action and they should have the right to continue discovery in order to get evidence related to that claim, which should include the evidence that Giuliani apparently does not want them to get access to.

For these reasons, it seems to me the decision to concede the elements of the defamation cause of action was not a very smart one.  It defeats one of his defenses, makes it easier for the plaintiffs to support their claim and should not stop discovery.

Finally, as an aside, I also can't imagine that publicly admitting that he lied in a way that caused so much injury to private individuals is going to help Giuliani's chances to avoid discipline in the various disciplinary proceedings he is facing.

For coverage of Giuliani's confession see Politico, NPR, MSNBC, The Guardian, The Hill, The Conversation and Above the Law.

UPDATE 8/9/23:  As expected, the judge did not buy it.  See here.

UPDATE: 9/3/23:  The Court has now entered a judgment by default against Giuliani and ordered him to pay attorneys' fees and other sanctions.  The case will now proceed to trial on the question of damages only which is likely to result in a very high verdict for the plaintiffs.  Go here for my post on this new development.

Wednesday, July 26, 2023

Article: "The Supreme Court’s excuses for ethics violations insult our intelligence"

 Steven Lubet (Northwestern) has published a short article called "The Supreme Court’s excuses for ethics violations insult our intelligence." 

California may make "civility" an actual duty under the Rules of Professional Conduct

I teach my students to remember the basic duties owed to clients by thinking of bad grades:  "and F, a D and a bunch of Cs."  The first two letters stand for fiduciary duty, diligence.  The bunch of Cs stand for competence, communication, confidentiality, candor, commingling and conflicts.  But I also tell them that there is another C, which is not really covered in the rules of conduct but that is important and that is "civility."

Now comes news that at its meeting on July 20, 2023, the State Bar of California’s Board of Trustees approved a proposal that calls for amendments to the Rules of Professional Conduct to make incivility a basis for discipline. 

It will be interesting to see what comes of it.  Other suggested changes are more symbolic than anything but this one would be substantive and the drafters of the amendments will have to be careful defining civility and managing the connection with offensive but constitutionally protected speech or expressive conduct.

The Legal Profession Blog has more details here

Tuesday, July 25, 2023

Oklahoma court: past sexual relationship between judge and prosecutor entitles criminal defendant to new trial; should more cases be reversed?

An Oklahoma court recently held that the fact that a judge and a prosecutor were involved in a sexual relationship during the beginning stages of a murder trial entitles the defendant to new trial.  The ABA Journal has the story here.  

You can read the court's opinion here.

If the relationship had been ongoing during the trial, this result would not be surprising, of course.  In this case, the judge and prosecutor were in a relationship during the initial stages of the case only.  The trial itself happened two or three years later. 

One interesting question is whether the judge and the prosecutor should be subject to discipline for concealing the relationship while it was ongoing.  The judge resigned his judgeship in spring 2021—after the prosecutor and two other lawyers accused him of sexual misconduct.

The judge acknowledged sexual relationships with two prosecutors, but he said they were consensual.  A special prosecutor declined to bring charges in connection with the allegations.

Now I wonder if all the criminal cases tried by those prosecutors and presided by the judge should be looked into.  If I were a criminal defense lawyer, I would look to see if I had represented any defendants during the years that they had ongoing relationships.

Thursday, July 20, 2023

Federal public defenders warn budget cuts may threaten their ability to represent clients

 NPR reports that federal public defenders warn budget cuts may threaten their ability to represent clients. Go here for the full story and here for a short audio report on the story.

Wednesday, July 19, 2023

Comment on the newly adopted rule mandating reporting of misconduct by other lawyers in California

 Here is a comment on the newly adopted rule in California that requires disclosure of another lawyer's misconduct, a la Model Rule 8.3.  Read the comment here.

Tuesday, July 18, 2023

More on the sanctions for Alan Dershowitz

 A few days ago I reported that a federal judge imposed sanctions on Alan Dershowitz and other lawyers for Kari Lake (former Arizona gubernatorial candidate) for violations of Rule 11 of the Federal Rules of Civil Procedure.  See here and here.

Today, Above the Law has a follow up on the story.  

The original order stated in part that 

Plaintiffs either failed to conduct the reasonable factual and legal inquiry required under Rule 11, or they conducted such an inquiry and filed this lawsuit anyway. Either way, no reasonable attorney, “after conducting an objectively reasonable inquiry into the facts and law, would have found the complaint to be well-founded.”

In response to Dershowitz's request to let him off the hook, the judge stated that,

Whether Mr. Dershowitz signed, or intended to sign, those filings as “counsel” or “attorney” or “of counsel,” he signed them. And he effectively conceded that he authorized his signature on these filings without investigating whether they were legally and factually sound. If there was any doubt this brought him within the ambit of Rule 11, the evidence detailed above demonstrates that all parties involved understood the value of his signature. It was an agreed-upon part of his retention. It led opposing counsel and the public to believe he represented Plaintiffs in this matter—a notion furthered by Plaintiff Lake and Mr. Lindell themselves. Mr. Dershowitz did not do anything to dispel this notion until after the Maricopa County Defendants moved for sanctions. Further, he participated in at least one telephonic conference with opposing counsel; . . .

