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.
Thursday, March 30, 2023
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
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
On March 23
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:
Reframing the Indigent Defense Crisis (The Harvard Law Review Blog)
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.
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.
Most states have adopted the view that the duty of competence includes a duty to keep up with modern technology. Also, most states have adopted the view that the duty of confidentiality includes a duty to take reasonable measures to protect confidential information from unauthorized or negligent disclosure (which can happen if a lawyer is not familiar with certain aspects of modern technology).
So, given those two facts, do lawyers need to implement e-mail encryption? I have not seen any specific decision or opinion that answers that question with an unequivocal "yes" but I have seen articles suggesting that it would be the logical answer.
And here is the latest, published in Law Technology Today.
Friday, March 17, 2023
Last week I reported that the "world's first robot lawyer" was getting sued... sort of... It would be funny if the robot lawyer had been sued for malpractice, but that is not what is happening. The company that advertised offering the world's first robot lawyer is getting sued for unfair competition, restitution and an injunction barring it from offering its legal services.
So, here is an update and a bit of commentary from Tech Dirt, which also has a full copy of the complaint.
There has been a lot of discussion about artificial intelligence recently and I am sure there will be many articles soon on different ways in which AI will affect the practice of law. I will post links when I see new ones, but to get you started here are a few I saw this week:
Sunday, March 12, 2023
Trump lawyer admits to lying about the elections in order to avoid harsher discipline; then promptly proceeds to lie about it
This week saw a lot of coverage and debate about the decision by the Colorado disciplinary authorities to agree to a stipulated public censure for attorney Jenna Ellis who admitted that she misrepresented facts (with "at least a reckless state of mind") at least ten times during Trump’s attempts to challenge the election results in 2020, and to doing so for a selfish motive as an aggravating factor. You can read the opinion here.
A day later, however, she took to Twitter to claim that she did not admit to lying, or that she didn't lie, or something. According to her, "lying requires intentionally making a false statement" which I guess means she admitted to making misrepresentations but that she did not know what she was doing or saying at the time; or maybe that she only admitted to making misrepresentations recklessly? I don't know; it is hard to tell.
Interestingly, as reported by Steve Benen, "[a]s recently as 2016, Jenna Ellis was not a Donald Trump admirer. She repeatedly described the then-candidate as an “idiot,” adding that she considered him an “unethical, corrupt, lying, criminal, dirtbag.” Ellis even took aim at Trump’s supporters, saying they didn’t care about “facts or logic.”"
Yet, somehow, at some point I guess Ellis herself became uninterested in facts and began to misrepresent them or maybe she just did not care enough to know she was misrepresenting them or maybe she thinks it is ok to make statements with reckless disregard for the truth...? Again, it is hard to tell.
Either way, it all has now caught up with her, although only in a minimal way. And this is the first issue debated this week. Why impose such a minimal sanction, which does not include any type of suspension from practice and which she evidently felt was easy to ignore? It is hard to say, but clearly this was a settlement. The disciplinary authorities wanted to impose discipline and she did not want to risk a worse outcome. Should the authorities have tried to get a more significant penalty? I think so, but it is hard to know what limitations they were dealing with. Not knowing what the evidence and other factors were, it is hard to say if the disciplinary authorities did the right thing.
The one thing we can say is that the sanction does not seem to have had much on an effect on the lawyer's willingness to believe in facts or logic as a result, so not much has changed. As argued by Dennis Aftergut in a short piece published at Verdict,
There is honor in holding oneself to account, in admitting one’s wrongdoing when it occurs. . . .
Unfortunately, the lesson seems to have been lost on Jenna Ellis. Within hours of her censure agreement being publicized, she parsed its words and severed herself from whatever redemption she might have claimed from confessing error.
. . . .
In Ellis’s case, . . . [t]he stipulation she signed cites 10 of her false statements . . .
The stipulation then states: “Respondent has . . . violated [Rule of Professional Responsibility ] 8.4(c) (dishonesty).” It cites Colorado case law establishing that “reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.”
Ordinary folk could be forgiven for thinking that “knowingly” engaging in dishonest, fraudulent, or deceitful conduct by making false statements is a pretty good description of lying. “I knew my statements were false, but I didn’t intend to lie when I made them” is some heavy water to carry.
Most people who acknowledge their wrongdoing at least seek the public benefit from saying that they held themselves to account. Jenna Ellis has managed to get the worst of both worlds—being professionally sanctioned by agreement and abdicating all responsibility for her behavior.
Another issue debated during the week by some is whether the statements were protected by the First Amendment, and whether it would be valid to impose sanctions for protected speech even if the lawyer was acting as a lawyer and the statements were made in order to advance the interests of a client. This is an interesting question that may have played a factor in the Colorado authorities decision to settle the case rather than to risk having to litigated further.
Dennis Aftergut mentions this issue in his piece also:
Ellis’s statements . . . were made in the media and purely for political purposes. First Amendment protections broadly apply in these arenas, and—whether you agree or not—some of the country’s foremost legal experts believe that free speech rights raise formidable barriers to disciplining lawyers who deliberately engage in political lies.
But now, thanks to Jenna Ellis, we have a discipline case on the record against a lawyer whose only misconduct was in misleading the public in the public square. . . .
Friday, March 10, 2023
As reported in Courthouse News Service, "[t]he world’s first robot lawyer has been practicing law without a license — doing a pretty poor job of it to boot, according to a putative class action filed Tuesday in San Francisco Superior Court."
This is the latest chapter in the Do Not Pay saga I have been reporting recently. A lawsuit has been filed against DoNotPay seeking class certification and restitution on a state-law claim of unfair business practices. You can read about it here.
