Tuesday, January 31, 2023

ABA asks for comments on possible amendments to Model Rules

 The ABA Standing Committee on Ethics and Professional Responsibility and ABA Standing Committee on Professional Regulation is seeking comments on the Committees’ Third Discussion Draft of possible amendments to the ABA Model Rules of Professional Conduct (Model Rules). 

The Third Discussion Draft addresses possible amendments to ABA Model Rule 1.16 (Declining or Terminating Representation) relating to lawyers’ client due diligence obligations. Your comments will assist the Committees in determining how to proceed with a Resolution for the 2023 ABA Annual Meeting.

You can access the discussion drafts and other information here.

Pleases submit written comments to Natalia Vera, ABA Center for Professional Responsibility Senior Paralegal at natalia.vera@americanbar.org by March 3, 2023. All written comments may be posted online.

The Committees will hold a Zoom public roundtable on the Third Discussion Draft on February 28, 2023. Those wishing to present comments will be allotted five minutes for their presentation. The Committees would appreciate if speakers also submit written comments by March 3, 2023. To register to attend, please contact Ms. Vera at natalia.vera@americanbar.org by February 17, 2023.

Sunday, January 29, 2023

California files disciplinary complaint against John Eastman, the lawyers for the Trump campaign credited to have come up with a plan to have Mike Pence reject the results of the presidential election

Last week, the State Bar of California filed 11 disciplinary charges against attorney John Eastman based on his efforts to help overturn the results of the 2020 election in order to allow then-President Donald Trump remain in office.  The news release by the State Bar of California is here.

According to an Op-Ed published in the Los Angeles Times, "[a]ccountability for Eastman is long overdue" because, even though he knew he was providing unlawful advice, he advised Mike Pence "to reject [Joe] Biden’s certification or otherwise tamper with it."

Here are a few links to more on this story:

The Guardian

Courthouse News Service

Legal Ethics Lawyer


Above the Law


Professional Responsibility: A Contemporary Approach

Thursday, January 26, 2023

Idaho Supreme Court issues resolution explaining why it rejected Model Rule 8.4(g); hint: because it is unconstitutional...

In November 2021, the Idaho State Bar Commissioners recommended an amendment to Idaho Rule of Professional Conduct 8.4 to include anti-discrimination and anti-harassment provisions along the lines of those in Model Rule 8.4(g).  After the resolution was adopted by the members of the Bar, the proposal was sent to the Idaho Supreme Court but the Court declined to adopt the proposed amendment.  

Last week, the Court issued a resolution providing a full explanation of its rejection of the resolution explaining that it was “appropriate to explain our decision in some detail to explain our rationale for taking the action we are in order to provide guidance going forward in the event the Bar should seek to amend Idaho Rule of Professional Conduct 8.4 in the future.”  

The Court then proceeded to explain that although it commends the Bar’s continued attempts to address unlawful discrimination and harassment in the legal profession it felt obliged to reject the proposed resolution because, among other things, the proposed amendment “violates the First Amendment because it is not narrowly tailored to withstand strict scrutiny” and because it is void for vagueness and could have a chilling effect on speech.

You can find the court's resolution here or, through another link here.

I am not surprised by the opinion.  I, and many others, have been arguing that Model Rule 8.4(g)'s constitutionality is questionable for a long time.  You can read all my posts on the subject by going here and scrolling down.

Saturday, January 21, 2023

More coverage on sanctions on Trump and his attorneys

Yesterday I reported that a federal court imposed almost a million dollars in sanctions on Donald Trump and his lawyers for a frivolous case that the court said "should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it." 

Interestingly, soon after the imposition of sanctions, the Trump team decided to withdraw another case they had filed in a different court, which suggests that the sanctions may have had an effect!   

Not surprisingly the news about the sanctions has generated a lot of coverage.  Here are some links:

MSNBC (story and video)

New York Times

Courthouse News Service


Above the Law


And here are a few links on the story about the withdrawal of the other case

Why Trump abandoned his suit against New York’s attorney general (MSNBC)

Trump withdraws Florida lawsuit against New York attorney general (Politico)

Friday, January 20, 2023

Another judge imposes sanctions on Trump's lawyers; but this time Trump himself may have to pay too

It can't be a good thing for the petitioner when the opinion of the court starts by saying "This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it." 

Those are the first lines in an order filed yesterday by US District Judge Donald M. Middlebrooks in a case filed by Donald Trump against Hilary Clinton.  

And,  as you would expect, the result was not favorable to the petitioner.  In fact, in the end the judge concluded that "Plaintiff Donald J. Trump and Plaintiff’s lead attorney—Alina Habba and Habba Madaio & Associates—are jointly and severally liable for $937,989.39."