Timetable set for Giuliani disbarment procedure in Washington DC

The Legal Profession Blog is reporting today that Rudolph Giuliani has noted his exception to the disbarment recommendation of a District of Columbia Hearing Committee and that the The Board on Professional Responsibility has now set a briefing schedule, as follows:

Respondent's brief is due on September 28, 2023.

Disciplinary Counsel's response is due on October 16, 2023.

Respondent's reply brief is due on October 23, 2023.

Oral argument is expected to be held in November 2023.

Stay tuned!

Monday, July 17, 2023

Should this lawyer be subject to discipline in Illinois?

Back in 2013, the Illinois Supreme Court decided in a case called In re Karavidas, 999 N.E.2d 296 (Ill. 2013), that the state could not subject a lawyer to discipline for conduct outside the practice of law unless the state could make a case that the conduct was a violation of a specific rule of professional conduct.  As the court explained:

    . . . we hold that professional discipline may be imposed only upon a showing by clear and convincing evidence that the respondent attorney has violated one or more of the Rules of Professional Conduct. Mere bad behavior that does not violate one of the Rules is insufficient.

    . . . . [B]efore professional discipline may be imposed . . . , the [State] must demonstrate that the attorney violated the Rules of Professional Conduct. To the extent that any of our prior cases suggest that an attorney may be subjected to professional discipline for conduct that is not prohibited by the Rules of Professional Conduct or defined as misconduct therein, we hereby [overrule those cases].  . . . Personal misconduct that falls outside the scope of the Rules of Professional Conduct may be the basis for civil liability or other adverse consequences, but will not result in professional discipline. 

The court wanted to put an end to disciplinary actions brought on tenuous charges based on claims of conduct unbecoming the profession, or conduct that tarnished the image of the profession, etc., which is not surprising since other jurisdictions have moved away from the old "appearance of impropriety" standard too. 

And this is why this bit of news caught my eye:  a disciplinary complaint has been filed in Illinois against a lawyer for inappropriate harassing conduct directed at the staff of a law library.  

I am not in any way suggesting that the conduct was not inappropriate, or objectionable.  In fact, maybe it was criminal - I don't know.  What I am suggesting is that the complaint does not seem to be consistent with the principle set in Karavidas.

You can read the complaint here, but if you are looking for the specific rule of professional conduct allegedly violated you won't find it until the very end of the last paragraph of the complaint, almost as an afterthought.  And that rule is 8.4(d) which relates to conduct prejudicial to the administration of justice.  

Here is paragraph 19 of the complaint:

    . . . Respondent has engaged in the following misconduct: conduct that is prejudicial to the administration of justice, by conduct including, but not limited to, touching the head and hair of H.M., a Will County Courthouse law library employee, without her consent in March 2021; telling an employee of the Clerk’s office to “eat shit and die;” asking a female employee of the Clerk’s office to have dinner with him; and making a comment to the effect of “If I were 55 years younger, I would get with her,” about C.S., a law student-judicial extern, to a group of judicial externs; resulting in disruption to Courthouse operations and necessitating the use of Courthouse resources to investigate Respondent’s conduct and to place restrictions on Respondent’s access to Courthouse facilities, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct (2010).

Again, I agree that the conduct was inappropriate, and may be the basis for some form of liability.  What I am wondering is whether it meets the requirements set forth by the Court in Karavidas.  At first sight, it does since the complaint is clearly using a Rule of Conduct to claim the basis for discipline.  But I would expect someone to raise the questions as to whether the conduct is the type of conduct to which that rule should apply.

I always thought of the notion of "prejudicial to the administration of justice" as conduct that interfered with a court's ability to properly conduct a proceeding.  But maybe my understanding is too limited in that way.  Or, on the other hand, maybe the argument in the complaint is trying to stretch the concept a little bit too far.  What do you think?

Or, maybe what this shows is that we need a new rule, because you might be wondering why the disciplinary agency did not charge the attorney with a violation of a rule like Model Rule 8.4(g).  

The answer to that question is that Illinois has not adopted Model Rule 8.4(g) because when the ABA adopted Model Rule 8.4(g), Illinois had a preexisting rule regulating conduct deemed to constitute discrimination or harassment.  The problem is that Illinois' rule is of limited applicability and would not apply to the facts of this case.  You can find it here under 8.4(j).

So, if the conduct in this case is something that ought to be the subject of professional discipline, maybe a well drafted version of Rule 8.4(g) should be adopted to deal with conduct like the one in this case rather that trying to stretch the interpretation of the meaning of "the administration of justice" in Rule 8.4(d).  

