In a many jurisdictions, a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to obtain post conviction relief and prove that he or she was actually innocent of the crime for which they were convicted. This view has been criticized but still appears to be the majority view. Yet, a number of jurisdictions have recently decided otherwise.
Back in 2016, I reported that the Iowa Supreme Court decided actual innocence is no longer required as an element of the cause of action; and I just saw that it recently reaffirmed this new approach in a case decided this year. Here is the story which includes a link to the opinion.
Other jurisdictions that have held innocence is not a requirement include Washington, Kansas (also here) and Idaho.
UPDATE (4/15/2018): Thanks to Patrick J. Olmstead, Jr. who wrote to me to let me know that the Indiana Court of Appeals also abandoned the actual innocence requirement in a case called Beal v. Blinn, 9 N.E.3d 694 (2014).
Sunday, April 15, 2018
Saturday, April 14, 2018
Article on the lack of accountability of prosecutors for misconduct and what can be done about it
I have written often about prosecutorial misconduct and how rare it is to see accountability on the part of prosecutors who engage in it. (Go here and scroll down for my posts on this.) For this reason I recommend you go read an article by United States District Judge Frederic Block of the Eastern District of New York in which he argues it’s time to end the notion of absolute immunity for prosecutors. You should read the full article here.
Simple Justice has a comment on the article here.
Simple Justice has a comment on the article here.
Monday, April 9, 2018
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.)
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.)
Wednesday, April 4, 2018
The ethics of switching firms
This is an important topic since the vast majority of lawyers will not end their careers in the same firm they start it. Here is a recent summary of some of the issues involved...
Saturday, March 31, 2018
Alaska warns about using "cc" an "bcc" when using e-mail.
A recent ethics opinion issued in Alaska concludes that it is not necessarily unethical for attorneys to carbon-copy or blind-copy clients in e-mails exchanged with opposing counsel. However, the ethics opinion warns that the practice of using “cc” or “bcc” could cause lawyers to face disciplinary action—as well as be adverse to their clients’ interests—if the client inadvertently clicks “reply all” and responds with a message that reveals case strategy, negotiation tactics, or other confidential information that should not be disclosed.
It is interesting that the attorney would face disciplinary action for the conduct of the client, but I guess it is the conduct of the lawyer which put the client in the position to make the mistake. There are opinions in other two states that have held the same thing.
For more details on this story, go here. You can read the opinion here.
It is interesting that the attorney would face disciplinary action for the conduct of the client, but I guess it is the conduct of the lawyer which put the client in the position to make the mistake. There are opinions in other two states that have held the same thing.
For more details on this story, go here. You can read the opinion here.
Podcast: Ethical misadventures in E-discovery
The Legal Talk Network has posted a new podcast on ethical issues related to e-discovery. You can listen to it by clicking on the play button below or by going here.
Illinois State Bar Association issues opinion holding it is unethical to use email tracking software.
A recent Professional Conduct Advisory Opinion from the Illinois State Bar Association (Opinion No. 18-01, January 2018) joined at least three other jurisdictions in concluding that the practice of using hidden email tracking software would be unethical for a variety of reasons. (See Alaska Bar Association Ethics Opinion No. 2016-01; New York State Bar Association Ethics Opinion 749; and Pennsylvania Bar Association Formal Opinion 2017-300.)
For more on this story go here, and here. Michael Kennedy, of Ethical Grounds, offers good analysis here.
For more on this story go here, and here. Michael Kennedy, of Ethical Grounds, offers good analysis here.
Tuesday, March 27, 2018
Prosecutors investigate firms that offer to pay cash to plaintiffs
According to a story in the New York Times, published March 19, federal prosecutors are investigating finance companies that provide cash advances to plaintiffs in personal injury and other lawsuits.
Because lawyers are banned from providing financial assistance to clients involved in litigation, it is not uncommon for plaintiffs who need money quickly to either settle their claims for less than their value or to seek help from these companies which offer cash in exchange for repayment out of a future judgment plus interest. And it is that interest that raises concerns because it is often extremely high.
Again, due to the fact that lawyers can't help clients financially, it is also not uncommon for lawyers to suggest to their clients to go to the financing companies for help. In fact, many of the cash-advance firms rely on lawyers to send them financially unsophisticated clients who are waiting to collect on legal settlements. And this is also under investigation.
According to the story, federal prosecutors in Manhattan are seeking information about the business relationships between the cash-advance firms and the trial lawyers who sometimes refer their clients to the firms, apparently looking into whether there were formal financial arrangements between the parties, which could be construed as illegal kickbacks.
Those who defend the financing industry argue that it provides a crucial service, allowing customers to afford basic expenses and to hold out for potentially more attractive settlements instead of automatically accepting defendants’ initial offers.
This is true but it does not necessarily justify the high interests which appear to be abusive. But the industry responds to this argument by saying that the high interests charged are justified because the recovery of the financial advances are not guaranteed. If the plaintiff does not recover a judgment in their favor, or if it is too low, the company does not recover its investment.
In response, a few states have imposed ceilings on the interest rates on settlement advances, which might be a good way to achieve an acceptable compromise. State legislators in New York have introduced similar legislation.
Because lawyers are banned from providing financial assistance to clients involved in litigation, it is not uncommon for plaintiffs who need money quickly to either settle their claims for less than their value or to seek help from these companies which offer cash in exchange for repayment out of a future judgment plus interest. And it is that interest that raises concerns because it is often extremely high.
Again, due to the fact that lawyers can't help clients financially, it is also not uncommon for lawyers to suggest to their clients to go to the financing companies for help. In fact, many of the cash-advance firms rely on lawyers to send them financially unsophisticated clients who are waiting to collect on legal settlements. And this is also under investigation.
According to the story, federal prosecutors in Manhattan are seeking information about the business relationships between the cash-advance firms and the trial lawyers who sometimes refer their clients to the firms, apparently looking into whether there were formal financial arrangements between the parties, which could be construed as illegal kickbacks.
Those who defend the financing industry argue that it provides a crucial service, allowing customers to afford basic expenses and to hold out for potentially more attractive settlements instead of automatically accepting defendants’ initial offers.
This is true but it does not necessarily justify the high interests which appear to be abusive. But the industry responds to this argument by saying that the high interests charged are justified because the recovery of the financial advances are not guaranteed. If the plaintiff does not recover a judgment in their favor, or if it is too low, the company does not recover its investment.
In response, a few states have imposed ceilings on the interest rates on settlement advances, which might be a good way to achieve an acceptable compromise. State legislators in New York have introduced similar legislation.
Monday, March 26, 2018
Omnibus spending bill includes increase in funding for the Legal Services Corp.
Last month, I reported that Trump's budget proposal would eliminate all funding for the Legal Services Corp, the largest single funder of civil legal aid for low-income people.
However, somehow the omnibus spending bill he signed included a funding increase for the LSC which will get an additional $25 million, for a total of $410 million in fiscal 2018.
Read more about it here.
However, somehow the omnibus spending bill he signed included a funding increase for the LSC which will get an additional $25 million, for a total of $410 million in fiscal 2018.
Read more about it here.
ABA Ethics Opinion on confidentiality draws criticism
Back in December I wrote about ABA Standing Committee on Ethics and Professional Responsibility Ethics Opinion No. 479 (here) which discussed, among other things, the distinction between information which is generally known and information that is in the public record. In my opinion, the opinion did not really add anything in terms of substantive law we did not know already, but it did give some guidance on how to determine if information should be considered to be generally known.
A few days ago, the Committee followed up that opinion with another one also on the topic of confidentiality and it has not been well received by some. As one commentator wrote, "Granted, the ABA has a reputation for being a bit behind the curve on technology issues. But in reading this opinion, one has the feeling that someone at the ABA found it in a desk drawer where it had been lost for a decade and decided, “What the heck, let’s publish it.”" See here.
The Law for Lawyers Today has a short comment on the opinion here. So does Ethical Grounds.
Like Opinion No. 479, the new opinion (No. 480), which is available here, does not seem to say anything new at first. Essentially, it holds that lawyers should not disclose confidential information in violation of the rules when blogging. This sounds obvious, but the opinion has been criticized by some because it repeats the notion that information that is in the public record can be confidential and disclosing it can be a violation of the rules (unless allowed by one of the exceptions to the rule).
Again, in terms of substantive law, this is nothing new. But the opinion's conclusion does raise the question of whether it would be a violation of the first amendment for the state to discipline a lawyer for disclosing information that is in the public record.
I know of only one case that has addressed this question directly (Hunter v Virginia State Bar) and it held that disciplining a lawyer for disclosing confidential information in the public record would violate the First Amendment.
Opinion 480 addresses the issue and points out other court decisions that disagree with Hunter as well as other secondary sources that address the issue.
So, go ahead and read the opinion (particularly the section called First Amendment Considerations, and its footnotes) and then read Robert Ambrogi's criticism here or Avvo's Josh King's comments here.
A few days ago, the Committee followed up that opinion with another one also on the topic of confidentiality and it has not been well received by some. As one commentator wrote, "Granted, the ABA has a reputation for being a bit behind the curve on technology issues. But in reading this opinion, one has the feeling that someone at the ABA found it in a desk drawer where it had been lost for a decade and decided, “What the heck, let’s publish it.”" See here.
The Law for Lawyers Today has a short comment on the opinion here. So does Ethical Grounds.
Like Opinion No. 479, the new opinion (No. 480), which is available here, does not seem to say anything new at first. Essentially, it holds that lawyers should not disclose confidential information in violation of the rules when blogging. This sounds obvious, but the opinion has been criticized by some because it repeats the notion that information that is in the public record can be confidential and disclosing it can be a violation of the rules (unless allowed by one of the exceptions to the rule).
Again, in terms of substantive law, this is nothing new. But the opinion's conclusion does raise the question of whether it would be a violation of the first amendment for the state to discipline a lawyer for disclosing information that is in the public record.
I know of only one case that has addressed this question directly (Hunter v Virginia State Bar) and it held that disciplining a lawyer for disclosing confidential information in the public record would violate the First Amendment.
