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.

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!

Judge finds no conflict and denies motion to disqualify in Trump's hush money case

 Back in March I reported a story about the fact that one of Trump's lawyers in the New York "hush money case" involving payments to Stormy Daniels had previously met with Daniels to discuss possible representation in the past.  The State suggested that created a conflict of interest and that the lawyer should be disqualified.  You can read my original comment on the issue here.  

Last month, the judge finally decided the issue and found no conflict.  You can read the story here.

ABA Formal Ethics Opinion on "non-lawyer" assistants -- UPDATED

 The ABA Standing Committee on Ethics and Professional Responsibility has issued a Formal Ethics Opinion (No. 506) on a lawyer's responsibilities regarding non-lawyer assistants.  You can read it here. The abstract reads as follows:

A lawyer may train and supervise a nonlawyer to assist with prospective client intake tasks including obtaining initial information about the matter, performing an initial conflict check, determining whether the assistance sought is in an area of law germane to the lawyer’s practice, assisting with answering general questions about the fee agreement or process of representation, and obtaining the prospective client’s signature on the fee agreement provided that the prospective client always is offered an opportunity to communicate with the lawyer including to discuss the fee agreement and scope of representation. Because Model Rule 5.5 prohibits lawyers from assisting in the unauthorized practice of law, whether a nonlawyer may answer a prospective client’s specific question depends on the question presented. If the prospective client asks about what legal services the client should obtain from the lawyer, wants to negotiate the fees or expenses, or asks for interpretation of the engagement agreement, the lawyer is required to respond to ensure that the non-lawyer does not engage in the unauthorized practice of law and that accurate information is provided to the prospective client so that the prospective client can make an informed decision about whether to enter into the representation.

UPDATE 6-18-23:  2Civility has analysis of the opinion here. 

Does Trump's lawyer have a conflict of interest?

 The other day I saw a story with the title: "Trump lawyer's ethics issue: He initially was approached by Daniels."  In it, the author recalls the fact that the lawyer currently representing Trump in the case related to the hush money payment made to Stormy Daniels had been consulted by Ms. Daniels before he agreed to represent Trump.  The article suggests that this means that Trump's lawyer (Joe Tacopina) has a conflict of interest.  However, I don't think we have enough information to reach that conclusion...  yet.

What we know is that Stormy Daniels approached Tacopina about representing her but he declined.  It appears that that "approach" included at least one conversation between Daniels and the lawyer, but that does not necessarily mean that "an attorney-client relationship was established at the point of that consultation" as the article states.

When a person approaches an attorney to discuss whether the attorney will take on their representation what is formed is a relationship between the attorney and a prospective client, and the duties owed to a prospective client are different than those owed to a client.  

Whether the prospective client actually establishes an attorney-client representation depends on what transpires during the conversation(s) leading to the decision by the lawyer not to take on the representation.  And that is the information we don't have in this case.

Having said that, assuming there was no attorney-client relationship formed, is there "an ethics issue" as the article says?  Assuming the rules that apply are the ones from New York, a lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter although a different lawyer from the same firm could if certain conditions are met. 

Now, let's keep assuming things we don't know.  Assuming that there was a consultation during which Stormy Daniels disclosed confidential information that could be used against her in some way in the future, what would be the consequences?

Assuming all that as true, it could be argued that the lawyer violated a duty toward Stormy Daniels and could be subject to discipline for it.  

But could it lead to having the lawyer disqualified from representing Trump in the criminal case?  Well, the interesting thing about that is that the person who could object to the lawyer's representation of Trump would be the prospective client, ie, Stormy Daniels, and she is not a party in the criminal case.  She might be a witness, but according to some news reports I have seen, she did not testify before the grand jury.  

This means that the State would have to argue that she will be a witness and that Trump's lawyer should be disqualified from representing him because the  lawyer would be in a position to disclose or use confidential information obtained from her during her original consultation that could be significantly harmful to her.  Not just harmful. Significantly harmful.  

I don't know what the rules is about who has standing to file a motion to disqualify in New York so I don't know if the State can even bring the argument.  