Of course, what constitutes a "well drafted" version of Model Rule 8.4(g) is still up for grabs, and before the courts, and would be the subject of a different and long conversation.  For my posts on that subject you can click here and scroll down, but to save you the research, let me just say that I think the Model Rule is vulnerable to a Constitutional attack, and that I think the rule in New York is the best drafted one I have seen yet.  

Sunday, July 16, 2023

Kari Lake’s team ordered to pay more than $122,000 in sanctions for frivolous lawsuit

Following up on my previous post, Alan Dershowitz was not the only lawyer for Kari Lake ordered to pay sanctions for what the court deemed to be a violation of Rule 11 of the Federal Rules of Civil Procedure.  

A couple of days ago, The Hill reported that Kari Lake’s legal team (collectively)  must pay $122,200 in sanctions after a federal court in Arizona found that the former Republican gubernatorial candidate’s lawsuit contesting voting methods was “frivolous.”

The Hill has the story here.

Alan Dershowitz hit with order to pay $12,220 in attorneys fees for his participation in what court deemed to be a frivolous claim

Back in May I reported that the Arizona Supreme Court imposed sanctions on Republican gubernatorial candidate Kari Lake’s lawyers for false claims about voter fraud in the 2022 election.  

Now comes news that a federal judge has ordered Alan Dershowitz to pay attorneys fees as sanctions for violating Rule 11 of the Federal Rules of Civil Procedure.  Courthouse News Service has the story here, stating that "[d]espite playing what Dershowitz described as an extremely limited role in Lake’s suit against the Arizona secretary of state and supervisors of both Maricopa and Pima counties, U.S. District Judge John Tuchi ordered him to pay $12,220 in attorney’s fees to the Maricopa County defendants for breaking Rule 11 . . ."

Monday, July 10, 2023

Update on Trump lawyers: Lin Wood retires to avoid disbarment; Hearing committee recommends disbarment for Giuliani -- CORRECTION!!

This is a corrected version of a post from yesterday:

The list of lawyers for the Trump campaign (or for Trump himself) that are under investigation keeps getting longer.  John Eastman, Sydney Powell, Jeffrey Clark, and Jenna Ellis, among others, have been in the news recently.

So today I am writing to report on two developments this week.

First, you may remember attorney Lin Wood who was sanctioned by a court in Michigan.  (see herehere and here) and who was facing an investigation in Georgia for his involvement in Trump's campaign's attempts to overturn the last presidential election.  (He was also famous for filing a motion in which he claimed it was based on "plenty of perjury," but that is another story).

This week it was reported that, rather than face disbarment, Wood has filed a petition to retire from his practice in Georgia.  As discussed in an article in Above the Law
If granted leave to retire, this would end the career of a once-respected attorney whose decision to embrace MAGA craziness dragged him into an ethical quagmire that he had little hope of ever escaping. Rudy Giuliani’s fall from crusading U.S. Attorney to getting his law license yanked and making ends meet on Cameo is rightfully the most dramatic instance of a lawyer throwing away everything for Trump’s adoration, but Wood’s not far off.

And speaking of Rudy Giuliani, the second report of the day is that last week a Washington, D.C.-based bar discipline hearing committee recommended that Giuliani should be disbarred for “frivolous” and “destructive” efforts to derail the 2020 presidential election in support of former President Donald Trump.

You can read the report here.  The case will now go before the Board on Professional Responsibility.  

Obviously, this means that this is not the end of the case.  Giuliani has the right to appeal and the case will likely make its way to the courts eventually.

The committee, comprised of D.C. attorneys tasked with reviewing Giuliani’s conduct, deliberated for months after a weeks-long series of hearings that featured testimony from Giuliani and several of his close associates.

For coverage on Lin Wood's retirement you can check out MSNBC, Above the Law,, Courthouse News Service, NPR, The Hill, Lex Blog, The ABA Journal and the New York Times.

For coverage of Giuliani's case, you can check out MSNBC, Jurist, Lex Blog, Politico, Courthouse News Service, Above the Law, The Hill, and the Legal Profession Blog.

Sunday, July 9, 2023

Mississippi says poor defendants must always have a lawyer, but few courts are ready to deliver

A rule requiring poor criminal defendants to have a lawyer throughout the criminal process took effect last week.  The Marshall Project has the details on the story here.

Sunday, July 2, 2023

California approves rule mandating reporting of misconduct by other lawyers (similar to Model Rule 8.3)

 Last January I posted that California was moving closer to adopting a "self-reporting rule" a la Model Rule 8.3 (see here and here).

Today I am writing to report that the rule has now been officially adopted.  You can read the court order and the text of the approved rule here.

Lawyer Ethics Alert Blog has coverage here.

Ethical Grounds has a comment here.