Opinion 480 addresses the issue and points out other court decisions that disagree with Hunter as well as other secondary sources that address the issue.
So, go ahead and read the opinion (particularly the section called First Amendment Considerations, and its footnotes) and then read Robert Ambrogi's criticism here or Avvo's Josh King's comments here.
Florida amends rules regarding lawyer referrals to include online for-profit services
Earlier this month the Florida Supreme Court amended the state’s lawyer referral rules to include for-profit “matching” sites and lawyer directories,, such as Avvo Legal Services, Rocket Lawyer and LegalZoom. You can find the amendments here.
According to the court the amendments create a single regulatory scheme that includes for-profit lawyer referral services, pooled advertising programs, lawyer directories, internet “matching” sites and lead generation services.
However, the rule did not change some of the current requirements to which some of the online services object. For example, the rule still bans fee-sharing with non-lawyers which is the main reason ethics opinions in other jurisdictions have held that participating in services like Avvo Legal Services would be unethical.
Read more about the new rules here.
According to the court the amendments create a single regulatory scheme that includes for-profit lawyer referral services, pooled advertising programs, lawyer directories, internet “matching” sites and lead generation services.
However, the rule did not change some of the current requirements to which some of the online services object. For example, the rule still bans fee-sharing with non-lawyers which is the main reason ethics opinions in other jurisdictions have held that participating in services like Avvo Legal Services would be unethical.
Read more about the new rules here.
Friday, March 23, 2018
How not to practice law: show up to court with a .337 blood alcohol level
Yesterday I read a story about a man who was arrested for driving under the influence with a .316 alcohol level, when the legal limit is .08 and .350 is considered "lethal." I thought that someone could function with a .316 level was incredible!
Yet, today the Legal Profession blog is reporting that ... well, take a look:
Yet, today the Legal Profession blog is reporting that ... well, take a look:
Gray represented his client in a civil case in Jefferson Circuit Court, ... On the last day of trial, Gray delivered an hour-long closing argument. Gray's demeanor and performance during the argument concerned the trial judge, and after the jury returned its verdict against Gray's client, the trial judge asked Gray to submit to a breathalyzer test. Gray acquiesced and blew a .337 on the breathalyzer. Emergency medical services were called and Gray was taken to a local hospital by ambulance.Oh, and, by the way, the lawyer was suspended from the practice of law too.
Thursday, March 22, 2018
Podcast: Ethically problematic marketing
Lawyerist and The Legal Talk Network has posted a podcast on ethically problematic marketing strategies. You can listen to it by clicking on the play button below or by going here.
Wednesday, March 21, 2018
Florida adopts new rules related to referral services
The Florida Supreme Court has adopted new rules regarding lawyer referral services concluding that the amendments "are necessary to ensure that all services that connect prospective clients to lawyers conform to the Rules Regulating the Florida Bar and operate in a manner consistent with the public interest."
On the other hand, the Court stated that the amendments do not resolve the Court's concern "with how some lawyer referral services operate in Florida, especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident," adding that "[t]he findings of the Special Committee on this matter are troubling and we continue to believe additional measures are needed to ensure the public is not exposed to harm."
To this end, the Court directed the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s recommendation.
You can read the adopted amendments here. You can find more information on the adopted changes here.
On the other hand, the Court stated that the amendments do not resolve the Court's concern "with how some lawyer referral services operate in Florida, especially those that refer clients to other professionals and occupational disciplines for services arising from the same incident," adding that "[t]he findings of the Special Committee on this matter are troubling and we continue to believe additional measures are needed to ensure the public is not exposed to harm."
To this end, the Court directed the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s recommendation.
You can read the adopted amendments here. You can find more information on the adopted changes here.
Sunday, March 4, 2018
Office Depot now offers legal services..... Or does it?
A few weeks ago I was alerted that Office Depot had begun to advertise a new legal services plan. You can find the announcement here. I clicked on the announcement and it took me to a page explaining the services. I saved it so I could go back to explore it when I had time so I could comment on it here.
It took me until today to find the time and when I went back to the page to explore it more carefully I was surprised to find a page that says "this page does not exist."
Maybe the page is just off today. However, I also noticed that the service is no longer listed in the available services so maybe something happened that made Office Depot or BizBox decide not to offer the service after all.
I just don't know; and I am very curious to find out what happened. If anyone has more information on this please send it my way!
Here is a copy of the original page:
It took me until today to find the time and when I went back to the page to explore it more carefully I was surprised to find a page that says "this page does not exist."
Maybe the page is just off today. However, I also noticed that the service is no longer listed in the available services so maybe something happened that made Office Depot or BizBox decide not to offer the service after all.
I just don't know; and I am very curious to find out what happened. If anyone has more information on this please send it my way!
Here is a copy of the original page:
Five questions on technology competence
As you probably know, more than half the states have adopted the ABA Model Rules' suggestion that lawyers must be knowledgeable about "technology" as part of the duty of competence. Go here and scroll down for multiple stories on the subject.
To help educate lawyers about technology, here is a short article called "Five Questions to Test Your Understanding of the Ethics of Technology."
To help educate lawyers about technology, here is a short article called "Five Questions to Test Your Understanding of the Ethics of Technology."
Article on using digital assistants in the practice of law
Here is an interesting article on the use of digital assistants like Amazon's Alexa, Microsoft's Cortana and Google Voice in the practice of law, including a discussion of issues related to confidentiality.
How not to practice law: several updates
Here are a few new entries to the ongoing series "how not to practice law."
An attorney in Colorado got a three year suspension for lying to the court. He claiming he had cancer in response to motions to show cause. Story here.
A lawyer in Florida was disbarred for "obnoxious conduct." Apparently, the Florida Supreme Court has drawn a line in the sand: you can be “professional and aggressive” but not “obnoxious.” The conduct included loudly kicking a table and muttering “lie, lie, lie” during court proceedings, going on a "tirade" during a deposition and insulting opposing counsel. The case was reported here, here, here and here.
A Pennsylvania man has sued a Willig Williams & Davidson attorney representing his wife in a divorce proceeding alleging the attorney knocked him to the ground during a break in a hearing causing him permanent injury. The case is Charles Elliott v. Scott Orloff et al., case number 171201130, in the Court of Common Pleas of Philadelphia County.
In re: Encore Prop. Mgmt. of W. New York, LLC, Debtor., No. BR 18-20014-PRW, 2018 WL 941647, at *3 (Bankr. W.D.N.Y. Feb. 16, 2018) in which the court actually stated "A finer example of what not to do as a litigator would be hard to find." (Thanks to Roy Simon for alerting me to these last two.)
A lawyer in Kentucky created a few fake bar associations so he could then claim his referral service was not in violation of a rule that limits referral services to those sanctioned by the Bar in the state. You can find more on the story here, and here. Is this unethical or a smart way to take advantage of a loophole?
And my favorite this month: how not to practice law: send a message to Bar officials telling them to go fuck themselves! The Legal Profession Blog has the story here, which raises another interesting question in this case: whether the sanction was appropriate. The lawyer was only issued a reprimand. Should the sanction have been worse?
An attorney in Colorado got a three year suspension for lying to the court. He claiming he had cancer in response to motions to show cause. Story here.
A lawyer in Florida was disbarred for "obnoxious conduct." Apparently, the Florida Supreme Court has drawn a line in the sand: you can be “professional and aggressive” but not “obnoxious.” The conduct included loudly kicking a table and muttering “lie, lie, lie” during court proceedings, going on a "tirade" during a deposition and insulting opposing counsel. The case was reported here, here, here and here.
A Pennsylvania man has sued a Willig Williams & Davidson attorney representing his wife in a divorce proceeding alleging the attorney knocked him to the ground during a break in a hearing causing him permanent injury. The case is Charles Elliott v. Scott Orloff et al., case number 171201130, in the Court of Common Pleas of Philadelphia County.
In re: Encore Prop. Mgmt. of W. New York, LLC, Debtor., No. BR 18-20014-PRW, 2018 WL 941647, at *3 (Bankr. W.D.N.Y. Feb. 16, 2018) in which the court actually stated "A finer example of what not to do as a litigator would be hard to find." (Thanks to Roy Simon for alerting me to these last two.)
A lawyer in Kentucky created a few fake bar associations so he could then claim his referral service was not in violation of a rule that limits referral services to those sanctioned by the Bar in the state. You can find more on the story here, and here. Is this unethical or a smart way to take advantage of a loophole?
And my favorite this month: how not to practice law: send a message to Bar officials telling them to go fuck themselves! The Legal Profession Blog has the story here, which raises another interesting question in this case: whether the sanction was appropriate. The lawyer was only issued a reprimand. Should the sanction have been worse?
Sunday, February 25, 2018
3M settles case filed by state of Minnesota
3M has agreed to pay $850 million to settle a long-standing lawsuit filed by Minnesota, over the company’s disposal of perfluorochemicals used in Scotchgard and other products, which the state says polluted drinking water sources. Go here for more details.
Why is this relevant? Because this was the case in which the law firm Covington & Burling was disqualified for allegedly violating the "hot potato doctrine." Go here, here, here and here for my original posts on the case. The disqualification order was later remanded for further proceedings.
Why is this relevant? Because this was the case in which the law firm Covington & Burling was disqualified for allegedly violating the "hot potato doctrine." Go here, here, here and here for my original posts on the case. The disqualification order was later remanded for further proceedings.
Saturday, February 24, 2018
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.
Last week, the Legal Talk Network published a new podcast on the subject. You can access it here.
Comments on proposed changes to the ABA rules on advertising
As you know, the ABA is considering a series of changes to some of its rules related to advertising. As I have commented before, the changes are somewhat controversial, but mostly because many think they are not bold enough. Go here for a summary of the issues.
2Civility, a website of The Illinois Supreme Court Commission on Professionalism, has published a short comment on the proposed changes that includes interesting comments from readers.
Also, Avvo's Lawyernomics has published (here) a comment called "Why the ABA’s Proposed Attorney Advertising Rule Changes Don’t Go Nearly Far Enough."
