New Year's resolution for the legal profession

 The Chicago Bar Foundation has published a short article called "2024 Resolution for the Legal Profession: Back to the Future, With a Twist."  You can read it here.

Legal Ethics Year in Review Program

 Happy New Year, everyone!  And, as you know, this is the time of the year when we see "top ten lists" and "year in review" programs and podcasts.  

One of my favorites is the Legal Ethics Year in Review Program put together by Lucian Pera (of Adams & Reese LLC) and Trisha Rich (of Holland & Knight LLC).  They run down their top ten stories (or topics/themes) of the year and very quickly summarize the issues and provide helpful references and materials.  Their programs are always both informative and entertaining and this year's was no exception.  I actually wish they would make them a little bit longer so there could be more of a discussion at the end.  

In any case, if you missed it, go watch the program by clicking here, and put yourself on their mailing list so you can attend next year's program when it is offered live.

California’s New Duty to Report Treason, Insurrection and Sedition

 Earlier this year, I reported that California adopted a version of Model Rule 8.3 which, subject to some exceptions, requires disclosure of misconduct by other attorneys.  (See my posts here and here.)

But I did not know until now that California also adopted, by statute, another duty to disclose.  Thus, again subject to some exceptions, Bus. & Prof. Code section 6090.8, effective January 1, 2024 imposes a duty on lawyers to disclose if another lawyer has conspired to engage in or has engaged in "seditious conspiracy," "treason" or "rebellion or insurrection."

The new provision is obviously a reaction to the criminal and disciplinary cases brought around the country against lawyers who assisted former President Trump in his efforts to overturn the 2020 election.  In California, for example, John Eastman is currently facing disciplinary charges for his role in this effort. 

Over at California Legal Ethics, ethics lawyer David C. Carr discusses the implications of the new provision.  You can read the article here.

Florida Bar’s Board of Governors votes to remove the word “zealous” and its derivatives from the Florida Bar Rules

 The Lawyer Ethics Alert Blog is reporting that the Board of Governors (BOG) voted at its December 2023 meeting to remove the words zealous, and its derivatives from the Florida Bar Rules.  

As you know, lawyers often "cite" the principle that there is a duty to represent clients zealously.  However, it is interesting to note that the word "zealously" or any variation of it is not found anywhere in the text of the ABA Model Rules (maybe there is a reference to it in a comment somewhere, but not in the text of the rules).  Some states have incorporated it in their own rules, but it is not in the Model Rules. 

So, it is interesting to see that Florida is taking it out of its rules.  And why, you may ask?  The answer should not be surprising:  because lawyers often used the argument of a duty of zealous representation as an excuse to push the envelope and engage in questionable, and often improper, conduct, particularly in litigation.  

And that is exactly what the Florida resolution states. It proposes a new comment to be placed in the Preamble of the rules that states, in part, that "[z]ealous advocacy has been invoked in the legal profession as an excuse for unprofessional behavior.” The comment would also refer to a 2000 Supreme Court decision, The Florida Bar v. Buckle, which states, “we must never permit a cloak of purported zealous advocacy to conceal unethical behavior.”

In the end, if the proposed revisions are approved by the Florida Supreme Court, Florida lawyers will be put on notice that unethical conduct under the guise of “zealousness” is a potential violation of the Florida Bar Rules.

Sixty years After Gideon v. Wainwright, there still a need to bridge the gap in access to justice

 This year marks six decades since the landmark Supreme Court ruling in Gideon v. Wainwright, in which the Supreme Court held that states must provide counsel to people who cannot afford an attorney in criminal cases.  The principle was later extended to cover misdemeanor charges and delinquency proceedings.  Yet, as discussed in a recently published short article in The Hill, there is no question that access to public defense in the United States remains elusive and unequal.  You should read the article here.

Sadly, this is not the first time I post this exact same sentiment.  Ten years ago the same issue was discussed in various articles "celebrating" the 50th anniversary of the decision in Gideon.  I posted comments here, and here.