Sunday, June 25, 2023

Trump lawyer John Eastman faces disciplinary charges in California

 Attorney John Eastman fought to overturn the 2020 presidential election and keep Donald Trump in power. Now, he's fighting to keep his law license.  The state bar of California argues Eastman knowingly pushed false conspiracy theories about the election and should be disbarred. Disciplinary hearings against Eastman started June 20.  

You can read, or listen to, more about the story here:  NPRNPR audioCourthouse NewsPolitico

Another article in Courthouse News reports that Eastman testified "about evidence gleaned from bad statistics and amateur ghost hunters" and that "[t]he disbarment hearing, initially set to last 8 days, is proceeding at a glacial pace. It will continue next week, then break for three weeks before finishing up at the end of August."

NPR has another audio report here.

For my previous coverage of Eastman's case go here, here and here.

For coverage on other Trump lawyers, go here.

Richard Painter: "I did Alito’s ethics prep for his confirmation hearing. His new excuses are nonsense."

Richard Painter, the chief White House ethics lawyer from 2005 to 2007 who helped prepare Justices Roberts and Alito for their confirmation hearings, has published an op-ed commenting on "what went wrong?" or, more specifically, "Why today do so many Americans have far less confidence in the ethics of the Supreme Court than we did in 2006?"

You can read the full article here.  

Calling some of Alito's arguments "utter nonsense," Painter answers the question, partly, by concluding that "[t]he problem is that the justices interpret federal statutes that apply to themselves and ethics norms for judges as they see fit. And when their actions depart from generally accepted ethics practices, they claim that as an independent branch of government they can do whatever they want."

And then concludes as follows:

The Supreme Court cannot be the only branch of government without accountability to the other two. Just because the justices hold themselves to a lower ethical standard does not mean the public does. Reform must come, or Americans’ confidence in the court will plunge still further.

And that Congress can fix the issue by passing legislation installing an ethics lawyer and an inspector general for the Supreme Court. The inspector general would investigate and report to Congress on alleged violations of ethics rules by justices and other Supreme Court employees.

Friday, June 23, 2023

Comment: Ethical Considerations for Lawyers Regarding Email Encryption

 Here is a short article on (and called) "Ethical Considerations for Lawyers Regarding Email Encryption".  You can read it here or here.

Sunday, June 18, 2023

Two stories related to "non lawyer professionals" and the market of legal services

 If you follow the news about Professional Responsibility you know that for years there has been a lot of debate about whether it is a good idea to allow non-lawyers to provide certain legal services in order to provide more, better and, presumably, less expensive access to legal representation.  Several states have created programs that provide such services and many others are discussing the possibility.

Last week, the ABA Journal published a couple of short articles related to the subject:

"Nonlawyer advocates can help tenants facing eviction in program approved in 2 states" discusses the programs in Utah and Arizona.

"How could alternative licensure alter lawyer labor supply? Law prof's research may have answers" discusses the research of Kyle Rozema, an associate professor at the Washington University School of Law in St. Louis, which concludes that if jurisdictions eliminate the bar exam as an entry to attorney licensure, the labor supply of lawyers would increase by 16%.  You can read the study's findings here.

How not to practice law: gamble away clients' funds

So, here is the second installment of the day in the "how not to practice law category" and again, as usual, the punchline says it all.  This one involves a lawyer who reportedly lost over $8 million in client funds at a casino.  The attorney will reportedly plead guilty to wire fraud and money laundering. She faces upwards of 20 years and has already agreed to pay $8,785,045 to recoup five investors.  You can read the story here.  

So what are the odds that she will get disbarred?  (See what I did there?...  "the odds"... get it?...)

How not to practice law: file fake court orders

 It has been a while since I last posted a story in our running category of "how not to practice law" in which, as the name suggests, we take a look at dumb things that lawyers do sometimes.  And today's story is an easy one:  you are going to get in trouble if you write fake court orders.  Yeah!  You can't do that! Shocking, right?   You can read the story here.

More on lawyering and the use of artificial intelligence

 A few days ago I posted some links on lawyering and the use of artificial intelligence - a topic that seems to dominate the professional responsibility blogsphere lately.  Here is an update with a few more stories from last week:

A nice short article discussing the issues raised by the use of artificial intelligence called Regulating AI in the practice of law. You can read it here.

Will AI Be Writing a Lawyer’s Blog Posts?

Chat GPT: A Lawyer’s Dream Come True or Their Worst Nightmare?

Lawyer Figures Out ChatGPT Made Up Fake Cases In His Brief On Day Of Hearing

Saturday, June 10, 2023

IAALS Releases National Framework for New Tier of Legal Professionals

As you know, and we have discussed in this blog many times, a number of states have programs that recognize "non-lawyer" legal professionals who can provide certain types of legal services.  Some of these programs have been a success, while others have struggled but they continue to be part of the debate as to options for the market of legal services.

