What is the proper sanction for a January 6 rioter?

 What should be the proper sanction for a lawyer convicted of felony and misdemeanor charges due to his role in the Jan. 6, 2021 assault on the Capitol, who was later pardoned by the President?  

The State Bar of Georgia and a special master’s recommended that he receive public reprimand, but the Georgia Supreme Court has rejected the recommendation and suggested that the proper sanction should be disbarment.  “[I]t is hard for us to see how anything less than disbarment can be accepted here,” the court wrote in a unanimous opinion. The matter was remanded for further proceedings.

The ABA Journal has the story 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

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!

Update on Trump lawyers: Lin Wood retires to avoid disbarment; Hearing committee recommends disbarment for Giuliani

The list of lawyers for the Trump campaign (or for Trump himself) that are under investigation keeps getting longer.  John Eastman, Sydney Powell, Jeffrey Clark, and Jenna Ellis, among others, have been in the news recently.

So today I am writing to report on two developments this week.

First, you may remember attorney Lin Wood who was sanctioned by a court in Michigan.  (see here, here and here) and who was facing an investigation in Georgia for his involvement in Trump's campaign's attempts to overturn the last presidential election.  (He was also famous for filing a motion in which he claimed it was based on "plenty of perjury," but that is another story).

This week it was reported that, rather than face disbarment, Wood has filed a petition to retire from his practice in Georgia.  As discussed in an article in Above the Law, 

If granted leave to retire, this would end the career of a once-respected attorney whose decision to embrace MAGA craziness dragged him into an ethical quagmire that he had little hope of ever escaping. Rudy Giuliani’s fall from crusading U.S. Attorney to getting his law license yanked and making ends meet on Cameo is rightfully the most dramatic instance of a lawyer throwing away everything for Trump’s adoration, but Wood’s not far off.

And speaking of Rudy Giuliani, the second report of the day is that last week a Washington, D.C.-based bar discipline hearing committee recommended that Giuliani should be disbarred for “frivolous” and “destructive” efforts to derail the 2020 presidential election in support of former President Donald Trump.

You can read the report here.  The case will now go before the Board on Professional Responsibility.  

Obviously, this means that this is not the end of the case.  Giuliani has the right to appeal and the case will likely make its way to the courts eventually.

The committee, comprised of D.C. attorneys tasked with reviewing Giuliani’s conduct, deliberated for months after a weeks-long series of hearings that featured testimony from Giuliani and several of his close associates.

For coverage on Lin Wood's retirement you can check out MSNBC, Above the Law, ethinking.com, Courthouse News Service, NPR, The Hill, Lex Blog, The ABA Journal and the New York Times.

For coverage of Giuliani's case, you can check out MSNBC, Jurist, Lex Blog, Politico, Courthouse News Service, Above the Law, The Hill, and the Legal Profession Blog.

NY and Georgia issue opinions on advising clients in the marijuana industry which reach opposite conclusions - UPDATED

Ethics authorities in New York and Georgia recently issued opinions on whether lawyers can advise clients on matters related to both recreational and medical marijuana that reach opposite views.  The problem relates to the fact that marijuana use is now legal in many states while it remains illegal under federal law.

The New York opinion, issued on July 8, 2021, states that attorneys are free to provide advice for clients in the medical cannabis industry, while the Supreme Court of Georgia took the exact opposite position in an order issued on June 21, 2021.

The Law for Lawyers Today has a comment here.

Update 8/11/21:  Legal Ethics Advisor has a comment here.

Georgia Supreme Court holds that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation

In a recent case summarized in the Legal Profession blog, the Georgia Supreme Court held that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation.  Go here for more details and links.

Georgia likely to become the next state to agree that "competence" should include competence related to "technology"

As I have written before, I am sure that by now you know that the Model Rules were amended a few years ago to include a comment about the use of "technology" in the practice of law.  Specifically, it says that it is part of the duty of competence to understand how to use, and the risks of using, "technology" in the practice of law. 

In response, 37 states have formally adopted some version of the ABA model rule's comment.  Georgia may be the next one. The Board of Governors of the State Bar recently voted to approve proposed changes to the state’s Rules of Professional Conduct that would adopt the duty of technology competence. The proposed changes will now be published for a 30-day comment period and then submitted for approval to the Georgia Supreme Court.

Law Sites has more information here.