Short article on why criticizing judges can be dangerous

 The New York Legal Ethics Reporter has published a good short article called "Criticizing Judges Can Be Hazardous to Your Professional Health."  You can read it in full here. 

Upsolve wins in NY; Court opens door to non lawyer providing some legal services

 Back in March of this year, I posted a comment on an Op-ed piece in the New York Times arguing that it is important to ease "unauthorized practice of law" statutes in favor of access to legal services.  The piece was published in reaction to a case before the courts in New York at the time involving a not-for-profit organization called Upsolve which trains non-lawyers to provide limited legal advice to lower-income New Yorkers who face debt collection actions. 

The company was accused on engaging in the unathorized practice of law, but last May the court found in its favor.  [I just found out about the result this week!]

The issue in the case revolved around the company's claim that it had a first amendment protected right to do what it was doing, and the court agreed with the argument.  

I just found out about the result in the case because I read a comment in the New York Legal Ethics Reporter in which the author argues that the court reaches the correct result but for the wrong reasons, and suggests other approaches that would be better in order to address the problem that Upsolve seeks to help with.

The author of the comment concludes that "I am no First Amendment scholar, but even I can see that the Court’s argument is rather labored, as the Court dances around concededly contrary precedent to achieve what it perceives as the correct result"   and then suggests that "there has to be a better way for a program like Upsolve to exist than fighting dodgy constitutional battles."

To read the full comment, and particularly the recommendations on how to address the issue, go here.

Did Illinois Hearing Board recommend a six month suspension for violation of Rule 8.4(d) because there is no other rule and this one seems to work as a "catch-all"?

 That's a long title above, but hear me out.  Last July, I reported on a complaint filed in Illinois against a lawyer for his conduct toward courthouse personnel.  The conduct included making inappropriate comments, and advances on female court employees, which could have been defined as harassment.   

However, because Illinois has not adopted a rule like Model Rule 8.4(g), and the current rule related to harassment is ineffective, the disciplinary agency did not really have a rule to support the complaint.  So they did what disciplinary agencies sometimes do when there is no specific rule: they looked for a generic catch-all provision to try to frame the complaint around it.  And they found it in Rule 8.4(d) which relates to conduct prejudicial to the administration of justice.  

In my original post, I argued that this section of the rule was not meant to apply to the conduct at issue in the case.  But, because the Illinois Supreme Court has made it clear that all disciplinary charges must be based on a specific rule, the disciplinary agency was in a bind.  

I recently reported and provided a link to a hearing on whether Illinois should to adopt a rule like Model Rule 8.4(g).  (Go here for my comment on the proposal before the hearing; go here for my report of the hearing.)  Adopting a good version of that rule would provide a rule that would allow for the imposition of discipline in a case like the one of the lawyer harassing court personnel.  

But opponents of such a rule, ironically, will point to the fact that the case was prosecuted under an existing rule as proof that a new rule on harassment is not needed.  

Which brings me to today's post.  The Illinois Hearing Board heard the case as argued under Illinois Rule 8.4(d) and recommended a six month suspension.  Here is the Board's report.

As I have discussed previously (see my posts linked above), the proposed new rule can be improved significantly but it would be more on-point than trying to stretch the reach of the definition of "prejudicial to the administration of justice."

So what do you think?  What is the better choice:  (1) to adopt a new rule (which should be an improved version of Model Rule 8.4(g)), or (2) to reject such a proposal and stretch the meaning of conduct prejudicial to the administration of justice to include pretty much anything a lawyer does that the disciplinary agency can claim affects any aspect of the practice of law?

Court of Appeals for the Fifth Circuit holds that certain social media posts by the Louisiana Bar Association violated the First Amendment

Last week, the US Court of Appeals for the Fifth Circuit ruled that the Louisiana State Bar Association (LSBA) violated the US Constitution’s First Amendment when it tweeted several posts that were not “germane” to the legal profession. Since membership in the state bar is required for US lawyers to practice within the state, the court held that the bar’s communications must be related to the legal profession.  Jurist has more on this story here.

