Washington's Supreme Court Approves Three Ways To Skip The Bar Exam - Updated

March 20, 2024

The ABA Journal and Above the Law are reporting that the Washington Supreme Court has adopted alternative pathways to a law license, becoming the second state to do so in a little more than four months. The court approved three ways to bypass a bar exam, with different standards for law school graduates, law students and law clerks participating in a lawyer-tutoring program already in existence. All involve apprenticeships or internships.

You can read the different standards in the court's press release here.  The ABA Journal has more details here.  Above the Law has the story here.

UPDATE (April 13, 2024): Lex Blog has published a comment on the story here.

Disciplinary panel finds that Jeffrey Clark violated ethics rules

A disciplinary panel in Washington has found that Jeffrey Clark, a former high-ranking Justice Department official, violated ethics rules for lawyers in his attempt to aid Donald Trump’s bid to subvert the 2020 election.  This is only a preliminary ruling that starts a process that could lead to the suspension or even permanent revocation of Clark’s license to practice law.  So, stay tuned....

The Legal Profession Blog describes the process as follows:  

"The Jeffrey Clark bar disciplinary hearing in the District of Columbia has now concluded its evidentiary phase.  The Hearing Committee announced a non-binding conclusion that a disciplinary rule violation has been proved by clear and convincing evidence. It will make formal findings after receiving briefs from the parties.Those findings and conclusions will be reviewed by the Board on Professional Responsibility, which (unless it dismisses, which Disciplinary Counsel can appeal) will in turn be reviewed by the Court of Appeals."

Politico and The Hill have more details.

More on AI: recent articles

1. Jenny Brobst (Memphis Law) recently posted an article offering a look at the role of technology and ethical competency rules, vis-a-vis how tech has rolled out unevenly in the United States. You can take a look at it here.

2. Above the Law: Maybe We've Got The Artificial Intelligence In Law 'Problem' All Wrong

Several Stories about AI and the Practice of Law from this week's headlines

I think that issues related to the use of AI in the practice of law are the number 1 topic of the year and I see stories on it almost every day.  Here is a list of links from the past few days:

Exploring the Impact of AI on the legal profession (podcast) 

How Generative AI Will Improve Legal Service Delivery (Above the Law)

Judges To Generative AI: You're Out Of Order! (Above the Law)

AI Won’t Replace Lawyers -- But It Will Change How They Work (Above the Law)

AI Smarts For The Legal Sector: Preparing Your People And Content For AI (Above the Law)

California Judge recommends disbarment for John Eastman

 A California judge has formally recommended that attorney John Eastman be disbarred for his role in Donald Trump's legal effort to remain in power after losing the 2020 presidential election.  You can read the decision and order here.  The judge concluded that 

While attorneys have a duty to advocate zealously for their clients, they must do so within the bounds of ethical and legal constraints. Eastman’s actions transgressed those ethical limits by advocating, participating in and pursuing a strategy to challenge the results of the 2020 presidential election that lacked evidentiary or legal support. Vigorous advocacy does not absolve Eastman of his professional responsibilities around honesty and upholding the rule of law. While his actions are mitigated by his many years of discipline-free practice, cooperation, and prior good character, his wrongdoing is substantially aggravated by his multiple offenses, lack of candor and indifference. Given the serious and extensive nature of Eastman’s unethical actions, the most severe available professional sanction is warranted to protect the public and preserve the public confidence in the legal system.

More details and commentary here:

The Legal Profession blog

Politico

The Hill

Coutrhouse News Service

NPR

MSNBC

ABA publishes new Formal Ethics Opinion on conflicts of interest because of duties owed to prospective clients under Model Rule 1.18

 Today the ABA Standing Committee on Ethics and Professional Responsibility published Formal Opinion 510 on whether an attorney should be disqualified from representing a new client against a former prospective client.  Go here to access the full text of the opinion (you can download it too).  Here is the opinion's summary: 

Under Rule 1.18 of the Model Rules of Professional Conduct, a lawyer who was consulted about a matter by a prospective client, but not retained, is disqualified from representing another client who is adverse to the prospective client in the same or a substantially related matter if the lawyer received from the prospective client “disqualifying information”—i.e., information that could be significantly harmful to the prospective client in the matter. But, if the lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,” and the firm takes specified procedural precautions, then the lawyer’s conflict of interest is not imputed to others in the lawyer’s firm.