NPR program on recent cases that raise questions about the ethics of using AI in the legal system

 To listen to the program, go here, where you can find a written transcript of it also.

How not to practice law: use of AI to prepare a document, then (and this is the important part) don't check it -- UPDATED

Sunday, December 24, 2023

This is old news by now, but in case you missed it.  Michael Cohen's lawyer was all over the news recently because he made the same mistake as the other lawyers in New York that everyone was talking about a few weeks ago.   They used AI to prepare a legal argument - which is not wrong per se - but then they failed to check the finished product - which is.  They all neglected to check their work!  

Whatever program they used to prepare the work, it generated (or as they now say, "hallucinated") cases that did not exist, complete with made up citations and quotes.  Big mistake!  The story was picked up by many different sources.  Here are just a few:

Lex Blog

Above the Law

Politico

The Hill

UPDATE 12-30-23

Several news sources are now reporting that the original mistake of citing "hallucinated" cases was Michael Cohen's and not his lawyer's.  Apparently, he supplied the information to the lawyers who then used it.  But that does not excuse the work of the lawyers in not checking it, which is the key part of the story.  Double check your work!!    For the latest, you can check: 

Courthouse News Service

eThinking

NPR

Court imposes sanctions for instructing client not to answer questions during deposition

 Long time readers of this blog have heard (or have read, rather) me complain often that courts do not do enough to discourage misconduct during discovery in civil trials.  But every now and then I am happy to report a case that comes along and shows some judges are doing their part.  Today is such a day.  The Legal Profession blog is reporting on a case out of the District of Columbia Court of Appeals in which the judge reprimanded a lawyer for wrongfully instructing a client to refuse to answer questions during a deposition -- a practice that is not uncommon but that often goes unchallenged allowing lawyers to get away with it.  I am glad to see that did not happen in this case.  You can read more about it here.

Recent study in Ohio finds nearly 100 prosecutors who were found to have violated their duties, but none were sanctioned

NPR has published a long, disturbing article, titled "Ohio prosecutors broke rules to win convictions and got away with it" (see here) detailing the results of a study that found that state courts determined that about 100 prosecutors across Ohio had violated standards meant to preserve a defendant's civil rights in criminal trials and yet the state Supreme Court has not imposed sanctions on any of them.  The study also found, among other things, that (1) most misconduct resulted from failing to disclose evidence and making inappropriate comments in closing arguments, (2) in nearly 80% of the cases, the misconduct was ruled not egregious enough to warrant a reversal, (3) none of the prosecutors involved in repeated improper-conduct cases was sanctioned by the Ohio Supreme Court and (4) all of the prosecutors found to have repeatedly acted improperly have continued to practice as attorneys, with some moving into more powerful positions, including two who became judges tasked with ensuring fair trials.

You should read the full article here.  

Lawyers for Kari Lake may face discipline for frivolous cases challenging election results

The Hill recently reported (here) that a committee overseeing attorneys in Arizona has found probable cause that lawyers who represented Kari Lake in election cases should face discipline.  Each one of the lawyers has been already been sanctioned by Arizona judges for cases where Lake challenged the election results after she lost to Democratic Gov. Katie Hobbs in 2022.  The Attorney Discipline probable cause order now allows the state bar to formally file complaints against the lawyers and pursue further actions. 

Proposed Florida Bar Advisory Opinion 24-1 provides guidance regarding lawyers’ use of artificial intelligence

 Proposed Florida Bar Advisory Opinion 24-1 provides guidance regarding lawyers’ use of artificial intelligence.  Lawyer Ethics Alert Blogs has the story (and the opinion) here.

Court of Appeals for the Fifth Circuit considers adopting rule to regulate use of AI in generating legal documents

Yesterday I reported that the Colorado Supreme Court suspended a lawyer for using artificial intelligence.  Also, back in June I reported that a Texas federal judge began to require attorneys to pledge they did not use artificial intelligence to draft their documents.  See here.

