Arizona Ethics Opinion concludes lawyers can disclose confidential information when replying to negative online reviews

Long time readers of this blog might remember a few posts on whether an attorney can reply to negative online reviews.  All sources I have seen agree that lawyers can respond to negative reviews but that they can not disclose confidential information about a client in the process.  (Go here for a recent post which includes links to the older ones.  Here is link to an ABA Opinion.)

I am writing about this today again because I just found out that at the end of last year, the Supreme Court of Arizona Attorney Ethics Advisory Committee issued an ethics opinion that contradicts what all those sources have opined on the issue.

This new opinion concludes that 

In the context of an unfavorable online comment or review by a former client, informed consent is unlikely, meaning that disclosure of confidential information will be improper unless permitted by the only exception potentially applicable to this scenario, which is found under Rule 1.6(d)(4). Under Rule 1.6(d)(4), a lawyer may reveal confidential information relating to the representation of a client to the extent the lawyer reasonably believes necessary "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." Comment 12 to Rule 1.6 further provides that, where a legal claim or disciplinary charge alleges complicity of the lawyer in a former client's conduct or other misconduct involving representation of the former client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. Comment 12 also states that the lawyer's right to respond arises when an assertion of such complicity has been made; section (d)(4) does not require the lawyer to wait for an action that charges such complicity to commence. Rather, the defense may be established by responding directly to a third party who has made such an assertion.

The question thus becomes whether negative online comments establish a "controversy," and, if so, whether disclosure of confidential information can ever be considered reasonably necessary to establish a defense. Negative online comments do establish a controversy between a lawyer and client the informality of an online critique is not relevant. Furthermore, disclosure of confidential information may be considered reasonably necessary to establish a defense. A client may not use confidentiality as both a sword and a shield in a formal legal or disciplinary proceeding. Similarly, the client should not be able to make public accusation of serious misconduct against their former lawyer and then invoke the lawyer's duty of confidentiality to prevent the lawyer from making an effective response or to punish the lawyer for having done so. An individual who elects to try their former lawyer in the court of public opinion rather than before a tribunal and makes serious accusations that put confidential information at issue assumes the risk that such information will be disclosed in the lawyer's response. Thus, untrue accusations of misconduct should be countered.

Go here and scroll down to read Supreme Court of Arizona Attorney Ethics Advisory Committee Ethics Opinion File No. EO-19-0010 (December, 2022).

Thank you to Victor Salas for sending me a copy of the opinion!

Should the lawyers who plead guilty in cases related to election fraud be disciplined despite their plea agreements saying their crimes did not involve "moral turpitude"?

 If you have been paying attention to the news, you know by now that three lawyers have pled guilty in the RICO case in Georgia claiming that 19 defendants participated in an attempt to overturn the results of the last presidential election.  One of these - perhaps the lesser known of them - was Jenna Ellis who worked with Rudy Giuliani to press state legislatures to overturn the 2020 election results.  (The others are Sydney Powell, and Ken Chesebro).  

Ellis is an interesting figure in all this.  Earlier this year she admitted to having lied about the elections in order to avoid harsher discipline in Colorado but then promptly proceeded to lie about it in the media. (See here.)  And she has flipped-flopped about her opinion on Trump several times.  And now, she tearfully admitted to the charges in Georgia.  But she has no credibility when she says she regrets her conduct.

I am writing about this today to comment on the fact that the plea bargain agreements related to these lawyers have included explicit statements that the district attorney does not consider the crimes to be "of moral turpitude."  

Aside from the fact that I have never truly understood the concept of moral turpitude and how it is applied by courts and disciplinary agencies (go here and scroll down for my comments on this over the years), the specific use of this language in the bargaining agreements is meant to help the lawyers keep their law licenses despite their convictions.

I understand that this was probably a condition negotiated by the parties in order to get the defendants to  plead guilty and to cooperate with the prosecution.  Yet, I wonder how necessary it was to get that result.  

And, more importantly, I disagree with the suggestion that the lawyers should be allowed to keep their licenses.  Thus, I hope that the appropriate disciplinary agencies do not feel they are obligated to allow them to do so.  It is important to understand that the Georgia DA and the judge in the case can say whatever they want about moral turpitude, but they cannot tell the disciplinary agencies in other jurisdictions how to regulate the practice of law in their jurisdictions nor who to admit or disbar.  

Thus, the fact that the plea agreement says the crime committed wat not one of moral turpitude should not be a bar for a local disciplinary agency to bring disciplinary procedures against a lawyer for having violated a rule like Model Rule 8.4(b) which ways it is misconduct to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." 

All of these lawyers have violated this rule and should be properly disciplined for it.  Ellis not only violated the rule, she then lied about it to the media, thus violating another rule (about engaging in dishonest conduct).  

For coverage on the guilty plea by Jenna Ellis, you can check out the following:

Above the Law

Politico

MSNBC

NPR

The Hill

Jurist

Politico

Justice Says Mississippi Court Rule to Give Poor Defendants Lawyers Isn’t Working And there isn’t much the court can do to enforce it

 Justice says Mississippi court rule to assign lawyers to poor defendants isn't working and there isn’t much the court can do to enforce it.  The Marshall Project has the story here.

