Apparently, over 70% of lawyers don't know how to protect confidential information sent over the internet

Since the ABA adopted an amendment to the comment of Model Rule 1.1 (on competence) to explain that being competent requires lawyers to understand "the benefits and risks associated with relevant technology" there has been a lot of discussion on how lawyers can meet the requirement.  I posted a couple of podcasts on the subject (here and here).  Also, as everyone probably knows, another rule specifically requires lawyers to use reasonable care in protecting the confidentiality of client data.

Given these rules, you would assume that lawyers who do not understand the technology they are currently using to transfer client information can be found to be incompetent.

Yet a recent according to the 2015 edition of the annual Legal Technology Survey Report, 71% of lawyers rely only on a confidentiality statement in the body of messages as the security precautions they use when sending confidential or privileged communications to clients via email.

Now think about this.  Is placing a "confidentiality statement" at the end of a message using reasonable care to protect the confidentiality of the information.  By the time the reader gets to the statement, the information has already been disclosed!  As someone else has already pointed out, this is akin to putting a note inside a box that says, “Do not open this box.”

Law Sites and Lawyerist have comments on this here and here.  Getting right to the point, Lawyerist states:  "If you think a confidentiality statement in your email counts as a precaution when you are sending confidential information, you are incompetent. We can argue about whether precautions are necessary in the first place, but there is no argument to be made that words constitute a precaution. Disclaimers (including confidentiality statements) are pointless." Go here for more and links.  Likewise, Professional Liability Matters concludes "you are not cyber ready."

Second Circuit finds prosecutors do not have absolute immunity from suits for misconduct while presenting a case to a grand jury

Last year I reported that a split panel of the Court of Appeals for the Seventh Circuit held in a case called Fields v Wharrie, that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case (as opposed to the trial phase of the case).

Above the Law is now reporting on a recent decision from the Court of Appeals for the Second Circuit holding that because the jury found that the prosecutor presented false evidence to the grand jury that he either knew was false — or was reckless in figuring out the truth of — he had no qualified immunity. Even though a prosecutor can decide to exclude material evidence and can affirmatively ignore exculpatory evidence in a grand jury presentation, the Second Circuit didn’t have trouble finding that the law is pretty clearly settled that a prosecutor can’t actually provide false evidence.

What is interesting in this case is that the court finds that presenting the case to the grand jury falls within the "investigation" phase of the case.  The case is called Morse v. Fusto and you can read it here.

Prosecutorial misconduct in California: an entire DA's office disqualified; and now a statute to encourage more accountability for misconduct

Long time readers of this blog know that I have often commented on the fact that courts do not seem to take prosecutorial misconduct too seriously, and do not do enough to discourage it.  (Click on the label "prosecutors" on the right hand side panel and scroll down for many posts on the subject).

That may change in California, where prosecutors who deliberately withhold evidence from defense attorneys may face harsher punishment under a new law recently signed into law by Gov. Jerry Brown.  Go here for more on the story.

The statute bolsters a judge's ability to disqualify a prosecutor or an entire prosecuting attorney's office. The law also requires the court to report violations to the state bar, which licenses attorneys.
"The bill seems like a step in the right direction," Alex Kozinski, former chief judge of the Ninth Circuit Court of Appeals, told The Huffington Post. "It seems to give a great deal of discretion to trial judges, so its effectiveness will depend on the degree to which those judges are willing to exercise that authority."

But that's the key.  The law itself will be ineffective unless judges are willing to exercise their authority.  In fact, I don't think the law changes much, since it does not give judges any more authority than they already had.  Yet, if all it does is encourage more judges to take action, then the law is, in fact, a step forward.

The law seems to be a reaction to an incident back in March when a state judge removed a full DA's office from the county’s highest-profile murder prosecution in years because misconduct had tainted the entire office’s handling of the case. He reassigned the case to the California attorney general, Kamala Harris, a ruling her office is appealing.  Go here for a New York Times article with more information on that story.

Interesting new study on professionalism

Ethical Systems.org is reporting on a new paper on Professionalism and Moral Behavior which tests the hypothesis that individuals in traditional occupations that strongly identify as professionals (e.g., law, medicine) have a greater likelihood of engaging in unethical behavior. This is an important inquiry in light of ethical failures in companies where lawyers and accountants often act as “gatekeepers” on ethics and compliance issues vis a vis corporate practices.  Examples of incidents in these types of companies abound, with automakers and financial companies featuring prominently on the list.  Go here for more information and links.

On a related matter, here is a comment on the ethical culture that allows conduct as the one recently discovered Volkswagen perpetrated to deceive consumers and authorities.

Chicago State's Attorney refuses to re-open cases found likely to have resulted in wrongful convictions

Chicago's Cook County State's Attorney Anita Alvarez is again under fire.  I say "again" because it is not the first time she has drawn national attention regarding the topic of wrongful convictions.  Go here for a 60 minutes segment on the subject.  Now, Alvarez is facing more criticism for refusing to re-open four cases that were identified in an independent investigation as “more likely than not” resulting in the conviction of innocent men. The investigation had been commissioned by mayor Rahm Emanuel and conducted by former U.S. attorney Scott Lassar.

One interesting aspect of this story is that in many other jurisdictions, Alvarez's conduct could be argued to be a violation of the rules of professional conduct.  Model Rule 3.8 includes the following two sections:

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Of course, if these sections applied, the question would be whether the investigation constitutes "new evidence." Alvarez has argued it does not.

But the question in Illinois is different because these sections were not adopted in Illinois when the state adopted the Model Rules in 2010.  In the end, right now it appears the decision does not depend on anything other than Alvarez's discretion.

Slate has the story here.

On teaching how to represent a client with diminished capacity

The blog IP Ethics & Insights has a monthly feature on "what they don't teach you in law school" which is actually making me feel pretty good about my own teaching because the last two topics it has covered (here and here) are things I actually do teach in my class.  The first one was how to handle client's money, which I will be covering in class today, as a matter of fact.

The second one is how to represent a client with diminished capacity, which I cover as part of the discussion on the basic principles of an attorney-client relationship.  IP Ethics & Insights covers the basics here.  To discuss this material I assign a case called In the Matter of MR, 638 A.2d 1274 (N.J. 1994), which provides a good discussion of the basic principles and a helpful analysis on how to evaluate the proper role of the lawyer and the allocation of the decision making authority within the attorney client relationship. 

If you want more information about what I cover in my class (and how I do it), feel free to visit my course website here.

Florida adopts amendments to clarify issues related to different types of fees

About three weeks ago, the Florida Supreme Court adopted some changes to the state's rules to provide better definitions of some concepts related to fees.  See In re Amendments to Rule Regulating the Fla. Bar 4-1.5—Fees & Costs for Legal Servs., 2015 BL 300826, Fla., No. SC14-2112, 9/17/15.

According to the new text in Rule of Professional Conduct 4-1.5, a “retainer” is a sum paid to guarantee a lawyer's future availability, not payment for past or future legal services, while a “flat fee” is money paid for all legal services to be provided and may be termed “non-refundable.” An “advance fee” is a payment against which the lawyer will bill the client as legal services are provided.  Note that what Florida calls "advance fees" is what most other jurisdictions know as a "security retainer."