Avvo's comment is interesting but not quite well reasoned. One of its main points is that states should eliminate rule 7.2 (and some others) entirely because the only rule needed is 7.1 which bans the publication of false or misleading advertising.
First of all, if we are going to eliminate something entirely, I'd say let's get rid of the notion of "misleading." But that aside, the problem with arguing that everything can be "dealt with" by looking at the principle in rule 7.1 is that that principle is different than the one expressed in rule 7.2.
The principle in 7.1 is that the state has the authority to regulate speech that is not protected by the First Amendment. Evidently, if the speech is not protected, the state can regulate it. The principle in rule 7.2 is that, in addition to that, under certain circumstances the state can also regulate speech that is protected.
Opponents of the regulation of advertising can argue that the state should not engage in the regulation of protected speech or that the regulation should be more limited than it is now. That is a valid argument over which reasonable people can disagree. But the basis of the argument is a debate on whether regulation is a good idea as a policy matter; not that rule 7.1 already covers it.
2Civility, a website of The Illinois Supreme Court Commission on Professionalism, has published a short comment on the proposed changes that includes interesting comments from readers.
Also, Avvo's Lawyernomics has published (here) a comment called "Why the ABA’s Proposed Attorney Advertising Rule Changes Don’t Go Nearly Far Enough."
Avvo's comment is interesting but not quite well reasoned. One of its main points is that states should eliminate rule 7.2 (and some others) entirely because the only rule needed is 7.1 which bans the publication of false or misleading advertising.
First of all, if we are going to eliminate something entirely, I'd say let's get rid of the notion of "misleading." But that aside, the problem with arguing that everything can be "dealt with" by looking at the principle in rule 7.1 is that that principle is different than the one expressed in rule 7.2.
The principle in 7.1 is that the state has the authority to regulate speech that is not protected by the First Amendment. Evidently, if the speech is not protected, the state can regulate it. The principle in rule 7.2 is that, in addition to that, under certain circumstances the state can also regulate speech that is protected.
Opponents of the regulation of advertising can argue that the state should not engage in the regulation of protected speech or that the regulation should be more limited than it is now. That is a valid argument over which reasonable people can disagree. But the basis of the argument is a debate on whether regulation is a good idea as a policy matter; not that rule 7.1 already covers it.
Comment on ABA Opinion on whether a judge can independently research adjudicative facts on the internet
Professional Responsibility: A Contemporary Approach has published a short comment on the ABA's Formal Opinion 478 on the restrictions imposed by the 2007 ABA Model Code of Judicial Conduct on a judge searching the internet for information helpful in deciding a case. The opinion concludes that Rule 2.9(C) of the Model Code prohibits a judge from researching adjudicative facts on the internet unless a fact is subject to judicial notice. You can read the comment here. You can read the opinion here.
Sunday, February 18, 2018
Trump's budget proposal would eliiminate all funding for the largest single funder of civil legal aid for low-income people
At a time when the legal profession continues to debate how to best provide access to legal services for those who can't afford it, the Trump's administration budget proposal is trying once again to eliminate funding for the Legal Services Corp., the largest single funder of civil legal aid for low-income people.
ABA President Hilarie Bass issued a statement Friday saying the administration’s latest proposal to defund the LSC “is unwarranted and should be dead on arrival.”
The president also sought to cut all funds to the LSC last year but Congress kept the LSC budget at last year’s level, and at one point added $15 million to fund legal services for victims of natural disasters.
Go to the ABA Journal for more details.
ABA President Hilarie Bass issued a statement Friday saying the administration’s latest proposal to defund the LSC “is unwarranted and should be dead on arrival.”
The president also sought to cut all funds to the LSC last year but Congress kept the LSC budget at last year’s level, and at one point added $15 million to fund legal services for victims of natural disasters.
Go to the ABA Journal for more details.
Monday, February 5, 2018
Update on the Florida case challenging the notion of unathorized practice of law (and maybe the state's authority to regulate the practice of law)
Last month I posted that one of the important stories to watch in 2018 was going to be an $11 million antitrust lawsuit against the Florida Bar filed by an online service that helps people resolve claims related to driving tickets challenging the state of Florida's authority to regulate the practice of law.
In the most recent developlemtn in the case, the Florida Supreme Court has issued an order directing the company - TIKD - to file a response to the Florida Bar's allegations that TIKD is practicing law without a license, and to show cause why the court should not issue an injunction blocking its services.
In the meantime, a state senator presented an amendment to a bill that would allow TIKD to conduct its business but later withdrew it after lawyers raised concerns about whether the company was practicing law without a license.
Faughnan on Ethics has a comment here.
Thanks to Roy Simon for the updates!
In the most recent developlemtn in the case, the Florida Supreme Court has issued an order directing the company - TIKD - to file a response to the Florida Bar's allegations that TIKD is practicing law without a license, and to show cause why the court should not issue an injunction blocking its services.
In the meantime, a state senator presented an amendment to a bill that would allow TIKD to conduct its business but later withdrew it after lawyers raised concerns about whether the company was practicing law without a license.
Faughnan on Ethics has a comment here.
Thanks to Roy Simon for the updates!
Saturday, February 3, 2018
Short summary of the ABA proposed changes to advertising rules (and some questions left unanswered)
Over at The Law for Lawyers Today, Karen Rubin has posted a short but informative comment on the ABA proposed changes to the Model Rules on advertising and solicitation. You should go take a look at it here.
As she explains, the proposed changes are not that bold and do leave some of the most controversial issues untouched. However, I do like the proposal that eases the approach to the ban on advertising as "specializing in" a particular area of law which I have criticized many times in the past. (See here, and here for example.)
As she explains, the proposed changes are not that bold and do leave some of the most controversial issues untouched. However, I do like the proposal that eases the approach to the ban on advertising as "specializing in" a particular area of law which I have criticized many times in the past. (See here, and here for example.)
Tuesday, January 30, 2018
Reminder: You can comment on the ABA's proposed amendments to rules regarding advertising
The Standing Committee on Ethics and Professional Responsibility has released a Working Draft of proposed amendments to the ABA Model Rules of Professional Conduct on lawyer advertising. More information about the Working Draft is available here. The Ethics Committee wants to hear your opinion on its draft and your ideas for making it better. You have two ways to communicate your thoughts and suggestions: (1) attend the February 2, 2018, public forum in Vancouver, Canada held in conjunction with the ABA MidYear Meeting and (2) provide written comment to the Committee through its email address modelruleamend@americanbar.org. The Center’s Ethics Department has compiled a summary of the proposed amendments. It is available here.
UPDATE (1/20/18): Legal Ethics in Motion has an update a lots of links to more information here.
UPDATE (1/20/18): Legal Ethics in Motion has an update a lots of links to more information here.
Monday, January 29, 2018
9th Circuit finds juvenile facing deportation has no right to free lawyer
The ABA Journal is reporting that a federal appeals court ruled today that a minor has no right to a court-appointed lawyer in immigration proceedings. Go here for the full story.
UPDATE (1/20/18): Jurist has more on the story and links to the decision here.
UPDATE (1/20/18): Jurist has more on the story and links to the decision here.
Friday, January 26, 2018
US Supreme Court hears oral argument in McCoy v Louisiana; Justice Sotomayor compares it to an ethics class in law school -- UPDATED
Back in October I wrote a comment on McCoy v. Louisiana, a case before the US Supreme Court in which a Louisiana death row inmate is arguing ineffective assistance of counsel because his lawyer conceded his guilt over the defendant's objection. During the argument Justice Sotomayor said the case sounded like a law school hypo. And she is right (for all the reasons I mentioned in my comment). Also, according to the ABA Journal, Justice Neil Gorsuch was among the justices who appeared to see merit in the defendant's case.
The ABA filed an amicus brief (see here).
The oral argument is available here.
Bloonberg Law has a story on the case here.
The New York Times has an article on the case here.
The SCotUS blog has a summary and analysis of the case here.
NPR's coverage of the case is here.
Above the Law has a post on the case here.
I am very interested in how the Court will decide this case and, particularly, how it will treat Florida v. Nixon. (Again, see my comment above).
UPDATE 1/26/18: Ethical Grounds has a comment on the case here.
The ABA filed an amicus brief (see here).
The oral argument is available here.
Bloonberg Law has a story on the case here.
The New York Times has an article on the case here.
The SCotUS blog has a summary and analysis of the case here.
NPR's coverage of the case is here.
Above the Law has a post on the case here.
I am very interested in how the Court will decide this case and, particularly, how it will treat Florida v. Nixon. (Again, see my comment above).
UPDATE 1/26/18: Ethical Grounds has a comment on the case here.
Wednesday, January 24, 2018
Why has the legal system failed to keep pace with technology?
If you think that the legal system failed to keep pace with technology, you may wonder why that is the case. Robert Ambrogi, who writes and speaks frequently on issues related to technology offers his answer here.
High profile case dismissed because of prosecutorial misconduct
Earlier this month I heard that the court dismissed the case against rancher Cliven Bundy, two of his sons and a militia commander from Montana (arising out of an armed standoff against federal agents in Nevada). However, I did not noticed until recently that in dismissing the case, the Chief U.S. District Judge chastised the federal government for what she characterized as a “reckless disregard to fulfill its constitutional duties.”
The ruling was prompted by the discovery of more 3,000 pages of evidence federal prosecutors failed to turn over to defense attorneys. You can read more about the case here and here.
The ruling was prompted by the discovery of more 3,000 pages of evidence federal prosecutors failed to turn over to defense attorneys. You can read more about the case here and here.
May Judges be "Facebook friends" with lawyers? Should Judges be allowed to preside over cases litigated by the judge's "Facebook friends"?
Because two of the state’s appellate districts took opposing views on the issue, the Florida Supreme Court has agreed to decide whether a judge may be a "Facebook friend" of a lawyer who appears before the judge.
