Sunday, August 27, 2023
Saturday, August 19, 2023
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.
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
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
Saturday, August 12, 2023
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.
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
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 here, here, here, 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.