In addition to the new text of the rule, Florida amended the rule's comment to make clear that a nonrefundable retainer or nonrefundable flat fee should not be held in trust and that advance fees must be held in trust until earned.  The comment also says that nonrefundable fees, like all fees, are subject to the prohibition against excessive fees.

I find it interesting that the Court decided to allow non refundable flat fees.  Whether flat fees can be non refundable has been the subject of different (and often confusing) approaches by many courts.  See my previous comments on the subject here, here and here.

My own view on this topic is that it is not unreasonable to collect a non refundable flat fee if the task is completed in less time than originally expected.  In such a case, the attorney should be allowed to keep the value of the time saved.  If the task is not completed, however, as when a client dismisses the attorney before the task is completed, the attorney should refund the portion of the fee that is "unearned." 

If that is what Florida has in mind in its new rules, I am OK with it.  

NY opinion on what to do when client files are accidentally destroyed by fire or natural disaster

When a hurricane, fire, or other disaster destroys client files, attorneys face the difficult question of how to communicate the loss to clients. Until recently, most ethics guidance on this topic focused on what lawyers can do ahead of time to reduce the risk of loss. Now, a new ethics opinion by the New York City Bar Association's Committee on Professional Ethics offers guidance on what lawyers should do after client files are inadvertently destroyed. Here's a helpful summary.

Reforms Proposed For New York Bar Disciplinary System

A comprehensive series of reform proposals have been set forth in a recent report evaluating the New York State bar disciplinary system by the Commission on Statewide Attorney Discipline, including. among many others the creation of a more easily accessible, searchable, consumer-friendly, statewide website geared toward the legal consumer.

Also, I am happy to see the report pays particular attention to the need to take prosecutorial misconduct more seriously, a problem I have written about here repeatedly.

The Legal Profession blog has more information here.

Quick review of the basics of handling money

IPethics&Insights has a short post reviewing the basics on handling clients' money, firm bank accounts and the like, here.

Follow up on the story on judge's questioning of prosecutor's exercise of discretion not to charge

Less than a week ago, I wrote about a case in Colorado where a judge ordered a prosecutor to appear for a hearing to explain why the prosecutors' office did not file charges against a sheriff's deputy.  Go here for the details.  Today, the ABAJournal.com is reporting that the judge found the prosecutor should have filed charges (which I assume means the judge found the prosecutor abused his discretion in not doing so).  However, the judge also found that it was too late to do it now because the statute of limitations had run.

Should the judge have imposed sanctions for the abuse of discretion?  I don't think so.  Even though the prosecutor's explanation as to why he decided not to file charges is simply unbelievable (given the evidence available in the videos showing the incident, which is available here), for good or for bad, prosecutorial discretion is a necessary component of our criminal justice system.  

Some commentators go farther, however, and seem to imply that, as long as prosecutors do not violate a rule, no one has the right to criticize their decisions. I disagree. Prosecutors are public officials, and like all public officials, their conduct is open to criticism. 

So, prosecutors are, and should be, subject to criticism for their conduct, but in a case like this one, allowing the judge to impose sanctions would be problematic.

Court finds prosecutor intentionally withheld evidence and lied and yet denies habeas and does not even suggest sanctions

In another example of a court not doing anything to curb prosecutorial misconduct, the ABAJournal.com is reporting on a case from Texas where the court found that a prosecutor intentionally withheld evidence and lied multiple times and yet does nothing about it. The court just said it "did not approve" of the conduct. Wow!, what a bold statement!! You can read the opinion here.
 
Prof. Jonathan Turley did some research and found that the prosecutor in question has a long history of misconduct. Apparently over the years she has already violated 34 rules of professional conduct. You can read the full post on her long history here. Do you think she will be deterred after the most recent case? She hides evidence, lies, gets away with it and the defendant's conviction stands. What do you think?
 

Conviction reversed because prosecutor broke a promise to the defendant

I have posted numerous stories on courts reversing convictions because of the conduct of a prosecutor.  Most of the time, the conduct related to the duty to disclose exculpatory evidence, to comments in front of the jury or to conduct during the trial.  Recently, there were a few cases involving the misuse of powerpoint... 

But I don't remember seeing a case where the conviction was reversed because of a broken promise to the defendant.  The facts of the case are simple.  The prosecutor promised to drop charges of tampering with evidence if the defendant produced the weapon used during a crime.  The defendant produced it, but the prosecutor did not drop the charges.  As a result, the New Mexico Supreme Court vacated the conviction stating that a plea-bargained sentence must be fulfilled by the prosecution, or it will be enforced by the courts."  The case is State of New Mexico v. King, and it is available here.

This makes sense to me but I wonder if the court should have imposed sanctions on the prosecutor.  As I have argued innumerable times before, courts need to do more to curb prosecutorial misconduct.  

South Carolina redefines when the clock starts for purposes of the statute of limitations in a claim for legal malpractice

Last week, the South Carolina Supreme Court overruled prior precedent and held that the statute of limitations in a legal malpractice claim starts to run after the underlying case that gives rise to the malpractice action is resolved on appeal.

In this case, everyone agreed that the statute starts to run when the affected party knew or should have known that it had a legal malpractice claim against its trial counsel.  The question was whether the party 'knows or should have known' at the time they lose the case at the trial level, or at the time the higher court affirmed the decision of the trial level.

Overruling prior precedent on the issue, the court held as follows:  "We overrule Epstein and now hold that the statute of limitations for a legal malpractice action may be tolled until resolution on appeal of the underlying case if the client has not become aware of the injury prior to the decision on appeal. We find this rule comports with the discovery rule and effectuates the purpose of the statute of limitations."

The case is called  Stokes-Craven Holding Corp., v. Scott L. Robinson and Johns on McKenzie & Robinson, LLC, and it is available here. The Legal Profession Blog has more information here. Professional Liability Matters has a comment here.

Ohio Board of Professional Conduct issues opinion on whether lawyers can discuss legal matters with attendees at, or after, seminars

To discuss the formation of an attorney client relationship, I give my students a hypo in which a lawyer gives a presentation at a seminar open to the public and then stays for a reception during which the lawyer answers questions about legal matters from one of the attendees.  Months later, the lawyer gets a motion to disqualify in a case because the person the lawyer had talked to during the reception argues the lawyer had been his lawyer in the past.

I don't remember where I got the hypo originally, but now I know how one jurisdiction has decided to avoid the problem it points to.  As reported in Legal Ethics in Motion, on August 7, 2015, the Ohio Board of Professional Conduct issued Formal Opinion No. 2015-2, in which it concludes that lawyers may present a legal seminar to prospective clients, after which lawyers may provide law firm brochures and information, but cannot answer attendees’ legal questions or personally hand out promotional brochures.  The law firm brochures and information must be left near the exit of the seminar, so that the lawyer, or a third party on the lawyer’s behalf, does not personally distribute the materials to attendees.   Legal Ethics in Motion has more information here.

I understand the spirit of the Opinion's conclusion and agree it might be a good idea for attorneys' to be extra careful when handling questions from the audience after a seminar, but I am not sure the opinion's suggestion (if it were to be considered an actual rule) would survive an attack under the first amendment case law.  The opinion's suggestion is a ban on an attorney's right to talk to people who come to the attorney for guidance.  I am not sure how strong the argument of the state would be that the circumstances implicate the "Ohralik dangers" (the few state interests that have been held to support an argument for state regulation of commercial speech.  On the other hand, if the regulation is seen as imposing merely a delay, or waiting period, then it may be argued that the state can impose it under the reasoning of Florida Bar v. Went for it.... but since most agree Went for it was wrongly decided...  I am skeptical.

