New Mexico to consider allowing non lawyers to provide some legal services - UPDATED

Long time readers of this blog will remember that in recent years a few states have adopted programs to allow non lawyers to provide limited legal services.  The first was Washington, whose program made the term LLLTs (for limited licence legal technicians) the big debate at the time.  (If you click on the labels Washington and Utah on the right, you can scroll down and find lots of posts on this subject).

Now comes news that the New Mexico Supreme Court recently formed the group – comprised of lawyers, educators and advocates – to look into implementing an LLLT program in the state in order to create changes to court rules and programs that would improve the availability of legal services in the state.   Courthouse News Service has the story.

Update 5/30/10:   Illinois Lawyer Now has a story and links here.

Another challenge to the notion of a "unified bar" -- this one in Oklahoma -- UPDATED

A few days ago I posted a story about a challenge to the constitutionality of the unified bar system in Texas.  See here.

Today's news is that a similar lawsuit has been filed in Oklahoma.

The lawsuit, in a case called Schell v. Williams, filed on March 26, alleges that Oklahoma's requirement that attorneys join the state bar association to practice in the state is unconstitutional because by forcing attorneys to join the Oklahoma Bar Association, the state violates their First Amendment rights to free speech and association

As I discussed in my previous posts on this, this is not a new argument but it is not a frivolous argument.  The question really goes to the core of whether such a requirement is necessary to regulate the legal profession or improve the quality of legal services.  As of right now, there are similar challenges pending in, at least, Texas and North Dakota and the results in these cases will have national implications.

UPDATE 4/5/19:   As I have said elsewhere, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback. In addition to the cases I reported recently, I was recently reminded by a reader of the blog that there are two separate lawsuits filed on similar grounds in Oregon as well as ongoing longstanding litigation against the Washington State Bar.

In Oregon, at least one of the lawsuits contends that the fact the state bar published a statement condemning White Nationalism and, what it called the "normalization of violence" was "blatantly political" and unconstitutional.

UPDATE 5/28/19:  Another lawsuit claiming requiring lawyers to be members of the state bar association violates the First Amendment has been filed.  The case is called Jarchow v State Bar of Wisconsin (Case No. 3:19-CV-00266) was filed, you guessed it, in Wisconsin on May 21. 

Should an attorney be disciplined for engaging in animal cruelty

We all know that lawyers can be disciplined for conduct outside of the practice of law; and we all know that criminal conduct outside the practice of law will likely result in discipline.  But whether lawyers can or should be subject to discipline for non-criminal, yet somehow "bad" conduct, is not always clear. 

Typically, rules or cases limit discipline for non criminal/non professional conduct to conduct that in some way shows the lawyer should not be trusted to do what lawyers typically do. 

Which brings me to today's post.  A few days ago, several outlets reported that the Florida Bar has opened an investigation into the conduct of a lawyer who "shooed" a raccoon off his boat after finding the animal had stowed away on board. Given that the boat was 20 miles from the coast and that I am not sure raccoons can swim that well, the presumption is that the raccoon did not survive. 

Oh, and if this happened on a boat 20 miles out to sea, how did we come to know about it?  Well, the lawyer thought it would be a good idea to post a video of the incident on social media in which you can hear someone (presumably the lawyer) using profanity and then laughing at the poor raccoon yelling "so long sucker" when it fell in the water.

If there is a crime here, then the first paragraph of this post applies and that will be that.  Yet, for the sake of argument, let's assume that there is no crime.  Let's say there's simply ...whatever you want to call what the video shows (cruelty, stupidity, profanity, obnoxiousness... ??).  Is this the type of conduct for which a lawyer should be disciplined?  It may say something about the person, but does it say something about the lawyer as a lawyer?  Should there be a difference?

How do these facts compare to cases in which lawyers have acted foolishly or abusively in public while intoxicated? ... or taken money from trusts when serving as trustees but not as lawyers?...  or expressed obnoxious, even racist ideas, ... or engaged in other conduct outside the practice of law?

You can read more about this particular story here, and here.

Washington State Bar Association rejects proposal to require lawyers to carry malpractice insurance

Not long after the State Bar of California’s board decided against requiring lawyers to carry malpractice insurance, the Washington State Bar Association’s board has rejected a similar recommendation.  Oregon and Idaho remain the only two states with a malpractice requirement for attorneys.

The task force that studied the issue in Washington had concluded that the lack of an insurance requirement “poses a distinct risk to clients.”  Yet, the Board voted down the proposal.

One of the reasons behind the decision was the concern that a malpractice insurance requirement would hurt access to justice because lawyers would be required to raise their fees to cover the cost of insurance. 

Above the Law has more on the story here.

Lawyers duties and technology

As you know the Model Rules, and now at least 36 states, consider that understanding and keeping up with developments in "technology" is part of a lawyer's duty of competence.

Yet, only two states require that lawyers' CLE programs include hours devoted to issues related to technology and the practice of law.  Two recent articles touch on these subjects:

Law Technology Today has a recent article on why every state should require technology CLEs.  You can read it here.