In a short Op-ed piece in the Orlando Sentinel, my friend and colleague Ray McKoski takes on the issue and argues that imposing a per se rule against virtual friendships would be an overreaction given the fact that judges preside over lawyers who they know and are friends with outside of Facebook. As he correctly states:
In a short Op-ed piece in the Orlando Sentinel, my friend and colleague Ray McKoski takes on the issue and argues that imposing a per se rule against virtual friendships would be an overreaction given the fact that judges preside over lawyers who they know and are friends with outside of Facebook. As he correctly states:
No ethics rule bars a lawyer from appearing before a judge when the two share an actual friendship. Courts nationwide, including Florida courts, recognize that a judge’s real friendship with an attorney does not disqualify a judge from a case involving the lawyer. The rule permitting judges to preside over cases involving real friends simply cannot be reconciled with the proposition that virtual friendships require a judge’s automatic disqualification.I tend to agree. Whether the relationship between a lawyer and a judge is so close as to call the judge’s impartiality into question should be decided on a case by case basis.
Monday, January 15, 2018
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."
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."
Thursday, January 11, 2018
Avvo is acquired by Legal Brands, a company that already owns a series of law related websites -- UPDATED
Breaking news: Avvo has been acquired by Internet Brands which already owns legal sites Nolo, Martindale-Hubbell, Ngage and Total Attorneys. You can read the first announcement here. Also, go here for comments by Avvo's CEO and here for more information.
This came as a surprise and I have not seen any information on the deal other than what is being reported in the links above. As of now, it seems Avvo's services will remain unchanged, but it will be interesting to see if the new company eventually introduces changes in response to the continuing resistance by many jurisdictions to allowing attorneys to participate in Avvo's "Avvo Legal Services." For more on that controversy go here and scroll down.
UPDATE (1/24/18): Now that Avvo has been acquired, what should we expect? Above the Law has a short article on that.
This came as a surprise and I have not seen any information on the deal other than what is being reported in the links above. As of now, it seems Avvo's services will remain unchanged, but it will be interesting to see if the new company eventually introduces changes in response to the continuing resistance by many jurisdictions to allowing attorneys to participate in Avvo's "Avvo Legal Services." For more on that controversy go here and scroll down.
UPDATE (1/24/18): Now that Avvo has been acquired, what should we expect? Above the Law has a short article on that.
Wednesday, January 10, 2018
Vermont adopts rule regulating sexual relations with clients
Ethical Grounds is reporting that the Vermont Supreme Court recently adopted a version of Model Rule 1.8(j) which regulates sexual relations with clients. The model rule has been in place for quite some time, and quite frankly I am surprised to hear it had not been adopted sooner.
Florida Supreme Court adopts changes to the Rules
The Legal Profession Blog is reporting that the Florida Supreme Court has adopted some significant changes to its procedural and substantive rules governing lawyers but declined to act on a proposal to amend the rule on Potentially Misleading Advertisements. Go here for details.
UPDATE (1/10/18): The Lawyer Ethics Alerts Blog has more details on the court's rejection of the proposal related to language expressing that a lawyer specializes or is an expert.
UPDATE (1/10/18): The Lawyer Ethics Alerts Blog has more details on the court's rejection of the proposal related to language expressing that a lawyer specializes or is an expert.
Stories to look out for in 2018
The Law For Lawyers Today has a short post on a few of the top stories to watch out for in 2018 and a couple of them are things I have been commenting about for a while: the issues related to participating in services like Avvo Legal Services and whether states will adopt Model Rule 8.4(g). On this last topic, I posted recently here and here.
Another important story relates to the claim that an online service that claims to help people resolve claims related to driving tickets is engaged in the unauthorized practice of law in Florida. This, I think, will be a big story this year because it may have significant implications on the notion of what constitutes the practice of law, and the authority of a state to regulate that practice. Bloomberg has a very good summary of the issues related to that story here.
Another important story relates to the claim that an online service that claims to help people resolve claims related to driving tickets is engaged in the unauthorized practice of law in Florida. This, I think, will be a big story this year because it may have significant implications on the notion of what constitutes the practice of law, and the authority of a state to regulate that practice. Bloomberg has a very good summary of the issues related to that story here.
Wednesday, January 3, 2018
Nevada retracts its petition to adopt Model Rule 8.4(g)
In my most recent post, I wrote that the Tennessee Bar Association has asked the state's supreme court to adopt an amended version of ABA Model Rule 8.4(g). In that post, I mentioned that at one point, it looked like Nevada would be the first state to adopt the rule, but that I had not seen news that it had.
One of my readers then sent me a message with an update from Nevada. A few months ago, in reaction to the opposition to the proposed new rule, the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” The Board’s request was granted September 25, 2017.
One of my readers then sent me a message with an update from Nevada. A few months ago, in reaction to the opposition to the proposed new rule, the Nevada Bar backed off its rule change petition in a letter to the state high court declaring “it prudent to retract.” The Board’s request was granted September 25, 2017.
Sunday, December 31, 2017
Tennessee Bar Association asks State Supreme Court to adopt Model Rule 8.4(g)
One of the top Professional Responsibility stories of 2016 was the ABA's decision to amend Model Rule 8.4 to add that under certain circumstances discrimination and harassment constitutes misconduct subject to discipline. There was a lot of opposition to the amendment, mostly by religious organizations, but also a lot of support for it and its adoption was celebrated by many.
I wrote about my concerns with the rule several times and others also published similar arguments on the possible unconstitutionality of the rule (at least as originally proposed).
More than a year since its approval, however, according to the ABA webstite, only one state (Vermont) has adopted the new rule. Earlier this year, I reported that Nevada might adopt the rule, but to my knowledge it has not happened yet. (If it did, please let me know.)
Now comes news that last month, after suggesting some changes to the language of the Model Rule and its comment, the Tennessee Bar Association has asked the Tennessee Supreme Court to adopt the new rule. Go here for some details.
Interestingly, one of the changes proposed is designed to address the argument that the Model Rule may violate the First Amendment (at least in its application). For this reason, the Association added a Comment not found in the Model Rule, that provides: "Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment. Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section."
This is a good addition to the comment but I am not sure it addresses all the concerns, particularly if the final comment also includes the current language in the Model Rule which states that "[c]onduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law."
Does the added language eliminate the problems described by UCLA professor Eugene Volokh? What do you think?
I wrote about my concerns with the rule several times and others also published similar arguments on the possible unconstitutionality of the rule (at least as originally proposed).
More than a year since its approval, however, according to the ABA webstite, only one state (Vermont) has adopted the new rule. Earlier this year, I reported that Nevada might adopt the rule, but to my knowledge it has not happened yet. (If it did, please let me know.)
Now comes news that last month, after suggesting some changes to the language of the Model Rule and its comment, the Tennessee Bar Association has asked the Tennessee Supreme Court to adopt the new rule. Go here for some details.
Interestingly, one of the changes proposed is designed to address the argument that the Model Rule may violate the First Amendment (at least in its application). For this reason, the Association added a Comment not found in the Model Rule, that provides: "Section (g) does not restrict any speech or conduct not related to the practice of law, including speech or conduct protected by the First Amendment. Thus, a lawyer’s speech or conduct unrelated to the practice of law cannot violate this Section."
This is a good addition to the comment but I am not sure it addresses all the concerns, particularly if the final comment also includes the current language in the Model Rule which states that "[c]onduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law."
Does the added language eliminate the problems described by UCLA professor Eugene Volokh? What do you think?
ABA issues new ethics opinion on the duty not to use confidential information related to former client; OK, but ...
Two weeks ago, the ABA Standing Committee on Ethics and Professional Responsibility issued a short opinion on the meaning of the phrase "generally known" in reference to the duty of an attorney not to use confidential information related to a former client. (See Formal Opinion No. 479.) The opinion is short and straightforward and doesn't really say much we did not know (or at least assumed) already. Yet, I have to say I don't like a little detail on how the issue was framed. I understand why the drafters expressed the idea the way they did, and I may just be too picky, but I thought I would mention it.
But first things first. Let's start with the basics. Model Rule 1.9(c)(1) provides that a lawyer shall not use information relating to a former client’s representation “to the disadvantage of the former client except as [the Model] Rules would permit or require with respect to a [current] client, or when the information has become generally known."
What the opinion does is attempt to clarify how to consider that a certain piece of information has become "generally known." Using a variety of sources, the Committee concludes as follows:
Now, what is it I did not like? The opinion starts (from its very title) talking about the generally known "exception" to the rule. And I understand why the drafters did that: the way the rule is written it can be interpreted to say there is a duty to not use the information unless it is generally known, and the use of the word "unless" suggests that what comes after it is an exception to the statement of the duty that preceded it.
The problem is that this is wrong. If the information is generally known, it is not confidential. Period. By definition. Thus, there is no duty to keep it secret. There is no such thing as an exception to the duty. There is no duty.
In other words, one has to determine if the information is generally known to determine if there is a duty; not to determine if there is an exception to the duty.
You can read the full opinion here (It is only 6 pages long.)
The Law For Lawyers Today has a short comment on the opinion here.
UPDATE (12-31-17): First of all, Happy New Year to everyone. Second, someone asked me what difference does it make whether we consider the notion of "generally known" as a exception to the duty. Well, here is one way in which it makes a difference:
Assume a former client sues a lawyer for damages alleging a breach of a fiduciary duty based on the attorney's use of information. In such a case, the plaintiff has the burden to support the argument of duty, and therefore, will have to prove that the information is not generally known. If, on the other hand, we take the position that there is an exception to the duty, the defendant-lawyer would have the burden to show that the information is generally known in support of a defense. Depending on the evidence available to support the arguments, who has the burden of proof can make a difference.
UPDATE (March 2018): A new Formal Opinion (No. 480), which is available here, repeats the notion that information that is in the public record can still be confidential and that disclosing it can be a violation of the rules (unless allowed by one of the exceptions to the rule). This opinion was met with criticism by some who argue that it would be a violation of the first amendment for the state to discipline a lawyer for disclosing information that is in the public record.
I know of only one case that has held this (Hunter v Virginia State Bar). Opinion 480 addresses the issue and points out other court decisions that disagree with Hunter as well as other secondary sources that address the issue.