In rare questioning of prosecutorial discretion judge orders DA to explain why no charges have been filed against a sheriff's deputy

As you know, prosecutors have vast discretion to decide whether to charge someone with a crime.  Prosecutorial discretion can be a dangerous thing, but it is usually thought to be needed for the proper functioning of our criminal justice system.

As explained in one of the few texts available on prosecutorial ethics, "[t]he decision of what criminal charges to bring against an accused provides perhaps the best example of the vast discretion held by the prosecutor's office.  ... If the prosecutor determines that no charges are warranted, neither a private citizen nor a judge may compel the prosecutor to commence criminal proceedings.  See, R. Michael Cassidy, Prosecutorial Ethics, Ed. ed. 11 (2013).

For this reason, it is surprising to read that a District Judge in Denver has ordered the Denver district attorney to appear in court today to explain why a sheriff’s deputy wasn’t prosecuted for slamming an inmate, who was in handcuffs and waist chains at the time, into a courtroom window frame during a court proceeding.  The incident was caught on camera, as seen below.  As you can see in the video, the defendant is addressing the judge calmly (about something related to the investigation) when the deputy attacks him and starts yelling "don't turn on me!"

According to an article in The Denver Post, here,  the District Attorney has been criticized by various community groups, including the NAACP and Colorado Latino Forum, because he rarely prosecutes police or sheriff's deputies accused of excessive force.

The decision by a judge to question prosecutorial discretion is rare and its implication can be important.  I am very interested to see what comes of this.  

Here is an UPDATE.

Indiana State Bar Association issues new opinion on confidentiality which contradicts the text of the rule it attempts to interpret

The Indiana State Bar Association recently issued a new opinion on confidentiality that concludes that absent client consent an attorney may not report information about suspected child abuse learned during a representation unless the lawyer believes it necessary to prevent reasonably certain death or substantial bodily harm.  You can read the opinion, Op. 2 of 2015, here.  If that was all, this conclusion sounds perfectly consistent with the doctrine of confidentiality.  Unfortunately, it is not.

The question addressed by the opinion relates to the apparent conflict between a duty to report imposed on everyone by a state mandatory reporting statute and the duty of confidentiality which, subject to some exceptions, requires lawyers to keep secret information related to the representation.

As the opinion explains, the mandatory reporting statute in Indiana is broadly phrased, stating that any individual who has reason to believe that a child is a victim of child abuse or neglect is obligated to “immediately make an oral report to (1) the department [of Child Services] or (2) the local law enforcement agency.”  Making no exceptions for lawyers, the statute appears to require lawyers to disclose confidential information.

Given the apparent conflict between statute and the duty of confidentiality, the Legal Ethics Committee of the ISBA attempted to reach a compromise based on the general policy behind the duty of confidentiality and the text of the exception to the duty of confidentiality that allows, but does not require, an attorney to disclose information if needed to prevent substantial bodily harm or reasonably certain death.

Inexplicably, however, the Committee failed to mention the text of Indiana's rule, derived from the ABA's Model Rule 1.6, which clearly states that a lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to comply with other laws.

In other words, according to the text of the Indiana Rules of Professional Conduct itself, a lawyer can disclose confidential information without violating the rules, in order to comply with the mandatory reporting statute.  The committee is simply wrong in finding a conflict between the rules and the statute.  The statute says you must report; the rules say you can. 

In fact, it is the Committee's new interpretation of the rule that is now in conflict with the text of the rule.  The Committee's opinion ignores the clear text of the rule, and, worse, re-writes it with a new interpretation that is not supported by the text. The Committee concludes that in many cases a lawyer can't report, when the rules say the lawyer can.

Now, let me be clear that I am not saying the conclusion suggested by the Committee is not good policy.  What I am saying is that it is not supported by the text of the rules.  If Indiana prefers the Committee's approach to the issue, it should amend the rules to reflect it.

UPDATE 10-7-15: Legal Ethics in Motion has a comment here.

UPDATE 10-12-15:  Professional Responsibility A contemporary approach has a comment here.

UPDATE 10-13-15:  I posted a follow up on the story here.

UPDATE April, 2016:  I wrote an article about this topic and you can read it here.

NPR: New report criticizes the control judges exercise over the federal government's system for defending poor people

According to a story in NPR, a new report by the National Association of Criminal Defense Lawyers concludes that judges have too much power over the federal government's system that provides representation to the poor.  It says that judges who are supposed to be neutral arbiters too often put their fingers on the scales.  You can read the report here.  NPR has the story here, or you can click on the play button below to listen to it.

Bar Standards Board of England and Wales amends rule regarding duty to provide representation

The Bar Standards Board that regulates barristers in England and Wales recently approved a proposal from to change an existing rule which says, in essence, that barristers are required to accept clients who request their services. Barristers are now allowed to refuse to represent clients under certain circumstances. For more information, go here.

The English approach to the duty to provide representation, even as amended recently, is very different than the American approach which is reflected in the ABA Model Rules. The only mandatory ABA Model Rule that contains a “duty to accept” cases is found in ABA Model Rule 6.2 regarding court appointments, and even then, Rule 1.16 recognizes a number of reasons that would justify refusing to accept the appointment.

Kansas Supreme Court holds plaintiff in malpractice case based on representation in criminal matter does not have to show actual innocence

In most jurisdictions, a plaintiff suing an attorney for malpractice arising out of the attorney's representation in a criminal matter has to meet not only the elements of the cause of action but also has to show actual innocence.  This approach has been criticized by many in the literature but it continues to be the majority view.

However, a few days ago, the Kansas Supreme Court joined the minority of jurisdictions where this is no longer the case.  In a case called Mashaney v. Board of Indigents' Defense Services, the Court held that a convicted defendant may be able to pursue a legal malpractice claim against his former attorneys without proof of actual innocence.

The Legal Profession Blog and the Chicago Legal Malpractice Lawyer Blog have more on the story here and here.

Wrong Way To Collect A Fee Or Best Way To Get Disbarred?

I always tell my students that the easiest way to get disbarred is to steal money from clients.  Disbarment is almost guaranteed.  But there are other ways, I guess...  There is a story making its way around the internet about a lawyer who was disbarred for using abusive, insulting and racist language toward a client.  It has been discussed in a few other blogs, but  I liked the title of this one blog post about it: Wrong Way To Collect A Fee Or Best Way To Get Disbarred?

Does defense counsel have a duty to provide evidence, originally produced by the prosecutor, to the prosecutor because the prosecutor lost the original?

Last week I read a story in the ABA Journal.com and I wonder what everyone thinks.  Here are the facts, in a nutshell:

Prosecutor gives defense counsel a copy of a video that supports the prosecution's case.  Because of the video, Prosecutor has a strong case against defendant.  But later, somehow, Prosecutor loses the original of the video and asks the judge to order defense counsel to make a copy available to the prosecution so the prosecution can use it against the defendant.  Defense counsel did not want to provide the video (presumably arguing it was not her job to help the prosecution), and the judge replied counsel's conduct violated "the spirit of" the rule that forbids a lawyer to “unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.”

