One year suspension for tax evasion

 Cases involving discipline for attorneys engaged in tax evasion or tax fraud are not uncommon.  However, the decisions vary considerably when it comes to the sanctions imposed.  So, in case you are doing some research on the inconsistent treatment of this issue among jurisdictions, here is the latest I have seen on it.  The Legal Profession Blog is reporting on a case from New York in which the court imposed a one year suspension for, among other things, failiong to file state and federal income tax returns for the preceding eight years and to pay his state and federal tax liabilities.  You can read more about it here.

Another Trump lawyer is suspended for conduct related to attempt to interfere with 2020 election

A panel of judges on the New York Appellate Division — New York’s midlevel appeals court — ruled Thursday that Ken Chesebro is barred from practicing law in the state, “effective immediately,” following his guilty plea in Georgia’s 2020 election interference case against former President Trump and his allies.

For more on the story go to The Hill. Law & Crime, Courthouse News Service and MSNBC.

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.

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.

Op-ed in support of easing "unauthorized practice of law" statutes in favor of access to legal services

Last year, a Federal District Court judge found that New York’s unauthorized practice of law statute violated the First Amendment’s protection of freedom of speech of a pastor who wanted to help members of his congregation sued in debt collection cases by providing forms and explanations on how to fill them out and on how to file them.  The case is currently pending on appeal before the Court of Appeals for the Second Circuit.

I am writing about this today because a couple of weeks ago, Professor Bruce Green (Fordham Law) wrote an Op-Ed piece in the New York Times supporting the view that states should ease up on restrictions on the practice of law.  The article summarizes his view which he also argued in an amicus brief filed before the court.  You should read the whole thing, but here is an excerpt:

[L]aws prohibiting the “unauthorized practice of law” hurt those who cannot afford a lawyer. Even those who have relevant training or personal experience but are not lawyers may not offer free advice on how to handle a common legal problem. . . . 

. . . . 

New York’s attorney general, Letitia James, argues in part that this is not a freedom-of-speech issue at all because [if allowed to do what he wants to do, the plaintiff would be applying “legal knowledge, judgment and skill to the facts” of an individual’s legal problem. That, she says, is the“practice of law,” not speech . . . 

When legal assistance requires highly specialized skills and knowledge, it becomes increasingly legitimate for the state to insist that only a lawyer provide it – for example, representing a client in a courtroom where one needs to know particularly complex procedural and evidentiary rules and other law, or drafting certain legal documents without a reliable model.

But it is unreasonable for states to forbid people to apply a modicum of legal knowledge, judgment and skill to their neighbors’ legal problems. . . . But for the unauthorized practice restrictions [social workers, librarians and teachers] too could learn how toassist people in low-income communities who have simple legal problems and no meaningful access to lawyers.

The broad-reaching laws barring the unauthorized practice of law impose too high a cost on those who can least shoulder it. . . . 

. . . .

The unauthorized practice prohibitions should not stand in the way of those seeking help with common legal problems from others in their communities who can capably provide it. . . . 

How not to practice law: continue arguing the arguments the court told you not to argue anymore

Above the Law is reporting that last Wednesday 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 . . ."

You can read the full story here.

UPDATE 10-5-23:  Judge in Trump's NY fraud case imposes sanctions on his lawyers for repeating frivolous arguments

New York amends rules to adopt a revised version of Model Rule 8.4(g) with a troubling change from the original proposal

Long time readers of this blog know that I have been following the ABA’s Model Rule 8.4(g) since it was first proposed for comment and since it has been adopted (mostly with changes) by several jurisdictions. (Go here and scroll down for all the stories)  You might also remember that I have expressed doubts that the ABA’s version would survive a constitutional attack and that Pennsylvania’s version of the rule was, in fact, declared unconstitutional at one point (see here, here and here).

Finally, you may also remember that I expressed that the proposed version of MR 8.4(g) in New York was the best so far.  See here.