This ruling is consistent with older cases on the subject and with recent decisions in a number of jurisdictions that go even further holding that mandatory bar membership is, itself, unconstitutional.  I have reported on this subject before many times.  Go here and scroll down for the latest.

More commentary on the Supreme Court's code of conduct - UPDATED

 A few days ago I reported that the US Supreme Court adopted a code of conduct and that it was immediately generally criticized as inadequate.  See here.  I also posted links to the story and many of those critical reviews.

As expected, the criticism kept coming.  Here are a few more links: 

Supreme Court fails to quiet ethics critiques with new code of conduct (Courthouse News Service)

The Supreme Court’s new ethics code is a joke (Vox)

US Supreme Court adopts new ethics code (Jurist)

SCOTUS Ethics Code Is Just PR (Bloomberg audio podcast)

Código de Conducta del Tribunal Supremo federal es inútil (Microjuris)

Reaction from the Legal Profession to the U.S. Supreme Court’s Code of Conduct (2Civility)

Reaction from the Legal Profession to the U.S. Supreme Court’s Code of Conduct (Lex Blog)

UPDATE 11/20/23:  The Supreme Court’s new ‘code’ does nothing to enhance ethics (The Hill)

UPDATE 11/21/23:  Today I saw an article that "defends" the new code.  It is the only article I have seen that describes the code positive terms.  It is called The Supreme Court’s new ethics rules affirm the rule of law and you can find it here.

UPDATE 11/23/23:  The Supreme Court is not necessary (The Hill), which starts saying "The Supreme Court’s new ethics code shows that the Court values its power more than its integrity. The justices don’t even hide it."

UPDATE 11/24/23:  The SCOTUS blog has a comment here.

Illinois Hearing on proposal to adopt a rule like Model Rule 8.4(g)

 Last week I reported that the Illinois Supreme Court Rules Committee was going to hold a meeting to discuss a number of proposals, including one to adopt a rule based on Model Rule 8.4(g).  I posted my comments on it here, and if you did not read that post, you probably should go there are read it before watching the hearing.  At the time, I had missed the deadline to participate but I expected others to do so, and I knew that at least the proponents of the proposal would present their position.

You should watch the hearing to reach your own conclusions, but here are my quick thoughts.  First, if you read my previous post you will remember that I am not a huge fan of the proposal but I can live with it because it clearly states in the comment that the rule does not regulate Constitutionally protected speech.  That is a key to me.  Today at the hearing I found out that the original proposal included that statement in the text of the rule itself, which I have argued is a better approach and, thus, would be my preference.  The rule recently adopted in New York, which I think is the best yet, takes that approach.  However, even though the original proposal in Illinois included that provision in the rule, somewhere along the line (apparently by the Rules Committee) it got moved to the comment.  Not great, but I can live with it.

Now, the hearing did not go as I expected.  I thought there would be more comments in favor of the rule.  Instead, the only person who spoke in favor of the rule was a representative of the Illinois Bar Association, which is the main sponsor of the proposal, so of course they would speak in favor of it.  Other than that, nothing.  

The speaker did a good job arguing in favor of adopting the rule and I found myself agreeing with most of it, except that she tried to argue that the rule does not reach as far as the Model Rule by making a distinction based on the fact that the Model Rule applies to conduct "related to" the practice of law, while the ISBA proposal applies to conduct "in" the practice of law.  That argument fell flat on its face and was totally unconvincing.  The explanation of how the phrase "in the practice of law" should be interpreted was exactly the same used by the ABA when referring to conduct "related to the practice of law."  If approved, the Illinois rule will have the same effect at the ABA Model Rule despite the difference in language.  If that is the intent, I wish they would simply leave it as "related to" to avoid confusion.  If that is not the intent, then they need to make the distinction clear.  

Thus, the proposal still has weaknesses, so the question is whether the weaknesses are enough to reject the proposal altogether.  As you watch the arguments consider which side you think has more support.  One thing I will note is that the speakers against the rule argued repeatedly that the rule would violate the Constitutional protections for free speech, but they did not address how that would be the case if the comment to the rule would explicitly state that rule should not be interpreted that way and that speech would be protected.  