I am not so sure about this.  I think the spirit of that rule implies the person withholding the information has a duty to disclose it and that the other side does not know it exists.

What do you think?  Should the judge grant the request?  Does defense counsel have an obligation to produce the video, thus helping the prosecution build the case against his or her own client?

Here is the link to the story.

Is it improper to post bail for a client? Alaska Bar Association says not always.

According to the rules in most jurisdictions (based on Model Rule 1.8), it is improper for attorneys to provide financial assistance to clients in litigation other than providing advances on litigation costs.  Is posting bail the equivalent of financial assistance or the equivalent of litigation costs? 

I think bail should not be considered a "litigation cost" and that, therefore, it would be improper for an attorney to post bail for a client.  As explained in a recent ethics opinion from the Alaska Bar Association, "[p]osting bail for a client imposes on the lawyer both contractual and financial constraints which could give rise to a situation in which the lawyer’s interests are materially adverse to the client’s, particularly if the client fails to comply with his or her conditions of release."  Thus, by posting bail, the attorney would be creating a conflict of interest.

However, the same ethics opinion goes on to state that in rare circumstances, attorneys should be allowed to post bail.  The opinion does not go into what those rare circumstances might be other than stating that "a lawyer may post bail for a client where the amount of bail is insignificant enough to not create a material limitation on the lawyer’s ability to represent the client."

I understand the sentiment, but personally I would prefer a more bright line rule. If you think about it, the question presented was whether posting bail creates an impermissible conflict.  In the end, what the opinion seems to say is that posting bail generally creates a conflict, but if it is not an impermissible conflict then it is okay.  This means that when the question arises someone will still have to determine if the conduct creates an impermissible conflict. 

You can read the full opinion (which is very short) here or in the Legal Profession Blog.

Florida Bar rejects an opinion of its Advertising committee and rules that texting is an acceptable form of advertising

Back in May I reported that the Florida Bar Committee on Advertising had found that a law firm’s proposed texting campaign was impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients.

Just a few days ago, however, it was reported that the Bar Board of Governors rejected the opinion and held that, because text messaging is more like targeted mail than in person solicitation, the law firm can send texts to prospective clients as long as the messages comply with the Bar rules on written and email communications.

The report states that the law firm will keep a record of the texts’ content and who received them, and will work with cell phone service providers to ensure that the firm pays for the text if that is something the recipient would pay for under the recipient’s mobile phone plan, but it is not clear whether these practices are now required for any lawyer seeking to use texting as a form of solicitation.

With this decision, Florida joins Ohio in holding that attorneys have the right to use texting to solicit clients, subject to limited regulation by the state.

UPDATE Sept 3, 2015:  The ABA Journal.com has more here.

Court of Appeals for the 5th Circuit blasts prosecutors and affirms order for new trial

Back in September of 2013, I reported that U.S. District Judge Kurt Engelhardt ordered a new trial for officers accused of deadly shootings at the Danziger Bridge after Hurricane Katrina and the subsequent cover-up describing the conduct of Justice Department lawyers as “grotesque.”  See here.

Now comes news that the Court of Appeals for the Fifth Circuit has affirmed the order, echoing the sentiment about the misconduct by prosecutors.  The opinion states that

The government makes no attempt to justify the prosecutors’ ethical lapses, which the court described as having created an “online 21st century carnival atmosphere.” Not only that, but the government inadequately investigated and substantially delayed the ferreting out of information about its in-house contributors to the anonymous postings. The district court also found that cooperating defendants called to testify by the government lied, an FBI agent overstepped, defense witnesses were intimidated from testifying, and inexplicably gross sentencing disparities resulted from the government’s plea bargains and charging practices.

Like the district court, we are well aware of our duty normally to affirm convictions that are tainted only by harmless error. In this extraordinary case, however, harmless error cannot even be evaluated because the full consequences of the federal prosecutors’ misconduct remain uncertain after less-than-definitive DOJ internal investigations. The trial, in any event, was permeated by the cumulative effect of the additional irregularities found by the district court. We conclude that the grant of a new trial was not an abuse of the district court’s discretion.

You can read the full opinion is available here.


Thanks to the Legal Ethics Forum for the update.

Judges behaving badly

Prof. Ronald Rotunda's most recent column at Verdict (Justicia.com) discusses instances of judges behaving badly and embarrassing the courts.

If you haven't seen them already, you may also want to look at his recent columns on moral turpitude, lying during negotiations and on "a most unusual disqualification case."

Short article on competence and technology

As you probably know by now, the ABA Model Rules and the rules in many jurisdictions have been amended to include a comment related to competence as it relates to modern technology.  Paragraph 8 of the comment to Model Rule 1.1 states that "[t]o 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 . . . ."

The adoption of this language in the comment of the Model Rule, generated a good deal of literature and debate.  I have posted a number of comments and podcasts on the subject (from oldest to the most recent: here, here, here, here, here and here.

Now here is the latest one.  IP Ethics and Insights has a short article on "technical competence" covering e-discovery, social media, and cloud computing. 

ABA considers adding anti-bias rule; is it a form of regulating "offensive" speech? Meanwhile, in New York, lawyer gets suspended for expressing offensive speech

Model Rule 8.4(d) (and most, if not all, its state equivalents) considers misconduct to engage in conduct that prejudicial to the administration of justice.  In addition, paragraph 3 of the comment to Model Rule 8.4 states that "[a] lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d)..."

This is an odd comment.  It does not say that expressing bias or prejudice while representing a client is prejudicial to the administration of justice (and thus could subject the lawyer to possible discipline).  It only states that if engaging in that conduct is against the administration of justice then the lawyer violates the ban against conduct that is against the administration of justice.  In other words, the comment really does not add much to the rule.

For this reason, the ABA Standing Committee on Ethics and Professional Responsibility is considering an amendment to the Rule itself.  The proposed amendment (and other materials in support of the proposal) are available here.  The new Rule 8.4(g) would state that it is misconduct to "knowingly harass or discriminate" against persons on the basis of the factors currently listed in the comment.

One concern over adopting "anti-bias" rules is that if the rule is not drafted carefully it may be subject to attack for regulating constitutionally protected speech, even if the state can, and already does, regulate attorneys' speech in other contexts.

Take for example a recent case in New York in which a lawyer was suspended for, among other things, having made “patently offensive racial, ethnic, homophobic, sexist, and other derogatory remarks to attorneys.”   The case is Matter of Teague and it is available here.

The opinion does not really explain the context of the statements other than saying they were uttered "to attorneys." The court suggests that the attorney in question "spewed racist, sexist, homophobic and offensive epithets against other attorneys that any reasonable person, let alone a reasonable attorney, would know are simply unacceptable in public discourse," but it is not clear, when or where, those epithets were uttered.  For example, it is not clear whether the comments were made during a legal proceeding, or during private conversations.

The court concluded that "Respondent’s conduct should not and will not be tolerated."  This conclusion is fine as to the other "conduct" involved in the case (disruptive conduct in hearings) but not necessarily as to the content of the attorney's speech.

Would it be permissible for the state to discipline a lawyer for expressing bias at a social event?  during conversation with a stranger at a bar? during a political rally?  Would it be permissible for a state to discipline an attorney because the attorney is a member of a group that expresses bias against others? or a member of a church that expresses bias against women or other religious groups? 