Also, Above the Law has a comment on a recent Ethics Opinion in Louisiana which the author of the comment argues misses the point on tech competence.  First, he argues that the opinion wrongly presumes that using technology in law practice is optional and that a lawyer must be competent in technology only if the lawyer chooses to use technology.  Second, he argues that the opinion also presumes that a lawyer's competence only relates to the lawyers’ direct use of technology on behalf of a client. As he argues, and I agree, "that misses a critical component of the duty of technology competence — understanding the client’s use of technology. A lawyer cannot competently represent a client if the lawyer does not understand the client’s technology usage and systems and how they may relate to the matter at hand." 

I agree on both points, and I would add that a lawyer needs to be competent in the use of technology also because lawyers need to understand other lawyers' use of technology. 

Illinois regulators' annual report

The Attorney Registration and Disciplinary Commission (ARDC), the administrative agency that regulates licensed Illinois lawyers, has filed its year 2018 Annual Report with the Supreme Court of Illinois. You can read the full report here or a summary here.

The summary has some interesting findings.  For example:

Of the complaints filed with the ARDC, the majority involve claims of neglect.  The second most common claim:  failure on the part of the lawyer to communicate with the client.

10% of the complaints were filed by lawyers reporting on the conduct of other lawyers under rule 8.3.  Of these, 44% resulted in disciplinary complaints.

Illinois Lawyers Now has a comment here.

Tennessee Supreme Court imposes sanctions for improper contingency fee

A few days ago I saw a report on a case out of the Tennessee Supreme Court on a topic that you don't see that often:  an unreasonable contingency fee agreement.  The practice of using contingency fees is, of course, common; and the practice of structuring the contingency itself as a percentage of the recovery is standard.  In most cases, the percentage is about 33%.  That is also pretty standard.  And that is why I don't think we see many cases on this topic.  Everybody pretty much does the same thing because the market regulates itself.

Yet, here we have a new case with a twist on the practice of using contingency fees.

The lawyer in the case entered into a contingent fee agreement with his client, which provided that if the client refused to accept a settlement offer that the lawyer advised was reasonable and should be taken, the client would be required to pay the lawyer the contingency fee “on the basis of that offer” unless waived by the lawyer.

As you would expect given the end result of the case, the defendant made an offer, the lawyer advised the client to take it, but the client refused.  The lawyer then withdrew from representation and asked for a lien against his client’s eventual recovery in her personal injury case for fees and expenses based on the original agreement.

The court agreed with the hearing panel that the contingent fee agreement was unreasonable and violated the Rules of Professional Conduct because the Rules only allow a contingency fee on the outcome of the matter. The Court also agreed with the hearing panel that the contingency fee agreement violated the Rules of Professional Conduct because it gave the lawyer a proprietary interest in any settlement offer arising in the case.  Thus, the Court affirmed the judgments of the trial court and the hearing panel imposing a public censure.

As it is often the case, whether public censure, one of the lightest possible sanctions out there, was the correct measure of discipline is debatable.  But I supposed reasonable people can disagree on that and it is the subject of a different conversation.

The case is Moore v. Board of Professional Responsibility and you can read the opinion here.

Faughnan on Ethics has a comment on the case here.  As he clearly explains, "[a]t its core, this case explains the limits on the ability of a plaintiff’s attorney to try to guard against what happens if their client rejects the attorney’s advice on whether to accept a settlement offer. There do, in fact, have to be limits on the ability to hedge against that because the ethics rules establish explicitly that the decision whether to settle a civil case or not is the client’s decision. RPC 1.2(a)."

Texas Attorney General sides with lawyers challenging mandatory bar membership

As you may remember I have been following the news about attacks in several states to the notion of a "unified bar."  See here and here, for example.  Lawsuits have been filed in Texas, Oklahoma, Oregon and North Dakota. 

In one way or another, all the lawsuits are claiming that the states' requirement that attorneys join the state bar association is an unconstitutional violation of attorneys' First Amendment rights to free speech and association.  More specifically, they argue that lawyers shouldn’t be forced to subsidize the state bar’s activities through mandatory membership dues if they don't agree with those activities for ideological or political reasons. 

For example, in the lawsuit in Texas, the plaintiffs are alleging they do not want to be forced to subsidize the state bar's diversity initiatives, access to justice programs and programs that help prevent deportations, and that promote legislative drafting and advocacy.

The most recent development on this topic is that Texas Attorney General Ken Paxton has filed an amicus brief that sides with the plaintiffs in the case in Texas.  He is the only AG to have taken this step so far in all the states where lawsuits have been filed.

Like I said in one of my previous posts, this is becoming the biggest topic in Professional Responsibility this year and the results of these lawsuits could have tremendous repercussions on how the profession continues to be regulated as well as on the viability of state programs that promote access to legal services.

New ABA Formal Opinion on duties of prosecutors when negotiating plea bargain deals

Last week, the ABA Standing Committee on Ethics and Professional Responsibility issued a new formal opinion on duties of prosecutors.  See Opinion 486, available here. 

As you probably know, prosecutors have a special role in the judicial system because they do not only litigate on behalf of the state, they are also considered "ministers of justice."  This puts them in what appears to be somewhat of a contradictory position in that they have to, at the same time, prosecute the defendant while protecting the defendant's rights. 

According to the chair of the Committee, hundreds of times weekly, prosecutors negotiate plea deals with misdemeanor defendants who lack counsel and may agree to unfair dispositions, which creates a disproportionate risk of harm for the poor and minorities, who are disproportionately represented among the defendant population. 