I am writing about this again today because Law Sites is reporting that "[i]n what it appears would be a first for a federal circuit court, the 5th U.S. Circuit Court of Appeals is considering adoption of a rule change that would require lawyers and unrepresented litigants to provide a certification regarding their use of artificial intelligence in preparing court filings.  Lawyers and other filers would be required to certify either that they had not used AI in drafting the document or that, if they did, “a human” had reviewed the document for accuracy."

Go to LawSites for the full story.

Colorado imposes sanctions for use of AI

Last summer I posted a few times about a case in New York in which two lawyers got in trouble for using AI to write a brief which the court later determined included invented cases and cites.  See here and here. The lawyers ended up having to pay fines of $5,000 each.

Now comes news that the Colorado Supreme Court has suspended a lawyer for 90 days for his use of Chat GPT in composing a brief which contained fictitious caselaw.  Go here for the full story.

For all my posts on artificial intelligence go here and scroll down.

Federal Court Dismisses Law Firm’s Suit Against DoNotPay for Unauthorized Law Practice - UPDATED

November 23, 2023

Long term readers of this blog will remember the saga of the company "Do Not Pay" which at one point claimed to provide the services of the first robot lawyer, but was later the subject of an investigation that exposed it did not live up to many of its claims.  Eventually, a law firm filed a class action claim against the company claiming that it was providing legal services in violation of the Illinois statute on the unauthorized practice of law.

If you want to refresh your memory on the details of the original story, and to review how we got to this point, go back and check out my posts from January 29, February 14, February 16, March 4, March 10, March 17 and October 21.

Today I am writing to report that, as the title of this post points out, the court in the case alleging unauthorized practice of law agreed with DoNotPay, holding that the plaintiff law firm had failed to establish standing because it had failed to allege that it has suffered any concrete injury.

For more details on the story and links to the court's order and more, go to LawSites, here.

UPDATE 12/1/23: The decision has generated some commentary.  Here are a few links

In Case of ‘Real Lawyers Against A Robot Lawyer,’ Federal Court Dismisses Law Firm’s Suit Against DoNotPay for Unauthorized Law Practice (Law Sites)

Judge tosses UPL suit against 'robot lawyer' DoNotPay, saying law firm plaintiff was not harmed (ABA Journal)

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!

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.

How not to practice law: ask someone else to take your CLE courses for you

 It has bee a while since I posted to the ongoing "how not to practice law" series, which highlights particularly shocking misconduct that you would think is obvious to all.

In today's installment we meet a lawyer who asked his assistant to take his continuing legal education classes for him.  Isn't it obvious that you should not do that?  The lawyer was suspended for 1 year.  

You can read more about the case here.

Court of Appeals for the Third Circuit does NOT decide on the constitutionality of Pennsylvania Rule 8.4(g); it simply dismissed the challenge for lack of standing

Long time readers of this blog know I have been following the debate about Model Rule 8.4(g) since it was merely a proposal before within the ABA and that I have been critical of its text as being vulnerable to attack under the First Amendment.  Only a few jurisdictions have adopted the rule, and almost all that have have amended the Model Rule’s text to try to improve its defects.  Some versions are better than others, though, and there are still some cases out there litigating the validity of different states’ versions.  For all my posts related to Model Rule 8.4(g) go here and scroll down (over several pages of posts).  

One of those cases came to an end last week when the Court of Appeals for the Third Circuit reversed a decision from a District Court in Pennsylvania for lack of standing.  The case is called Greenberg v. Lehocky, and you can read the opinion here.  

This is important, and I will get back to it in a minute, but let me repeat it now: The decision of the Court of Appeals did NOT (as has been reported elsewhere) find that the rule in Pennsylvania is Constitutional.  It simply found that the plaintiff did not have standing to challenge it and therefore that the lower court should not have decided the case to begin with.  