Today I am writing to report that the Institute for the Advancement of the American Legal System at the University of Denver recently released a new report called Allied Legal Professionals: A National Framework for Program Growth which includes multiple research-informed recommendations to help standardize a new tier of legal professionals across states, with the goal of increasing the options for accessible and affordable legal help for the public.  You can read the report here.  The announcement of the publication is here.

ABA Formal Ethics Opinion on "non-lawyer" assistants -- UPDATED

 The ABA Standing Committee on Ethics and Professional Responsibility has issued a Formal Ethics Opinion (No. 506) on a lawyer's responsibilities regarding non-lawyer assistants.  You can read it here. The abstract reads as follows:

A lawyer may train and supervise a nonlawyer to assist with prospective client intake tasks including obtaining initial information about the matter, performing an initial conflict check, determining whether the assistance sought is in an area of law germane to the lawyer’s practice, assisting with answering general questions about the fee agreement or process of representation, and obtaining the prospective client’s signature on the fee agreement provided that the prospective client always is offered an opportunity to communicate with the lawyer including to discuss the fee agreement and scope of representation. Because Model Rule 5.5 prohibits lawyers from assisting in the unauthorized practice of law, whether a nonlawyer may answer a prospective client’s specific question depends on the question presented. If the prospective client asks about what legal services the client should obtain from the lawyer, wants to negotiate the fees or expenses, or asks for interpretation of the engagement agreement, the lawyer is required to respond to ensure that the non-lawyer does not engage in the unauthorized practice of law and that accurate information is provided to the prospective client so that the prospective client can make an informed decision about whether to enter into the representation.

UPDATE 6-18-23:  2Civility has analysis of the opinion here

Sunday, June 4, 2023

Judge requires lawyers to certify that they did not use AI to prepare documents filed in court

As I reported earlier this week, there has been a lot of discussion about AI and the practice of law this year.  See here for my blog posts on the subject. So, today I am writing to report that a Texas federal judge is now requiring attorneys to pledge they did not use artificial intelligence to draft their documents.  See Courthouse News, and The Hill.

Thursday, June 1, 2023

Lawyering and the use of Artificial Intelligence -- UPDATED

June 1, 2023

The Professional Responsibility blogsphere was dominated this week by a discussion of a New York Times story called “Here’s What Happens When Your Lawyer Uses ChatGPT."  TechDirt has a good summary of the story here.

In a nutshell, a lawyer used ChatGPT to do research in order to draft a brief.  The lawyer did not double check the result and it was later determined the brief contained cases/citations that were totally made up by the AI.  

The court has now issued an order to show cause against the attorney.  You can read the full order here.

Joe Patrice has a good comment on the situation at Above the Law (here), which summarizes what should be obvious:  don't blame the AI for the lawyer's conduct.  The issue is bad lawyering, not bad AI.  This other comment in Real Lawyers Have Blogs agrees.

UPDATE June 4, 2023

Above the Law has published a comment titled "Lawyers Who Used ChatGPT To Fake Opinions Are In Real Trouble".  You can read it here.

Multistate Analysis of the Ethical Rules Governing Attorneys Working Remotely

 Here is a link to a recently published short analysis of ethical rules regarding remote work.

Conference Report: Representing clients in multi-district litigation

 Multidistrict litigation, or MDL, now dominates federal dockets, impacting hundreds of thousands  of plaintiffs and routinely grappling with issues of national import. Though its rise is undeniable, its growth has also exposed, and helped to create, a series of deep cleavages regarding how best to adjudicate cases involving mass harms. Proponents tout MDLs’ procedural flexibility, efficiency, and access-to-justice benefits, while detractors criticize this procedural tool for restricting litigant autonomy, promoting unbounded judicial improvisation, and favoring wholesale settlements over substantive and procedural justice. 

In light of these competing narratives, on May 20, 2022, the Deborah L. Rhode Center on the Legal Profession at Stanford Law School and the Berkeley Law Civil Justice Research Initiative hosted a small group of distinguished scholars, judges, policymakers, and practitioners to discuss the lawyer-client relationship in MDLs. . . . the Convening sought to analyze contemporary MDLs’ plaintiff-related strengths and weaknesses and to identify practical steps that judges, lawyers, or policymakers might take to address various deficiencies. 

You can read the full report here.

Thanks to the TortsProf Blog for the update.

Monday, May 22, 2023

Following Vermont's example, Utah adds a comment to rule on competence to remind lawyers to be mindful of their wellness

I have written about the notion of "wellness" before, including about a report on the negative effects of the practice of law and the fact that Vermont has adopted a comment [9] to its rule on competence which states that maintaining mental, emotional, and physical well-being necessary for practice is important aspect of competence.  

Today I want to let you know that, earlier this month, the Supreme Court of Utah approved an amendment to the comments of Rule 1.1 of its Rules of Professional Conduct to add language about the mental, physical, and emotional health of attorneys.  Here is the language of the new paragraph in the comment:

[9] Lawyers should be aware that their mental, emotional, and physical well-being may impact their ability to represent clients and, as such, is an important aspect of maintaining competence to practice law and compliance with the standards of professionalism and civility. Resources supporting lawyer well-being are available through the Utah State Bar.