Well...  I recently found out that New York finally officially adopted an amendment to the rules to incorporate the proposal, BUT in the process of approval the actual text of the proposal was changed.  Two of the changes improve the text of the proposal, which is very good.  The other change makes it worse.  

You can read the original proposal here and compare it to the adopted version here. 

One good change is simple.  It corrected the awkward construction of the part of the rule that lists the "protected categories" about which harassment would be improper.  The language in the original proposal made it sound like a few of the categories were examples of "disabilities."  The new language makes it clear that those categories are, in fact, categories in and of themselves.  The new language also adds a new category:  status as a member of the military.  

The bad change is that the adopted language eliminated the requirement that to qualify as harassment, the conduct (including the use of speech) had to be shown to be "severe or pervasive."  The adopted rule eliminated this requirement and, instead, says that "conduct that a reasonable person would consider as petty slights or trivial inconveniences does not rise to the level of harassment under this Rule."

This is a terrible standard because it is no standard at all.  How do we determine what is considered a "petty slight" or a "trivial inconvenience" to the "reasonable person"?  Evidently, what one person considers trivial might not be so for another, and some of the more troubling divisions in our society today are precisely based on the fact that people disagree on things like that.  

Now, it can be argued that this language is no worse than the language that makes the whole rule depend on a negligence standard, or the language that gives rise to possible discipline in other rules which requires the charging agency to determine what is "reasonable" under the circumstances.  But because this rule involves the regulation of speech, the language might also put the rule on a collision course with the First Amendment.

Yet, the drafters want to avoid this collision which leads me to the BEST of all the adopted changes in the rule and one that I am very happy to see:  The adopted rule states as part of the rule itself that constitutionally protected speech continues to be protected.  In other words, that it would be invalid for the state to use the rule to impose sanctions if the speech that gave rise to the complaint is constitutionally protected.  I wish other jurisdictions would follow this example.

Of course, it remains to be seen how the rule is implemented and whether this principle is followed since New York already has a history of imposing sanctions for lawyers using constitutionally protected speech that some found offensive.  See here.

Here are some other important highlights about the newly adopted rule in New York:

- the rule only applies to conduct or speech "in the practice of law" which is defined in the rule itself.  In contrast, the Model Rule applies in circumstances that are more broadly defined and include conduct outside the practice of law (if "related to" the practice of law.) 

- like the Model Rule, the new rule in New York is based on a negligence standard.  There is no need for the state to show intent.

- the NY rule applies to both conduct and speech.

- as mentioned above, the new NY rule explicitly states that the rule does not apply if the conduct or speech is constitutionally protected.

- like the Model Rule, the new NY rule recognizes exceptions.  If the circumstances fall within these exceptions conduct that would otherwise might be considered discriminatory would not subject the lawyer to discipline.  However, this might not prevent the application of other applicable laws related to discrimination.

- the exceptions also recognize circumstances in which a lawyer may not be disciplined for expressing their views on matters of public concern.

Overall, the newly adopted rule in New York is an improvement over versions of the rule I have seen elsewhere.

If you are interested in the debate related to Model Rule 8.4(g) and the First Amendment, take a look at the articles by Margaret Tarkington, William Hodes, and Bruce Green and Rebecca Roiphe in Volume 50 (issue 3) of the Hofstra Law Review, available here.  The same issue also has an article on the process that resulted in the adoption of New York's rule by Ellen Yaroshefsky.

Federal District Court judge rules that the First Amendment protects those who provide legal advice in certain cases, even if they are not lawyers

If you follow professional responsibility news, you probably know by now that last month the Federal District Court for the Southern District of New York issued a preliminary injunction to prevent the state's Attorney General from instituting actions against a nonprofit company called Upsolve, which was created to provide free legal advice to individuals facing debt collection actions.  Why would the state go after Upsolve?  Because the legal advice would be provided by people who are not lawyers, and this might be considered to be a violation of the state's law against the "unauthorized practice of law."