The broad language used by the court in New York suggests an attorney could be disciplined for offensive language regardless of context.  I am not sure that result would be valid.

Smartly, the proposed language for a new Model Rule 8.4(g) attempts to avoid the problem by trying to limit the rule to "conduct" (as opposed to speech).   However, by using the word "harass," the rule leaves open the possibility of its application to speech.

Other jurisdictions have already adopted anti bias rules. As discussed in the Legal Ethics Forum,  Indiana Rule 8.4(g) states that it is misconduct to "engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors..."

Note how this rule applies to pure speech but limits its applicability to a lawyer's professional capacity. 

In contrast, Illinois Rule 8.4(g) holds it is misconduct to violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer.

This rule limits its application to conduct that constitutes a violation of the law and that reflects adversely on the lawyer's fitness to practice law.

Are these good, or valid, ways to compromise?

Short article on issues related to unauthorized practice of law claims against non lawyer providers of legal services

If I had to pick what is the "hottest" issue in professional responsibility today, I would say it is a collection of issues all related to the notion of unauthorized practice of law, and the "threat" of competition from non lawyers in the provision of legal services.  This includes issues related to DIY legal services, such as those provides by LegalZoom and others, the regulation of non lawyers to provide legal services, artificial intelligence, and so on.  It is no accident that the ABA recently created a commission on the future of the practice of law to study these types of questions.

This is why a recently published comment in the NY Legal Ethics Reporter is so relevant.  It is called Virtually Unclear: Will Legal Tech Companies Bridge Justice Gap or Fall into UPL Abyss? and you can read it here.

Second Circuit on what constitutes "the practice of law" and its implications for issues related to unauthorized practice and more (including artificial intelligence)

The United States Court of Appeals for the Second Circuit recently issued an opinion in an interesting case with important implications for the definition of what it constitutes to practice law, which in turn is important to the broader debates on who can practice law, whether lawyers can practice in jurisdictions where they are not admitted and whether companies that provide legal services by non lawyers are practicing law illegally.

The case involved a lawyer who was hired to conduct document review by a law firm.  The lawyer was licensed in California but not in North Carolina where the document review would take place.  The lawyer, who typically worked 45-55 hours per week, sued because he was not paid overtime as required by the Fair Labor Standards Act.  However, because the FLSA does not apply to the “practice of law,” the court had to determine if he was engaged in the practice of law or was merely performing clerical or other ministerial tasks.

The court held the lawyer was not engaged in the practice of law under the circumstances, which raises the question of whether we can agree on a definition for what constitutes the practice of law.

The best discussion of the case and it implications I have seen is at the Faculty Lounge, here, and it is worth reading (including the comments).  You can read the opinion itself here.

The Legal Profession Blog has a summary here and Above the Law has a short comment here.

What does this have to do with "artificial intelligence," the subject of my two previous posts today?   Two things:  1.  part of the reasoning by the court was based on the argument that what the lawyer was doing could be performed by a machine, implying it did not require any independent professional judgment.  Whether that is true or convincing remains a matter of debate, but that was part of the reasoning.  2.  to the extent that work usually performed by lawyers can be done by a machine, then companies that provide those services either by machines or non lawyers can defend against accusations of violating rules or statutes against the unauthorized practice of law.

Another post on Artificial Intelligence

The Law Technology Today blog has just posted a panel discussion on artificial intelligence (the subject of my most recent post, below).  In it, the panelists discuss five questions about AI and lawyers.  You can read the roundtable discussion here.

Podcast on lawyers and articificial intelligence

Have you seen the newest commercial for LegalZoom in which lawyers say "I am definitely not a robot!"?   This line is a reference to recent debates as to whether lawyers can (or will be) replaced by robots or computers in the future.

Interestingly, some lawyers have been replaced by computers already by a computer program that allows parties to resolve disputes without the need for lawyers, mediators or arbitrators.  But I don't think we need to worry about all lawyers being replaced ....yet, at least.

 In a recent episode of The Kennedy-Mighell Report, the hosts discuss issues related to artificial intelligence and lawyers, try to eparate myth from reality, and ponder whether AI can take over the work of lawyers. They discuss the definition of AI, robotics, Technology Assisted Review, driverless cars, document assembly software, LegalZoom and how lawyers are assisted or threatened by these technologies.

You can access the podcast by clicking on the play button below.  If you don't see the button below, you can go here.

Podcast on the ABA Commission on the Future of Legal Services

As everyone knows, the legal service industry has been changing rapidly. Some jurisdictions allow non lawyers to provide some legal services, companies provide access to legal documents and forms and many potential clients are now looking online for solutions to legal problems.  On the other hand, there is still a large percentage of the population without access to the legal services they need. In order to deal with this emerging legal marketplace shift, American Bar Association President William Hubbard formed the ABA Commission on the Future of Legal Services.

The Digital Edge has posted a podcast discussing the Commission on the Future of Legal Services and its specific plans for looking into solutions.  You can listen to the podcast by pressing on the play button below.  If you can't see the button you can go here.

Court orders new trial, holding former prosecutor, now TV personality engaged in unethical conduct

Jonathan Turley's Res Ipsa Loquitur is reporting that a state court has ordered a new trial for a man convicted in 2007 due to unethical conduct of former prosecutor television personality Kelly Siegler, the star of the reality series Cold Justice on TNT.   The judge detailed an astonishing 36 instances of unethical conduct by Siegler, including withholding exculpatory evidence.  The judge explained that the prosecutor testified at a habeas hearing that favorable evidence did not need to be disclosed if the state did not believe it was true.  This is interesting because if she really believed that then you may be able to argue she did not "knowingly" violate the law.  Yet, you can also argue she is incompetent since that is obviously not the standard.  So, either way, there is basis to argue unethical conduct.

Siegler, not surprisingly, has denied she engaged in misconduct and has asserted she never withheld evidence.  Reportedly, attorneys are now re-investigating all the murder cases she was involved in.

Sadly, this is not the first "TV prosecutor" with a history of allegations of unethical conduct.  The other, of course, is Nancy Grace, who has been accused of being an unethical prosecutor who violated the rights of accused persons.

Court of Appeals for the DC Circuit decides lower courts must address possible conflict of interest before deciding the merits of a case

 The Legal Profession blog is reporting today on an interesting case out of the United States Court of Appeals for the District of Columbia Circuit in which the court held that a trial court erred in granting summary judgment and then holding that a motion to disqualify counsel was moot.  According to the Court's opinion

The district court erred in the sequence in which it rendered its decisions. Because a claim of counsel’s conflict of interest calls into question the integrity of the process in which the allegedly conflicted counsel participates, the court should resolve a motion to disqualify counsel before it turns to the merits of any dispositive motion. That procedure was not followed here. We therefore vacate the district court’s grant of summary judgment and its denial of the motion to disqualify and remand this case for further proceedings. Because the district court will decide in the first instance whether there was a conflict of interest or an appearance of such a conflict in violation of applicable ethics rules and, if so, will determine the appropriate remedy, we offer only limited guidance on the remaining issues the parties briefed and leave to the district court to decide them in view of its ruling on the merits of the motion to disqualify.

I don't have a problem with this, except for the statement "or an appearance of such a conflict."  This appearance of impropriety standard has been abandoned and criticized by other courts; and for good reasons. See here.

