ABA Committee releases new Formal Opinion on discrimination in the jury selection process

 The ABA Standing Committee on Ethics and Professional Responsibility has issued  a new Formal Opinion: ABA Formal Ethics Opinion 517 - Discrimination in the Jury Selection Process.  

If you recall, paragraph [5] of the comment to Rule 8.4 states that "[a] trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of paragraph (g)."  For this reason, the opinion attempts to address the following questions: 

Rule 8.4(g) presents two principal questions regarding discriminatory challenges. First, in light of Comment [5], when does a lawyer’s unlawful exercise of peremptory challenges on a discriminatory basis violate Rule 8.4(g)? Second, given the statement that lawyers may engage in legitimate advocacy consistent with the Model Rules, does a lawyer violate Rule 8.4(g) by exercising peremptory challenges on discriminatory bases where not forbidden by other law? 

The opinion then proceeds to address the questions and concludes that Rule 8.4(g) does NOT prohibit a lawyer’s discriminatory but lawful exercises of peremptory challenges, but also that 

A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g). It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. 

You can read the full opinion here. 

Comment on Puerto Rico's newly adopted rule on technological competence

 As you probably know, paragraph 8 of the comment to Model Rule 1.1 (Competence) states, among other things, that "to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology."  This statement has since been adopted and integrated into the comments of the rules in about 40 states.

Puerto Rico, however, recently adopted new rules (based on a translation of the Model Rules) and the notion of technological competence appears in a specific rule rather than in a comment to the rule on competence.  

In a comment posted in Above the Law, the author argues that "the Puerto Rico Supreme Court came out with a much more realistic and impactful definition of a lawyer’s technological competence obligations than that promulgated by some 40 states" and that "the Puerto Rican rules are a stronger statement about competence and suggest why it is so important."

You can read the full comment here.

Puerto Rico adopts the Model Rules of Professional Conduct - UPDATED

UPDATE (June 22):  After reading the Puerto Rico Supreme Court's resolution and most of the new rules, I am revising my post from June 19.  The updated version appears below.  I was wrong about one of my initial comments, which I eliminated here, and substituted that (wrong) first impression with a couple of new ones.  I also added a few links.

Here is the updated post:

After decades of work on a new Code of Professional Conduct, two days ago the Puerto Rico Supreme Court announced the adoption of a complete new code to be known as "Reglas de Conducta Profesional de Puerto Rico" (or Puerto Rico Rules of Professional Conduct) based on the ABA Model Rules.

The rules were adopted as a resolution issued by the Supreme Court, which reflects the fact that not all Justices agreed on everything.  One justice issued a lengthy opinion in which he actually dissented on the approval of certain provisions.  Others issued separate opinions in which they also objected to some aspects of the approved rules.  Yet, even though they did not all agree on everything, they all voted to approve the project, so the rules will go into effect in January 2026.  You can read the Court's resolution and the Justices' opinions here.  You can read the new rules in full here.

The rules are indeed a completely new approach to the regulation of the profession in the island which up to now had been mostly based on an antiquated code based on the ABA Canons of 1908.  The rules are a translated version of the Model Rules but they are also are unique in some ways.

Here are my top ten first impressions, in no particular order.  

1.  Rules unique to the practice of law in the island

Because Puerto Rico's legal system is the result of a combination of the Spanish Civil Law tradition and the American Common Law system, there are some peculiarities to the practice of law in the island and these are reflected in the new rules.  In fact, in the Supreme Court resolution adopting the new rules, some of the justices disagreed on how these peculiarities should have been addressed.  The main peculiarity is that, following the Spanish law tradition, only lawyers can be notaries so being a notary is actually a common element of the practice of law.  However, the function of a notary is different than that of a lawyer in that the notary does not really "represent" anyone.  For that reason, the justices were divided on the general question of whether the rules of professional conduct should have included the regulation of the functions of notaries.  At least two of them opined that this topic should have been addressed in a separate set of rules designed specifically to regulate that aspect of the practice of law.  After all, many lawyers choose not to become notaries.  

2. "Lost in Translation"

Although there are some unique rules, and some discrepancies with the original ABA Model Rules, the newly adopted rules are for the most part a literal translation of the ABA Model Rules.  From my first quick reading, I have to say that, for the most part, the translation is accurate, but there are a few instances where it might cause some issues.  For example, the adopted rules often translated the word "shall" in the Model Rules (which was carefully chosen to denote a mandatory duty) with a word in Spanish which is more like "should" which does not necessarily have the same connotation.  I don't think this will be an issue given the clear history of the Model Rules, but the drafters could have been more careful about it.  Also, there is a Model Rule that refers to "material evidence" while the translation refers to "relevant evidence."  These two concepts do not mean the same thing and, again, may or may not result in some confusion.