Monday, May 15, 2023

ABA Issues new formal opinion on advance "non refundable" fees

Way back in 2016 the Board of Professional Conduct of the Ohio Supreme Court released an advisory ethics opinion on whether a lawyer may enter into an agreement requiring a client to pay a flat fee in advance of representation and on whether a lawyer must deposit such a fee into a trust account. See Board of Professional Conduct of the Supreme Court of Ohio, Opinion 2016-1 (February 12, 2016).  Upon reading it, I thought the opinion reflected a common problem among jurisdictions that results in a confusing inherent contradiction within the applicable rule.  So, I wrote an article for Ohio Lawyer magazine (available here) in which I argued why the Board should have corrected the deficient drafting and interpretation of the rule.  

In essence, I argued a few relatively simple principles: that it would be unethical to charge or collect a fee that was not earned and that, therefore, if the fee was paid in advance, it had to be kept in trust until earned.  And, I made very specific suggestions on how to amend the rule and its comment to reflect the correct doctrine and to help lawyers better apply it.

The problem with the Ohio opinion, which is not uncommon among a number jurisdictions, is that it concluded it would be fine for lawyers to “deem earned” fees that had not been earned yet in order to allow the lawyers to place the money in their general accounts rather than in their trust accounts, while, at the same time, assuring clients that if the money was not earned eventually, they would be guaranteed a refund of the unearned portion of the fee.  

In my article, I argued this resulted in making the fees both earned and unearned at the same time, and inevitably lead to commingling regardless of where the money was placed.  It also prioritized the lawyers’ interests in getting their hands on the money at the expense of clients who were placed at risk of losing their money.  Thus, I suggested specific changes to the Ohio rules to fix the contradiction and to balance the interests of lawyers and clients.

But no one listens to me, and nothing changed.

So why am I writing about this today?  Because last week the ABA’s Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (No. 505, available here), in which it adopts the views I argued for way back then.  I guess it took a long time, but finally we have a good opinion on the subject and hopefully jurisdictions will take notice.

Opinion 505 frames the issue from a slightly different perspective, but in the end addresses the same questions.  The opinion focuses on the question of whether lawyers can label advance fees as “non refundable” but in the process talks about the same practice I discussed years ago – the practice of saying that fees are “deemed earned” when in reality they are not.  On this point, the opinion is very clear: 

“The Model Rules of Professional Conduct do not allow a lawyer to sidestep the ethical obligation to safeguard client funds with an act of legerdemain: characterizing an advance as “nonrefundable” and/or “earned upon receipt.” This approach does not withstand even superficial scrutiny. A lawyer may not charge an unreasonable fee.”  Thus, as the opinion points out, “[t]his approach departs from the safekeeping policy of the Model Rules described herein and creates unnecessary risks for the client.”

“Legerdemain,” by the way, means a skillful hiding of the truth in order to trick people.  Hiding of the truth to trick people.  That sounds bad.  You wouldn’t want to be known as a lawyer who hides the truth to trick people, would you?

Interestingly, the ABA Opinion has generated some criticism from some that say that lawyers and clients should be free to contract in any way they see fit.  Yet, this view forgets that rules of professional conduct interfere with lawyers’ “rights” all the time, for many reasons and on many topics because there are other interests at stake.  In response to that, some then argue that there is no valid interest at stake on the topic of fees paid in advance.  Yet, there is.  As the opinion argues, the interest is client protection.  The rules are there to protect clients and they do so by making sure that the lawyers abide by the rules related to safekeeping of money and the rules that mandate refunds of unearned fees.  

Some have argued that lawyers who might steal money from clients will take the money from trust accounts anyway, so mandating which account must be used to keep fees paid in advance makes no difference.  But this forgets that the idea behind mandating the use of trust accounts is not only to protect clients from the lawyer, but, more importantly, from the lawyer’s creditors.  

Finally, I’ve also heard some cite a case from Michigan called Grievance Administrator v. Cooper, 757 N.W. 2d 867 (Mich. 2008), in support of the position that it would be fine for a lawyer to charge a non-refundable flat fee paid in advance.  Unfortunately, this analysis is wrong for a basic reason: the case was wrongly decided since it did not involve a flat fee paid in advance.  It involved a security retainer, which, by definition, would be unreasonable if it were non-refundable.

One last point: the ABA Opinion refers to circumstances in which a lawyer does not have consent from a client.  An interesting question is whether a lawyer should be allowed to place an unearned fee in the lawyer’s operating account if the client gives consent.  In the District of Columbia, for example, that is allowed.  See In Re Mance 980 A. 2d 1197 (D.C. 2009).  