For more on the case, go here.

Please help a friend with her research

My colleague Prof. Cynthia Bond is working on a article and she needs your help.  Here is her request:

I am working on an article this summer on uses of popular culture in the law school classroom.  I am defining popular culture broadly to include mass culture texts like movies, TV shows, popular music, images which circulate on the internet, etc, and also any current events that you may reference in the classroom which are not purely legal in nature (i.e. not simply a recent court decision).

To support this article, I am doing a rather unscientific survey to get a sense of what law professors are doing in this area.  If you are a law professor and you use popular culture in your class, I would be most grateful if you could answer this quick, anonymous survey I have put together:

https://www.surveymonkey.com/s/QH3GBZK

Thanks in advance for your time and have a wonderful rest of summer!

Cynthia Bond

The John Marshall Law School

Chicago, IL

Comment on Celgard v. LG Chem, an unusual disqualification case

Over at Justicia.com, Prof. Ronald Rotunda has posted a short comment on Celgard, LLC v. LG Chem, LTD., which he calls "a most unusual lawyer disqualification case" out of the Federal Circuit. 

In Celgard, the Federal Circuit disqualified law firm Jones Day because it was representing Celgard in a patent dispute while it continued to represent Apple in other matters, even though Apple's connection to the case was that it had a business relationship with one of the parties.  

As Prof. Rotunda explains, if one reads Celgard too broadly, it is a potentially dangerous opinion, but there is no need to do that because there is no conflict simply because a law firm represents a client and the result in the case would make it more difficult or more expensive for another client to purchase goods or services.

Review of new law review article on the future (and regulation) of legal services

Professor Laurel Terry has written a short review of Andrew M. Perlman's article Towards the Law of Legal Services, Suffolk University Law School Research Paper No. 15-5 (2015).  The review is available here; the article is available here. 

No, you can't try to get clients by offering them door prizes!

Addressing what in class I call the "chicken dinner" approach to attracting clients, the North Carolina State Bar recently announced 2015 Formal Ethics Opinion 3: Offering Prospective Client a Computer Tablet in Direct Mail Solicitation, which concludes that a lawyer may not offer a computer tablet to a prospective client in a direct mail solicitation letter.

I would have thought this is obvious!  I am surprised a formal opinion was needed to clarify it.  One of the reasons attorneys are not allowed to provide financial assistance to clients (in litigation) is that we don't want to see a market for legal services based on which firm can offer the best dinners...  For this reason, it would seem obvious, to me at least, that it would be improper to offer prizes to prospective clients.

Florida releases electronic communications guidelines

The Florida Bar has released guidelines for electronic communication that consider issues of professionalism and legal ethics that may arise when an attorney uses texting, emailing, a smart phone, and social media in his or her practice. The best practice suggestions range from considering client confidentiality to understanding technology to practical suggestions for responding to an “angry email.”  To read the Florida Bar’s Best Practices for Effective Electronic Communication click here.

E-discovery and the duties of competence and confidentiality

Professional Responsibility: A contemporary approach reports that "[a] recent ethics opinion from the California State Bar Committee on Professional Responsibility, Formal Op. 2015-193, outlines how even an experienced lawyer can breach duties of competence and client confidentiality by engaging in e-discovery without the assistance of someone with e-discovery expertise."  Go here for more.

New ABA formal opinion on duties regarding client files upon termination of the attorney-client relationship

The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued a new opinion on the obligations of lawyers to return file/documents to former clients. Formal Ethics Opinion 471 is available here.  (Get it now, because the ABA archives opinions after some time, after which they are only available to members.)  For more on the opinion go to Professional Liability Matters.

UPDATE 8/16/16:  Lawyers Ethics Alert Blog has a comment on the Opinion here.

Recent opinion of the California State Bar Standing Committee on Professional Responsibility reaffirms old principle: confidentiality can include publicly available information

Professional Responsibility students often have a hard time understanding that the duty of confidentiality includes a duty to keep confidential information that is publicly available.  "If it is publicly available," they often wonder, "there is no confidentiality to protect."  But the general principle has always been that there is a difference between information that is publicly available and information that is "generally known."  If the information is generally known then you can say there is nothing to protect - the information is known already.  But not all publicly available information is generally known.

These principles have always been generally accepted and understood until the Virginia Supreme Court decided Hunter v Virginia in 2013, in which the court surprisingly held otherwise.  But this aspect of the decision has been heavily criticized and, to my knowledge, not followed anywhere else.

To that point, the California State Bar Standing Committee on Professional Responsibility has proposed a new ethics opinion reaffirming the old principle.  The opinion concludes that "[a] lawyer may not disclose his  client’s secrets, which include not only confidential information communicated by the client  to the  lawyer, but also publicly available information  that the  lawyer obtained  during or related to the professional relationship which the client has requested to be  kept  secret or the  disclosure of which  might be embarrassing or detrimental to the client."

The opinion is available here.  The California Bar is asking for comments on the proposed opinion through August 27, 2015.  I think this is the correct view of the issue and should be supported.  To learn how to submit comments go here.

Call for comments on possible changes to DC rules

The District of Columbia Court of Appeals is soliciting public comment on proposed amendments to the D.C. Rules of Professional Conduct that include revisions to Rules 1.10 and 7.1 and comments thereto, and the addition of a new comment to Rule 1.15.  For more information go here.

Association of Professional Responsibiity Lawyers issues report on advertising; calls for changes in the rules

The Association of Professional Responsibility Lawyers (APRL) recently released a comprehensive report in which it argues that “It is long past time for rationality and uniformity to be brought to the regulation of lawyer advertising,” The report, which was authored by the APRL’s Regulation of Lawyer Advertising Committee, is the culmination of a two-year study of the ABA Model Rules of Professional Conduct and various state bar approaches to regulating lawyer advertising.
The report states that the balance between the “core values” of professional responsibility and effective lawyer advertising must be “realigned” to ensure that consumers of legal services have access to accurate information about legal services.  The report also concludes that

Simply stated, current regulations of lawyer advertising are unworkable and fail to achieve their stated objectives.  Survey results show that there are too many state deviations from the ABA Model Rules, actual formal lawyer discipline imposed for advertising violations is rare, lawyers are disheartened by the burden of attempting to determine which regulations apply to the ever-changing technological options for advertising, and consumers of legal services want more, not less, information about legal services.  The basic problem with the current state patchwork of lawyer advertising regulations lies with the increasingly complex array of inconsistent and divergent state rules that fail to deal with evolving technology and innovations in the delivery and marketing of legal service  The state hodge-podge of detailed regulations also present First Amendment and antitrust concerns in restricting the communication of accurate and useful information to consumers of legal services.

 For more on the report go here and here.

Discipline for moral turpitude. What is moral turpitude?

I have commented before how the concept of "moral turpitude" is used inconsistently and how I am still confused as to what it really means.  About two weeks ago, Prof. Ronal Rotunda (Chapman) wrote an excellent short comment on the issue here.  He concludes that "the law may reject “moral turpitude” as a standard too vague to apply, yet some courts continue to apply it, even though those courts have adopted new rules that reject “moral turpitude” as the standard. Go figure." 