Two new comments on DoNotPay and AI legal services

 Long time readers of this blog will remember early this year I posted a series of stories discussing the saga of a company called DoNotPay which referred to itself as "the worlds first robot lawyer."  After some fanfare from the company's owner, it became clear the company could not deliver on its promises, there was a lot of criticism and commentary on the internet and eventually the company quit the practice of law, so to speak (meaning it decided not to offer legal services after all).  You can read the full saga, with lots of links to even more sources, in order, in my posts from January 29, February 14, February 16, March 4, March 10, and March 17.

I am writing about this again today to highlight two articles in the New York Legal Ethics Reporter.  The first one is called "DoNotPay Cases Underscore Hurdles For AI-Fueled Legal Help" which was originally published back in April in another publication.  In it, the author discusses some of the implications raised by two lawsuits brought against the company alleging unauthorized practice of law and consumer fraud.  You can read the article here.

The second article is called "The Rise of the Robot Lawyer? DoNotPay’s Legal AI Faces Several Challenges" and you can read it here.  It concludes that 

"[a]s AI continues to develop increasingly sophisticated research, issue-spotting and communication capabilities, it will likely become not only a useful, but even a necessary tool for lawyers in order to remain competitive in the legal services industry. However, as long as the reasons for having licensing structures and ethical obligations remain relevant, the return of the “robot lawyer” to replace the human one seems unlikely to happen anytime soon."

Things keep getting worse for Rudy Giuliani, part 2 (or 3 ?, I've lost count!)

 If you have been following the news, or this blog, you know that things are getting pretty desperate for Rudy Giuliani, (go here and scroll down for the latest) and they just keep getting worse.   

Here is the latest update:  last Friday, the judge presiding over one of Rudy Giuliani’s current defamation trials penalized Giuliani again for his “continued and flagrant” disregard of court order.  U.S. District Judge Beryl Howell said the decision means jurors will be told that Giuliani intentionally hid financial documents and other records in defiance of court orders.  See here and here.

Now, someone might say that Giuliani actually has pretty much nothing to lose here.  He was already found to be liable and the trial is merely to determine the amount of damages he will be forced to pay although it is unlikely that he has much money available to pay much.  (See here for the background on the case.)

So, the real question is what are his lawyers thinking?  They can be risking sanctions imposed on them for Giuliani's conduct...  Oh wait, that's right, his lawyers either withdrew or are asking to withdraw... 

So Rudy is left with no lawyers, no money, no case and no reputation. And he is likely going to be disbarred in DC and New York.  So, does he have anything else to lose?

The world needs more lawyers

You may have heard the famous Shakespearean quote that goes something like "the first thing you do, kill all the lawyers" or something like that.  It is often used as an insult to the profession, suggesting that lawyers are scum and we should get rid of them.  

But a little research will teach you that in its proper context, the quote was used to suggest the opposite.  The suggestion to kill the lawyers was used by a character looking to cause chaos that would allow him to topple the government.  In other, words, we need lawyers to assure the proper functioning of society.

And, as a matter of fact, we could actually use more lawyers since anyone paying attention knows that the legal needs of huge numbers of people are not met.

So, it is interesting to note that a division (or "project") of the Federalist Society recently published a paper calling for regulatory reform in the legal profession.  The paper, called "The World Needs More Lawyers" is available here.

Its executive summary reads as follows:

The American legal profession, as well as those it serves, would benefit from lowering the barriers to entry to the practice of law. Several licensing barriers unnecessarily contribute to the high cost of legal services, which inhibit access to justice for ordinary Americans. In some respects, legal licensure is categorically distinct from the licensure of other highly regulated professions. This suggests that a particular focus on legal licensure may be appropriate. We therefore explore the implications of modest reforms that would advance the public interest, with an eye to the encouragement of competitive markets in legal services, and the protection and preservation of the fiduciary nature of legal services.

Is it ethical to advise clients to delete content from social media?

 It depends.  The San Diego County Bar Association explains here.

Lawyer fined nearly $20,000 for obnoxious conduct in violation of rules of procedure during deposition

 I often complain that judges do not do enough to discourage misconduct during discovery, so today I am happy to report that at least one judge is doing her part.  

As reported in the ABA Journal (here), last month federal judge U.S. District Judge Stephanie L. Haines of the Western District of Pennsylvania sanctioned a lawyer imposed a sanction of nearly $20,000 for his conduct during four depositions last year.  The only question I have is why did it take a year for the judge to impose the sanctions, but I guess I'll let that one go for now.  According to the story, the lawyer was fired from his firm soon after the fourth deposition.

You can read the opinion here.  

Courts in two separate cases in Louisiana deny motions to dismiss in cases against prosecutors for wrongful convictions

A federal judge recently denied the New Orleans District Attorney’s motion to dismiss a wrongful conviction claim by a man who spent 26 years in prison for murder based on the acknowledged unconstitutional suppression of favorable evidence by prosecutors under a former D.A.  You can read the ruling here.