This opinion addresses the “reasonable measures” necessary to avoid the imputation of conflicts of interest under Rule 1.18.1 First, information that relates to “whether to represent the prospective client” includes information relating to (1) whether the lawyer may undertake or conduct the representation (e.g., whether a conflict of interest exists, whether the lawyer can conduct the work competently, whether the prospective client seeks assistance in a crime or fraud, and whether the client seeks to pursue a nonfrivolous goal), and (2) whether the engagement is one the lawyer is willing to accept. Second, to avoid imputation, even if information relates to “whether to represent the prospective client,” the information sought must be “reasonably necessary” to make this determination. Third, to avoid exposure to disqualifying information that is not reasonably necessary to determine whether to undertake the representation, the lawyer must limit the information requested from the prospective client and should caution the prospective client at the outset of the initial consultation not to volunteer information pertaining to the matter beyond what the lawyer specifically requests.

You can access all other ABA Ethics Opinions (dating back to 1984) here. The most recent ones are available to everyone, but the older ones are now available only to members.  So if you are not a member, download what you need now before it becomes unavailable.

How not to practice law: Yet another lawyer suspended for citing fake cases created by AI

 LawSites has the full story here.

Free Legal Research Startup Now Offers AI Generated Summaries of All State Supreme and Appellate Opinions

 LawSites is reporting (here) that a new website that provides access to legal research called descrybe.ai is focused on using artificial intelligence to provide free and easy access to court opinions and that it recently began to offer access to AI-generated summaries of all available state supreme and appellate court opinions from throughout the United States. 

The story you heard about a lawyer avoiding discipline because the state Supreme Court justices recused themselves is not what they are saying it is...

 The headline in Above the Law reads: "Convicted Lawyer Too Well-Connected To Face Discipline".  Elsewhere, the story was reported as "After most Illinois Supreme Court justices recuse themselves, Ed Burke keeps his law license".   The ABA Journal reported the story as "Convicted alderman keeps law license after recusals prevent state supreme court from acting."  You may have heard or or read something like that somewhere else, but the full story is not what it seems.

These headlines suggest that a convicted lawyer could not be disciplined even though he was convicted of a crime.  But that is not necessarily the case.  What happened is that the Disciplinary Agency asked the Supreme Court of the state for an interim suspension because he was convicted of a crime.  "Interim" means that the suspension would be in effect while the Agency decides the disciplinary case.  Some justices in the Court recused themselves and there were not enough justices left (following the state constitution) to grant the petition.

This does not mean that the lawyer will not be disciplined, or that he will avoid discipline.  The lawyer will avoid a suspension while it is decided whether he will be disciplined, but that is a different thing.  It may very well be that the disciplinary agency decides to impose discipline -- in fact, it is possible the agency will decide to disbar the lawyer.   

Now, what happens after that, I don't know.  If the disciplinary agency disbars the attorney, he then has the right to appeal to the state's supreme court.  If the same justices who recused themselves regarding the interim petition recuse themselves from the appeal, the court can't hear the appeal.  Does that end the case and the decision of the disciplinary agency stands?  That's my guess, but I have not looked into it.

New Training for Lay Legal Advocates in Arizona Aims to Expand Access to Justice Statewide

 LawSites has the full story here.

Two articles on the justice gap and legal tech

 LawSites recently published two articles with commentary about the justice gap and legal tech that are worth reading.

In the first one, LawSites's editor Bob Ambrogi argues that "[t]he justice gap in legal technology is a reflection of the justice gap more generally, and both reflect a capitalist society in which the balance of wealth and resources is wildly out of whack. But more can be done. "  You can read the article here.

In response, Jess Lu and Mark Chandler argue that "Justice tech — legal tech that helps low-income folks with no or some ability to pay, that assists the lawyers who serve those folks, and that makes the courts more efficient and effective — must contend with a higher hurdle than wooing Silicon Valley VCs: the civil justice system itself."  The article is available here.