I have not read the opinion in detail so I will just provide the background and give you some links to full commentary by other authors.  You can read the full opinion here.  For excellent comments on the case go here and here.  For a podcast discussing the case, go here.

Upsolve plan is to train "Justice Advocates" (who are not lawyers) to provide limited legal advice to lower-income New Yorkers who face debt collection actions.  The advocates' assistance would be limited to helping individuals fill out forms provided by the state for the purpose of helping those individuals avoid default.  If a "client" were to need more legal services, the advocates are supposed to refer them to a lawyer.

Upsolve believed their services did not violate the UPL law, but just to make sure, it filed a petition for an injunction to prevent New York’s attorney general from trying to enforce the UPL law.  

In support of its position, Upsolve argued that New York UPL law interfered with the plaintiffs’ right to associate in order to fulfill their objectives and that it infringed on the plaintiff's freedom of expression.

In the opinion, issued about a month ago, the judge dismissed the argument based on freedom of association, but granted the injunction on the basis of the argument related to freedom of expression stating that

. . . a preliminary injunction is warranted. The UPL rules cannot be applied to Plaintiffs’ program because the First Amendment protects their legal advice as speech, and the UPL rules are not narrowly tailored to satisfy strict scrutiny in this context. Further, the balance of equities favors an injunction because Plaintiffs’ program would help alleviate an avalanche of unanswered debt collection cases, while mitigating the risk of consumer or ethical harm. And enjoining enforcement against Plaintiffs alone, whose activities are carefully limited to out-of-court advice, will not threaten the overall regulatory exclusivity of the legal profession. 

Before we go any further, note that the decision is not a decision on the merits.  It is only a decision on whether to grant a preliminary injunction.  It is possible that the plaintiffs will lose the action in the end and the injunction will be dissolved, but, obviously, the decision to grant the injunction is based on the fact that the judge believes the plaintiffs are likely to win on the merits.

Although I agree that there is a huge need to find ways to provide more access to legal representation, I am not sure that concluding that legal advice by people who are not lawyers is protected speech is a good way to do it.  Unless this conclusion is limited (which the court tried to do), this could mean that anyone ignorant of the law can claim to have a right to give legal advice.  This would not be a good result.  It may actually result in more harm to the public.  I think it is true that the notion of the regulation of the profession has an element of protectionism, but it also has an element of protecting the public.  And since both the goal of protecting the public, and the goal of providing better access to representation are equally important, those in charge of the regulation of the profession need to find a compromise.  

The good news is that, as one commentator has suggested, there are at least three other approaches that could be used to address the conflict between the regulation of the practice of law and the need to provide better access to representation.  For example, we can redefine the “practice of law” to exclude the type of service that Upsolve is providing.  Second, the state can develop a program to allow licensed nonlawyers to provide certain limited legal services, as has been done in other states.  And, third, New York could follow Utah’s lead and develop a “regulatory sandbox,” where those who wish to explore legal services models outside our current regulatory structure can do so under tight supervision.  

Should the Character and Fitness Committee ask whether an applicant has ever been arrested?

In a recent report, a working group of the New York State Bar Association concluded that the New York Bar should not and perhaps legally may not ask applicants to the bar whether they have been arrested. (In New York, the question is known as "Question No. 26). The main reason appears to be the correlation between race and ethnicity, on the one hand, and interactions with the police, on the other. 

This is an interesting issue that I must confess I have not given enough thought to.  In contrast, over at Justicia, Joanna L. Grossman, the Ellen K. Solender Endowed Chair in Women and Law at SMU School of Law, has posted a thoughtful comment on this question.  She proposes a compromise:

Accordingly, if Question 26 is reconsidered, I would propose the following substitutes for eliminating altogether an inquiry into arrests: (a) exempt groups whose membership correlates with arrest rates and therefore are suggestive of bias, or (b) take arrests of African Americans and Indigenous people with a grain of salt in reviewing Question 26, or (c) keep the question but only for domestic violence and rape (and all of their synonyms), or (d) keep the question but investigate more deeply the cases involving perpetrators who know their victims. At a time when more and more seemingly ordinary people turn out to be dangerous and violent con artists, the New York Bar must do its part to screen malefactors out of the profession.