So, in conclusion, I think we can agree that when fees are paid in advance, they raise some ethical concerns.  One way to address these concerns is to ban lawyers from asking clients to pay in advance.  Another solution might be to stop requiring that lawyers use client trust accounts.  See, here and here, for example.   Yet, many reasons justify allowing the practice of asking for payment in advance and of requiring lawyers to keep separate trust accounts.  

The concerns can be addressed without having to go that far.  A better alternative is to eliminate the “legal fiction” of “deeming” a fee as “earned” when it is just a way to pretend that the amount of the fee belongs to the lawyer even though the work it is supposed to pay for has not been performed.  Instead of allowing this, lawyers and clients should agree on how (or when) portions of the fee are actually earned so that ownership of that portion of the money can be transferred to the attorney.  This way, the fee amount paid in advance is kept in the trust account, but the attorney can withdraw funds as they are earned before the end of the representation. 

Wednesday, May 10, 2023

Court imposes sanctions on Kari Lake's lawyer for lies about the elections

The Arizona Supreme Court recently ordered Former Arizona Republican gubernatorial candidate Kari Lake’s lawyers to pay $2,000 in sanctions for false claims about voter fraud in the 2022 election.  The Guardian has the story here.  The Hill also has it here.  MSNBC has more here (with video).

Saturday, April 29, 2023

Update on Idaho's rejection of Model Rule 8.4(g)

Back in January I reported (here) that Idaho rejected a proposal to adopt Model Rule 8.4(g).  A few days ago, the Louisiana Legal Ethics Blog published a comment.

Friday, April 28, 2023

How to leave a firm ...

 In a recent post, Michael Kennedy (Ethical Grounds) reviews issues related to lawyers leaving firms.  If you need a quick reminder of some of the ethical issues involved, you can read it here.

Meanwhile, over at Above the Law, another recent article discusses the key trends shaping today’s lateral moves landscape.

Saturday, April 15, 2023

Mississippi Supreme Court rules that the state's public defender system must be fixed to prevent defendants from spending unreasonable amounts of time before indictment

Poor defendants in Mississippi are routinely jailed for months, and sometimes even years, without being appointed an attorney due to the state’s inadequate public defender system. The Mississippi Supreme Court now says this practice must end.  The state’s highest recently rules that criminal defendants who can’t afford their own attorney must always have one before an indictment.  You can read the opinion here and a comment on the opinion here.

Monday, April 10, 2023

Colorado Supreme Court approves licensing of paraprofessionals to perform limited legal services -- UPDATED

April 9, 2023

Last month, the Colorado Supreme Court adopted new rules to create a program to license legal paraprofessionals to perform certain limited legal services.  You can read the Supreme Court's full opinion here.  You can also read a press release here.

As you probably know, Arizona, Minnesota, Oregon [also here], and Utah already have similar programs.  California is considering creating one. The first one in the country was created in Washington (state, not DC) but it was abandoned a few years later. 

According to the new rules in Colorado, licensed paraprofessionals will be allowed to complete and file standard pleadings, represent clients in mediation, accompany clients to court proceedings, and respond to a court’s factual questions but will not be allowed to represent clients in oral arguments or to examine witnesses in a hearing.

To obtain a license, the paraprofessional will be required to pass a written licensed legal paraprofessionals exam, submit to a character and fitness review, pass an ethics class, and pass a professional conduct exam. They will also have to complete 1,500 hours of law-related practical experience, including 500 hours of experience in Colorado family law. The rules also provide for a disciplinary process which is similar to the process for Colorado lawyers.

UPDATE 4/10/23:  Thanks to a reader of the blog for letting me know that New Hampshire also has a rule that allows paraprofessionals to provide certain types of legal services under certain circumstances.  You can find the rule here.

Thursday, March 30, 2023

Did Robert Costello Breach Michael Cohen's Confidences?

Could attorney Robert Costello have to face ethics questions for testimony on Michael Cohen?  Professor Steven Lubet (Northwestern) thinks so.  His column is on Law & Crime

Sunday, March 26, 2023

Op-ed in support of easing "unauthorized practice of law" statutes in favor of access to legal services

Last year, a Federal District Court judge found that New York’s unauthorized practice of law statute violated the First Amendment’s protection of freedom of speech of a pastor who wanted to help members of his congregation sued in debt collection cases by providing forms and explanations on how to fill them out and on how to file them.  The case is currently pending on appeal before the Court of Appeals for the Second Circuit.

I am writing about this today because a couple of weeks ago, Professor Bruce Green (Fordham Law) wrote an Op-Ed piece in the New York Times supporting the view that states should ease up on restrictions on the practice of law.  The article summarizes his view which he also argued in an amicus brief filed before the court.  You should read the whole thing, but here is an excerpt:

[L]aws prohibiting the “unauthorized practice of law” hurt those who cannot afford a lawyer. Even those who have relevant training or personal experience but are not lawyers may not offer free advice on how to handle a common legal problem. . . . 