Are you ready for some pickleball?

If you are a college football fan you know about "naming rights"...  So what used to be the Fiesta Bowl suddenly became the Tostitos Fiesta Bowl, and the LA Bowl became the Jimmy Kimmel LA Bowl, and so on.  Brands and people pay a lot of money to have their brand or name associated with a big event.  

It is a form of advertising, right?  So, would it be ethical for a law firm to buy naming rights.  It has been done for law schools, of course.  Temple University Law School (where I got my Masters degree) is now the James Beasly Law School, for example.

But have you seen a sports event named after a law firm?

And then there are "official partners" associated with leagues. Different leagues have official partners, and they promote them as such.  Thus, you have "the official car of the NFL" (it's Toyota, in case you did not know), or the "official pizza of the NFL" (as of two years ago it was Little Ceasars, which is embarrassing if you like pizza!)

But one thing the NFL does not have is an official law firm.  

So, why am I babbling about this?  Because, other than naming rights on a law school, I have never seen a law firm have naming rights or an official partnership claim with a sports league or event.  

Until now.  Enter pickleball, the self proclaimed fastest growing sport in the US today and the firm of Lerner & Rowe, which was recently announced as the "official personal injury attorneys" of USA Pickleball:

USA Pickleball, the National Governing Body for pickleball in the U.S., today announced personal injury law firm Lerner & Rowe as its Official Injury Attorney in a year-round partnership that welcomes the firm into America’s fastest-growing sport, with nearly 50 million pickleball players in the United States according to the Association of Pickleball Players in 2023.

Lerner & Rowe will serve as the Presenting Partner of the USA Pickleball Golden Ticket tournament in Mesa, Arizona this April. The firm will have a strong presence throughout the event that is expected to host 1,200 of the best players from Arizona and surrounding areas competing for their spot at Nationals. Additionally, Lerner & Rowe will continue supporting USA Pickleball’s mission in the community through community clinics, introducing underserved children to the game of pickleball and providing them with equipment to continue playing upon completion of the program.

Here is the full announcement in USA Pickleball's website.

Podcast on the right to an attorney and the role of public defenders in the criminal justice system

 Here is a 50 minute NPR program on the right to an attorney and the role of public defenders in the criminal justice system.

New ABA Formal Opinion on confidential government information

 The ABA Standing Committee on Ethics and Professional Responsibility just released a new Formal Opinion (Number 509).  The title is Disqualification to Prevent the Misuse Use of “Confidential Government Information” and the summary reads as follows:

Model Rule of Professional Conduct 1.11(c) protects a person from the misuse of certain information about the person that the government used its authority to acquire. The confidential information protected by Rule 1.11(c) is defined by the Rule as information obtained under government authority about a person which the government is prohibited from disclosing to the public or has a legal privilege not to disclose and is not otherwise available to the public. The Rule provides that a lawyer who acquired the information while serving as a government officer or employee is disqualified from representing a “private client” whose interests are adverse to prevent the confidential government information from being used to the material disadvantage of that person. The Rule applies regardless of whether the lawyer seeking to represent the private client has left government employ or office or maintains a private law practice (e.g., a part-time practice) while still in government employ or office. The Rule applies to a lawyer representing a “private client,” meaning a client whom the lawyer represents in private practice, regardless of whether the client is a public entity or private individual or entity. 

 For now you can access (and download) the opinion here.  After some time, it will be archived and available to members only, so go get it now.

ABA Working Group asks for comments on possible amendments to allow more cross-border practice

 A couple of days ago I posted that I think a lawyer in good standing in a state should be allowed to practice law in any other jurisdiction.  And just a few hours after I posted that comment, I heard that a working group of the ABA Center for Professional Responsibility has requested public comments on an Issue Paper on possible amendments to the model rules which would recognize permissible cross-border practice.

You can read the notice asking for public comments here.  You can read the Issue Paper here.  You can read more about the issue here.

Should A License To Practice Law Be More Like A Driver's License?