As I said, the proposal has some weaknesses and some of the speakers who argued against its adoption exposed some of them.  

I was surprised that only one person spoke in favor of the rule.  Obviously, there were written comments submitted to the Committee, but every other speaker spoke against it.  Not one of them argued for changes to the proposal to make it more acceptable to them.  They were all or nothing.  The speakers who were opposed to the proposal saw nothing in it of value and all argued it should be rejected in its entirety.  Full stop.  And, just like it was during the commentary period for the ABA's Model Rule, it felt the opposition was a concerted effort by Christian organizations arguing that they should not be subject to discipline for discriminating based on their religious beliefs, that the proposal would violate the Constitution (even though the proposal explicitly states it should not be interpreted that way) and that the current rule is adequate.  (Although it is clear that it is "adequate" because it is actually inadequate at addressing the problem since it depends on the adjudication of claims by other government agencies, which does not happen often.)

I was also surprised that there was no attempt at compromise.  Speakers either wanted the full proposal rejected or adopted.  Nothing in between.  The only thing that came close, and with which I agree too, was a comment by the speaker for the ISBA who said they supported moving the statement about constitutionally protected speech back to the text of the rule.  Other than that, all I heard was either support for the proposal as is, or opposition to it in its entirety.  

Supreme Court adopts code of conduct, which is immediately widely criticized as inadequate

In response to mounting criticism over the conduct of some justices, the Supreme Court announced that it has adopted an ethics code.  Yet, now the criticism has turned to the content of the new code, which many have concluded is simply irrelevant because it has no enforcement mechanism, because it actually does not impose any duties and because it creates what one commentator called "an entirely toothless standard for disqualification".  Rather it is an aspirational document that essentially amounts to saying that the justices should try to do the right thing.

Of note is the fact that the code does not use the typical language used in codes of professional conduct when describing duties.  The drafters of the Model Rules of Professional Conduct, for example, avoided using the word "should" when describing duties because that word is ambiguous.  As you probably know, when describing a mandatory duty, the drafters use the word "shall" and when the duty is discretionary, the drafters use the word "may."  Yet, in the Supreme Court's code, the word "should" is the word constantly used to describe the expected conduct, while the word "shall" is used exactly zero times.  So, are the provisions in the code mandatory or simply suggested?  Given how all other codes of conduct are written, it is fair to assume, this one is merely suggested.  

So what does the new code add to what we had before?  Words on a piece of paper.  That's all, apparently.  The "unwritten rules" are now written.  But don't just take my word for it, take a look at the introduction to the code which states that it "largely represents a codification of principles that we have long regarded as governing our conduct."

Some are calling that a good first step, or some progress. Senate Judiciary Committee Chairman Dick Durbin said it "falls short."  

You can read the text of the code itself here or here.

There is news and commentary all over, but here are some links, in order of publication.

Courthouse News Service

The Hill

Politico

NPR

MSNBC

The Guardian

Faughnan on Ethics

The Guardian, again

Howe on the Court

SCOTUS blog

NPR (audio), also here

Above the Law

Law Dork

Legal Ethics Roundup

Politico, again

Otherwise

Bloomberg law (audio)

The Nation ("The Supreme Court’s New Ethics Code Won’t Stop the Corruption")

MSNBC ("Why the Supreme Court’s new ethics code falls far short")

Oregon brings back "apprenticeships" as a pathway to admission to practice, sort of... -- UPDATED

 Oregon made history last week by introducing a new pathway for attorney licensing reminiscent of an apprenticeship system.  Law school graduates who choose this pathway could be admitted without having to take the bar exam.

The new system will allow law school graduates to become licensed lawyers without the need for the traditional bar exam or graduating from an in-state law school if they complete 675 hours of legal work under the guidance of experienced attorneys.  Graduates will create a portfolio of legal work including a minimum of eight samples of legal writing, lead at least two initial client interviews or counseling sessions, and oversee two negotiation processes.  The Oregon State Board of Bar Examiners will grade the portfolios and those with qualifying scores will be admitted to the state bar. 

For more information on the new program, go here and here.  The full rules of the program are available here.

UPDATE 11/21/23:  LexBlog has a story here.