But let’s not get ahead of ourselves and start at the beginning.  Back in 2020, the Federal District Court for the Eastern District of Pennsylvania decided in Greenberg v. Haggerty, 491 F.Supp.3d 12 (ED PA 2020), that the Pennsylvania version of Rule 8.4(g) was unconstitutional because it violated the First Amendment.  The plaintiff in that case, Greenberg, argued that the rule infringed on Constitutionally protected speech and created a chilling effect over his ability to speak publicly about matters of important public concern.  The court agreed.  I wrote about the opinion here, here and here.  

Rather than wait for a decision on appeal, the State Bar abandoned the appeal and amended the rule.  However, Greenberg challenged the new rule again, and it was again found unconstitutional and the State appealed.  Now under the title Greenberg v. Lehocky, the challenge to the rule found its way up to the Court of Appeals for the Third Circuit and last week it issued its opinion dismissing the case for lack of standing.  The court found that because the plaintiff was trying to get the court to rule on the constitutionality of the rule before there had been any attempt by the state to enforce it, the plaintiff needed to show that (a) the rule would apply to the type of speech the plaintiff was planning to engage in, and (b) that there was a credible threat of enforcement in a way that would violate the speaker’s Constitutional rights.  And the court held that the plaintiff could not do either.

First, the court found that the Pennsylvania rule, unlike the Mode Rule, requires the state to show actual knowledge on the part of the lawyer and that the speech in question was targeted at specific individuals.  Greenberg’s argument was based on the possibility that his discussion of controversial topics might lead someone who found his views objectionable to complain to the Bar.  The court found that this possibility was not enough to support standing to sue over the yet to be enforced rule.

Second, the court found that the plaintiff could not show a credible threat of unconstitutional (future) enforcement of the rule because, somewhere along the timeline of the litigation, the State Bar affirmed that it would not enforce the rule for speech in the circumstances described by the plaintiff.  As the court put it, the defendant “disavow[ed] enforcement for any of plaintiff’s planned conduct.”

Now, before we go any further, I have a question.  What does that mean?  Is it now a written policy of some sort that the Bar will not enforce the rule against unpopular speakers, or speakers that others complain about because they find them offensive?  How can this “promise” by the Bar be enforceable?  Is it written in the comment to the rule? Is it published as accepted policy by the state? What happens if the members of the disciplinary board change and they start enforcing the rule differently?  Where is the record that says that the Board “disavowed” of this?  

I am sorry but I don't like this.  Unless this "statement" by the Bar that they will not abuse the discretion they have to enforce the rule comes with some enforceable mechanism against the possible misuse of the rule, I don't trust it.  You can read my views on this type of argument here.

Interestingly, the court based its conclusion partly on the fact that the plaintiff could not show a pattern of enforcement of the rule against constitutionally protected speech.  Yet, it recognized a case that proves that this practice is not only possible, but that it may support the argument that the fear of possible enforcement is valid.  The speech for which a lawyer was disciplined in that case (from a different jurisdiction) was Constitutionally protected, and as I have discussed in this blog before, there are other examples out there.  Not a lot, true, but enough for me to think that there may be a credible fear of enforcement, or, at least, that reasonable people might disagree on this.   (I commented on the case the court cites when it was originally reported here.)

I will admit that my opinion on this is also based on my own personal experience working for a state and fearing that what I say in the classroom will result in negative consequences.  The plaintiff in Greenberg made a similar argument, but the court said that that fear is based on the “political climate” in the country and not on the text of the rule.  

Finally, back to the most important part of the decision and the lesson to learn from it.

It is important to note, again, that the court did not decide whether the rule is constitutional or unconstitutional.  The court did not “uphold the constitutionality of the rule” (as I saw reported elsewhere).