NY Times editorial criticizes lack of accountability for prosecutorial misconduct

 About three weeks ago I reported that the organization "Accountability New York" filed a lawsuit in federal court in Manhattan arguing that the basis for the city’s pushback against the organization's work to hold prosecutors accountable for misconduct was unconstitutional.  See here. 

The issue has not gone unnoticed.  Two days ago, the New York Times published an editorial critical of the City's position and of the lack of accountability for prosecutorial misconduct in general.  It also suggests that the Justice Department’s office of professional responsibility needs an overhaul.  You can read the article here. It is called "How Can You Destroy a Person’s Life and Only Get a Slap on the Wrist?"

NY City reacts against law professors who filed complaints against prosecutors; law professors respond by filing lawsuit

Last May I wrote about a new organization in New York called "Accountability New York" created by lawyers and law professors to pursue complaints against prosecutors for misconduct. The organization started its work by filing 21 complaints to New York’s court-appointed grievance committees tasked with investigating attorney wrongdoing.  Go here to read that original post. 

You would think that having a group of lawyers seeking accountability prosecutorial misconduct would be a good thing; but not everyone agrees.  

When the law professors of Accountability New York filed the grievances against the prosecutors they published everything online.  But, because in New York disciplinary issues are supposed to be secret until (and if) until discipline is recommended, as reported by the New York Times, “the blowback from New York City was swift.”

In a letter sent directly to the grievance committee responsible for disciplining lawyers, a lawyer for the city accused the professors of politicizing the process and of violating the law by making the grievances public.

Accountability New York responded, though, and earlier this month, they filed a lawsuit in federal court in Manhattan in which they argue that the city’s pushback against the professors included the threat of further action if they continued to file grievances.  The lawsuit seeks declaratory and injunctive relief.  Here is a copy of the complaint.

The New York Times’ article quotes a spokesman for the city’s law department who claims that while prosecutors who committed misconduct should be held accountable, the professors’ attempted use of the grievance process was contrary to the law.  

The lawsuit asks the court to declare unconstitutional the law that forces disciplinary proceedings to be secret as a violation of the First Amendment.  The suit claims that the law is unconstitutional on its face and as applied to the law professors, whose complaints relied on allegations in judicial decisions and the public record.

The ABA Journal has more on the story here.  The Queens Daily Eagle also has more here.

Pandemic-Related Legal Ethics Opinions: A Compendium

LawSites has a short list of recent ethics opinions generated because of the pandemic and the fact that so many lawyers are practicing law remotely.  Go here for the story.  It mentions (and provides links to) opinions from Florida, New York, the District of Columbia, Pennsylvania, Wisconsin and the ABA.  

In addition the San Francisco Bar Association has issued Ethics Opinion 2021-1 on working remotely.  See here also.

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.

Rudy Giuliani gets suspended in Washington DC

 About two weeks ago I reported that Rudy Giuliani's license to practice law was suspended by a court in New York.  One question that suspension raised, of course, was whether other jurisdictions in which he was licensed would suspend him "reciprocally" also.  Now we have the answer.

Last week a District of Columbia court suspended Giuliani from practicing law in the nation’s capital.  Because the suspension was just an order based on the fact that he was suspended already in another jurisdiction, the order was very short.  It essentially simply said that the D.C. court system had received a “certified copy” of New York’s decision to suspend Giuliani’s law license which triggered D.C. Bar Rule XI, § 11(d) related to “reciprocal discipline.”   Law & Crime has a good explanation here.  