New Jersey Supreme Court on arbitration clauses in attorney retainer agreements

Late last year, the New Jersey state supreme court held that law firms that want to include mandatory arbitration provisions in their client engagement agreements must explain to the client the benefits and disadvantages of arbitrating a prospective dispute.  The case is called Delaney v. Dickey, and you can read it here.

The Law for Lawyers Today has a comment here.

ABA issues new formal opinion on Model Rule 1.18 and the duties owed to prospective clients

A couple of days ago, the ABA Standing Committee on Ethics and Professional Responsibility issued formal opinion 492 in which it discusses the duties owed to prospective clients under MR 1.18.  I don't think it says anything we did not know already.  Here is the summary:

A prospective client is a person who consults a lawyer about the possibility of forming a client-lawyer relationship. Model Rule 1.18 governs whether the consultation limits the lawyer or the lawyer’s firm from accepting a new client whose interests are materially adverse to the prospective client in a matter that is the same or substantially related to the subject of the consultation, even when no client-lawyer relationship results from the consultation. Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter. Whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances including the length of the consultation and the nature of the topics discussed. The inquiry does not require the prior prospective client to reveal confidential information. Further, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent, as set forth in Model Rule 1.18(d)(1) and (2).

You download or read the opinion here.

The ABA Journal has a story here.

ABA issues new ethics opinion on the duty not to counsel clients about, or assist in, committing a crime or fraud

At the end of April, the ABA's Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (No. 491) titled "Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings." You can read the opinion here.

In my humble opinion, it does not add much that we did not know already but it is always nice to have guidance on important questions.  What it does, perhaps without realizing it, is provide support for an argument with regard to a number of other duties -- more about that below.  Here is the summary of the new opinion:

Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness to or conscious avoidance of facts. Accordingly, where facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity. Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish “knowledge” under Rule 1.2(d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct, and to advance the client’s legitimate interests. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4. If the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.

Now, why do I think that this opinion is important for rules not mentioned in the opinion?  Because it addresses the duty of the lawyer to act to "find out more" when the duty is expressed in a rule that takes effect if the lawyer has "knowledge."  Model Rules 1.9(b), 1.10(a), 1.13(b), 4.1 and 8.4(f) are all based on knowledge, for example.  

When I teach the duties related to perjury we discuss the notion of selective ignorance and how much investigation a lawyer has a duty to do before being able to claim they did not "know" something, given that knowledge is a subjective state of mind but can be proven with objective evidence of the circumstances.  This opinion provides some guidance on that issue.

[By the way, before anyone writes to me about this, No, Rule 8.4(g) is not based on knowledge.  8.4(g) is based on a negligence standard. Read it carefully.  So is 3.6.]

UPDATE: 1/18/21:  Louisiana Legal Ethics has a comment on the opinion here.

NY City Bar Association proposes humanitarian exception to rule that bans financial assistance to clients; ABA also considers similar proposal; do they go far enough?

Just over a week ago, the New York City Bar Association proposed an "urgent amendment" to Rule 1.8(e) of the New York Rules of Professional Conduct to provide a “humanitarian exception” while the ABA is also considering a similar proposal.

As you may remember this is the rule that in most jurisdictions bans attorneys from providing financial assistance to clients involved in litigation. It is a rule that has been around forever, but as old as it is, it has also been criticized for not allowing much flexibility.  Some jurisdictions have adopted exceptions for deserving circumstances and in other jurisdictions courts have interpreted the rule to allow humanitarian help, even if the rule does not say that.

So, partly - probably mostly - in response to the health crisis brought about by the Covid-19 pandemic, the New York City Bar Association has made a formal proposal for an amendment to the rule.  You can read the full text of the proposal here.

As the proposal states, the proposed amendment would create a “humanitarian exception” to the current rule, which prohibits lawyers from providing financial assistance to litigation clients. 

This proposal was originally approved back in January 31, 2020 by the NY State Bar Association which then sent its recommendation to the Administrative Board of the Courts for consideration.  The NYCBA is merely now urging the Courts to act quickly to approve the humanitarian exception.

It should be noted that the request makes clear that the need for the humanitarian exception is not limited to the current pandemic.

. . . .Even before the current crisis, lawyers representing indigent clients pro bono have sought to provide financial assistance to clients in order to help them with basic necessities such as food, clothing, and access to healthcare.