In fact, the court explicitly states that all it can say is that it is too early to tell if the rule is unconstitutional.  Essentially, it suggests we have to wait and see how the rule is interpreted, applied and enforced before we can pass judgment on that.  And the concurring opinion goes further actually hinting that the rule might well be unconstitutional.  Both suggest that one day a lawyer with standing will challenge the rule and then the court will have a chance to decide on the Constitutionality of the rule.  

But the best lesson to learn in all this comes from the Concurring Opinion and that is that we can save ourselves the trouble by simply doing what I have been suggesting should be done from day one: take the time to draft a better rule!  

A few other states have adopted rules similar to Model Rule 8.4(g) but explicitly stated (either in the text of the rule or its comment) that the rule will not apply to regulate Constitutionally protected speech.  This solves the problem related to this question.  (There may be other problems, but those are not for today.)

As I have discussed elsewhere, I think the best rule so far is the one recently adopted in New York.  So, take note Pennsylvania, don’t wait for a lawyer with standing to start this fight again (a fight that the concurring judge says you will be fighting “against the current").  Listen to the concurring judge and fix the rule.  Call me or call the folks in New York and ask them how to do it properly. 

There is no reason to adopt a rule that is Constitutionally vulnerable ab initio (as the ABA did).  There is a way to draft a better rule that addresses the problem of discrimination and harassment that does not violate the First Amendment.  Just do it! 

Rudy, that's not how anything works, Part III: Giuliani found liable for defamation by default

A few days ago, I posted a story questioning why Rudy Giuliani would concede the main elements of a cause of action for defamation he had been fighting (based on his comments about two election workers).  Giuliani -- or perhaps, more accurately, the lawyer representing him -- apparently thought that it was a good tactic in order to avoid complying with a discovery request, but that made no sense.  My original comment explaining why the tactic was likely to fail is here.  

As I predicted, the tactic not only failed, it backfired spectacularly.  See here.  First it resulted in an order to explain his argument and eventually in a finding of liability by default.

Maybe Giuliani and his lawyer did not realize that what they did amounted to conceding the main elements of the cause of action and for that reason, and because of the fact that they did not comply with discovery, the court has found Giuliani liable by default.   

Now that default judgment has been imposed, the case will move to trial on the question of the value of the injury, ie, on the damages issue alone.  And if you have been paying attention to the story in the news and have watched some of the testimony by the plaintiffs, you know it is fair to say that the value will likely be high.  Plus, Giuliani will have to pay attorneys' fees to the plaintiff's lawyers and more in sanctions.

Giuliani is in real trouble.  He is reportedly in dire financial trouble and a huge verdict against him in this case will cause him a lot of distress.  He has been trying to find funding for his legal bills, which include pending disbarment proceedings in New York and Washington DC, the indictment in Georgia, and at least one other defamation case.  Reportedly, Trump is not contributing to his defense fund and Giuliani has put up his NY condo up for sale and is hosting events in attempts to raise funds.  (Trump apparently agreed to appear in one of them, although I won't be surprised if he makes the appearance all about himself and ends up trying to get contributions for his legal defense fund rather than for Giuliani, but that's another story for another day.)

You can read the court's opinion here.  You can find reports and commentary on the default judgment against Giuliani in the following:

Courthouse News Service

The Legal Profession Blog

NPR

The Guardian

Above the Law

NPR audio

Jurist

MSNBC

California judge denies Eastman request to postpone disbarment litigation

As you probably know, John Eastman, one of Trumps co-conspirators in the criminal case filed in Georgia, is also facing disciplinary proceedings in California.  I reported about it here and here. 

After being indicted in Georgia, Eastman filed a motion to delay the disciplinary proceedings in California and now we know that that request has been denied.  The Hill and Politico have coverage here and here respectively.

Rudy, I told you that's not how anything works! -- UPDATED

 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. 

Stay tuned!

MSNBC has coverage here.  TechDirt has a comment here.

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.