Thursday, March 9, 2023
Will Artificial Intelligence help provide more access to quality and affordable legal representation?
There has been a lot of attention lately to issues related to Artificial Intelligence ("AI"), particularly to the use of ChatGPT to generate written content and the claims that a company called DoNotPay made about offering the first robot lawyer.
Obviously, there is a lot of uncertainty about the future of AI and whether it will be a positive or a negative in society in general and in the legal profession in particular. If you are interested in this topic, take a look at a short article by Lance Eliot (Stanford) published in Jurist called ChatGPT and Other AI Programs Aid and Muddle Access to Justice as Non-Lawyers Seek Their Advice, available here. It starts with this:
Can access to justice be enhanced via the advent of generative AI such as the widely and wildly popular ChatGPT app? I get asked this pointed question quite frequently. The straightforward answer is that generative AI provides a mixed bag, namely that in some respects this type of AI will indeed enable greater access to legal information and bolster access to justice, though there are downsides that muddle the otherwise hoped-for positive benefits. Great care and mindful attention need to be diligently considered on how AI comes into play for legal tasks.
And, if you want a quick look at some of the issues raised by the use of AI in general, you may want to watch a recent segment in John Oliver's show Last Week Tonight (below) or here if you can't see the player below.
Wednesday, March 8, 2023
The Illinois Supreme Court recently announced amendments to Illinois Rules of Professional Conduct 1.5 and 1.15 to clarify the law related to retainers. Unfortunately, the changes do not address the most important issue that needed to be addressed.
On the positive side, the amendments explicitly note that nonrefundable fees and nonrefundable retainers are prohibited, and “any agreement that purports to restrict a client’s right to terminate the representation or that unreasonably restricts a client’s right to obtain a refund of unearned or unreasonable fees is prohibited.” This is a clarification that would be helpful in many other states where the issue is still confusing.
However, the amendments did not get rid of the notion of a "special purpose (or advance payment) retainer." The concept originates in the Court's decision in Dowling v. Chicago Options Associates, a case that was wrongly decided and which, in the end, validated a scheme to use a law firm to hide assets from a creditor.
A special purpose retainer is defined as a “present payment to the lawyer in exchange for the commitment to provide legal services in the future." Note how that is exactly the same definition of a security retainer, so to distinguish them it is said that the special purpose retainer "may be used only when necessary to accomplish some purpose for the client that cannot be accomplished by using a security retainer” and that, unlike the security retainer, a special purpose retainer is "earned immediately."
Thus, the special purpose retainer is considered to be a fee that immediately becomes the property of the lawyer, whether the services are performed or not. If that means that the retainer pays just for the commitment to perform the services, then how is it different than a classic retainer? On the other hand, if it pays for the actual services, then it is nothing other than a fee paid in advance, which can't be earned immediately because they can't be earned until the work is done. So, in the end, if the special purpose retainer pays for services not yet rendered but is earned immediately nonetheless, it is actually earned and not earned at the same time. And, if that is the case, it does not matter where the lawyer deposits the money, the lawyer will be commingling. And that is just two of the problems with it.
Years later, the Court was confronted with the consequences of that new type of retainer and had a chance to get rid of it, but instead decided to ban it in certain types of cases only. See, In re Marriage of Earlywine (2013). I wrote about that case back then here.
In considering the amendments recently announced it seems that the Court had yet another opportunity to fix its original mistake but again failed to do so.
Tuesday, March 7, 2023
Ipse Dixit has posted a podcast with Elise Bernlohr Maizel, Acting Assistant Professor of Lawyering at NYU Law School, in which she discusses her article "The Case for Downsizing the Corporate Attorney-Client Privilege." Maizel begins by describing the attorney-client privilege and work product doctrine. She explains why the attorney-client privilege doctrine has always been a poor fit for corporate clients. And she proposes a new model for the attorney-client privilege in the corporate context that is both more conceptually coherent and practically desirable.You can listen to the podcast by clicking on the play button below or by going here.
Monday, March 6, 2023
The Arizona Senate recently approved a bill that "prohibits the Supreme Court from requiring an attorney to be a member of any organization in order to become or remain a licensed attorney in Arizona."
You can read a summary of the bill here.
Sunday, March 5, 2023
The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Ethics Opinion (no. 504) on the issue of choice of law. The abstract reads:
When a lawyer practices the law of more than one jurisdiction, choice-of-law questions arise concerning which jurisdiction’s ethics rules the lawyer must follow. Model Rule 8.5 provides that when a lawyer’s conduct is in connection with a matter pending before a tribunal, the lawyer must comply with the ethics rules of the jurisdiction in which the tribunal sits, unless otherwise provided. For all other conduct, including conduct in anticipation of litigation not yet filed, a lawyer must comply with the ethics rules of the jurisdiction in which the lawyer’s conduct occurs. However, if the predominant effect of the lawyer’s conduct is in a different jurisdiction, then the lawyer must comply with the ethics rules of that jurisdiction.
Saturday, March 4, 2023
If you have been following the story of DoNotPay -- the company that claimed to offer a "bot" lawyer, but which after some bad publicity decided to "quit the profession" you will be interested in the more recent developments. If you have not been following the story, go here, here and here first to catch up, then take a look at the links below.
LawSites podcast/interview with the paralegal who broke the story to begin with and who concluded that DoNotPay’s "supposed AI-driven products were little more than smoke and mirrors and that its representations about its products constituted consumer fraud." You can also find the podcast here.
TechDirt's podcast/interview with the same paralegal.