. . . . 

New York’s attorney general, Letitia James, argues in part that this is not a freedom-of-speech issue at all because [if allowed to do what he wants to do, the plaintiff would be applying “legal knowledge, judgment and skill to the facts” of an individual’s legal problem. That, she says, is the“practice of law,” not speech . . . 

When legal assistance requires highly specialized skills and knowledge, it becomes increasingly legitimate for the state to insist that only a lawyer provide it – for example, representing a client in a courtroom where one needs to know particularly complex procedural and evidentiary rules and other law, or drafting certain legal documents without a reliable model.

But it is unreasonable for states to forbid people to apply a modicum of legal knowledge, judgment and skill to their neighbors’ legal problems. . . . But for the unauthorized practice restrictions [social workers, librarians and teachers] too could learn how toassist people in low-income communities who have simple legal problems and no meaningful access to lawyers.

The broad-reaching laws barring the unauthorized practice of law impose too high a cost on those who can least shoulder it. . . . 

. . . .

The unauthorized practice prohibitions should not stand in the way of those seeking help with common legal problems from others in their communities who can capably provide it. . . . 

Thursday, March 23, 2023

Judge rules Trump lawyer must testify in special counsel probe of classified documents

As you probably know by now, a federal judge recently ruled that one of Donald Trump's former lawyers must testify about communications between him and his client because of the "crime fraud exception" to attorney-client privilege.  Here are some links to the coverage.

On March 22



Above the Law

The Guardian

Court News Service

On March 23


New York Times

Saturday, March 18, 2023

Sixty years since Gideon v. Wainwright, defendants still face obstacles in their right to an attorney

Last week we celebrated the 60th anniversary of the decision in Gideon v. Wainwright, which recognized that defendants accused of serious crimes have the right to get an attorney appointed by the state.  

Yet, the celebration of the landmark case and the right it recognized is often hard to vindicate because of the obstacles faced by public defenders.

This unfortunate reality was highlighted in a couple of articles this week:

You have the right to a lawyer, but public defenders note a lack of resources, respect (NPR)

Reframing the Indigent Defense Crisis (The Harvard Law Review Blog)

Rudy Giuliani files post-hearing brief in the District of Columbia bar discipline case

The Legal Profession Bog is reporting that Rudy Giuliani recently filed a post-hearing brief in the District of Columbia bar discipline case arguing that Disciplinary Counsel failed to establish any ethics violations by clear and convincing evidence or, in the alternative, that if a violation is found, the proper sanction should be just an informal admonition or reprimand.  The office of the Disciplinary Counsel filed a reply.

You can read the information and follow the links to the documents here.

Does Trump's lawyer have a conflict of interest?

 The other day I saw a story with the title: "Trump lawyer's ethics issue: He initially was approached by Daniels."  In it, the author recalls the fact that the lawyer currently representing Trump in the case related to the hush money payment made to Stormy Daniels had been consulted by Ms. Daniels before he agreed to represent Trump.  The article suggests that this means that Trump's lawyer (Joe Tacopina) has a conflict of interest.  However, I don't think we have enough information to reach that conclusion...  yet.

What we know is that Stormy Daniels approached Tacopina about representing her but he declined.  It appears that that "approach" included at least one conversation between Daniels and the lawyer, but that does not necessarily mean that "an attorney-client relationship was established at the point of that consultation" as the article states.

When a person approaches an attorney to discuss whether the attorney will take on their representation what is formed is a relationship between the attorney and a prospective client, and the duties owed to a prospective client are different than those owed to a client.  

Whether the prospective client actually establishes an attorney-client representation depends on what transpires during the conversation(s) leading to the decision by the lawyer not to take on the representation.  And that is the information we don't have in this case.

Having said that, assuming there was no attorney-client relationship formed, is there "an ethics issue" as the article says?  Assuming the rules that apply are the ones from New York, a lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter although a different lawyer from the same firm could if certain conditions are met. 

Now, let's keep assuming things we don't know.  Assuming that there was a consultation during which Stormy Daniels disclosed confidential information that could be used against her in some way in the future, what would be the consequences?

Assuming all that as true, it could be argued that the lawyer violated a duty toward Stormy Daniels and could be subject to discipline for it.  

But could it lead to having the lawyer disqualified from representing Trump in the criminal case?  Well, the interesting thing about that is that the person who could object to the lawyer's representation of Trump would be the prospective client, ie, Stormy Daniels, and she is not a party in the criminal case.  She might be a witness, but according to some news reports I have seen, she did not testify before the grand jury.  

This means that the State would have to argue that she will be a witness and that Trump's lawyer should be disqualified from representing him because the  lawyer would be in a position to disclose or use confidential information obtained from her during her original consultation that could be significantly harmful to her.  Not just harmful. Significantly harmful.  

I don't know what the rules is about who has standing to file a motion to disqualify in New York so I don't know if the State can even bring the argument.