 Should A License To Practice Law Be More Like A Driver's License?  In a word, YES!  I do think so.  I think that once admitted in one state lawyers should be free to practice in any other state - as long as they are in good standing and comply with the state rules of professional conduct, of course.  I understand that there are lots of state variances when it comes to local rules and procedure but all lawyers are trained in how to do research and figure out the law of any jurisdiction.  

I am mentioning this today because I just saw this post in Above the Law:

"How do you only practice law within your state boundaries when we’re in a global economy and a global world? It’s kind of a preposterous concept, right? [The Association of Professional Responsibility Lawyers]’s point is, ‘Do I stop knowing how to drive when I drive outside of Maryland? And as soon as I get to the border in Virginia, I’ve forgotten how to drive?’ It doesn’t make sense."

This is a quote by Charity Anastasio, in comments given during an ABA Techshow 2024 panel titled, “One Bar License, Will Travel—Are Changes in Multi-Jurisdictional Rules on the Way?” Anastasio, who also is the chair of the ABA Law Practice Division’s Professional Development Board, went on to encourage lawyers to “[s]ay it loud, say it proud. We should be able to practice anywhere we can drive.”

US Supreme Court rejects appeal from Trump-affiliated attorneys in Michigan sanctions case

 Not surprisingly, the US Supreme Court has denied review of the sanctions imposed on Trump attorneys in Michigan.  Jurist has the story here.  

For all my blog posts related to Trump lawyers go here.

UPDATE 2-21-2024: MSNBC has the story here.

Yet another instance of ChatGPT hallucinating cases -- UPDATED

February 18, 2024

As reported in Courthouse News:  An appeals court in Missouri lambasted a pro se litigant for submitting multiple “fictitious cases” conjured up by the A.I. chat bot ChatGPT, which offered citations “that have potentially real case names — presumably the result of algorithmic serendipity,” that pointed to either non-existent rulings or to irrelevant ones. The litigant must pay $10,000 to opposing counsel for wasting their time with the “frivolous appeal.”  The court's ruling is here.  For other instances of similar conduct in Courthouse News go here and here.

UPDATE 2-20-2024:

Legal Ethics Lawyer has more on the story here.

The Marshall Project report on the practice of charging indigent defendants to pay for fees related to representation by state appointed counsel

 I have blogged before about the unfortunate reality that even 60 years after Gigeon v. Wainwright, there are still deficiencies in the process to get access to representation for people who can't afford it. See here, for example, and the section on right to counsel for lots more on the subject.

Today I am writing, unfortunately, to point out a new article in The Marshall Project on how many defendants are getting charged fees to pay for their "free" appointed counsel.  

According to the report, the reality is that legal representation by appointed counsel is rarely free. The Supreme Court has found the Constitution guarantees the right to counsel but allows states, in most cases, to try to recoup the costs and that more than 40 do so, according to a 2022 report by the National Legal Aid and Defender Association.  

The report focuses on the practice in Iowa, which it says takes these efforts to the extreme.  According to their investigation, not only does Iowa impose some of the highest fees in the nation — affecting tens of thousands of people each year — it also charges poor people for legal aid even if they are acquitted or the cases against them are dropped.

Illinois Supreme Court Amends Rule to Add ‘Sexual Harassment Prevention’ to CLE Topic Areas

Two weeks ago, the Illinois Supreme Court amended a Supreme Court Rule to add “sexual harassment prevention” to the enumerated topic areas for which lawyers may receive professional responsibility CLE (PR CLE) hours.  The amended Rule 794(d)(1) now reads as follows:

Each attorney subject to these Rules shall complete a minimum of six of the total CLE hours for each two-year reporting period in the area of professionalism, civility, legal ethics, sexual harassment prevention, diversity and inclusion, or mental health and substance abuse.

2Civility has more details and commentary here.  LexBlog has the story here. 

How not to practice law: falsify evidence

 Here is another "how not to practice law" story.  The lessons from these stories always seem so obvious; yet here we are.  In this one, the hearing board found that the lawyer falsified some documents.  He was suspended for six months for violating Rule 8.4(c) regarding dishonesty.  The Legal Profession blog has the story here.