I wrote about Opinion No 480 here.
But first things first. Let's start with the basics. Model Rule 1.9(c)(1) provides that a lawyer shall not use information relating to a former client’s representation “to the disadvantage of the former client except as [the Model] Rules would permit or require with respect to a [current] client, or when the information has become generally known."
What the opinion does is attempt to clarify how to consider that a certain piece of information has become "generally known." Using a variety of sources, the Committee concludes as follows:
[T]he Committee’s view is that information is generally known within the meaning of Model Rule 1.9(c)(1) if (a) it is widely recognized by members of the public in the relevant geographic area; or (b) it is widely recognized in the former client’s industry, profession, or trade. Information may become widely recognized and thus generally known as a result of publicity through traditional media sources, such as newspapers, magazines, radio, or television; through publication on internet web sites; or through social media. With respect to category (b), information should be treated as generally known if it is announced, discussed, or identified in what reasonable members of the industry, profession, or trade would consider a leading print or online publication or other resource in the particular field. Information may be widely recognized within a former client’s industry, profession, or trade without being widely recognized by the public. For example, if a former client is in the insurance industry, information about the former client that is widely recognized by others in the insurance industry should be considered generally known within the meaning of Model Rule 1.9(c)(1) even if the public at large is unaware of the information.
Unless information has become widely recognized by the public (for example by having achieved public notoriety), or within the former client’s industry, profession, or trade, the fact that the information may have been discussed in open court, or may be available in court records, in public libraries, or in other public repositories does not, standing alone, mean that the information is generally known for Model Rule 1.9(c)(1) purposes. Information that is publicly available is not necessarily generally known. Certainly, if information is publicly available but requires specialized knowledge or expertise to locate, it is not generally known within the meaning of Model Rule 1.9(c)(1).There is still some vagueness in this approach but that is inevitable when the standard is based on a notion of reasonableness. In other words, there will always be some level of interpretation needed to evaluate whether the information should be considered to be generally known, but these paragraphs do a good job of explaining the proper approach to the question.
Now, what is it I did not like? The opinion starts (from its very title) talking about the generally known "exception" to the rule. And I understand why the drafters did that: the way the rule is written it can be interpreted to say there is a duty to not use the information unless it is generally known, and the use of the word "unless" suggests that what comes after it is an exception to the statement of the duty that preceded it.
The problem is that this is wrong. If the information is generally known, it is not confidential. Period. By definition. Thus, there is no duty to keep it secret. There is no such thing as an exception to the duty. There is no duty.
In other words, one has to determine if the information is generally known to determine if there is a duty; not to determine if there is an exception to the duty.
You can read the full opinion here (It is only 6 pages long.)
The Law For Lawyers Today has a short comment on the opinion here.
UPDATE (12-31-17): First of all, Happy New Year to everyone. Second, someone asked me what difference does it make whether we consider the notion of "generally known" as a exception to the duty. Well, here is one way in which it makes a difference:
Assume a former client sues a lawyer for damages alleging a breach of a fiduciary duty based on the attorney's use of information. In such a case, the plaintiff has the burden to support the argument of duty, and therefore, will have to prove that the information is not generally known. If, on the other hand, we take the position that there is an exception to the duty, the defendant-lawyer would have the burden to show that the information is generally known in support of a defense. Depending on the evidence available to support the arguments, who has the burden of proof can make a difference.
UPDATE (March 2018): A new Formal Opinion (No. 480), which is available here, repeats the notion that information that is in the public record can still be confidential and that disclosing it can be a violation of the rules (unless allowed by one of the exceptions to the rule). This opinion was met with criticism by some who argue that it would be a violation of the first amendment for the state to discipline a lawyer for disclosing information that is in the public record.
I know of only one case that has held this (Hunter v Virginia State Bar). Opinion 480 addresses the issue and points out other court decisions that disagree with Hunter as well as other secondary sources that address the issue.
I wrote about Opinion No 480 here.
Complaint filed against Legal Zoom alleges unauthorized practice of law
A California law firm recently filed a lawsuit in federal court against LegalZoom arguing that LegalZoom is engaging in unauthorized practice of trademark law in violation of the Rules of Professional Conduct, antitrust law, and state and federal unfair competition law. McCabe on IP Ethics has more details on the claims.
This is not new for LegalZoom which has been subject to such attacks in the past. But the lawsuit is the most recent example of two ongoing, and related, debates. One is about the proper definition of what constitutes the practice of law and the other is on whether it is a good idea to allow non-lawyers to provide some level of legal services.
In an article I published last year, I studied some aspects of these debates (all of which relate to the notion of innovation in the practice of law) by dividing the arguments into what I called the “Justice Gap” and the “Core Values” themes. The Justice Gap theme focuses the need for innovation on the fact that the vast majority of civil legal needs in the United States are addressed without attorneys, in part because of lack of access to affordable legal services. The Core Values theme focuses the need to oppose some types of innovation because of the need to protect certain principles upon which the practice of the profession is based. And then there is the argument that the core values argument is merely a protectionist approach to the practice of law. How these themes are addressed by regulatory agencies in the near future will determine the fate of the discussion on innovation in the practice of law in the United States.
If you are interested, the citation for the article is 41 Journal of the Legal Profession 1 (2016). If you are super interested, send me a message with your address and I can send you a reprint when I get back to the office in mid January. (I don't know how many I have, so "first come-first served.")
This is not new for LegalZoom which has been subject to such attacks in the past. But the lawsuit is the most recent example of two ongoing, and related, debates. One is about the proper definition of what constitutes the practice of law and the other is on whether it is a good idea to allow non-lawyers to provide some level of legal services.
In an article I published last year, I studied some aspects of these debates (all of which relate to the notion of innovation in the practice of law) by dividing the arguments into what I called the “Justice Gap” and the “Core Values” themes. The Justice Gap theme focuses the need for innovation on the fact that the vast majority of civil legal needs in the United States are addressed without attorneys, in part because of lack of access to affordable legal services. The Core Values theme focuses the need to oppose some types of innovation because of the need to protect certain principles upon which the practice of the profession is based. And then there is the argument that the core values argument is merely a protectionist approach to the practice of law. How these themes are addressed by regulatory agencies in the near future will determine the fate of the discussion on innovation in the practice of law in the United States.
If you are interested, the citation for the article is 41 Journal of the Legal Profession 1 (2016). If you are super interested, send me a message with your address and I can send you a reprint when I get back to the office in mid January. (I don't know how many I have, so "first come-first served.")
Friday, December 29, 2017
Georgia issues opinion on conflict of interest when serving as attorney for a minor and guardian ad litem at the same time
Back in 2010 I posted a comment criticizing the practice of appointing attorneys for juveniles in delinquency proceedings to serve simultaneously as guardians ad litem and urging the Illinois Supreme Court to grant review in a case that challenged it. I stated that the way courts justified the practice "displays a complete lack of understanding of the very notion of the attorney-client relationship. The notion that some attorneys are attempting to serve as guardians at litem and advocates for the minors at the same time is inconceivable to me. The two roles are, by definition, almost always incompatible." Later I wrote a law review article on the subject (available here) in which I made a long argument in support of my position. The Illinois Supreme Court eventually decided, as I had suggested, that the dual appointment constituted a conflict, and I wrote another article commenting on the case (available here.)
That case, however, was limited to the practice in juvenile delinquency proceedings, and I found out later that Illinois courts continue to assign lawyers the dual role of attorney and guardian in family law matters. In my opinion, the fact the are of the law is different does not make a difference and it is disturbing that the practice continues.
Today I found out, however, that earlier this month the Georgia Supreme Court approved an ethics opinion about the subject finding that it is a conflict of interest to serve as both a child's lawyer and guardian ad litem in a termination of parental rights proceeding when the child's wishes and best interests conflict.
The new opinion, which was issued by the Georgia State Bar's Formal Opinion Advisory Board, is attached as an appendix to the court's per curiam opinion approving it (In re Formal Advisory Opinion No. 16-2, 2017 BL 444895, Ga., No. S17U0553, 12/11/17).
The opinion concludes that when an irreconcilable conflict of interest develops between the child's wishes and the lawyer's view of the child's best interests, the lawyer must withdraw from the role of guardian ad litem, and may seek to withdraw entirely if the conflict is severe.
That case, however, was limited to the practice in juvenile delinquency proceedings, and I found out later that Illinois courts continue to assign lawyers the dual role of attorney and guardian in family law matters. In my opinion, the fact the are of the law is different does not make a difference and it is disturbing that the practice continues.
Today I found out, however, that earlier this month the Georgia Supreme Court approved an ethics opinion about the subject finding that it is a conflict of interest to serve as both a child's lawyer and guardian ad litem in a termination of parental rights proceeding when the child's wishes and best interests conflict.
The new opinion, which was issued by the Georgia State Bar's Formal Opinion Advisory Board, is attached as an appendix to the court's per curiam opinion approving it (In re Formal Advisory Opinion No. 16-2, 2017 BL 444895, Ga., No. S17U0553, 12/11/17).
The opinion concludes that when an irreconcilable conflict of interest develops between the child's wishes and the lawyer's view of the child's best interests, the lawyer must withdraw from the role of guardian ad litem, and may seek to withdraw entirely if the conflict is severe.
ABA to discuss proposed amendments to the rules on advertising and solicitation -- UPDATED
The Association of Professional Responsibility Lawyers (APRL) (of which I am a member) has for some time now suggested multiple changes to the ABA Model Rules' approach to advertising and solicitation and the ABA has been working on the idea.
As a result of these efforts, a working draft of the proposed amendments to the ABA Model Rules was approved by the Standing Committee on Ethics and Professional Responsibility. Also available is a Memorandum explaining the proposed changes.
The ABA Ethics Committee is hosting a public forum to collect ideas and comments on the Working Draft on Friday, February 2, 2018, at 2:00 p.m. at the MidYear Meeting of the APRL in Vancouver.
(Please send a message to Natalia Vera at Natalia.vera@americanbar.org if you plan to attend.)