For this reason, the new opinion reminds prosecutors of their duties to ensure that the accused has a reasonable opportunity to obtain counsel, that decisions to resolve a case through plea bargaining are grounded in the prosecutor’s independent assessment of the case, and that prosecutors reveal known collateral consequences, which may include deportation and the loss of eligibility for a wide range of public services, including food assistance and public housing. 

The ABA Journal has more on the story.

Racially charged closing argument leads to reversal of a first degree murder conviction

I have written a number of stories in the past about cases in which appeals' courts reverse convictions simply based on what prosecutors say in their closing arguments.  In other words, cases in which improper arguments result in reversals of convictions.

Just a few days ago, I read another example.  In this case, a prosecutor's racially-charged rebuttal closing argument led to a reversal of a first degree murder conviction by the North Carolina Court of Appeals.  You can read a summary of the case here.

Advice for when you realize you made a huge mistake and will likely get sued...

I often tell my torts students that forgetting to file a claim before the statute of limitations runs is possible the dumbest mistake they can make.  "Buy, and more importantly, learn to use a calendar!",  I tell them.

So what happens if the do make that dumb mistake? What happens next?   Here is some good advice.

More of a lawyer reacting to TV or Movie lawyers and cases

A couple of days ago I posted a video of a lawyer commenting on courtroom scenes from movies and TV shows.  Because I watched that video on YouTube, the next time I visited YouTube, it recommended other similar videos and I came across a channel called "Think Like a Lawyer" by "Legal Eagle" in which a lawyer comments on many different things, and which has a bunch of videos of him giving very detailed commentary on movies and TV shows, including My Cousin Vinny, Better Call Saul, A Few Good Men, The Bee Movie, Liar Liar, The Rainmaker and more.  He also has a lot of videos on advice for law students.  I watched some of those and I agree with a lot what he has to say, but not all ... but that is the subject of a different conversation.

You could spend a lot of time watching videos on this channel, so save the link for when you have some free time....

Michigan might be the next state to adopt a duty to keep up with "technology" as part of the duty of competence

As of last year, 36 states had adopted the Model Rules' comment that adds understanding "technology" as an element of competence. Texas was the most recent jurisdiction to do so and Washington DC recently announced it is considering it.

Today, Jurist is reporting that the Michigan Supreme Court has announced a proposed amendment which might make Michigan the next state to adopt a duty to keep up with "technology" as part of the duty of competence.  Go here for the story.

Former prosecutor comments on courtroom scenes from TV and the movies

I recently found this video in which a former prosecutor comments on courtroom scenes from TV shows and movies. She comments on a lot of different aspects of litigation, from substantive issues, rules of evidence, conduct of lawyers in the courtroom and the role of the judge.  The clip is a bit long, but I enjoyed watching it.  You can watch it below or by going here.  She discusses clips from, among others, A Few Good Men, Legally Blonde, To Kill a Mockingbird, Philadelphia, A Civil Action, Class Action, Roman Israel, esq, and from TV shows like Suits, The Good Wife, and The Practice.

There are, of course, a lot of other scenes from movies that could have been included, but there is only so much time...  One I recommend you take a look is the scene of the plaintiff's deposition in the movie Class Action.

Maine court expresses frustration with prosecution's cavalier attitude toward duties related to discovery and misunderstanding of duty of candor

This week, I will spend a few class hours discussing the duties of prosecutors and issues related to prosecutorial misconduct.

As I coincindence, over at the Legal Profession Blog, Mike Frisch is reporting about a recent case in Maine which illustrates some of the issues.

In this case, a defendant charged with driving on expired tags made a standard request for any dash cam video of the incident, but the prosecutor never responded nor sought to ascertain whether such video existed.

At trial, the prosecutor only used the officer involved in the case as a witness.  When the officer testified that there was in fact a dash cam video, the court became interested to know why the prosecutor had not bothered to produce it, and "[t]he court’s patience was obviously tried by the State’s continued  insistence that the video showing the alleged crime being committed had no  “evidentiary value.”"

In its order, the lower court rebuked the State for its approach to its discovery obligations and granted the defendant's motion to  suppress.

On appeal, among other things, the State argued that the court abused its discretion in selecting a sanction that effectively ended the  prosecution.  Yet the appeals court did not buy it. The court recognized that various obligations on prosecutors create challenges and that mistakes happen but affirmed that "[g]iven the substantial responsibility placed on the prosecutors to  provide timely discovery,... it is all the more important that the obligation be treated seriously. The court here expressed its frustration with  the State’s cavalier attitude toward discovery in several ways...  The court further noted the State’s persistent and inexplicable failure to recognize the relevance of the video."

Also, the court explained the prosecution's confusion about its duty of candor concluding that "[i]n arguing that the video was not “exculpatory,” and therefore not  discoverable, the State confuses its obligation pursuant to Rule 16(c) with its  obligation pursuant to Brady v. Maryland, 373 U.S. 83 (1963):

The due process  concepts articulated in Brady require the State to disclose to the defendant  evidence that is “favorable to the accused, either because it is exculpatory, or because it is impeaching . . . .” . . . Rule 16(c), in  contrast, requires the disclosure of items, including video recordings, that are  “material and relevant to the preparation of the defense.” . . .   