3. Subtle changes that may or may not have been intended

Maybe because of translation discrepancies -- or maybe not -- there are other instances where the chosen translation results in more significant changes.  For example, Model Rule 1.8(i) is limited to litigation, while the adopted translation omits the word litigation, creating the impression that the rule could apply to any type of representation.  That would make the rule in Puerto Rico much more broad in application than anywhere else.  I suspect this was an inadvertent mistake.  Likewise, while the Model Rule regarding pro bono services suggests a minumum of 50 hours of pro bono sevices per year, the adopted translation simply says "a reasonable number of hours."  It is fair to assume this was a deliberate/intended change and not a mere mistake in translation.  

4.  Civility as a rule

The rules adopt a standard for civility in certain aspects of the practice of the profession that is not present in the Model Rules. See Rule 8.2, for example.

5.  Technological competence

The rules adopt a new rule specifically mandating technological competence.  This is a concept that has been adopted in now a majority of American jurisdictions but it has mostly (if not exclusively) been done as part of the comment to rule 1.1.  In Puerto Rico, it is now an actual rule and it is a mandatory rule. (See Rule 1.19).  For comments on the new rule go here (in Spanish by a UPR Law School Professor) and, in English, to LawSites and Above the Law, here.

6.  Non-lawyer ownership in law firms

Although the new rules copy the Model Rules' ban on sharing fees with non-lawyers, they allow for non lawyers to invest in and, thus, partially "own" shares in law firms as long as that ownershhip does not exceed 49%.  At least one Justice of the Supreme Court dissented on this point and another expressed serious reservations about it.  I might expand on this topic in a separate post, but for a short comment on the new rule (in English), go to LawSites.

7.  The new rules do not fix the problems with Model Rule 8.4(g)

In translating the text of Model Rule 8.4(g), the drafters of the new Puerto Rico rules do not appear to have considered the debate on, and recent cases challenging, the constitutionality of the text of the Model Rule (after it was adopted in several states).  Long time readers of this blog know that I think that, as drafted, the Model Rule is of questionable constitutional validity and that a similar rule has been found to be unsonstitional by at least one court already, while there are cases with similar challenges still pending in other states.  Yet, some states have adopted better versions of the rule that appear to be much better drafted.  The best is probably the version adopted in New York, with the one adopted in Illinois coming in as a close second.  But, in any case, the point here is that the Model Rule is actually not a good model for this rule and that it could have been fixed with some re-drafting as part of the translation.  That was not done and it leaves the door open to a constitutional attack.

8. Missed opportunities

The drafters of the new Puerto Rico rules missed another opportunity to correct poor drafting in the Model Rules in Rule 1.7 regarding conflicts of interest.  Again, given the long hisotry of the Model Rules, I don't think the poor draftmanship will cause a major issue, but I wish it had been corrected.  The problem is that the text of the Model Rule confuses the concepts of a concurrent conflict of interest and a successive conflict of interest.  Model Rule 1.7 should eliminate the words "former client" from section (2), or the words "current clients" from its title and the word "concurrent" from the first paragraph.

9.  The rules finally clarify issues related to lawyer advertising

Although the Puerto Rico Code of Conduct was amended at some point after the US Supreme Court decided Bates, the case law interpreting this area of the law has always been confusing which resulted in a chilling effect on lawyer advertising in the island for many years.  With the adoption of the new rules, this confusion should be clarified.

10. Debate on whether to adopt Model Rule 3.8

While the justice who wrote the long opinion expressing his views on many of the rules stated that a rule to specifically regulate the conduct of prosecutors was "particularly beneficial," another judge argued that the rule should have been rejected because it was an intrusion on the function of the Department of Justice.  I was surprised by this opinion. 

BONUS: The new rules (thankfully) finally abandon the notion of "appearance of impropriety" as a possible basis for discipline.

ABA Ethics in 10 Podcast on Model Rule 8.4(g)

 A few weeks ago I discovered the ABA podcast "Ethics in 10" which features 10 minutes (or so) reviews of specific concepts in Professional Responsibility.  The most recent program was a review of Model Rule 8.4(g).  Long time readers of this blog know that I have posted a lot about MR 8.4(g), and that I have expressed my doubts about its text for many reasons.  This podcast simply explains what the rule says, what its goal was when adopted and goes over its background and history.  The speaker does not go into the debate over the rule's content or its possible unconstitutionality when applied to speech. For some of that discussion, go to the section on Model Rule 8.4(g) on this blog and read the many stories and comments I have posted over the years.  