      Under the current version of the ethics rules, a lawyer or law office could face disciplinary action for engaging in many of the activities described above.  But that should not be the case.  The humanitarian exception before the Courts is consistent with lawyers’ ethical and moral obligations to “seek improvement of the law; and to promote access to the legal system and the administration of justice.”  Especially now, lawyers should not be limited in their ability to provide assistance to clients who are struggling to make ends meet.

The proposal ends by suggesting that, as an alternative, if the Courts require more time to study the humanitarian exception and decide whether to fully amend Rule 1.8(e), the Courts should consider taking immediate short-term action, such as issuing a temporary order adopting the humanitarian exception until such a time as New York is no longer in a state of emergency that would expressly allow lawyers to provide financial assistance to indigent clients they are representing pro bono if the client has been financially impacted by the COVID-19 pandemic.

I understand the public policy behind rules that ban lawyers from providing financial assistance to clients but I agree that a humanitarian exception is a good idea.  In fact, I have argued that the rule should be amended rather than interpreted judicially to say something it does not say.  The proposal in NY takes the correct approach and it should be approved.

For comments on the issue go to The Law for Lawyers Today, Ethical Grounds, and Louisiana Legal Ethics.

Meanwhile, the ABA's Standing Committees on Ethics and Professional Responsibility and on Legal Aid and Indigent Defense have drafted a proposal to have the ABA House of Delegates approve a similar provision for the Model Rules.  The new exception would allow lawyers providing pro-bono services to provide financial assistance to clients under certain circumstances.  You can read the proposal here.

Note that neither proposal would allow a lawyer to provide financial assistance to a client if the legal services are being provided for a fee.  This means that a lawyer representing a client in financial need on a contingency fee would not be allowed to provide financial assistance.  If the client charged a contingency fee is in as much need as the one who is not charged a fee, why not allow the exception to apply?

Where Avvo Legal Services left off, Basic Counsel picks up

Regular readers of this blog know I have been writing about Avvo Legal Services for a long time, and that I have expressed serious concerns about possible ethics violations in participating in it.  You also know that those concerns were shared by enough jurisdictions out there that Avvo Legal Services stopped providing services and is no longer in business.

But where it left off, a new platform has taken its place.  I have not reviewed the details on how it functions but from what little I have read so far, it is clear they are trying to address the concerns that made participating in Avvo such a risk for lawyers.

The new platform is called Basic Counsel and it seeks to enable attorneys to offer flat-fee, limited scope services, while complaying with every state’s professional conduct rules.

Bob Ambrogi, of Law Sites, describes the services in some detail here.  In a nutshell, consumers search or browse the site for the service they need in the location they need it. When a consumer buys a service, the fee is sent directly to the lawyer and Basic Counsel collects a separate “platform fee” from the consumer of 5 percent of the service cost (with a $10 minimum).  As the lawyer works on the client's case, the platform offers ways for the attorney to keep the client informed on the tasks progress and ways for attorney and client to communicate and share documents.

As Ambrogi points out, with regard to the potential ethics issues raised by a site such as this, there are clearly some differences between Basic Counsel and Avvo Legal Services.  For example, a concern of ethics bodies was that Avvo set the fee and defined the scope of the service. On Basic Counsel, the lawyer sets the fee and defines the scope.  Also, Avvo Legal Services collected the fee from the client and held it until the service was completed, which some said interfered with the lawyer’s duty to safeguard client funds. On Basic Counsel, the funds go directly to the lawyer.

Still another ethics issue for Avvo Legal Services was that it charged the lawyer a marketing fee, which some ethics bodies saw as fee splitting. Basic Counsel charges the client a platform fee, and Marchbanks says the fee is for the direct benefits the client obtains from using the platform — not for anything the attorney provides.

This sounds good, yet it is not clear to me how calling the fee a "platform fee" distinguishes it from Avvo's marketing fee when both are based on a percentage of the amount charged by the attorney.  It was that fact, which does not seem to be different in Basic Counsel's system, that got Avvo in trouble.  On the other hand, the percentage involved in Avvo was higher than the 5 percent charged by Basic Counsel.  In Avvo's case, the percentage also increased as the price for the services increased.