Amazon is offering Prime members low-cost primary health care access; can legal services be too far behind?

Do you remember the first wave of debates about allowing alternative business structures and partnerships with non-lawyers?  Back then, a strong opposition within the ABA was based on an argument that I remember as the fear that "Sears" (used generically to refer to any "department store") would start offering legal services.  

A few years later that same argument was raised but this time the feared predator was Walmart and the horror of having Walmart offer Optical Services right along with legal services.  

And now comes the obvious new version of the same argument, this time with Amazon as the villain.  

Amazon recently announced that it would offer low-cost health benefits for Prime members through a partnership with One Medical, a health care business Amazon purchased last year.  And I think it is just a matter of time before Amazon tries to find a way to offer legal services.  I have been saying this to my students for a while and I do believe it will be an issue some time soon.  

But, as you probably know, as long as states still have a rule like Model Rule 5.4 this possible business model is a non-starter.  This is the rule that bans lawyers from partnering with non-lawyers if any part of the partnership will provide legal services.

Model Rule 5.4 would ban Amazon and law firms from creating an arrangement similar to the one Amazon has announced for providing health care services, but I foresee the debate will come around again and, who knows, maybe the ABA will decide to follow the footsteps of the few states that are trying new regulatory mechanisms and we will see the rise of Amazon Legal Services....

Best Practices For Texting With Clients?

 The Louisiana Ethics Blog has posted a short comment on best practices for texting with clients.  Though short, the post is longer than mine would have been on the same subject.  This was a subject of conversation recently among members of the Association of Professional Responsibility Lawyers and the consensus, with which I agree, seemed to be that the best practice for texting with client is this one:  DON'T.  

But, if you are going to communicate with clients by texting, you might be interested in the post which has more suggestions than that.  You can read it here.

California judge issues "preliminary finding" of misconduct against John Eastman for his role in Trump's effort to interfere with the transfer of power after his loss in the 2020 election

Last week, a California judge made a “preliminary finding” that attorney John Eastman breached professional ethics rules when he aided Donald Trump’s attempt to overturn the 2020 election, a significant milestone in the lengthy proceedings over whether Eastman should lose his license to practice law.  The finding of culpability is a procedural requirement that now allows the case to move forward to the next phase, where aggravating and mitigating evidence can be introduced.   

Read more on the story here and here (this article also address the connection with the RICO case in Georgia).

Illinois to consider proposal to adopt a version of Model Rule 8.4(g)

November 8, 2023

The Illinois Supreme Court Rules Committee will hold a public hearing on November 15 to address public comments on five proposals, including a proposal to amend Illinois Rule of Professional Conduct 8.4 in order to largely adopt ABA Model Rule 8.4(g).  You can find the proposal here.  For more information on the hearing and the other proposals, go here.

Long time readers of this blog know that I have been following the saga of Model Rule 8.4(g) since back when it was just a proposal before the ABA and, since its adoption by the ABA, through the process of adoption and rejection by individual states. And, you might also recall, I am not a fan of the text of the Model Rule.  I have argued many times that it is vulnerable to an attack as violating the First Amendment to the US Constitution.  (To read my comments, go here and scroll through several pages of posts.)  

I have not checked recently what the current “box score” of adoption among jurisdictions is, but the last time I checked (in late 2022) the Model Rule had been adopted without changes in only one jurisdiction (Vermont) and with modifications in seven, while it had been rejected in eight states,   Two states have apparently abandoned proposals to adopt the Model Rule while three states and the District of Columbia are still considering adopting it.  

The most recent state to adopt a version of the Model Rule was New York, and the most recent one to specifically reject it was Idaho (see my post here). (And, by the way, I think the version adopted in New York is the best one yet. See my comment here.

But today’s post is about Illinois.

Illinois had a professional conduct rule on discrimination before the ABA adopted MR 8.4(g), and for that reason resisted adopting the Model Rule when it was first suggested.  You can find the, as of now, current Illinois rule (8.4(j)), here.  Yet, the effort to adopt the Model Rule did not abate and the Illinois State Bar Association (ISBA) continued to work on a proposal. 