All written comments on the Working Draft should be filed by March 1, 2018. Comments may be emailed to modelruleamend@americanbar.org. All comments will be posted on the ABA website.
The Ethics Committee will review all comments prior to submitting to the House of Delegates a resolution and report amending the Model Rules of Professional Conduct on lawyer advertising for the August 2018 meeting.
According to an ABA press release, draft proposes changes to the following Model Rules: Rule 1.0: Terminology; Rule 7.1: Communication Concerning a Lawyer’s Services; Rule 7.2: Advertising; Rule 7.3: Direct Contact with Prospective Clients; Rule 7.4: Communication of Fields of Practice & Specialization; and, Rule 7.5: Firm Names & Letterhead.
For more on the story go to the ABA Journal online (here) and Faughnan on Ethics (here).
UPDATE (1/10/18): Josh King, from Avvo recently posted his views on the ABA proposed changes here and here. I disagree with his proposal to completely eliminate Rule 7.2, particularly the section that regulates when a lawyer can pay someone else to recommend the lawyer.
As a result of these efforts, a working draft of the proposed amendments to the ABA Model Rules was approved by the Standing Committee on Ethics and Professional Responsibility. Also available is a Memorandum explaining the proposed changes.
The ABA Ethics Committee is hosting a public forum to collect ideas and comments on the Working Draft on Friday, February 2, 2018, at 2:00 p.m. at the MidYear Meeting of the APRL in Vancouver.
(Please send a message to Natalia Vera at Natalia.vera@americanbar.org if you plan to attend.)
All written comments on the Working Draft should be filed by March 1, 2018. Comments may be emailed to modelruleamend@americanbar.org. All comments will be posted on the ABA website.
The Ethics Committee will review all comments prior to submitting to the House of Delegates a resolution and report amending the Model Rules of Professional Conduct on lawyer advertising for the August 2018 meeting.
According to an ABA press release, draft proposes changes to the following Model Rules: Rule 1.0: Terminology; Rule 7.1: Communication Concerning a Lawyer’s Services; Rule 7.2: Advertising; Rule 7.3: Direct Contact with Prospective Clients; Rule 7.4: Communication of Fields of Practice & Specialization; and, Rule 7.5: Firm Names & Letterhead.
For more on the story go to the ABA Journal online (here) and Faughnan on Ethics (here).
UPDATE (1/10/18): Josh King, from Avvo recently posted his views on the ABA proposed changes here and here. I disagree with his proposal to completely eliminate Rule 7.2, particularly the section that regulates when a lawyer can pay someone else to recommend the lawyer.
Another court abandons the "appearance of impropriety" test to evaluate misconduct
A few years ago, there were a number of cases reported in which courts explicitly abandoned the practice of imposing discipline based on the notion of appearance of impropriety. Although many courts still use the language, the notion is considered "outmoded" as an actual basis for discipline. (See here and here, for example.)
We can now add the North Carolina Supreme Court to the list of courts that have explicitly rejected the use of appearances as a basis for discipline. In a case called Worley v Moore, the court stated that "the trial court applied the incorrect standard under Rule 1.9(a) in disqualifying defendants’ counsel. In making its determination..., the trial court must objectively assess the facts surrounding the motion to disqualify counsel without relying on the former client’s subjective perception of his prior representation. The trial court should avoid the outmoded “appearance of impropriety” test. We reverse the trial court’s decision and remand this case to that court for application of the correct legal test."
The Legal Profession blog has more on the case here.
We can now add the North Carolina Supreme Court to the list of courts that have explicitly rejected the use of appearances as a basis for discipline. In a case called Worley v Moore, the court stated that "the trial court applied the incorrect standard under Rule 1.9(a) in disqualifying defendants’ counsel. In making its determination..., the trial court must objectively assess the facts surrounding the motion to disqualify counsel without relying on the former client’s subjective perception of his prior representation. The trial court should avoid the outmoded “appearance of impropriety” test. We reverse the trial court’s decision and remand this case to that court for application of the correct legal test."
The Legal Profession blog has more on the case here.
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.
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.
Thursday, December 28, 2017
Florida Bar’s Board of Governors finds that AVVO Advisor is a for-profit lawyer referral service and must comply with Bar Rules
The Lawyer Ethics Alerts Blog is reporting that Florida Bar’s Board of Governors has found that AVVO Advisor is a for-profit lawyer referral service and therefore must comply with Bar Rules. Read the full story here.
Florida Bar podcast on advertising
Florida is one of the more aggressive states when it comes to regulating advertising. In this episode of The Florida Bar Podcast, hosts Christine Bilbrey and Karla Eckardt talk to Elizabeth Clark Tarbert about the Ethics and Advertising Department of the Florida Bar. They also discuss advertising rules and how to keep track of these rules as they change.
Elizabeth Clark Tarbert has been ethics counsel for The Florida Bar since 1997, providing oral and written ethics opinions Bar members. If you can't see the player below, you can listen to the podcast here.
Friday, December 15, 2017
Recent case is good reminder of details on advertising regulation, and also on debate on whether we need them
A month ago, the Legal Profession blog reported on a recent case in South Carolina in which the court discussed some of the details that apply to the regulation of advertising. It serves as a reminder of how courts often use the ban against "misleading" advertising as a catch-all rule to impose discipline.
In this case, the lawyer was reprimanded for, among other things,
1. using the tagline "attorneys at law" on his law firm letterhead. This was found to be misleading because the lawyer is a solo practitioner.
2. claiming that he had "28 years experience both as a lawyer and former law enforcement officer." In fact, the lawyer had 16 years of experience as a lawyer, and 12 years of experience as a law enforcement officer. The statement was found to be misleading because it suggested the lawyer had 28 years of experience as a lawyer.
3. using the telephone number (844) FIXTICKET. This was found to be misleading because it would create unjustified expectations or an implication that the lawyer could achieve a specific result by unethical means.
4. claiming "unique insight into the South Carolina traffic laws that many other lawyers simply do not have."
I do agree that the statements are misleading and that, under the current rules, discipline is justified. But this is the type of case that fuels the debate as to whether the profession needs to be concerned with the type of regulation to begin with. Do consumers really need to be protected from these types of statements that are not that uncommon in the world of advertising?
1. using the tagline "attorneys at law" on his law firm letterhead. This was found to be misleading because the lawyer is a solo practitioner.
2. claiming that he had "28 years experience both as a lawyer and former law enforcement officer." In fact, the lawyer had 16 years of experience as a lawyer, and 12 years of experience as a law enforcement officer. The statement was found to be misleading because it suggested the lawyer had 28 years of experience as a lawyer.
3. using the telephone number (844) FIXTICKET. This was found to be misleading because it would create unjustified expectations or an implication that the lawyer could achieve a specific result by unethical means.
4. claiming "unique insight into the South Carolina traffic laws that many other lawyers simply do not have."
I do agree that the statements are misleading and that, under the current rules, discipline is justified. But this is the type of case that fuels the debate as to whether the profession needs to be concerned with the type of regulation to begin with. Do consumers really need to be protected from these types of statements that are not that uncommon in the world of advertising?
Saturday, December 9, 2017
ABA new ethics opinion on whether judges can search the internet for facts related to a case over which they are presiding -- UPDATED
The ABA Standing Committee on Ethics and Professional Responsibility has issued a new opinion addressing whether a judge can conduct online research to find out more about the facts of a case being litigated before them. The opinion explains that
-- judges can conduct legal research online for cases not cited by the parties.
-- judges can can go online for facts that are subject to judicial notice because they are generally known and not subject to reasonable dispute
-- BUT using the internet to look for facts concerning the actual parties in a case is generally banned by the ABA Model Code of Judicial Conduct. The facts are the facts that will need to be adjudicated in the proceeding, including who did what, where, when, how, and with what motive or intent.
The ABA Journal has more on the story here. You can read the full opinion here.
UPDATE (1/18/18): Legal Ethics in Motion has a comment here.
-- judges can conduct legal research online for cases not cited by the parties.
-- judges can can go online for facts that are subject to judicial notice because they are generally known and not subject to reasonable dispute
-- BUT using the internet to look for facts concerning the actual parties in a case is generally banned by the ABA Model Code of Judicial Conduct. The facts are the facts that will need to be adjudicated in the proceeding, including who did what, where, when, how, and with what motive or intent.
The ABA Journal has more on the story here. You can read the full opinion here.
UPDATE (1/18/18): Legal Ethics in Motion has a comment here.
Wednesday, November 29, 2017
Court of Appeals for the Fourth Circuit comments on repeated misconduct ouf of prosecutors office in Virginia
The ABA/BNA Lawyers' Manual on Professional Responsibility is reporting today on a recent case in which the court wrote “We have repeatedly rebuked the commonwealth's
attorney and his deputies and assistants for failing to adhere to their
obligations” under the Constitution, and that “We find it troubling that, notwithstanding
these rebukes, officials in the Commonwealth's Attorney's office
continue to stake out positions plainly contrary” to those obligations,
he said. The case is Juniper v. Zook, 2017 BL 412748, 4th Cir., No. 13-7, 11/16/17.
The court cited other cases in which it "lambasted" Assistant Commonwealth's Attorney for "not produc[ing] evidence to a criminal defendant unless he first deems it to be 'material[]' and credib[le]."
The problem is that this conduct is the result of the development of the Brady progeny. Brady imposes a duty to disclose "material" evidence. However, over time, “material” has come to be defined as evidence that would probably would have changed the outcome of the trial if it had been admitted.
For this reason, when determining whether they have a duty to disclose, the prosecutor has to decide -- before the fact -- whether he or she believes that withholding the evidence will change the likely verdict in the case. Thus, prosecutors can justify withholding evidence by claiming that they in good faith thought the evidence would not have affected the verdict. If you add to that the fact that prosecutors are rarely punished for misconduct and the fact that, if discovered, the result of the conduct would be a retrial, you can understand why a prosecutor may be willing to take a chance and withhold the evidence.