California standing committee on professional responsibility and conduct practical guide for the use of generative artificial intelligence in the practice of law

 I missed this report when it came out, but better late than never...  Here it is.

Will AI make the practice of law more accessible? Not everyone agrees

Saying that AI will affect the practice of law is old news.  It already has.  The question now is whether it will affect the practice of law for the better.  And the answer to that will depend on many factors including what you consider to be "better."  With that in mind, take a look at this comment titled "AI can make law better and more accessible; it won't."  

How not to practice law: Show up drunk

 This is not the first time we have seen this example of "how not to practice law," but there are two interesting questions.  In this particular instance, discussed in the Legal Profession Blog, the lawyer was charged with "attempting" to violate rule 1.1 on competence.  So my first question is:  why charge with attempt to violate a rule?  Can't we argue that appearing drunk before the court in and of itself constitutes incompetence?  

The second question is common to many cases: what should be the proper sanction?  Is it a mitigating factor if the lawyer has a health problem, mental health problem or issues with alcohol?  Is it an aggravating factor?  In this case, the lawyer also had a history of disciplinary sanctions; yet, the sanction was reduced from 90 days to 30 days.  

How to reply to negative online reviews

 The issue of how to reply to negative online reviews is not new.  If you go to the "internet" section of this blog and scroll down you will find a number of stories on it.  The most recent one is from October of last year on an Arizona Ethics Opinion that concludes lawyers can disclose confidential information when replying to negative online reviews.

Today I am writing to link to a recent post over at LexBlog that again provides basic tips on the subject.  Here it is.

How will generative AI affect digital investigations and e-discovery?

 How will generative AI affect digital investigations and e-discovery?  The ABA Journal has an answer here.

Another comment on the lawsuit by firm against departing lawyer for compensation because clients left with the lawyer

 About a week ago, I posted a link to a comment on whether employment agreements that require a departing lawyer to compensate the firm for clients that follow the lawyer would violate the Rules of Professional Conduct.  The article related to a case in which a firm sued a departing lawyer seeking compensation because a bunch of clients left with the lawyer.

Faughnan on Ethics now has added to the discussion with a post on the case. 

Guide on best practices for using AI

 A couple of days ago I reported that the Florida Bar recently issued an ethics opinion on using generative AI technology in the practice of law.  

Meanwhile, noted law blogger Carolyn Elefant has published a short guide on best practices on using AI in the practice of law.  You can see her post on it here and you can download the guide here.

Articles on why the allegations against Fani Willis are irrelevant to the criminal case

 If you have been watching the news about the case against former president Trump in Georgia, you know that the defendant has argued the case should be dropped or that the prosecutor should be disqualified because of certain alleged inappropriate conduct. 

The conduct in question should be taken seriously but it is irrelevant to the case in question.

Here are two articles that explain why:

Why Fani Willis Is Not Disqualified Under Georgia Law, in Just Security, by Norman L. Eisen, Joyce Vance and Richard Painter

Defendants in the Georgia election case have no reason to complain — even if the Fani Willis allegations are true, in CNN, by Bruce Green

Florida Bar issues opinion on using generative AI technology

Last December I reported that the Florida Bar was considering an opinion on the use of AI as part of the practice law.  See here.  

Today I am writing to report that the opinion was approved and published. See here. It concludes that lawyers may ethically use generative AI technologies, provided they are careful to adhere to their ethical obligations.

For the text of the opinion go here.   Read more on the story here.  The ABA Journal has more on the story here.

DC bar authorities file disciplinary charges against pro-Trump 2020 election lawyers

 Politico has the details here.  The Legal Profession blog comments here.  The Hill has coverage here.

Do employment agreements that require a departing lawyer to compensate the firm for clients that follow the lawyer violate the Rules of Professional Conduct?

 Michael Kennedy, over at Ethical Grounds, discusses the issue here.

How not to practice law: after having been told not to coach the witness, go ahead and coach the witness ... and make sure you do it while being recorded

 The Legal Profession blog recently published a summary of a recent case that earns the most recent entry in our "how not to practice law" series.  Here are the basic facts:

The parties are engaged in a "virtual trial" which is being recorded.  The court warns a lawyer not to coach a witness.  Technical difficulties interrupt the trial.  During the break, but while still being recorded, the lawyer coaches the witness in violation of the court's admonition.  The judge then watches the recording.  Guess what happens next.