In conclusion,

What the State seems to miss in the matter before us, however, is  that there is a fine line between inadvertence and practices that the court  described here as “slipshod.” Carelessness in this critical area of constitutional  rights is not acceptable and is not an excuse. Moreover, the State’s continued  insistence that the defendant “suffered no harm” as a result of the State’s failure  to turn over the video of the crime makes it painfully evident that the State still  does not understand the nature of its obligations. 

          . . . .

The State’s continued insistence that the video of the defendant driving by the trooper was not material or relevant defies common sense and provides full support for the court’s determination that a serious sanction was warranted. The suppression of the evidence, while almost certainly fatal to the State’s prosecution, fell well within the discretion of the court. [and, according to the court, the lower court "plainly used the sanction to educate the State that its casual approach to fulfilling its discovery obligation was unacceptable.

The case us called State of Maine v Reed-Hansen, and you can read the opinion here.

How to define "the practice of law"

If you are interested in professional responsibility matters, you know that courts and scholars have struggled over the years to define exactly what constitutes "the practice of law."  (Here is an old example.  An ABA commission at one point abandoned an attempt to come up with a model definition, in fact.

Whether it is to deal with issues related to unauthorized practice of law, multijurisdictional practice, practice by non lawyers, sharing of fees with non lawyers and so on, having a standard definition would be helpful.  But the attempts at defining what is practicing law usually end up being over or under inclusive, thus making it difficult to definitively say that, for example, the work of an accountant doing tax code advising for a client is or is not practicing law.

I am writing about this today because I just saw a recent post at MyShingle.com asking "What would be the effect of simply exempting matters smaller than $10k from the definition of the practice of law?"

The author's argument is that we could define the practice of law this way:  "Any matter that involves courts, contracts, wills, advice on rights or obligations that has a value of less than $10,000 is not the practice of law.  Admission to the bar is not required to represent clients in this category of matters."

As she says, this seems arbitrary, but, on the other hand, it is also practical. Why?  Because "[o]ne of the reasons that parties are often unrepresented in certain matters is because lawyers turn down cases that don’t make sense from a financial perspective."

So if people need help with work that requires advise on legal matters that most lawyers don't want to help with, why not let others who want to help do it?

You can read the article here.

As you know, a couple of jurisdictions already have programs that allow non lawyers to participate in the legal process by helping claimants, and participants in divorces, etc.    My most recent post on this subject, with links to older ones, is here.

ABA Ethics Opinion on whether it is a violation of the Code of Judicial Conduct for a judge to refuse to perform same sex marriages -- UPDATED

Earlier today, the ABA Standing Committee on Ethics and Professional Responsibility released its latest Formal Opinion (No. 485) which addresses whether it is a violation of the Code of Judicial Conduct for a judge to refuse to perform same sex marriages.  You can download or read the full opinion here.

The opinion's digest reads as follows:

A judge for whom performing marriages is a mandatory obligation of judicial office may not decline to perform marriages of same-sex couples. A judge for whom performing marriages is a discretionary judicial function may not decline to perform marriages of same-sex couples if the judge agrees to perform opposite-sex marriages. A judge’s refusal to perform same-sex marriages while performing opposite-sex marriages calls into question the judge’s integrity and impartiality and reflects bias and prejudice in violation of Rules 1.1, 2.2, 2.3(A), and 2.3(B) of the Model Code of Judicial Conduct. In a jurisdiction in which a judge is not obligated to perform marriages but has the discretion to do so, a judge may refuse to perform marriages for members of the public. A judge who declines to perform marriages for members of the public may still perform marriages for family and friends. If a judge chooses to perform marriages for family and friends, however, the judge may not decline to perform same-sex marriages for family and friends.

UPDATE 4/19/19:  The ABA Journal has a short article on the opinion in its April 2019 issue.  You can read the article here.

Devin Nunes files second lawsuit

A few days ago I posted about Devin Nunes' lawsuit against Twitter and others and asked whether it violated the rules against frivolous litigation.

Now comes news that Nunes has filed a second lawsuit and now the question is whether it violates the rules against filing claims for an "improper motive."  Tech Dirt has made an argument that it does.  You can read it here.

Yet another attack to the concept of the unified bar: Wisconsin lawyers file suit alleging bar's use of mandatory dues violates their constitutional rights

In what is quickly becoming the hot issue in Professional Responsibility this year, here is yet another news item regarding an attach on the concept of a unified bar.  For my recent posts on this subject, and links to older posts go here.

As reported by Courthouse News, two Wisconsin lawyers have filed a federal civil rights suit against the state’s bar association claiming mandatory membership to the bar association constitutes compelled speech in violation of the lawyers’ First and Fourteenth Amendment rights because of the dues lawyers have to pay -- or, more precisely, because they don't agree with the way the bar association uses the money paid in dues.

The case is called Jarchow v. State Bar of Wisconsin, and you can read the complaint here.  Among other things, the plaintiffs complain that the Wisconsin Bar Association publishes magazines with articles "on matters of intense public controversy" including advocacy for criminal justice reform, juvenile justice reform, elder law reform and advocacy for restoring funding to provide legal representation to the poor.  They also specifically claim they object to the bar’s advocacy on criminal justice issues, felon voting rights, unemployment insurance fraud, free exercise of religion and immigration law.