ABA Podcasts "Ethics in 10" on representing entity clients

 Every now and then, the ABA Center for Professional Responsibility releases a podcast called "Ethics in 10" in which a moderator discusses a specific Model Rule for about 10 minutes.  These podcasts provide a short basic review of the content of the rules and a short reminder of common issues that arise in their interpretation.  

The most recent instalment is on Model Rule 1.13 on representation of entity clients.  The discussion is very basic, but it is is what it is.  You can listen to the presentation here.

ABA issues new opinion on duty to investigate circumstances related to the representation

 Yesterday - August 23, 2024 - the ABA’s Standing Committee on Ethics and Professional Responsibility issued a new Formal Ethics Opinion (number 513) on an attorney’s duty to inquire into and assess the facts and circumstances of the representation.  The summary reads as follows

As recently revised, Model Rule 1.16(a) provides that: “A lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation.” To reduce the risk of counseling or assisting a crime or fraud, some level of inquiry and assessment is required before undertaking each representation. Further inquiry and assessment is required when the lawyer becomes aware of a change in the facts and circumstances relating to the representation that raises questions about whether the client is using the lawyer’s services to commit or further a crime or fraud.  The lawyer’s inquiry and assessment will be informed by the nature and extent of the risk that the current or prospective client seeks to use, or persists in using, the lawyer’s services to commit or further a crime or fraud. If after having conducted a reasonable, risk-based inquiry, the lawyer determines that the representation is unlikely to involve assisting in a crime or fraud, the lawyer may undertake or continue the representation. If the lawyer has “actual knowledge” that the lawyer’s services will be used to commit or further criminal or fraudulent activity, the lawyer must decline or withdraw from the representation.  When the lawyer’s initial inquiry leaves the lawyer with unresolved questions of fact about whether the current or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, the lawyer must make additional efforts to resolve those questions through further reasonable inquiry before accepting or continuing the representation. The lawyer need not resolve all doubts. Rather, if some doubt remains even after the lawyer has conducted a reasonable inquiry, the lawyer may proceed with the representation as long as the lawyer concludes that doing so is unlikely to involve assisting or furthering a crime or fraud. 

You can read the full opinion here.

Breaking Down the ABA’s Guidance on Using Generative AI in Legal Practice

A recent article breaking Down the ABA’s guidance on using generative AI in legal practice is available here.

Two recent decisions reiterate the ABA's approach to flat fees paid in advance

 Last May I wrote a comment on an ABA Formal Ethics Opinion on flat fees which concluded that flat fees paid in advance should be considered client funds and, therefore, should be held in a trust account until earned.  In my comment I explained why I think this is the correct view even though there is some debate about it among some jurisdictions.  You can read my comment here. 

I am writing about this topic again today because of two interesting recent opinions, one from California and one from the District of Columbia.  

In In re Alexei, ___ A.3d ___ (D.C. Ct. of Appeals 2024), 2024 WL 3611154, (available here) the court held that flat fees paid in advance are unearned until the legal services they are supposed to pay for are completed.  As such, even though the attorney may have possession of the fees, the attorney does not have ownership and, thus, the fees property of the client until the fees are actually earned.  If an attorney removes the unearned fees from their trust account, the attorney may violate Rule 1.15(a).  The court also held that the fees are actually earned only upon completion of the entirety of the solicited services unless the fee agreement specifies otherwise.

Importantly, the court rejected the notion that a flat fee paid in advance should be considered earned upon payment because if a client consent could change when a fee is actually earned, it would not be true that a lawyer can’t earn a fee for doing nothing because a client could consent to an arrangement whereby the lawyer earns a fee upfront before actually performing any work for the client.  Also, allowing a lawyers and clients to “deem earned” fees that are not earned yet goes against the intent of the rules that mandate safekeeping of property.   

Having said that however, the court recognized that attorneys could depart from the default rule by either (1) specifying in the agreement for services when and how portions of the flat fee are earned or (2) obtaining informed consent from the client to treat unearned fees as their attorney property.

Notice how this second option contradicts the policy upon which the court based its decision to reject the notion that a flat fee paid in advance should be considered to be earned upon payment.  In fact, the court essentially says that the attorney can negotiate with the client to have the client agree to do something the court has decided could result in a violation of the rules.  This makes little sense, and I explore that topic in a forthcoming article called Advanced Magic in Illinois: Amendments to the Illinois Rules of Professional Conduct and the Confusion Over How to Handle Flat Fees Paid in Advance, 56 Loy. U. Chi. L.J. ___ (2024).