Ouch!   Jointly and severally liable.  That means that Trump himself may have to pay part or all of that sanction.   

You can read the full order here.  The Guardian has the story here.

UPDATE (1/21):  More coverage here.

Monday, January 16, 2023

California moves closer to adopting a rule requiring reporting of another attorney's misconduct (a la Model Rule 8.3)

Up to now, California is the only state that has not adopted some version of Model Rule 8.3 which requires lawyers to report another lawyer's misconduct under certain circumstances.  But soon that distinction may come to an end.  

As reported in California Legal Ethics, "the California State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) spent most of its meeting on Friday January 13 drafting a California version of ABA Model Rule 8.3."  

The post in California Legal Ethics explains why the rule was rejected when California adopted the rest of the Model Rules, and the argument in favor of adopting it now.  

Sunday, January 15, 2023

Podcast on jury nullification

If you are interested in the topic of jury nullification, Radio Lab has a recent 1 hour long podcast on the subject.  You can listen to it here.

Friday, January 13, 2023

Supreme Court to address issues related to attorney-client privilege - UPDATED

January 9, 2023

If you are reading this blog, you probably know already that the US Supreme Court agreed to hear a case on whether a communication involving both legal and non-legal advice is protected by the attorney–client privilege if obtaining or providing legal advice was one of the significant purposes behind the communication.  The case is called In re Grand Jury, and the oral argument is today!

Here are a few links with commentary.  I will continue to update the list as more commentary is published after the oral argument.


Presnell on Privileges

UPDATE (1-13-2023):  Here are a few more links to stories that discuss the case:

Justices debate test for attorney-client privilege when lawyer’s advice has multiple purposes

ABA Law Journal:  "Law firm's more protective test for attorney-client privilege 'is a big ask,' Kagan says"

The National Law Review: "The Scope of Attorney-Client Privilege Over Dual-Purpose Communications"

The National Law Review:  "U.S. Supreme Court Is Asked to Adopt the ‘Significant Purpose’ Test to Permit the Withholding of Dual-Purpose Communications as Subject to the Attorney-Client Privilege"

Sunday, January 8, 2023

How not to practice law: continue arguing the arguments the court told you not to argue anymore

Above the Law is reporting that last Wednesday New York Supreme Court Justice Arthur Engoron sent a note to lawyers for the Trump family and the Trump Organization stating that "[u]pon thoroughly reviewing the papers in support of some defendants’ pending motions to dismiss, this Court is considering imposing sanctions for frivolous litigation . . ., for setting forth the same legal arguments that this Court previously rejected . . ."

You can read the full story here.

UPDATE 10-5-23:  Judge in Trump's NY fraud case imposes sanctions on his lawyers for repeating frivolous arguments

Judge suspends law license of lawyer for Alex Jones following Sandy Hook document leaks

 A lawyer for conspiracy theorist Alex Jones has been suspended from practicing law in Connecticut for six months for improperly giving Jones' attorneys in Texas confidential documents, including the medical records of relatives of victims of the Sandy Hook Elementary School shooting.

“We cannot expect our system of justice or our attorneys to be perfect, but we can expect fundamental fairness and decency,” the judge wrote. “There was no fairness or decency in the treatment of the plaintiffs' most sensitive and personal information, and no excuse for the respondent's (Pattis') misconduct.”

Pattis said Friday in a text message that he plans to appeal the discipline and seek a stay of the punishment while he challenges it.

You can follow the story her:

Courthouse News Service


Above the Law 

Louisiana Legislature adopts provision that affects a plaintiff's ability to recover in a legal malpractice action

 As reported in Louisiana Legal Ethics, last year, the Louisiana Legislature enacted La. Rev. Stat. 9:5605.2, which provides that "[i]n any action for damages by a client against an attorney, the client’s recovery against the attorney shall be limited to the amount of damages which the attorney shows by a preponderance of the evidence would have been the maximum amount of damages that the client could have collected in the client’s underlying action in which he was represented by the attorney."

The statute is unusual in that it switches the burden of proof to the defendant to prove the amount of the recoverable damages.  This should not be the case.  The burden should remain on the plaintiff.

The statute is a response to the Louisiana Supreme Court’s 2020 decision in Ewing v. Westport Insurance Corporation, 315 So. 3d 175 (La. 2020) in which the court held that “proof of collectibility of an underlying judgment is not an element necessary for a plaintiff to establish a claim for legal malpractice, nor can collectibility be asserted by an attorney as an affirmative defense in a legal malpractice action.”