How not to practice law: threaten others and tell them to kill themselves

I have not posted any entries in the ongoing "how not to practice law" series in a while, so here you go:

As reported (here) by Prof. Jonathan Turley:

A prominent real estate lawyer who once described himself in a column as “jungle street skills and a passion for justice” has been suspended for bizarre and abusive conduct. Adam Leitman Bailey told a tenant that he should commit suicide as a worthless human being and even declared “now you’re my bitch.”  The problem is that the tenant recorded the call.  

In a decision by the New York Appellate Division, Bailey was given a four-month suspension and told to get counseling.

Article on Maine's system for providing counsel to indigent criminal defendants

The Sixth Amendment Center has published a short article criticizing the system used in Maine to provide counsel to indigent defendants.  According to the article, Maine is the only state in the country that provides all indigent defense services through private attorneys which makes it difficult to predict and contain costs and to supervise private attorneys to ensure they can and do provide effective representation. The article concludes that Maine struggles with both, as the Maine Commission on Indigent Legal Services is expected to oversee the representation by and cost of nearly 600 attorneys, handling more than 30,000 cases each year in 47 courthouses presided over by approximately 90 justices, judges, and magistrates, with a staff of just three people. 

You can read the full article here.

What if a client asks lawyer to destroy the client's file or some of its contents?

Over at Ethical Grounds (the unofficial blog of Vermont's bar counsel), Michael Kennedy discusses a recent NY opinion on whether an attorney has to destroy the client's file upon request.

As Michael explains, ordinarily, upon the termination of a representation, Rule 1.16(d) requires a lawyer to surrender to the client all papers and property to which the client is entitled, which, of course, includes the client's file.  But, the lawyer is also entitled to keep a copy of the file, which, in fact, the lawyer may be required to do according to the lawyer’s malpractice.

The interesting question then becomes, what to do if a client directs a lawyer not to keep to a copy of a the file?

You can read the comment here.

New statute in New York creates a commission to review prosecutorial misconduct

Long time readers of this blog know that I have posted a lot of stories about prosecutorial misconduct over the years (go here and scroll down).  And in many of those stories, I have often complained that courts do not do enough to confront the problem.

Today, for a change, I am reporting that one state is at least trying.  As reported in Jurist:

New York Governor Andrew Cuomo signed a bill Wednesday to create a commission to review prosecutorial misconduct by District Attorneys.  This is the second version of the bill that the governor has signed. The first version of the bill was challenged by a coalition of district attorneys under separation of powers concerns between the judiciary and legislature, but was halted among promises to revise the bill. The governor and state legislature made changes regarding the 11 appointments to the commission. The original version allowed the legislature to appoint all members of the Commission, and the bill signed on Wednesday allows for appointments from the governor, legislative party members, and Chief Judge Janet DiFiore. The commission will review potential misconduct of state prosecutors and impose necessary sanctions. The panel can subpoena witnesses and ask for relevant records to conduct its investigation. Upon a finding of misconduct, prosecutors can be sanctioned ranging from public censure to being removed by the governor. Prosecutors will also be able to challenge the panel’s decisions on an appeal to the Appellate Division of the NY’s Supreme Court.  The new version of the bill is still expected to face due process and equal protection challenges for expanding the power and authority of the state judiciary.

You can read the text of the bill here.

Devin Nunes files lawsuit for $250 million against Twitter; does it violate the rules against frivolous suits?

By now, I am sure you have heard all the jokes about the lawsuit filed by Rep. Devin Nunes.  If not, here is the bottom line: Rep. Devin Nunes has sued Twitter, some satire Twitter accounts, and a real political commentator for a variety of "offenses" including defamation based on allegations that anyone with a basic understanding of the law should know would not support a claim for defamation.  He is asking for $250 million in compensation.  The defamation claim is frivolous.

Of course, frivolous lawsuits are not new, but this is the same Devin Nunes who co-sponsored the Discouraging Frivolous Lawsuits Act and who once voted for a House Amendment "to express a sense of Congress that free speech should be protected."

But, my question for the readers of this blog is this:  if the claims are so obviously frivolous, what was the lawyer who filed the complaint thinking?  Are the rules (both in civil procedure and professional responsibility codes) not enough to discourage filing of frivolous complaints?

For a detailed analysis of the complaint, go to TechDirt.

You can read more comments in ABA Journal, and The Daily Beast.

For the jokes I mentioned above, you can go here, and here for some examples.

Indiana Supreme Court Disciplinary Commission: "Indiana AG's party behavior violated 'heightened duty of ethical conduct'... "

The ABA Journal is reporting that an ethics complaint filed by the Indiana Supreme Court Disciplinary Commission accuses Indiana Attorney General Curtis Hill of inappropriately touching an Indiana lawmaker and three legislative staff members at a bar party, where he also made “rude and sexually suggestive comments.”  More interestingly, according to the complaint the AG “holds a position of extreme public trust,” and as a government lawyer he has “a heightened duty of ethical conduct.”

The allegations are alarming and I have no problem finding the conduct, if true, is totally unacceptable.

Yet, I do have a problem with the notion that certain lawyers have a "heightened" duty of ethical conduct.  Where does that come from?  Which lawyers are those?  Can someone point me to the rule or legal precedent which creates different levels of duties when it comes to ethical behavior?  I'd like to take a look at them to see if that classification can be justified.

Murder conviction reversed because of failure to object to prosecutors obviously wrong statements to jury as to the meaning of "beyond a reasonable doubt"

The Georgia Supreme Court has vacated and remanded the murder conviction of two parents accused of the crime based on evidence that their healthy newborn returned to the hospital within hours with fatal injuries.