The second recent case addresses the question of whether a client’s creditor may seize funds held in trust pursuant to a flat fee agreement and concludes that, logically, the answer is yes if the fee held in trust has not been earned yet.  The case is Dickson v. Mann, Super Ct. No. 37-2021-00042299-PR-TR-CTL (July 16, 2024), available here.  

The court held, correctly, that “a flat fee paid by a client to a lawyer for future legal services does not belong to the lawyer until the fee is earned through the actual provision of legal services” and since the firm presented no evidence that it had performed any legal services yet the flat fee funds still belonged to the client at the time the creditor filed the notice of seizure. Accordingly, the court ordered the firm to produce the funds for seizure by the creditor.

On the duty to inform another party of the fact that the other party inadvertently disclosed documents... and more

 Suppose Lawyer A is in litigation and, in response to a request for documents, opposing counsel (Lawyer B) sends a link to a file stored in a service like Dropbox.*  When Lawyer A opens the file using the link, he or she discovers the link provides access to B's client's documents which were not expected to be disclosed and are likely to be considered confidential.

This is what happened in a recent case in New York called Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC (May 30, 2024), in which the lower court determined that Lawyer A was required to notify Lawyer B that the link contained folders that "counsel knew or should have known were confidential or privileged."  The court imposed a sanction on defendants and their counsel for accessing and downloading the folders from Dropbox.

The order was affirmed in an opinion (available here) that is about seven sentences long.  It cites, among other things, NY's rule 4.4(b) which is based on the equivalent Model Rule which states that "[a] lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender."  

So, going back to our initial question:  in those circumstances, Lawyer A had a duty to inform Lawyer B that Lawyer B had inadvertently disclosed documents.  That much is clear.  But nothing else is, and the incident raises a number of interesting question not addressed by the court.

First of all, why does the court refer to the documents as privileged?  The court refers to the documents in question as "corporate files."  What were these documents?  If they were corporate records that the client gave the lawyer to store, there is no reason to believe that they are protected by the attorney-client privilege, so calling them so would be a mistake.  But I am willing to proceed on the assumption that even if not privileged, they could be considered confidential.

Next, in addition to the duty to inform the other side of their mistake, did Lawyer A have a duty to delete the link immediately or could Lawyer A have looked at the documents to confirm they were privileged before doing anything else?  The rule does not address that, and the comment to the Model Rule explicitly states that the rule does attempt to decide whether the lawyer who receives the information has a duty to return (or in this case delete) the document (or link to it). 

The court's opinion suggests that the lawyer had a duty "to sequester the inadvertently disclosed files" (which I guess means the lawyer could keep them but not look at them) but the court does not cite anything in support of this suggestion.

And then there are the questions related to the conduct of the lawyer who sent the link to begin with, which the court does not discuss.  It can be argued that this lawyer violated their duty of confidentiality and their duty of competence by disclosing protected information by mistake.  Could the lawyer be subject to discipline for this?  In theory, Yes; absolutely.  But. as you know, the reality is that an isolated act of negligence will not likely lead to discipline.  

Could the lawyer be liable in tort for negligence?  Again, in theory yes since the conduct is clearly a breach of duty, but whether there is an actionable cause of action depends on whether the conduct caused an injury and it does not sound that that was the case in this instance.  Lucky for the lawyer!

 I am willing to bet that the ABA has issued an ethics opinion exploring some of the issues that arise out of a situation like this and the application of a rule like Model Rule 4.4(b) but I have not searched for it.

________________

* If you don't know what Dropbox is, this post is for you because you may be in violation of the rule regarding competence since competence requires you to at least "keep abreast of . . . the benefits and risks associated with relevant technology" and Dropbox is pretty old technology.

Generative AI and the practice of law

As reported by Ethical Grounds, last month, the D.C. Bar issued Ethics Opinion 388: Attorneys’ Use of Generative Artificial Intelligence in Client Matters, which discusses many different issues and the Rules of Professional Conduct most likely implicated by a legal professional’s use of generative AI (GAI).  You can read the opinion here.

Based on this opinion, Michael Kennedy (of Ethical Grounds), has posted two new comments on issues related to generative AI and the practice of law.  In the first one, available here, he discusses why it is not necessary to amend or change current rules of professional conduct in response to the effects of generative AI in the practice of law.  In the second one, available here, he begins to address issues related to the professional duties most likely to be implicated by a legal professional’s use of GAI by discussing the duty of confidentiality.  I expect he will address other duties in future posts, so stay tuned.  