That effort resulted in a formal proposal to amend the current rule and substitute it for a version of the ABA Model Rule.  The proposal is not as good as the version of the rule adopted in New York but it is better than the current rule and better than some of the versions adopted in other jurisdictions including the one adopted in Pennsylvania which was declared unconstitutional in a case later vacated for lack of standing.  [Note that, contrary to what has been reported elsewhere, the case vacating the lower court’s decision did not uphold the constitutionality of the rule; it merely held that the lawyer who brought the case did not have standing.  The court left the question on the constitutionality of the rule to a future day when a lawyer with standing would challenge it.  For my comment on this case go here.]  A case challenging the Constitutionality of the rule adopted in Connecticut is pending.

So, what are the highlights of the proposal in Illinois?

The current rule only considers misconduct conduct that has been adjudicated to violate a federal, state or local statute or ordinance that prohibits discrimination and only if that conduct is determined to reflect adversely on the lawyer’s fitness as a lawyer.  That makes the rule very limited in scope and available in very limited circumstances.  It also forces the disciplinary agencies to have to wait until the conduct is adjudicated as discrimination by other government agencies, which can take a long time, if it happens at all to begin with.

In contrast, the new proposal largely mirrors the scope and availability of Model Rule 8.4(g), which includes the fact that the rule would apply to conduct outside the practice of law, as long as it is related to the practice of law.  By comparison, other jurisdictions have limited the application of similar rules to conduct in the actual practice of law.  Obviously, if you think that the Model Rule is too expansive, then you won’t like the ISBA proposal either.  

The ISBA proposal also adopts the view expressed in the Model Rule that suggests that lawyers should be able to choose clients freely, presumably even if doing to looks like they are discriminating.  For example, presumably lawyers could, without violating the rule, offer to provide services only to women or to men, as some divorce firms do now.  

Unfortunately, the proposal (in its comment) continues to use the euphemism “verbal conduct” in an attempt to make an unworkable distinction with the concept of “speech,” but at least it also includes an explicit statement affirming that Constitutionally protected speech will be protected from prosecution under the rule.  

To me, this is the most important aspect of the whole proposal – and it bothers me that it is relegated to the comment rather than placed in the text of the rule itself.  But something is better than nothing, and it is an improvement over the ABA Model Rule which does not address the issue at all.  

Thus, the proposal states in a new suggested paragraph in the comment to the rule that “Conduct protected by the Constitutions of the United States or the State of Illinois, including a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy, does not violate this paragraph.”   

Aside from the fact that the reference to “this paragraph” is misleading (since it reads like it refers to the comment rather than to the rule), this is a key aspect of the proposal without which I would not support it. And for that reason, I think this statement should be part of the text of the rule itself, as it is in the recently adopted rule in New York.  

Also, oddly, if there was a place to use the phrase "verbal conduct" it would be here, but the drafters decided to simply say "conduct."  A better way to draft this statement would have been 

"Conduct or speech protected by the Constitutions of the United States or the State of Illinois does not violate the rule.  This includes, but is not limited to, a lawyer’s expression of views on matters of public concern in the context of teaching, public speaking, or other forms of public advocacy."

Finally, I noticed that the proposal (again, in the comment) includes the obligatory silly reference to the claim that “[t]he Rules of Professional Conduct are rules of reason, and whether conduct violates paragraph (j) must be judged in context and from an objectively reasonable perspective.”

Obviously, this is a well intended attempt to suggest that we should not worry about the rule because we can trust that regulators are not going to try to enforce it randomly or in violation of people’s rights.  As I have argued before, this is naive at best (see here) since history proves otherwise. But in this particular case it does not bother me as much since the suggested text in the comment makes it explicit that Constitutionally protected speech will continue to be protected.  (Again, I wish that statement had been placed in the text of the rule itself, but I guess I’ll get over it.)

So, all in all, the proposal is a good effort and I expect it will be approved.  I would make a few changes but I can live with it.  