The defendants appealed arguing ineffective assistance of counsel and the court found that the record did not provide sufficient evident for the court to apply the needed analysis to decide that claim.

More interestingly, the court discussed mistakes by both defense counsel and the prosecutor.  The prosecutor made improper and obviously wrong comments during closing argument about the meaning of "reasonable doubt" but defense counsel did not object.  The prosecutor's statement was as follows:

The Judge will charge you on reasonable doubt. Just keep in mind, and he will charge you, reasonable doubt does not mean beyond all doubt. It does not mean to a mathematical certainty. Which means we don’t have to prove that ninety percent. You don’t have to be ninety percent sure. You don’t have to be eighty percent sure. You don’t have to be fifty-one percent sure. It does not mean to a mathematical certainty.  And it does not mean beyond a shadow of a doubt. That’s just something the TV made up. It’s actually beyond a reasonable doubt. And that would be a doubt to which you can attach a reason. And I submit to you there is no reasonable doubt in this case.

Correctly, the court found both that the prosecutor's statement was wrong, and that there was no reason why a competent defense lawyer would not have objected.  Thus, the conviction could not be trusted:

 We also note our serious concern regarding the State’s closing argument during trial that flatly stated that proof beyond a reasonable doubt in this murder case does not require the jury to be even 51% sure— in other words, requires less than even the preponderance of the evidence required to meet the burden of proof in a civil case. That is obviously wrong. A case like this one, where there was no direct evidence to prove that Albert, Ashley, both of them, or neither of them killed McKenzy, could turn on reasonable doubt, and the verdict could be affected by an argument that 50-50 proof is good enough. And the trial court’s jury instruction on reasonable doubt — which in many cases may cure previous misstatements on the subject — did not cure the State’s obviously wrong argument here. The State’s point was to define reasonable doubt as not requiring the State to prove its case to “a mathematical certainty” – a phrase the State repeated twice. Of course, that is a phrase that occurs in the pattern instruction as well, and so when the trial court gave that instruction, it may well have been understood by the jury not as correcting the State’s error, but as reinforcing it. We cannot conceive of any good reason that a competent criminal defense attorney could have to fail to object to such an egregious misstatement of the law.

The Legal Profession blog has the story here.  You can read the opinion here.

New Jersey Supreme Court rejects mandatory malpractice insurance, embraces disclosure of coverage

George Conk, of Professional Responsibility: A Contemporary Approach, is reporting that the New Jersey Supreme Court has issued a "Notice to the Bar" adopting only some of the  recommendations of its Ad Hoc Committee on Attorney Malpractice Insurance.  Among its conclusions, it rejects the notion that all private practitioners should be obligated to have malpractice insurance. However, the court decided to retain a rule that all limited liability firms must carry insurance. Also, the Court announced that it will revisit at an unspecified date whether attorneys who lack coverage should be required to disclose that fact.

Puerto Rico considers implementing IOLTA type rules; comments requested

As you probably know, IOLTA (short for "interest on lawyer trust accounts") programs are a mechanism for funding legal services for the poor. They require attorneys to place certain funds in interest generating accounts and banks to provide the interest to an agency that uses it to provide funds for legal services. All states and the District of Columbia have IOLTA programs. (About a decade ago, the program in DC became mandatory; see here).

Now comes news that the Supreme Court of Puerto Rico is considering adopting a similar program.  The text of it (in Spanish) is available here.  Comments should be sent to SecretariadoConferenciaJudicialyNotarial@ramajudicial.pr

If you want to learn more about the basics of IOLTA programs, you can listen to this short podcast.  Also, here is a short post on common mistakes lawyers make when handling an IOLTA account. If you want to read about the typical debate as to whether IOLTA programs are unconstitutional, you can take a look at this article, although that is only one of many, many others on the subject.

Texas lawsuit challenges mandatory membership in State Bar Association

Three Texas lawyers have filed a federal lawsuit claiming that mandatory membership in the State Bar of Texas violates their First Amendment right against coerced speech because the State Bar Association is using members’ mandatory dues, among other things, to fund programs that help undocumented immigrants seeking asylum, diversity initiatives and programs related to access to legal representation.  The case is called McDonald v. Longley and you can read the complaint here.

The question of the constitutionality of an integrated bar is not new.  In 1961, the US Supreme Court rejected a constitutional attack of mandatory membership in state bar associations in a case called Lathrop v. Donahue, 367 US 820 (1961). Also, in Cuyahoga Cty. Bar. Assn. v. Supeme Court of Ohio, 430 US 901 (1977), the Court summarily affirmed a lower court ruling on the constitutionality of a mandatory annual fee to support a state bar and disciplinary system. However, the free speech and free association arguments advanced in Lathrop were not rejected by the prevailing opinion. The Court simply found that more facts were needed for them to be considered. Other courts, however, have found that mandatory fees need to be related to bar organization matters.

Also, I discussed in some detail the back and forth history of the issue in Puerto Rico here.

The Texas Bar allows its members to opt out of supporting causes they do not believe in, but the plaintiffs in the lawsuit allege this system is inadequate.  At the very least, they argue, the system should be one in which the members would be required to "opt in" to avoid forcing them to fall into the default position of supporting causes they may or may not agree with.