One way to address the issue is to hold that the duty to disclose exculpatory evidence is broader than the duty required by Brady, as some opinions have held. Another, suggested by the Court of Appeals in this case, is to hold that the prosecutor should always err on the side of disclosure.
For more see the article in the ABA/BNA Lawyers' Manual at 33 Law. Man. Prof. Conduct 678.
The court cited other cases in which it "lambasted" Assistant Commonwealth's Attorney for "not produc[ing] evidence to a criminal defendant unless he first deems it to be 'material[]' and credib[le]."
The problem is that this conduct is the result of the development of the Brady progeny. Brady imposes a duty to disclose "material" evidence. However, over time, “material” has come to be defined as evidence that would probably would have changed the outcome of the trial if it had been admitted.
For this reason, when determining whether they have a duty to disclose, the prosecutor has to decide -- before the fact -- whether he or she believes that withholding the evidence will change the likely verdict in the case. Thus, prosecutors can justify withholding evidence by claiming that they in good faith thought the evidence would not have affected the verdict. If you add to that the fact that prosecutors are rarely punished for misconduct and the fact that, if discovered, the result of the conduct would be a retrial, you can understand why a prosecutor may be willing to take a chance and withhold the evidence.
One way to address the issue is to hold that the duty to disclose exculpatory evidence is broader than the duty required by Brady, as some opinions have held. Another, suggested by the Court of Appeals in this case, is to hold that the prosecutor should always err on the side of disclosure.
For more see the article in the ABA/BNA Lawyers' Manual at 33 Law. Man. Prof. Conduct 678.
Saturday, November 25, 2017
ABA files amicus brief arguing that conceding guilt over client's objection constitutes ineffective assistance of counsel
A couple of weeks ago, I posted a comment on McCoy v. Louisiana,
a case before the U.S. Supreme Court in which a Louisiana
death row inmate is arguing ineffective assistance of counsel because
his lawyer conceded his guilt over the defendant's objection. You can
find my comment here. Today, I learned that the ABA has filed an amicus brief in support of the appellant. As I argued in my original comment, I agree with this view. The ABA explained its position in a press release. You can also read the full brief here.
Tuesday, November 21, 2017
Philadelphia law firms files complaint against out of town firm arguing false advertising and unfair competition
If you watch any TV, you have seen commercials of firms announcing they are available to represent client suffering from any number of injuries. But if you notice closely on the very small print at the end of the commercial you'd notice a disclaimer saying that the firm is only licensed in certain states which often does not include the state in which the commercial is airing. When contacted by potential clients from these states, the firms typically will refer the case to a lawyer licensed in that state and share the fee.
Obviously, lawyers are not allowed to represent clients in a state in which the lawyers are not admitted. Lawyers are also not allowed to get fees for merely referring cases to other lawyers. But lawyers are allowed to share fees with other lawyers under certain circumstances.
Yet, is the practice of purposely advertising in a jurisdiction one is not admitted to a violation of the rules?
Rosenbaum & Associates, a
Philadelphia personal injury law firm, thinks so. It recently filed a complaint
against Morgan & Morgan, a Florida-based personal injury law firm,
alleging that Morgan & Morgan falsely advertises that it
represents clients in the Philadelphia area, when in fact Morgan allegedly employs only
one attorney in Philadelphia with “little or no experience in handling
personal injury matters.” According to Rosenbaum, Morgan &
Morgan refers nearly all of its
cases to another law firm in violation of a rule that prohibits advertising that is “a pretext to refer cases obtained from
advertising to other lawyers.”
It will be interesting to see how the court addresses these questions.
How not to practice law: when representing one of the most high profile people in the nation, write incoherent letters with grammatical mistakes, go on TV and make dumb comments, hold bad press conferences and more
Unless you have been hiding in a cave for the last few weeks, you are now familiar with Roy Moore: the twice removed from the bench former judge, Senate candidate from Alabama. You would think that having been a judge he would know some good lawyers who would be willing to represent him. Yet, the lawyer doing most of the talking on his behalf has become a laughingstock for his inability to write coherently, his poor knowledge of the law and his TV appearances. It has also been reported that he was disciplined in the past.
There are many stories on this, and you can Google more, but here are a few:
On his poorly written (that's being generous) demand letter to a news outlet (here, here, here and here). For the news outlet's reply go to this story (called "Roy Moore’s Lawyer Gets Called A Moron In The Most Professional Way Possible").
On his disastrous appearance on TV in which he expressed his ignorance, at best, about how cultural differences might be an issue related to the accusations against Roy Moore (here and here).
There are many stories on this, and you can Google more, but here are a few:
On his poorly written (that's being generous) demand letter to a news outlet (here, here, here and here). For the news outlet's reply go to this story (called "Roy Moore’s Lawyer Gets Called A Moron In The Most Professional Way Possible").
On his disastrous appearance on TV in which he expressed his ignorance, at best, about how cultural differences might be an issue related to the accusations against Roy Moore (here and here).
Podcast: On being a Limited License Legal Technician in Washington State
In an effort to provide better access to legal services, back in 2012 Washington became the first state to adopt
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). Go here for some background.
Once Washington approved its program at least seven other states—California, Colorado, Connecticut, Minnesota, Oregon, Vermont and Virginia— created task forces to study the possibility of limited licensing as a partial solution to the so-called “access to justice gap.” However, the development of programs in those, or other, states has not been as successful as once expected.
A few days ago, Lawyerist posted a podcast with Laura Genoves about being one of the first Limited Licensed Legal Technicians in Washington State and the differences between a legal technician and a practicing attorney, including everything from education costs to how each can practice. If you can't see the controls below, you can listen to the podcast by going here.
Once Washington approved its program at least seven other states—California, Colorado, Connecticut, Minnesota, Oregon, Vermont and Virginia— created task forces to study the possibility of limited licensing as a partial solution to the so-called “access to justice gap.” However, the development of programs in those, or other, states has not been as successful as once expected.
A few days ago, Lawyerist posted a podcast with Laura Genoves about being one of the first Limited Licensed Legal Technicians in Washington State and the differences between a legal technician and a practicing attorney, including everything from education costs to how each can practice. If you can't see the controls below, you can listen to the podcast by going here.
Sunday, November 19, 2017
In case you missed it: reminder that a lawyer's conduct outside the practice of law can have consequences
We all learned in law school that the regulation of the profession is not really limited to practice of the profession. And we all know that there are many many cases out there of lawyers getting in trouble for conduct in their personal lives. But every now and then it is not bad to get a little reminder. The latest example involves a Dallas prosecutor who got into what some have called a "drunken tirade" with an Uber driver. The driver recorded the encounter, it went viral and the prosecutor got fired. The fact you are a lawyer does not give you the right to claim you are more important than other people, to threaten them or to be abusive. This should be common sense. There are many stories and videos on the incident out there. Here is one of them:
New York Times article on whether defense lawyers should be allowed to contribute to the campaigns of District Attorneys
You may have heard recent accounts of negotiations between lawyer Marc E. Kasowitz, a lawyer for the Trump family and the Manhattan District Attorney regarding the possibility of charging Ivanka Trump and Donald Trump Jr. for allegedly misleading investors in a condo-hotel project. The stories highlighted that Mr. Vance had received a $25,000 contribution from Mr. Kasowitz (which was returned prior to the meeting) and that a year later Mr. Vance’s campaign accepted a $32,000 gift from Mr. Kasowitz, only to end up returning it seven weeks ago after reporters highlighted it.
Should there be some limits to, or regulation of, defense lawyers' contributions to District Attorney's campaigns? The New York Times discusses the issue in a recent article you can access here.
Should there be some limits to, or regulation of, defense lawyers' contributions to District Attorney's campaigns? The New York Times discusses the issue in a recent article you can access here.
Court of Appeals rejects appeal by lawyer who had been ordered to pay $4.2 million as sanction for sending unsolicited faxes to potential clients
In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Supreme Court held that a state can not ban a lawyer from sending targeted letters to potential clients in part because the invasion of privacy involved in receiving the unsolicited letter was minimal. As someone later put it, the trip from the mailbox to the trash can is a short one.
You would think the same could be said about a fax (technology that is not as common these days), but in a 2013 opinion, the 7th Circuit found that unsolicited faxes sent by a Chicago lawyer to potential clients were advertisements covered by the Federal Telephone Consumer Protection Act, which imposes penalties for sending faxes without an opt-out provision. As a result, the lawyer was ordered to pay $500 for each of his 8,430 faxes, amounting to $4.2 million.
The case has been going up and down to and from the Court of Appeals since then and just recently it was reported that the Court has denied the most recent appeal. Go here for more details.
You would think the same could be said about a fax (technology that is not as common these days), but in a 2013 opinion, the 7th Circuit found that unsolicited faxes sent by a Chicago lawyer to potential clients were advertisements covered by the Federal Telephone Consumer Protection Act, which imposes penalties for sending faxes without an opt-out provision. As a result, the lawyer was ordered to pay $500 for each of his 8,430 faxes, amounting to $4.2 million.
The case has been going up and down to and from the Court of Appeals since then and just recently it was reported that the Court has denied the most recent appeal. Go here for more details.
New York adopts new rule requiring judges to remind prosecutors to comply with duty to disclose exculpatory evidence
In response to the efforts of a task force convened by the state’s chief judge to address the causes of wrongful convictions in New York, beginning in January, judges will be required to issue an order reminding prosecutors
of their obligation to turn over “information favorable to the defense” in all criminal cases. According to the
National Registry of Exonerations, 38% of the 234 exonerations in
New York state have involved violations of the duty to disclose exculpatory evidence. You can read the press release announcing the new rule here. (This link also includes the task force's report, which makes a number of other recommendations worth reading.) The new rule also directs judges to remind defense lawyers of their duty
to provide effective assistance of counsel under Constitutional
standards. The ABA Journal has more on the story here.
7th Circuit refuses to reverse a conviction even though the prosecutor did not comply with duty of candor to disclose perjured testimony
Applying the principle that a federal court of appeals can not reverse a conviction unless the defendant shows that the lower state court’s decision was contrary to, or an unreasonable application of, clearly established law under Supreme Court authority, the Court of Appeals for the Seventh Circuit recently refused to reverse a conviction even though the prosecutor in the case failed to comply with the duty of candor.