Would this proposed new version of the rule make a difference?  How would it be used to regulate the practice of law?  I am not sure we know exactly how, but here is a quick example.  In a recent post I discussed a complaint filed against a lawyer charging him with a violation of Illinois Rule 8.4(d) which refers to conduct prejudicial to the administration of justice under circumstances in which I argued were "a stretch" because the conduct was more along the lines of the type of conduct a rule like Model Rule 8.4(g) seeks to address.  I suspect that the disciplinary agency charged the lawyer using Rule 8.4(d) because they did not feel there was another rule they could use.  If the new ISBA proposal is approved, they would have a new, and more adequate, rule to use in cases like those.  For my comment on that case go here.

UPDATE 11-15-23:  The hearing was held today and you can watch it below or, if you can't see the player, you can go here.  The discussion of the proposal starts at about the 29 minute mark.  There was only one speaker in favor of the proposal (a spokesperson for the proponent ISBA), and several speakers against it.  As it happened with the ABA proposal way back when it was discussing approving what later became MR 8.4(g), the opposition appeared to be a concerted effort by Christian groups that argued, essentially, that they should be allowed to discriminate based on their faith/values, and that to the extent that there was other objectionable discrimination going on, the current rule is enough to deal with the problem.  

Here is the video.  Remember that you can click on the square icon in the bottom right corner to resize the window to full screen.

Happy 15th Birthday to the Blog!!!

 On this date, fifteen years ago I posted for the first time on this blog.  

Originally, I thought I would use the blog as a place to post stories to supplement my students’ reading assignments, but I quickly realized that I could do more and slowly began to use the platform to post commentary and news that I thought lawyers and judges would find interesting.  Slowly but surely, the audience for the blog started to grow.

It is not easy to keep a blog going for fifteen years and at this point, this blog may be, in fact, the longest running blog on professional responsibility out there.  I don’t know.  (The ABA Center for Professional Responsibility lists four blogs in its list of recommended resources and this one is the only one that is still active.) 

What I do know is that the blog would not be the success it is without you, the readers.  

Thanks!!

New article on Rudy Giuliani's possible disbarment and other legal troubles

 Courthouse News Service has a new article on Rudy Giuliani's possible disbarment and other legal troubles.  Read it here.

Illinois doubles its compensation for lawyers appointed to represent indigent parties

Citing its commitment to improving access to justice for all and especially indigent parties, the Illinois Supreme Court announced last week an amendment to Supreme Court Rule 299 regarding compensation for attorneys appointed to represent indigent parties. Amended Rule 299 doubles compensation for an attorney appointed by a court to represent an indigent party to $150 per hour (from its previous minimum of $75 per hour) and $150 per hour for time reasonably expended out of court (from its previous minimum of $50 per hour).  More on the story here, here and here.

Does Georgia not have a rule about prospective clients? -- CORRECTION!

 Does Georgia not have a rule equivalent to Model Rule 1.18 on the duties owed to prospective clients?  ...  That's a rhetorical question because I looked it up and they do.  But you wouldn't know it if you read the news about a recent case decided by the state Supreme Court.

According to the story, published in the ABA Journal online, the Georgia Supreme Court recently tossed a disciplinary case against a lawyer who had been charged with using information revealed by a potential client in a consultation. 

What I find interesting about this story is that the court apparently ruled that the lawyer could not be disciplined because the rule at issue in the case only applies to actual clients.  In other words, the court apparently said that the duty against using confidential information (in rule 1.8) does not apply to prospective clients.

That's fine and dandy but what about rule 1.18?  If the conduct was improper use of confidential information obtained from a prospective client, that would have been the proper rule to apply, and it sounds like the lawyer did violate it. 

So, who made a mistake here?  Did the disciplinary agency charge under the wrong rule?  Did someone forget rule 1.18 exists or what it says?  Was there a typo (1.8 instead of 1.18)?  

I don't know.  But the result of the case does not make sense to me.

UPDATE 11/7/23:   As I said above, my comment was based on the story about the decision, not on the decision itself, which I had not located (and therefore had not read).  Now I have heard from a friend how did just that and he reports that there is a footnote in the opinion that explains that Rule 1.18 was adopted in Georgia after the conduct in question happened.  Now that helps make more sense of the story.

Thanks to Bill Freivogel for the update!