For more coverage and commentary go to Above the Law, NPR, and Politico.

In addition, here is a short podcast discussing Giuliani's suspension and his possible future in the practice of law.  You can listen to it below by clicking on the play button or by going here.

New York Court imposes interim suspension on Rudy Giuliani

 As I am sure you know by now, last week the First Judicial Department of the Courts in New York imposed an interim suspension on Rudy Giuliani for alleged violations of Rule 3.3(a), 4.1, and 8.4(c), all of which deal with dishonesty and makes false statements having found uncontroverted evidence that Giuliani communicated "demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer."  The court concluded that Giuliani's conduct warranted an interim suspension because the conduct "immediately threatens the public interest."  

Giuliani argued, first, that the investigation into his conduct violates his First Amendment right of free speech, and, second, that even if his statements were false, he did not make the statements knowing they were false when he made them.  The court rejected both arguments.  

Even though the court did not hold a hearing, the parties had the chance to file briefs to support their positions.  The court found that the disciplinary counsel met its burden to prove that Giuliani made false and misleading factual statements and then commented on whether Giuliani's argument demonstrated that there is some legitimate dispute about whether the statement is false or whether the statement was made by him without knowledge it was false.  The court concluded he did not. 

Conclusory or vague arguments will not create a controverted issue as to whether there has been misconduct. Consequently, once the AGC has established its prima facie case, respondent’s references to affidavits he has not provided, or sources of information he has not disclosed or other nebulous unspecified information, will not prevent the Court from concluding that misconduct has occurred

Evidently, Giuliani's "defense" followed the same tactics he used when making his claims of voter fraud.  He made assertions but provided no proof or credible evidence to support them.  Was he trying to prove that his original lies were not lies, by using more lies to "prove" it?  Who knows?   As the court explains,

In opposition to this motion, respondent refers to affidavits he has not provided. He also relies on a “confidential informant”. We do not understand, nor does respondent explain why, as a private attorney seemingly unconnected to law enforcement he would have access to a “confidential informant” that we cannot also have access to. At yet another point respondent claims he relies on a Trump attorney who chooses not to be identified. Respondent also refers to hundreds of witnesses, experts, and investigative reports, none of which have been provided or identified and an Excel spreadsheet, also not provided, purportedly listing the names of thousands of deceased voters who allegedly cast ballots in Michigan. [citations omitted.]

I think the allegations against Giuliani are supported by the alleged facts. In particular, I think there is enough proof to impose discipline for his conduct before tribunals and legislative bodies.  That is, proof that he engaged in frivolous litigation and that he engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.  

Having said that, let's talk about this "interim suspension" business.  Notice that the decision of the court is not to discipline Giuliani, but to prevent Giuliani from practicing law temporarily while the court decides whether to prevent him from practicing law permanently.  That's what an interim suspension means.  

This type of interim suspension is always a possibility; but it is rarely used for the type of conduct involved in this case.  More often it is used as a means to prevent harm (often imminent harm) to clients.

Knowing this, the court justified the interim suspension by claiming that Giuliani's conduct poses a risk to the public; the implication being that the public needs protection from Giuliani's lies.  Is that convincing?   Citing the “risk that respondent will continue to engage in future misconduct while this disciplinary proceeding is pending,” here is how the court justified it:

The hallmark of our democracy is predicated on free and fair elections. False statements intended to foment a loss of confidence in our elections and resulting loss of confidence in government generally damage the proper functioning of a free society. When those false statements are made by an attorney, it also erodes the public’s confidence in the integrity of attorneys admitted to our bar and damages the profession’s role as a crucial source of reliable information. It tarnishes the reputation of the entire legal profession and its mandate to act as a trusted and essential part of the machinery of justice. [Citations omitted.]