Short comment on the NY social media guidelines

In my last two posts I mentioned the recently discussed social media guidelines in New York.  Are this guidelines really needed or are existing rules sufficient?  Do we really need new rules every time new technology becomes available, or at least popular?  These are some of the questions addressed in a short comment in the blog Real Lawyers Have Blogs.

Correction!

Yesterday I reported that the New York State Bar Association was going to discuss whether to adopt new rules on social media later this week.  It turns out that the official agenda for the meeting of the NYSBA states the discussion will be "informational" only.   Apparently there will be no vote on the issue at this point. 

Thanks to Art Garwin, the Director of the ABA Center for Professional Responsibility for letting me know.

New York to consider social media rules

Since the ABA adopted a comment to Model Rule 1.1 on competence as it relates to "technology" there has been a lot of discussion (and literature) on the new meaning of the concept of competence.  See here, here, and here for some podcasts on the subject.

Now, the New York State Bar Association is taking action.  The ABA Journal is reporting today that, later this week, the NYSB house of delegates will discuss whether to adopt new legal ethics rules addressing appropriate social media practices by lawyers. The proposed rules would require lawyers to keep copies of communications with clients on social media, would hold lawyers responsible for correcting inaccurate or misleading information and would allow lawyers to do online research on public portions of social media profiles. 

Applying the gist of the comment added to the Model Rules, the guidelines reportedly state that “[a] lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media.”

Short comment on technology and the practice of law

Here is a short comment on whether using technology can constitute unauthorized practice of law.  It starts "[a]s technology becomes smarter and automation more prevalent, lawyers and bar associations have grappled with the question of whether the use of technology constitutes as the unauthorized practice of law (UPL). Layperson legal advocates and paralegals also are often accused of UPL. So what exactly is UPL? And how do lawyers fight against it?"

Prosecutor disbarred for his role in capital murder conviction of innocent man

It is often said, and I have discussed it here many times, that prosecutors rarely face accountability for prosecutorial misconduct.  Yet, every now and then courts do take action.  In 2013, I wrote a number of posts about the ex-prosecutor (later judge) in Texas who was disbarred for having lied during an investigation on whether he withheld exculpatory evidence in a case that resulted in the conviction of an innocent man.  See here for the most recent post on that case, with links to others.

Similarly, another former Texas prosecutor was disbarred this week for withholding evidence and presenting false evidence in a case that resulted in the conviction of an innocent man.   The defendant in that case served 18 years and twice was scheduled for execution before he was exonerated and released four years ago. Go here for an article with more information.

Florida Supreme Court opinion makes significant revisions to Florida Bar Rules

Lawyer Ethics Alerts Blog has the full story here.

Podcast on the ABA Commission on the Future of Legal Services

The Legal Talk Network has posted a podcast of an interview with Judy Perry Martinez, chair of the ABA Commission on the Future of Legal Services. Martinez discusses specific actions the commission is taking to address the changing landscape of legal services in the US.  You can listen to the podcast by pressing the play button below.  If you don't see the button, you can listen to the podcast by going here.

NY Legal Ethics Reporter

The most recent edition of the New York Legal Ethics Reporter is now available here.  It includes three articles: 

Tinker, Tailor, Lawyer, P.I.: Are Your Workplace Investigations Complying with the Law?

Understanding & Securing the LLP Shield in New York (Part 1)

Summaries of Recent New York Ethics Opinions

DQed on the effect of a disqualification order

When a court orders disqualification, the court obviously has authority to enjoin the attorney or law firm from appearing before the court on behalf of a party.  It is also fairly uncontroversial that the court’s authority extends to so-called ancillary proceedings, such as depositions, in the same matter (even if the judge is not physically present).  But does this disqualification authority extend to bar the lawyer from, for example, counseling (but not appearing for) the client?  I would think so, but apparently there are differences of opinion on this.  DQed has a short comment on the issue here.

Another case on whether the appearance of impropriety can be used as a standard in conflicts cases

A few days ago I wrote about a case in which the Kentucky Supreme Court criticized the use of the notion of "appearance of impropriety" as a standard in conflicts cases.  See here.

In contrast, in a case decided in New York about a month later, the court relied on appearance of impropriety in a routine former client conflict of interest case.  See  Avigdor v. Rosenstock (N.Y. Sup. Ct. May 12, 2015).  The court held that if a party seeking to disqualify a lawyer meets the elements required to support the motion to disqualify, the order to disqualify should be issued in order to "free the former client from any apprehension that matters disclosed to an attorney will subsequently be used against it in related litigation" and to avoid "the appearance of impropriety' on the part of the attorney or the law firm."

Thanks to Bill Freivogel of Freigovel on Conflicts for the update.

Improper comments during trial result in reversal of judgment in civil case

Over the years I have posted lots of links to recent cases in which courts reverse convictions because of improper comments by prosecutors.   This is, unfortunately, not an uncommon occurrence.  Yet, I don't remember a case reversing a judgment in a civil case.  Until now. 

Earlier this month, the appellate division of the New Jersey Superior Court issued an opinion vacating a multi-million dollar judgment because of the cumulative effect of comments made during trial by the plaintiff’s lawyer.  In my opinion, some of the comments would have been acceptable rhetoric, but when put together with those others which crossed the line, the effect was too damaging.   The comments included a statement during the opening statement telling the jury that it was their job to hold the defendant responsible, statements referring to facts not in evidence, expressions of opinion on the defendant's arguments and on defendant's lawyer's questioning of witnesses, attacks on the credibility of the defendant's lawyer and a request on the jury to "send a message" by finding for the plaintiff.  Some of these would have violated Model Rule 3.4, and I know that "send a message" type argument has been held to be improper in another jurisdiction.

The case is called Burkert v. Holcomb Bus Service Inc.

Professional Liability Matters has more here.

Florida Bar Committee on Advertising rules texting is impermissible solicitation

Last year I posted a comment on an Advisory Opinion of the Ohio Board of Commissioners on Grievances and Discipline which states that Ohio lawyers are not prohibited from soliciting potential clients via text messages. See here. 

In contrast to that opinion, Legal Ethics in Motion is reporting that the Florida Bar Committee on Advertising recently held that a law firm’s proposed texting campaign was impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients.  The committee apparently rejected the law firm’s argument that texting is similar to direct mail or email advertising, which is permissible if done in accordance with the Florida Bar’s rules.  Read more here.

UPDATE August 2015:  The Florida Bar Board of Governors rejected the Committee's analysis and recommendation.  Go here for the story.

North Carolina criticized for going after criminal defense attorneys

The Legal Profession blog has two stories on what it calls "the North Carolina State Bar's war on criminal defense counsel."  I have not been following the underlying claims and issues, so I will not comment at this point.  The stories have links to more information.  Go here and here for all the details.

Oregon disbars attorney for conduct as a business partner

A few days ago, I commented on a couple of cases involving conduct outside the practice of law.  See here.  I mentioned the inconsistent decisions in Illinois involving dishonest conduct when not related to the practice of law.

In yet another story related to this question, the Legal Profession blog is reporting on a case from Oregon in which an attorney was disbarred because of conduct as a business partner - not as a lawyer.  The case, again, takes the position that the conduct outside the practice of law shows the attorney is not fit to practice law.  I think this is the proper approach to the question, and the reason the Illinois decision in In re Karavidas was wrong.