Why can't they make the platform fee a flat fee itself, not dependent on the value of the services?  It seems to me that would be a safer way to deal with this.  Otherwise, the door is still open for the interpretation that the fee constitutes sharing a fee with a non lawyer.

Having said that, as I have written about before many times, it is possible the rules can and will be changed to welcome this type of interaction because of the obvious benefits it provides to consumers.  But until that time, lawyers should be careful not to engage in conduct that has been interpreted to constitute sharing fees with non lawyers in violation of the rules.

Also, it is not clear whether lawyers should be concerned about confidentiality issues when it uses the platform to communicate and share documents with clients and prospective clients.

Avvo fined by NY Attorney General's Office

As you probably know by now, Avvo Legal Services shut down earlier this year, but Avvo itself did not.  The controversial original directory and rating service is still in operation.  I say "controversial" because since early on there have been lawsuits and claims that its ratings system is misleading and that it favors attorneys that pay to join Avvo in order to build their profile.

Now comes news that Avvo has reached an agreement with the New York Attorney General’s Office according to which Avvo will pay a $50,000 fine and will state on its website that attorneys who "claim" their profile (presumably by paying a fee to Avvo) receive higher rankings, among other things.  Also, Avvo will no longer be able to claim that its ratings are “unbiased.”

The ABA Journal online has more on the story here.

Where Avvo Legal Services left off, Text-a-Lawyer may pick up...

Earlier this month I reported that Avvo Legal Services was shutting down; but I also stated that I was sure ALS' demise would not be the last time we hear about client-lawyer matchmaking services.  Where Avvo left off, someone else will pick up...

And now we have a new participant in the market....  Say hello to Text A Lawyer, ("TaL") a service that will provide a platform for prospective clients to ask lawyers questions via text.  For now, the service is available only in Oregon and Washington but its developer plans to expand the service nationwide if he can find investors to help fund the project.  You can read more about Text a Lawyer here.

Aside from the fact that I have serious doubts that texting is a good way to discuss legal matters with a client a lawyer has not even met, the billing process used by TaL has already been criticized as having some of the same problems that got Avvo in trouble in so many jurisdictions.  You can read about it here.  Of course, if jurisdictions decided to change the applicable rules, then things might be different, but until then, the discussion we were having about Avvo Legal Services will continue.

Here is a video that explains the service (taken from its website).  What do you think?

Illinois disciplinary agency publishes comprehensive report recommending changes to the rules and the creation of a new regulatory system to allow lawyers to participate in for profit referral services and other "matching" services

A couple of weeks ago I participated in a panel on the debate over for-profit services that help “match” potential clients with lawyers who are looking for clients such as Avvo Legal Services.  As long time readers of this blog know, this is a topic I have been writing about for some time.  (To see my previous posts on the subject, go here and scroll down.)  To see an article I wrote on the subject go here.  (An update to this article with more recent developments since its publication is forthcoming.)

As I have chronicled here and elsewhere, all of the published opinions, and one proposed opinion have concluded that participating in for profit matching services such as Avvo Legal Services would violate, or likely violate, rules of professional conduct.  Only one proposed opinion has suggested the opposite.  Having said that, it should be noted that the vast majority of jurisdictions have not published any opinions on the subject which may mean that the regulators don’t see the question as a problem that needs to be addressed. Also, California allows for profit referral services, while others may not allow them, but seem to tolerate them.

Given the state of affairs, in some of my writings about this topic I have suggested that Avvo would be better served by seeking to get jurisdictions to change the rules so it would be allowed to do what it wants to do (rather than argue that what it is doing was not against the rules - a battle it seems to be losing.)

Which brings me to today’s news: the day before I spoke at the conference, the Illinois Attorney Registration and Disciplinary Commission (ARDC) published the most comprehensive report on this issue in which it suggests amendments to the Illinois rules of professional conduct in order to allow attorneys’ participation in for-profit referral services such as Avvo Legal Services.

In doing so, it is the first jurisdiction to publish such a recommendation.  (North Carolina has been considering one, but it has not been officially published yet.)

The report, which you can find here, is very comprehensive (124 pages long) and I have not had a chance to read it all, but I looked at some sections and here is a quick review.