In the case, Long v. Pfister, one of the key witnesses for the prosecution identified the defendant as the perpetrator of the crime in question even though the witness had at one point recanted her testimony. When asked on cross–examination, the witness denied having recanted her testimony. Both the prosecutor and defense counsel knew this was a lie. Defense counsel eventually called another witness who testified that the prosecutor’s witness had lied on the stand. However, the prosecutor did nothing to inform the court or the jury about the perjured testimony. The defendant was convicted.
The defendant was denied post conviction relief by a federal district court, but a panel of the Court of Appeals reversed. The panel concluded that, by not spontaneously correcting the perjured testimony, the prosecutor had violated the rule of Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 405 U.S. 150 (1972), which according to the panel’s interpretation, hold that whenever any witness makes a statement that the prosecutor knows is false, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement immediately.
After an en banc rehearing, however, a majority of the court reversed. According to the majority, the case involved four questions that have never been expressly decided by the Supreme Court: (1) Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?; (2) must the prosecutor correct false testimony when defense counsel already knows the truth?; (3) does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?; and (4) does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?
In Napue v. Illinois the Supreme Court held that the State deprives a person of liberty without due process of law if it convicts the person by knowingly using false testimony. Thus, Napue has been interpreted to hold that whenever any witness makes a statement that the prosecutor knows is untrue, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement. Rules of professional conduct in all jurisdictions also impose on all lawyers a duty to remedy the effects of material false evidence known to the lawyer before the end of the proceeding. Further, in Giglio v. United States the Court reversed a conviction when a prosecutor failed to correct perjured testimony and then relied on it during summation to the jury.
The Court of Appeals, however, distinguished the case before it from these two cases. In a 5 to 3 opinion, the court held that there is no clearly established Supreme Court law on whether a prosecutor has a duty to disclose perjury if the perjury is known to the defendant’s lawyer and the defendant’s lawyer presents evidence to contradict the perjured testimony.
In a strong dissenting opinion, however, three judges dispute the majority’s holding arguing that the opinion is based on notions that have been clearly rejected by the Supreme Court. They, therefore, concluded that the defendant had met the burden to get Habeas Corpus relief.
According to the majority, it is not clearly established that a prosecutor has a duty to remedy known perjury if (1) the defendant’s lawyer already knew the testimony constituted perjury, (2) the defendant’s lawyer presented evidence to contradict it (which could create an inference in the jury that the testimony was not credible), and (3) the prosecution did not rely on the perjured testimony in its argument the jury.
The dissenting judges addressed all these arguments concluding that it is clear that a prosecutor has a duty to correct the testimony regardless of the circumstances. A lie is a lie, and the prosecutor has a duty to correct it, they said. The duty belongs to the prosecutor and he or she can’t rely on the evidence presented by the defendant to contradict the perjured testimony. The fact that the defendant attempted to contradict the perjured testimony does not constitute a correction of the perjury.
It should be made clear that even though the case revolves around the issue of the duty of candor of a prosecutor, the court did not decide what that duty involves. Unlike what has been reported in some news stories about the case (in the Chicago Daily Law Bulletin, for example), the court did not decide that a prosecutor does not have a duty to disclose perjury under the circumstances of the case. It only held that the Supreme Court has not decided it. It is precisely because, according to the court, the issue has not been decided, that it felt it could not reverse the conviction in this case. I hope I am wrong, but I am afraid, however, that the case might be interpreted to relieve prosecutors of the duty of candor under certain circumstances. That would be wrong.
The Marshall Project has a comment on the case here.
In the case, Long v. Pfister, one of the key witnesses for the prosecution identified the defendant as the perpetrator of the crime in question even though the witness had at one point recanted her testimony. When asked on cross–examination, the witness denied having recanted her testimony. Both the prosecutor and defense counsel knew this was a lie. Defense counsel eventually called another witness who testified that the prosecutor’s witness had lied on the stand. However, the prosecutor did nothing to inform the court or the jury about the perjured testimony. The defendant was convicted.
The defendant was denied post conviction relief by a federal district court, but a panel of the Court of Appeals reversed. The panel concluded that, by not spontaneously correcting the perjured testimony, the prosecutor had violated the rule of Napue v. Illinois, 360 U.S. 264 (1959) and Giglio v. United States, 405 U.S. 150 (1972), which according to the panel’s interpretation, hold that whenever any witness makes a statement that the prosecutor knows is false, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement immediately.
After an en banc rehearing, however, a majority of the court reversed. According to the majority, the case involved four questions that have never been expressly decided by the Supreme Court: (1) Do Napue and its successors apply when the defense rather than the prosecutor elicits the false testimony?; (2) must the prosecutor correct false testimony when defense counsel already knows the truth?; (3) does the Constitution forbid a conviction obtained when the prosecutor does not correct but also does not rely on the falsehood?; and (4) does the Constitution forbid a conviction obtained when all material evidence is presented to the jury before it deliberates?
In Napue v. Illinois the Supreme Court held that the State deprives a person of liberty without due process of law if it convicts the person by knowingly using false testimony. Thus, Napue has been interpreted to hold that whenever any witness makes a statement that the prosecutor knows is untrue, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement. Rules of professional conduct in all jurisdictions also impose on all lawyers a duty to remedy the effects of material false evidence known to the lawyer before the end of the proceeding. Further, in Giglio v. United States the Court reversed a conviction when a prosecutor failed to correct perjured testimony and then relied on it during summation to the jury.
The Court of Appeals, however, distinguished the case before it from these two cases. In a 5 to 3 opinion, the court held that there is no clearly established Supreme Court law on whether a prosecutor has a duty to disclose perjury if the perjury is known to the defendant’s lawyer and the defendant’s lawyer presents evidence to contradict the perjured testimony.
In a strong dissenting opinion, however, three judges dispute the majority’s holding arguing that the opinion is based on notions that have been clearly rejected by the Supreme Court. They, therefore, concluded that the defendant had met the burden to get Habeas Corpus relief.
According to the majority, it is not clearly established that a prosecutor has a duty to remedy known perjury if (1) the defendant’s lawyer already knew the testimony constituted perjury, (2) the defendant’s lawyer presented evidence to contradict it (which could create an inference in the jury that the testimony was not credible), and (3) the prosecution did not rely on the perjured testimony in its argument the jury.
The dissenting judges addressed all these arguments concluding that it is clear that a prosecutor has a duty to correct the testimony regardless of the circumstances. A lie is a lie, and the prosecutor has a duty to correct it, they said. The duty belongs to the prosecutor and he or she can’t rely on the evidence presented by the defendant to contradict the perjured testimony. The fact that the defendant attempted to contradict the perjured testimony does not constitute a correction of the perjury.
It should be made clear that even though the case revolves around the issue of the duty of candor of a prosecutor, the court did not decide what that duty involves. Unlike what has been reported in some news stories about the case (in the Chicago Daily Law Bulletin, for example), the court did not decide that a prosecutor does not have a duty to disclose perjury under the circumstances of the case. It only held that the Supreme Court has not decided it. It is precisely because, according to the court, the issue has not been decided, that it felt it could not reverse the conviction in this case. I hope I am wrong, but I am afraid, however, that the case might be interpreted to relieve prosecutors of the duty of candor under certain circumstances. That would be wrong.
The Marshall Project has a comment on the case here.
Tuesday, November 7, 2017
Bitcoin and the Legal Ethics of Lawyers
"Bitcoin and the Legal Ethics of Lawyers," Prof. Ron Rotunda's most recent column, is now available here.
ACLU sues Nevada alleging constitutionally inadequate indigent defense system
The ACLU of Nevada has sued the state, alleging that indigent defense in
rural counties is so inadequate—and so poorly overseen by state
authorities—that the defense provided is inadequate under the Sixth
Amendment. The ABA Journal has the story here.
Sunday, November 5, 2017
Justice Department asks Supreme Court to consider discipline for ACLU lawyers in abortion case
You have probably read or heard about the story of the 17 year old detainee who was seeking to get an abortion while in custody. After the government refused to allow her to leave the shelter where she was being
held in custody, a
ruling by the full U.S. Court of Appeals for the District of Columbia
Circuit cleared the way for the abortion.
The case has not ended however, since it is being reported now that the Department of Justice has filed a petition before the Supreme Court in which it is asking the justices to vacate the D.C. Circuit’s ruling. This would mean that the decision would no longer serve as legal precedent.
More interestingly for readers of this blog, the government is also suggesting that the justices should sanction the woman's attorneys for misconduct that, the government argues, thwarted it from seeking Supreme Court review of the decision in the first place. You can read more about this development in the SCotUS blog here.
According to the ABA Journal online, ACLU legal director David Cole responded to the government filing in a statement that states: “This administration has gone to astounding lengths to block this young woman from getting an abortion,” Cole said. “Now, because they were unable to stop her, they are raising baseless questions about our conduct. Our lawyers acted in the best interest of our client and in full compliance with the court orders and federal and Texas law. That government lawyers failed to seek judicial review quickly enough is their fault, not ours.”
The case has not ended however, since it is being reported now that the Department of Justice has filed a petition before the Supreme Court in which it is asking the justices to vacate the D.C. Circuit’s ruling. This would mean that the decision would no longer serve as legal precedent.
More interestingly for readers of this blog, the government is also suggesting that the justices should sanction the woman's attorneys for misconduct that, the government argues, thwarted it from seeking Supreme Court review of the decision in the first place. You can read more about this development in the SCotUS blog here.
According to the ABA Journal online, ACLU legal director David Cole responded to the government filing in a statement that states: “This administration has gone to astounding lengths to block this young woman from getting an abortion,” Cole said. “Now, because they were unable to stop her, they are raising baseless questions about our conduct. Our lawyers acted in the best interest of our client and in full compliance with the court orders and federal and Texas law. That government lawyers failed to seek judicial review quickly enough is their fault, not ours.”
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