Is this convincing?  Consider this excerpt from an Op-ed in The Washington Post:

A New York appellate court has temporarily suspended former mayor Rudolph Giuliani’s law license, writing that he had made “demonstrably false and misleading statements to courts, lawmakers and the public at large.” Just as lawyers who participated in the Watergate scandal were held to account, so too should former president Donald Trump’s lawyers pay a price if they engaged in illegal or unethical conduct. As this case continues, however, the disciplinary agency and courts should be careful not to chill lawyers’ political speech.

…

As the case goes forward, courts should think more deeply about the First Amendment question. It is unlikely that the public credits media personalities who are attorneys more than others, or that, when these attorneys are caught in lies, the public sees it as a reflection on the entire legal profession. It seems likely, for instance, that the harm from Giuliani’s lies resulted from his proximity to the former president rather than his status as a lawyer.

Lawyers have the right as private citizens to engage in political debate. This includes a right to lie about the government — not because lies are desirable, but because it is too dangerous to give the state the power to determine which statements are true or false when it comes to political speech. Robust political debate would be chilled because people would fear misspeaking. Efforts to expose government wrongdoing would be abandoned out of concern about retribution.

You should read the full opinion suspending Giuliani here.

Obviously, the opinion has gotten a lot of press coverage.  Here are some links: New York Times, Law & Crime, Courthouse News Service, Politico, NPR, Above the Law, The Guardian, Law & Crime (again), ABA Journal, and The Legal Profession Blog.

New York Bar Association and Connecticut approve their own versions of Model Rule 8.4(g)

Back in April, I reported that the New York State Bar Association Committee on Standards of Attorney Conduct (“COSAC”) presented a proposed version of Rule 8.4(g) which I thought was much better than the Model Rule originally adopted by the ABA.  See here.

Now, I am reporting that a few days ago, the New York State Bar Association House of Delegates officially voted to adopt the proposed version of Rule 8.4(g).  

In addition, just a day apart, Connecitcut also adopted a version of the rule, originally proposed by the Connecticut Bar Association.  

Connecticut’s version of the rule is more similar to the Model Rule and includes a comment which explains that discrimination “...includes harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories.” 

This is a terrible way to describe the type of speech the rule is meant to regulate since it makes no distinction between protected and unprotected speech.  Were it all the comment said, the rule would likely not survive a Constitutional attack, much like the rule in Pennsylvania. See here, here and here.

Fortunately, the drafters of the rule added a statement in the comment that says that the rule is not intended to interfere with conduct protected by the First Amendment.  Hopefully, this will result in the correct interpretation and application of the rule.  

Recent developments on the law of practicing law remotely

 Over at The Law for Lawyers Today, Karen Rubin has published a short comment on the recent developments on whether it is ethical to practice law remotely.  As she explains, "[i]n New York, the state senate last month unanimously passed a bill that would remove the requirement — dating to 1909 — that New York-licensed lawyers residing outside New York keep a physical office in the state.  And in Florida, the state supreme court gave final approval to an ethics opinion permitting out-of-state lawyers to carry out their practices remotely from Florida."

You can read the full comment here.

New organization in New York (called "Accountability NY") Is A Coalition Of Law Professors And Public-Interest Groups Seeking Professional Consequences For Prosecutorial Misconduct

Long time readers of this blog know that I have complained many times that not enough is done to combat prosecutorial misconduct.  This is the case, in part, because defense lawyers who come across misconduct know that the prosecutors they would have to report are the same prosecutors who they will have to deal with in other cases, and they fear that reporting them to the authorities could come back to "bite them" and their clients later.

So what if the defense lawyers could get other lawyers to present and argue the complaints of misconduct for them?  

This seems to be the idea behind a new group in New York called "Accountability New York."  You can read more about the group in its website or listen to a report below by clicking the "play button."