First of all, it should be noted that the report is just that; a report.  It is not a final recommendation or a decision of any sort.  And it is subject to changes since the ARDC is now seeking comments on it.  But it does have suggestions on how to approach the issues.

Second, given those suggestions, it is clear that the report sides with what I have called the “Justice gap” theme in the debate.  [See, "Justice Gap vs. Core Values: The Common Themes in the Innovation Debate" 41 Journal of the Legal Profession 1 (2016)]  This refers to the position that we should do what we can to help provide more access to legal services, even if doing so involves taking innovative approaches that seem to go against tradition.  As the report states, “[p]rohibiting lawyers from participating in or sharing fees with for-profit services that refer clients to or match clients with participating lawyers is not a viable approach, because the prohibition would perpetuate the lack of access to the legal marketplace.”

What is new, and may be controversial, in the report is that it does not only suggest changing the rules that apply to lawyers, it suggests creating a regulatory system to apply to the non-lawyers who want to provide for-profit referral services that would require them to meet certain standards and to register with, and be regulated by, the ARDC.  According to the report, this approach would be better to protect clients and the integrity of the legal profession.

The ARDC will accept comments through at least Aug. 31, 2018. Comments should be sent to information@ardc.org.  More here.

As expected, the report has generated some debate already.  Here are some links to comments about it.

Carolyn Elefant writes that the proposal is a very bad idea, but not for the reasons that the jurisdictions that have published opinions have argued.

Law Sites describes the report here.

Legal Profession blog comments here.

Robert Ambrogi comments on the report at Above the Law.

Finally, here is a podcast discussing the report with its author.  (if you can't see the podcast play button below, you can go here to access it.)

NJ Supreme Court rejects request to review opinion on Avvo legal services -- UPDATED

About year ago, the Advisory Committee on Professional Ethics, the Committee on Attorney Advertising, and the Committee on the Unauthorized Practice of Law of the Supreme Court of New Jersey issued an opinion holding, among other things, that it would be unethical for New Jersey lawyers to participate in Avvo Legal Services.

In response, Consumers for a Responsive Legal System, an organization that represents Avvo and other online companies providing lawyer referrals, petitioned the NJ Supreme Court to review the order.  But earlier this month, the court denied the petition.

Responsive Law executive director Tom Gordon said in a statement that, “by summarily declining to review the decision … [the court] has abrogated its responsibility to engage in active supervision of the bar’s anti-competitive conduct.”

This statement is, of course, a reference to the holding of the U.S. Supreme Court's decision in North Carolina State Board of Dental Examiners v. Federal Trade Commision, in which the Court found regulation of a profession is subject to antitrust regulation if it is exercised by market participants unless there is active supervision by a government agency.  In other words, the organization (and Avvo) are gearing up to argue that the system of self regulation used by the legal profession violates antitrust principles.

On the other hand, the NJ State Bar Association issued a statement stating, in part, that “The court’s decision to let stand the joint opinion is an important . . . provides clarity for New Jersey lawyers and protects consumers" and that “[t]he association has increasingly grown concerned about the number of organizations that have sought to open the door to fee sharing, which could interfere with a lawyer’s independent professional judgement, and with the concept of organizations providing legal services when they are not bound by the same ethics rules that guide attorneys.”

I am not sure that both statements are entirely accurate.  The fact that the court denied the petition does not mean it did not exercise supervision.  If it reviewed the petition, it exercised supervision.  Avvo just doesn't like the result.  That does not make the review insufficient; it just makes it unfavorable to its position.

On the other hand, the statement by the Bar Association, is not entirely convincing either.  It suggests that Avvo is "providing legal services," which it does not do.

For more on the court's denial of the petition, go here.

UPDATE 7/6/18:  Lawyer Ethics Alert Blogs has an update here.

Lessons on confidentiality and privilege

Faughnan on Ethics discusses seven lessons learned on confidentiality and privilege out of the "client number three" revelation in the Michael Cohen saga.  The post is short and worth reading as a reminder of some basic principles.

Confidentiality and privilege review - the Hannity and Trump edition

Over at Faughnan on Ethics, Brian Faughnan has published a short but very accurate review of the basics regarding confidentiality and privilege.  You should read it here.