ABA Issues Formal Opinion cautioning lawyers to be careful not to disclose confidential information when talking about the representation of clients

As all of you know, the ABA's Standing Committee on Ethics and Professional Responsibility frequently issues Formal Opinions to help answer questions and clarify aspects related to the interpretation and application of the ABA Model Rules.  Last week, the Committee issued a new opinion on confidentiality.  Its summary reads as follows:

Rule 1.6 prohibits a lawyer from posting questions or comments relating to a representation to a listserv, even in hypothetical or abstract form, without the client’s informed consent if there is a reasonable likelihood that the lawyer’s questions or comments will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved. A lawyer may, however, participate in listserv discussions such as those related to legal news, recent decisions, or changes in the law, without a client’s informed consent if the lawyer’s contributions will not disclose, or be reasonably likely to lead to the disclosure of, information relating to a client representation. 

Whether the conclusion is limited to listsevs is actually not that relevant since the same can be said of any instance in which a lawyer discusses a client's representation in a public setting (when addressing a group discussion, as an example in a meeting, when teaching a class, when participating in a CLE program, etc, etc.)  But the focus of the opinion seems to be on lawyers who turn to listservs to seek help on a matter they are working on for a client, a practice I can safely say is very common in at least one of the listservs I follow.

Lawyers like talking about their work, their clients and often share war stories or use their experiences as examples to illustrate issues, or to ask questions.  Often, they also ask others for help in finding support for an argument or to find sources of information on how to handle a particular issue.  The problem is that, in doing so, it is possible to disclose confidential information, which, of course, could be a problem.

Yet, although the opinion follows the logic of the broad approach to confidentiality reflected in the rules, it was quickly criticized by some, ironically, in a listserv I follow.  Likewise, Bob Ambrogi, who writes about legal technology in the website LawSites, wrote a good article in which concludes that the opinion "takes an overly heavy-handed approach to an issue it should have addressed, if at all, maybe 20 years ago. In other words it is too much, too late."  You should read his opinion here.

Micheal Kennedy also has a comment on the opinion here.

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.

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.

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.

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.

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! 

Competence includes tech competence

Over at Ethical Grounds, Michael Kennedy reminds us that earlier this month, the ABA House of Delegates adopted Resolution 609 to remind lawyers of their duty to protect client data “from unauthorized access.”  The resolution also reminds us that, as Michael explains, "competence includes tech competence" by urging lawyers "to keep informed about new and emerging technologies” and “to enhance to enhance their cybersecurity and infrastructure to protect confidential client information.”  This is also reflected in Model Rule 1.6(c) which states that lawyers "shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."

You should read Michael's post here.

Breaking news: ABA House of Delegates approves changes to Model Rule 1.16

Last February, the ABA House of Delegates, which is comprised of 597 delegates from ABA entities and state, local and specialty bar associations, adopted a measure that updates the ABA’s policy that endorsed for the first time “reasonable and appropriate” federal government efforts aimed at combating money laundering. The policy seeks to balance the longstanding attorney-client privilege with the demands of governmental entities seeking access to information on criminal activities.

Following this policy, yesterday, the HoD adopted an amendment to Model Rule 1.16 "to protect lawyers from unwittingly becoming involved in a client’s or prospective client’s criminal and fraudulent activities."

Reportedly, there was a lengthy debate on the proposal but it was eventually approved by a vote of 216-102.

The amendment creates a duty to "inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation" and adds a new (a fourth) case in which lawyers are obligated to refuse to represent a client or to withdraw from representing a current client.  

This section of the amendment states that the a lawyer shall not accept the representation or shall withdraw from representation if "the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct.

As you probably know, Model Rule 1.16(a) lists the circumstances when a lawyer is required to withdraw, while 1.16(b) lists the circumstances in which a lawyer may withdraw.  Model Rule 1.16(b)(2) states that a lawyer may withdraw if "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent."

The original proposal before the House of Delegates eliminated this discretionary duty and essentially converted it to an obligation.  But, at some point in the process it was decided to keep section 1.16(b)(2), so now we have a mandatory duty related to a client's intent to engage in fraud, etc, and a separate discretionary duty.  

That can be confusing so we will have to wait and see how they are interpreted.

You can read the Resolution that was approved and its full report here.

California approves rule mandating reporting of misconduct by other lawyers (similar to Model Rule 8.3)

 Last January I posted that California was moving closer to adopting a "self-reporting rule" a la Model Rule 8.3 (see here and here).

Today I am writing to report that the rule has now been officially adopted.  You can read the court order and the text of the approved rule here.

Lawyer Ethics Alert Blog has coverage here.

Ethical Grounds has a comment here.