Another court abandons the use of "appearance of impropriety" as a disciplinary standard

The Supreme Court of Kentucky, like many other jurisdictions, has used the notion of "appearance of impropriety" as a basis to disqualify attorneys in conflict of interest cases.  Recently, however, the court decided to abandon its adherence to this standard concluding that "in deciding disqualification questions, trial courts should apply the standard that is currently in the Rules of Professional Conduct, which at this time requires a showing of an actual conflict of interest.” The case is called Marcum v. Scorsone (also available here).  The Legal Profession blog has more here.

This is a good result.  I have never liked the use of a standard based on an appearance of impropriety which is such a vague and subjective standard.  Now, if we could only convince courts to stop talking about the "image of the profession"!  But that is another story.

In terms of the appearance of impropriety, now there are essentially three approaches:  some states hold it should not be used as a standard for discipline; others hold that it can be used as a factor when used in addition to other more clearly defined standards; and others still hold it can be used as a factor on its own. 

The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to a standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite.  See Rotunda and Dzienkowski, Professional Responsibility, A Student's Guide (2012-13), p. 20, stating that charges based on allegations of appearance of impropriety have increased at a rapid rate.


 

Review of the anti-contact rules and doctrine, part 2

When can you contact people who are or were represented by counsel?  Last month I posted a link to the first comment on this issue in the New York Legal Ethics Reporter.  The most recent edition of the Reporter is now available and part 2 of the article is here.

Comments on the proposed Supreme Court Ethics Act

There is only one judicial system in the United States that has adopted some version of the Code of Judicial Conduct:  United States Supreme Court, "which has steadfastly resisted promulgating any rules of ethics."  For this reason, a bill has been introduced to require the Supreme Court to adopt written ethics rules, but which does not specify the content of the rules, leaving that to the Court itself.   The proposed bill, which is very short, can be found here.

Prof. Steve Lubet (Northwestern) has posted a comment on the act in both The Faculty Lounge and the Legal Ethics Forum.  The post is the same but each blog has its own discussion in the comments section.  

Recent case discusses what makes screening "ineffective"

Recently DQed discussed a new case in which the court found that screening mechanisms would not be effective in a case involving the hiring of a paralegal from another firm even though the court found that the firm’s screening measures “mirror and, sometimes exceed, screens approved in other cases.”  The case is called Ullman v Denco and it is available here.

Lawywer disbarred for "repugnant pattern of behavior." It was, indeed, repugnant, but was it sanctionable?

The Indiana Supreme Court recently issued an interesting opinion in which it disbarred a lawyer for what it called a “repugnant pattern of behavior.” The behavior was, indeed, repugnant and disturbing, but the opinion raises an interesting question about the standard that should be used to justify the imposition of sanctions for conduct outside the practice of law.

The facts of the case, in a nutshell, are as follows: The lawyer, who was 41 years old and married at the time, began a romantic relationship with his daughter’s college roommate. The roommate ended the relationship in March 2008 and for the next two years the lawyer continued to harass the young woman by e-mail, by phone and in person. The court describes the conduct in some detail and characterizes it as "threatening, abusive, and highly manipulative in nature.”The lawyer also left many “profoundly disturbing,” angry, and insulting voice mail messages for the woman. The lawyer also engaged in what is now known as "revenge porn," by sending nude photos of the woman to others in e-mails, and posting them on adult websites and on his own blog.

In another count of the complaint, the court considered the lawyer's conduct in representing an unrelated client. In that case, the lawyer failed to perform the work for which he was hired. For this particular conduct, the lawyer was charged with violating Indiana Rules of Professional Conduct 1.4(a)(2):Failing to reasonably consult with a client about the means by which the client’s objectives are to be accomplished and1.4(a)(3): Failing to keep a client reasonably informed about the status of a matter.

I have no problem with the conclusion that the lawyer violated those rules and should be disciplined. I also have no problem with the conclusion as another count related to rule 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit,or misrepresentation. This allegation was based on a number of arguments the lawyer made to the disciplinary authority which were found to be "tortured and not credible."

OK, that's all fine, but I am not sure that, if that was all, the lawyer would have been disbarred. It seems to me he was disbarred because of the, admittedly, very disturbing behavior related to his personal relationship and, therefore, which was mostly not related to the practice of law. (I say mostly because the conduct included the lawyer filing a complaint against the woman in question, which can be argued involves the practice of law in the sense that it suggests using the legal process for inappropriate purposes.)

Assuming that I am right in suggesting that the real reason for disbarment was personal (not professional) conduct, here is what I think is the interesting issue: what are the guidelines for discipline for conduct in a lawyer's personal life?

In class, I like to use the case In re Lamberis, in which the Illinois Supreme Court decides that a lawyer can be disciplined for personal conduct only when that conduct somehow relates to the lawyer's competence to practice law. According to this very broad approach, regardless of what the conduct is, or its context, if the disciplinary authority can somehow make the claim that the conduct shows the attorney is not fit to practice law, then the attorney can be disciplined. The conduct in Lamberis was plagiarism for a master's thesis, which the court found displayed dishonesty.

The problem in Illinois, however is that, more recently, in In re Karavidas, the same court decided, without mentioning Lamberis, that a lawyer can only be disciplined for conduct that violates a specific rule of professional conduct. The conduct in Karavidas was misappropriation and mishandling of money in a trust, but not when acting as a lawyer, which the court found did not justify discipline. In my opinion, the cases are not reconcilable. Whether a person can be trusted to manage a trust fund as a fiduciary officer, in my opinion, clearly reflects on an attorney's fitness to practice law since attorneys have a fiduciary duty toward their clients and have clearly defined duties related to trust accounts. Yet, the court did not find the conduct to be sanctionable.

I am not familiar with the law in Indiana, however, so I am only going to raise questions that maybe some of you can comment on.

For the disturbing personal conduct in Keaton the lawyer was charged with violating Indiana Rule 8.4(b): Committingcriminal acts that reflectadversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. The "criminal acts" in question was the conduct the court characterized as "stalking, harassment, and intimidation." The lawyer was at one point arrested and charged for stalking, but the charges were later dropped.

My first question is this: how are "criminal acts" defined by rules of professional conduct? On the one hand, you can argue that the act is not criminal until it is adjudicated as such. In other words, until a court has decided that the lawyer is guilty of criminal conduct (or the lawyer has entered a plea agreement, etc), neither one of which had happened in this case. On the other hand, you can argue that the disciplinary process should not have to wait until a criminal case is decided to determine if the lawyer should be disciplined. In that case, however, wouldn't it be better if the rule eliminated the word "criminal"? Otherwise, what constitutes "criminal" conduct would be decided by the disciplinary board. Is that the law in Indiana?

My second question is: if the conduct is not criminal but the court considers the conduct disturbing enough to warrant concluding the lawyer should not be allowed to practice law, isn't the court adopting the broad view that any conduct in a lawyer's personal life can subject the lawyer to discipline as long as the court sees a connection between the conduct and the lawyer's fitness to practice law?

Personally, I don't have a problem with that standard, just as I did not have a problem with its application in In re Lamberis, but I am not sure that is the prevailing standard. It does not seem to be in Illinois; I wonder if it is in Indiana. And if it is, why didn't the court discuss it?

The case is called In the Matter of R. Mark Keaton and you can find a copy of it here. The Legal Profession blog has more on the case here.