Meanwhile, in another case, a federal court declined to dismiss a former criminal defendant’s misconduct claims against a prosecutor after the man was freed from 44 years spent in prison for two rapes he did not commit. The prosecutor allegedly fabricated a police report to defeat the former prisoner’s alibi, behavior that would be excepted from prosecutorial immunity.  You can read the ruling here. 

New ABA Formal Opinion on witness preparation -- UPDATED

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 Conduct 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.

UPDATE 10-5-23:  The Law for Lawyers Today has a comment here.

UPDATE 11-4-23:  The Louisiana Legal Ethics Blog has a comment here.

Things keep getting worse and worse for Rudy Giuliani: two of his lawyers withdraw (or try to) from his representation in Georgia

Oct 4, 2023

If you have been following the news, or this blog, you know that things are getting pretty desperate for Rudy Giuliani, (see here, and here, for example) and they just got worse in the past few days.  Here is the latest:

Last month, Giuliani's former lawyers in one of his many ongoing cases sued him for nearly $1.4 million for outstanding legal bills.  See here.

Last week, the judge overseeing the RICO case in Georgia in which Giuliani is one of 19 defendants, granted a motion to withdraw filed by one of Giuliani's lawyers.

Yesterday, a second lawyer representing Giuliani in that case filed a motion to withdraw.  See here.  If that motion is granted, the Giuliani will be left without a Georgia based lawyer in the case.  The only lawyer left would be a New York-based lawyer.  I don't know if there is a requirement that a defendant must have local counsel to "sponsor" the out of state lawyer.  If so, it is possible the judge will deny the motion to withdraw.  We'll have to wait and see.

It was also reported this week that Hunter Biden has sued Giuliani.  See here and here.

But Giuliani is fighting back.  He denies that he has a drinking problem.  See here and here.  And he has filed a defamation lawsuit against President Joe Biden for calling him a “Russian pawn” during a presidential debate nearly three years ago.  See here and here.   Given everything else, this strikes me as a desperate move, which I predict will be dismissed promptly because the court will find that the statement is political speech, and rhetorical hyperbole or a statement of opinion.  The more interesting question is whether the court will also find that the claim is frivolous and impose sanctions, which will, again, make things even worse for Giuliani.  Someone should remind him he is already in a big hole, and should stop digging.

UPDATE 10-5-23:  MSNBC has a short comment on the most recent news here.

Judge in Trump's NY fraud case imposes sanctions on his lawyers for repeating frivolous arguments

Last January I reported (here) that 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 . . ."  

Since then, the judge found Trump liable and started the trial to determine the appropriate sentencing, but in the process, the judge finally decided that pending matter of the sanctions.  As reported in Above the Law, 

New York Supreme Court Justice Arthur Engoron issued a blistering broadside, sanctioning defense counsel and granting the New York Attorney General partial summary judgment in the civil fraud case against Trump and his associates.

. . . . 

“Defendants’ conduct in reiterating these frivolous arguments is egregious. We are way beyond the point of ‘sophisticated counsel should have known better’; we are at the point of intentional and blatant disregard of controlling authority and law of the case,” Justice Engoron wrote furiously. “This Court emphatically rejected these arguments, as did the First Department. Defendants’ repetition of them here is indefensible.”

. . . . 

“Unfortunately, sanctions are the only way to impress upon defendants’ attorneys the consequences of engaging in repetitive, frivolous motions practice after this Court, affirmed by the Appellate Division, expressly warned them against doing so,” Justice Engoron wrote, adding that “It is of no consequence whether the arguments were made at the direction of the clients or sua sponte by the attorneys; counsel are ethically obligated to withdraw any baseless and false claims, if not upon their own review of the record, certainly by the time the Supreme Court advised them of this fact.” . . . 

Judge agrees to explore possibility of conflict of interests in Mar-a-Lago case -- UPDATED

Judge Aileen Cannon recently agreed to a Justice Department (DOJ) request to hold hearings to examine potential conflicts of interest of two attorneys representing Donald Trump’s co-defendants in the Mar-a-Lago case.  Read the story here.

UPDATE 10/27/23 

According to several sources, Walt Nauta, former President Trump's co-defendant in the Mar-a-Lago case, will be permitted to keep his attorney despite conflict of interest concerns raised by prosecutors. Nauta said he understood and accepted the risks with keeping his Trump-paid attorney who previously represented a Mar-a-Lago employee now expected to testify against him.

For coverage of this story you can go to the following:

NPR

The Hill

Courthouse News

Politico

Courthouse News

Judge finds no conflict and denies motion to disqualify in Trump's hush money case

 Back in March I reported a story about the fact that one of Trump's lawyers in the New York "hush money case" involving payments to Stormy Daniels had previously met with Daniels to discuss possible representation in the past.  The State suggested that created a conflict of interest and that the lawyer should be disqualified.  You can read my original comment on the issue here.  

Last month, the judge finally decided the issue and found no conflict.  You can read the story here.