Courthouse News and The ABA Journal have stories on the Texas lawsuit here and here.  According to the ABA Journal's story, the Texas lawsuit is among at least four current lawsuits that challenge mandatory state bar dues.

Lawyer gets sanctions for conduct as a landlord

I recently posted a few stories (here) that raise the same question:  under what circumstances is the state justified in imposing sanctions for conduct not related to the practice of law.

As I said in one of my recent posts, there is a case in Illinois that suggests the answer depends on whether the conduct leads to the conclusion that the attorney should not be trusted to do what attorney's do.

Using this analysis, it can be argued, for example, that a lawyer who who steals money should not be trusted to handle other people's money or affairs.

Now comes the story of a lawyer who put glue in his tenant’s locks and let the air out of her tires.  The lawyer's defense:  he was acting as a landlord, not as a lawyer.

So, is this conduct that should subject the lawyer to sanctions?  Under what rule?

If the conduct is "criminal", maybe the state can base the decision on rule 8.4(b) which considers misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.  Is that a strong argument?

There are very few details about the decision of the Board, but from what I read it is not based on a specific rule.  Instead, the story cites the board as concluding that the conduct "exposed the legal profession to obloquy, contempt, censure and reproach” and that the conduct was “contrary to justice, ethics, honesty or good morals.”

This is an awful standard.  First, it is not based on any specific rule; second, it is based on the notion of either an "appearance of impropriety" or an effect on "the image of the profession" or both; and, third, it suggests that lawyers are bound by a duty to abide by "good morals."

I have never liked the use of a standard based on an appearance of impropriety or the image of the profession, which is such a vague and subjective standard.

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

The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to another standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite. 

The notion of "good morals" is also problematic for many reasons.  First of all, who decides what is to be considered "good morals" and what is the basis for that decision?  This is the same problem when we deal with a standard based on the "dignity of the profession."  Who decides what is "dignified"?   This notion was rejected in an old case in Illinois that holds that "we do not intend to imply that attorneys must conform to conventional notions of morality in all questions of conscience and personal life."

Finally, if the question of the basis for possible discipline was not hard enough, then we get into the next problem:  what is the appropriate sanction for conduct outside the practice of law? (I wrote about this recently here.)

According to the story, the Michigan Attorney Discipline Board found misconduct but has not yet determined the appropriate discipline.

You always risk disbarment

I always tell my students that because there are no penalties associated with specific rules of conduct, "you always risk disbarment."  It is true that more often that not, courts try to be consistent with previous cases involving similar conduct, but that does not eliminate the possibility that judges will disagree on what the proper sanction should be.

Interestingly, for some reason, these types of disagreements are common in cases involving conduct outside the practice of law.

I am writing about this today because I just saw a story about a recently admitted lawyer in Florida who was suspended for stealing $760.  The lawyer had been admitted to practice but was working as a cashier at the time.  Adding insult to injury, she claimed she stole the money because of the pressure of paying her law student debt.

In any case, back to the topic at hand, the case made its way up to the Florida Supreme Court, where the judges increased the sanction from ten days plus one year probation to a three year suspension.  One dissenting judge argued that was too harsh, but two others argued the lawyer should have been disbarred.

So how do you decide this case?  There is a case in Illinois that summarizes the analysis as asking whether the facts show that the conduct leads to the conclusion that the attorney should not be trusted to do what attorney's do.

Clearly, a person who steals money should not be trusted to handle other people's money or affairs.  But does that mean that the person should be disbarred in every case?  Does it matter that the amount stolen was relatively low? Does it matter that the lawyer had to pay her student debt (or that some have argued that the debt was caused by a school that allegedly took advantage of her)?

As the author of the article states, "Judges should be flexible on how lawyers should be disciplined. At the same time, practicing lawyers should be on notice that a relatively small crime can lead to disbarment which should deter them from committing similar acts."

In other words, "you always risk disbarment."

Supreme Court adds to the definition of ineffective assistance of counsel

The US Supreme Court recently held (in a 6-3 opinion) that a lawyer renders ineffective assistance of counsel when he or she decides not to file an appeal of a guilty plea despite his client’s request, even if the client waived his right to appeal in the plea agreement.  The case is called Garza v. Idaho, and you can read the opinion here.  You can also find all the relevant documents in the case here.

I haven't had a chance to read the opinion myself, so I will limit the post to a link to this summary and analysis.

A few stories this week had to do with lawyers getting in trouble for things they said -- UPDATED

A prominent metro Detroit attorney is facing new claims of professional misconduct for allegedly mouthing off to a young female prosecutor and then, in a Facebook rant, misrepresenting what happened.  Here is the story.

The Florida Bar obtained the emergency suspension of a lawyer who attacked opposing counsel on social media.  You can read more about this story here and here.

A state appeals court ruled that a drug court defendant in Washington state is entitled to a new sentencing hearing because the judge who used expletives and said that the defendant was 'just a criminal,' showed “personal animosity.”  Interestingly, the judge had already been admonished in the past because of similar behavior.  He is no longer a drug court judge.  Here is that story.

Finally, a federal judge in San Francisco ordered a lawyer to pay a $500 sanction for discussing irrelevant and banned evidence in her opening statement in a trial.  Here is the story.