The only thing I would add to what he says is that one way to remember the distinction between confidentiality and privilege is to understand that privilege is a right (of the holder of the privilege) while confidentiality is a duty (of the lawyer.)  Privilege gives the right to prevent disclosure of information; confidentiality imposes an obligation to keep the information secret.

Indiana Supreme Court Disciplinary Commission announces it will begin to publish advisory opinions; and uses first opinion to find that participating in Avvo creates the risk of violating the rules

The Indiana Supreme Court announced today that it will begin offering ethical guidance to Indiana lawyers and judges via the Supreme Court’s Disciplinary Commission.  The opinions, which will be available online at the Indiana Courts Portal (here), will be non-binding and will be issued in response to prospective or hypothetical questions regarding the application of the ethics rules applicable to Indiana judges and lawyers. (By saying "prospective" there, the court means that it will not offer advice on past conduct.)

The commission made the announcement at the same time it release its first opinion which is on a topic I have written about extensively: whether participating in Avvo Legal Services (and other similar services) would constitute a violation of the rules of professional conduct. 

In the opinion, which is only three pages long, the Commission does not answer the question definitively, but concludes that participating in such programs raises the risk of violation of certain rules, including Rules 1.2(c), 5.4(a), 5.4(c), 7.2(b), 7.3(d) and 7.3(e).

The opinion essentially expresses the conclusions of the Commission rather than explain the analysis it used to reach those conclusions.  However, the conclusions are in accord with opinions published so far in other jurisdictions, all of which so far have reached essentially the same conclusions.  North Carolina is considering a proposed opinion that would conclude the opposite but it has not been adopted yet.  If adopted, it would be the first one to find that participating in Avvo Legal Services would not violate the rules, although it has been reported that North Carolina is also considering amending the rules, which suggests that it would violate the current rules. 

For all my posts on Avvo, go here, scroll down and then read up in chronological order... (ie, the most recent posts will appear at the top of the page.)

Legal Talk Network: Podcast on Limited License Legal Technicians

Long time readers of this blog will remember the debate on whether non lawyers should be licensed to provide limited legal services and how Washington state became the first jurisdiction to recognize Limited License Legal Technicians (LLLTs).  See here, here, here and here, for some of my posts on this starting back in 2015.  Go here for a 2017 podcast on the subject.

Last week, the Legal Talk Network published a new podcast on the subject.  You can access it here.

Article on unauthorized practice of law and the possibility of providing access to legal services by recognizing limited legal technicians

Long time readers of this blog are familiar with the on-going debates on whether non lawyers should be allowed to provide some types of legal services.  As you recall, Washington state became the leader in this discussion when it approved rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians, or LLLTs) in 2012.  Other states have had similar discussions.  For some posts on this topic go here, here, here, and here.  And, one controversial part of the discussion is whether the resistance from some lawyers, and bar associations is based on protectionism rather than on a concern for the public.  See here, for example.

A few days ago, the ABA Journal online published a short article on this topic called: "When UPL accusations against lawyer paraprofessionals are just protectionism."  Its conclusion:  "It’s time to embrace alternative delivery by removing barriers masquerading as ethical issues or provider ability accusations and refocus the discussion on client demand, not attorney supply."

Illinois Supreme Court decides People v Cole, holding the Public Defender's office is not a "firm" for purposes of conflicts of interest

Back in September I wrote about a case before the Illinois Supreme Court called People v Cole in which the Public Defender refused to represent a client arguing that accepting the representation would constitute a concurrent conflict of interest.  Go here for that post which includes links to the oral argument.

In my original post, I wrote that based on the position adopted by the US Supreme Court in Holloway v Arkansas, "it would seem like the contempt conviction should be reversed."  But my position assumed that the PD's office would be considered just like any other law firm for purposes of a conflict -- ie, that if one lawyer had a conflict, the conflict would be imputed to other lawyers in the firm.

Well, about a month ago, the Illinois Supreme Court issued its decision and it did not hold as I predicted precisely because it attacked my premise.  It reiterated that in Illinois the PD's office should not be considered to be a law firm for purposes of conflicts of interest. 

You can read the opinion here and a good comment on the case at the Legal Ethics Forum.