Dismissal with prejudice.  Go here for the full story.

What should happen next?  Would you represent the client against the lawyer for malpractice?

Another year in review program

 About two week ago I posted a link to a year in review program that discussed the top ten stories of 2023 in legal ethics.  See here.

Now, here is another one. This is a link to the video of Legaltech Week’s year-end show, in which a panel of journalists and bloggers picked the year’s top stories in legal tech and innovation.  You can also find it on YouTube, here.

LegalTech Week, by the way is a weekly podcast on topics related to law practice and technology.

Another new year's resolution for the profession: more diversity

 2Civilty has published a short article on diversity in the profession:  Women Associates Reach Important Milestone, But Legal Profession Faces Many of the Same Diversity Challenges

How not to practice law: invent your own rules of evidence, then try to get your own made up evidence admitted under them

Here is an interesting story about a lawyer who was recently fined over $250,000 for trying to support a claim with a fake newspaper article.  According to the story, he sought to enter the news article into the record for “demonstrative purposes.”

Now, stop!  That's not how the rules of evidence work.  If the lawyer was trying to get a newspaper article admitted, it must have been to prove the fact that the article was in fact published -- which is not likely to happen because the other side would rather concede the point in order to avoid having the jury get access to the article so they can read it -- OR to prove what the article actually said, which would be inadmissible hearsay unless one of the exceptions applied.

So what does it mean to admit an article "for demonstrative purposes"?  Well, apparently, it meant that the lawyer wanted to "prove" what could have been written in some other alternative universe in which the news was what he wanted them to be -- because the article was a fake ...  in which case the proof should be inadmissible as being fabricated or, at best, speculation.

Any way you look at it, what the lawyer tried to do did not make sense and could be interpreted as an attempt to mislead the court or the jury.  

And then, as a bonus, the lawyer didn’t show up for the sanctions hearing.  

You can read the story (with links) here.

Judge orders Trump to pay legal fees to opposing side for frivolousness

 A New York judge has ordered former President Donald Trump to pay nearly $400,000 in attorneys fees to the New York Times and three reporters following a frivolous lawsuit over the publication of Trump’s finances.  You can read the order here.  You can read more about the story here.

Tennessee Court of Appeals rules that inadvertent email waives privilege

 As you probably know, the answer to the question of whether an inadvertent disclosure of privileged information constitutes a waiver of the privilege is answered differently in different states.  Here is the most recent decision I have see on the issue.

In this case, as reported in the Legal Profession blog, the Tennessee Court of Appeals affirmed a trial court finding that the inadvertent disclosure of an email waived the attorney-client privilege.  The case is called Masquerade Fundraising, Inc v Horne, and you can read the opinion here.

A lawyer’s duties when using artificial intelligence

We start the new year with a story about what is likely to be one of the most debated topics of 2024: the use of artificial intelligence in the practice of law.  Over at Ethical Grounds, Michael Kennedy has published a very short post on "a lawyer's duties when using artificial intelligence."  You can read the full story here.

Was the Army’s first-ever lead special trial counsel fired for urging lawyers to act ethically?

 I recently read a story that, if accurate, is disturbing.  According to the story, published in The Hill, Brigadier General Warren Wells was relieved of his position as the Army’s Lead Special Trial Counsel over a single decade-old email in which he encouraged army lawyers to do their jobs zealously and ethically.  The message, sent back in 2013, encouraged a group of fellow defense attorneys to uphold their duty to represent their clients zealously and read in part, “hopefully a Soldier will be able to get a fair trial. You and your teams are now the ONLY line of defense against false allegations… [y]ou literally are the personal defenders of those who no one will now defend, even when all signs indicate innocence.”

Maybe I am missing something - after all, this is a story that flew under my radar - but it seems to me that this is what we expect, and should expect, from all lawyers - particularly criminal defense lawyers, and, therefore, that getting fired over this message sends a wrong impression about what is important to the leaders of the military justice system.