 

The organization is beginning its work by filing 21 complaints to New York’s court-appointed grievance committees, which are tasked with investigating attorney wrongdoing.  Two of the complaints relate to a finding last March, by a Queens judge that three men had served 24 years in prison after they had been wrongfully convicted because of misconduct by two prosecutors who had made false statements at trial and who failed to turn over exculpatory evidence.

As a result, Accountability NY has filed professional complaints against those prosecutors and nineteen other current and former prosecutors who have been criticized by judges for misconduct in the past. Some of the group’s complaints seek disbarment. Others recommend suspensions.

You can read more about the organization and the case decided last March here.

 

New York State Bar Committee proposes new anti-discrimination rule akin to Model Rule 8.4(g), but it is very different and the best yet

As I am sure you know, I have been writing about Model Rule 8.4(g) since way back when it was first proposed.  See here. Over time, I have expressed my concerns about its vulnerability to attack under First Amendment principles, and my concern was proven valid when recently a similar rule was declared unconstitutional in Pennsylvania.  See here, here and here, for more on that story in particular.

But that is not what I want to talk about today.  Today I am more optimistic.  

On Friday afternoon the New York State Bar Association Committee on Standards of Attorney Conduct (“COSAC”) posted for public comment a proposed version of Rule 8.4(g).  Comments are welcome until May 28 deadline and they want comments from inside and outside of New York.  I am trying to find a link, and will post it here when I do.  

You can read the proposal here and its accompanying report here.  

In my opinion, this version of the rule is much better than the Model Rule originally adopted by the ABA.  It is carefully drafted to limit the reach of the Model Rule, and to avoid the potential problems regarding its constitutional validity.

First, the proposed rule rejects the Model Rule’s language of "conduct related to the practice of law" and instead applies to "conduct in the practice of law" which is much more limited.  This simple change addresses the possible issue of overbreadth in the Model Rule.

But the most important improvements over the Model Rule are in the way the proposed rule refers to or defines the type of conduct it regulates.

For example, the proposed rule starts by adding the word “unlawful” to the word discrimination.  Thus, the drafters of the rule recognize that there can be discrimination that is not unlawful and that the legal authorities that define that distinction are going to be relevant to determine how to apply the rule.

This simple addition of one word also guards against the possible unconstitutional application of the rule.  Because the Model Rule does not make that distinction, it is possible to interpret it to allow regulation of protected speech.  By limiting the application of the rule to “unlawful discrimination” the authority of the state to regulate speech is more limited, and presumably will be understood to allow only regulation of speech that is not constitutionally protected.

In addition, the proposal provides a good definition of harassment, which also limits the application of the rule, thus, also making it less vulnerable to constitutional attacks.  

The proposed rule defines harassment as conduct, whether physical or verbal, that is severe or pervasive and directed at an individual or specific individuals in one or more of several specific protected categories. Again, this description limits the application of the rule tremendously when compared to the Model Rule.  And that is a good thing.  By limiting the notion of "verbal conduct" to speech directed at specific individuals, the proposal avoids the interpretation that it can be used to regulate protected speech that is offensive but constitutionally protected.

In terms of the protected categories, the proposed rule in New York adds a few but eliminates the most problematic of the one in the Model Rule (socio-economic status).  Thus, the proposed rule adds pregnancy, gender expression, status as a member of the military, and status as a military veteran, none of which I have a problem with; but it also adds the word “color” which I am not sure is needed since the rule already mentions race and ethnicity.  For the sake of clarity, I would at least suggest to say “skin color” rather that just “color.”   

All told, the proposed new rule in New York is the best version of an anti-discrimination Model Rule 8.4(g) type rule I have seen yet.  

If you want to send comments to the committee, you can contact Professor Roy Simon directly.

Recently released documents in New York show communications among prosecutors in case of possible misconduct

NPR is reporting that "[n]ewly disclosed documents from inside the U.S. attorney's office in Manhattan capture a sense of panic and dread among prosecutors and their supervisors as one of their cases collapsed last year amid allegations of government misconduct."  Go here for the full story.