UPDATE 3/12/19:  A judge in Texas, has received a public warning for telling jurors that God told him a sex trafficking defendant was innocent.  See more here and here.

Bullying from the bench

A few days ago, I posted a note with links to stories of lawyers getting in trouble for things they said.  It included two stories about judges.  See here.  Today, I saw the most recent copy of the ABA Journal has a story called "Bullying From the Bench" on recent high profile bad behavior by judges.  You can read it here.

Texas adopts duty to keep up with technology as part of concept of competence

Yesterday I posted that the Washington DC bar is considering adopting the Model Rules' approach to competence which now includes a duty to keep abreast of developments in "technology."

Today I heard that Texas is the most recent state to have adopted this notion.  You can read the details of the story here.

US Supreme Court finds for inmate in claim of ineffective assistance of counsel

The US Supreme Court announced a decision today in which it expanded the notion of ineffective assistance of counsel.  The court ruled for Gilberto Garza Jr., who waived his right to appeal in two plea agreements, then changed his mind and told his lawyer to file an appeal.  The lawyer did not file the appeal notice because of the waiver, and the deadline passed. In a petition for post-conviction relief, Garza argued that his lawyer had provided ineffective assistance.

To prove ineffective assistance, defendants must show that their lawyer’s representation fell below an objective standard of reasonableness, and that the deficiency was prejudicial to the defense.

The issue in the case was whether Garza was entitled to a presumption that his lawyer’s failure to file the notice caused prejudice, a presumption that had been recognized in a 2000 case in which there was no appeal waiver.

Idaho courts had ruled against Garza, finding that he could not make the necessary showing that the deficient performance at issue resulted in prejudice.

Reversing that ruling, the Supreme Court ruled 6-3 that this requirement goes against the rule that prejudice to the defendant should be presumed “when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued.”

The ABA Journal has a story here.

Courthouse News Service has a story here.

Florida opens investigation into whether Representative Matt Gaetz violated rules of professional conduct when he tweeted what some have interpreted to be a threat to Michael Cohen

The Daily Beast is reporting that the Florida Bar has opened an investigation into whether Rep. Matt Gaetz (R-FL) violated professional conduct rules by threatening former Trump lawyer Michael Cohen ahead of Cohen’s congressional testimony on Wednesday.  The full story is here.

Michael Cohen was disbarred yesterday, while he testified in Congress

Michael Cohen is making news everywhere today.  Yesterday he testified (in a private hearing).  Today, he is testifying in a public hearing before the House Oversight and Government Reform Committee.  Cohen's prepared opening statement is available here (in writing).  The video of today's opening statement is available here.  There are some interesting details about what Trump knew and when, but the gist of it is that Trump is a liar, a racist and a con man, or, in other words, nothing we have not heard before. 

But more important for readers of this blog, yesterday the New York Appellate Court issued its opinion officially announcing his disbarment based on his guilty pleas for evasion of assessment of income tax liability in violation of 26 USC § 7201, making false statements to a financial institution in connection with a credit decision in violation of 18 USC §§ 1014 and 2, causing an unlawful corporate contribution in violation of 52 USC §§ 30118(A) and 30109(d)(1)(A), and 18 USC § 2(b), making an excessive campaign contribution in violation of 52 USC §§ 30116(a)(1)(A), 30116(a)(7) and 30109(d)(1)(A), and 18 USC § 2(b), and making false statements to the United States Congress in violation of 18 USC § 1001(a)(2).

The full order is available here.  The Professional Responsibility blog has a summary here.

The Ohio Board of Professional Conduct's recent advisory opinion on conflicts of interest

The Ohio Board of Professional Conduct has issued an advisory opinion which reiterates three basic and uncontroversial principles on conflicts of interest.  The opinion is Advisory Opinion 2019-01 and you can read it in full here. 

The opinion makes three points:

First, the opinion states that, absent informed consent, a lawyer may not undertake representation of an adverse party in an unrelated matter when the lawyer represents current clients with claims pending against the adverse party.  This conclusion should not be surprising.  It is just the basic principle against concurrent conflicts of interest expressed in Model Rule 1.7.

Second, the opinion states that a lawyer may not withdraw from the representation of a current client in order to undertake representation of an adverse party, even if the matters are unrelated.  This is another way of saying that the Board would apply the so-called "hot potato doctrine" which prevents a lawyer from trying to dump a client in order to "convert" the client from a current client into a former client before taking on a new client in a matter adverse to the interests of the converted former client.  I can't say how many jurisdictions have formally adopted the doctrine, but it is pretty well known so I am not surprised by the opinion's position on this.

Third, the opinion states that absent informed consent, a lawyer may not represent a former adverse party in a new matter against a former client if the new matter is the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.  Again, this is not news since it is simply stating the basic principle regarding successive conflicts of interests expressed in Model Rule 1.9. 

Why Lawyers May Not Ethically Be Able To Use Whatsapp

Have you ever tried to install an app, only to get a message saying the app wants to access your contacts?  Do you know why the app needs such access?  Are you violating the duty of confidentiality by providing access to your clients contact information?  If the app won't install unless you allow access to the contacts, do you need client consent to install the app?

Here is an interesting article on the subject.  The article also relates to the duty of competence about technology.

Resolution before ABA House of Delegates regarding companies that offer legal documents online is withdrawn

At a recent meeting of the ABA, the ABA House of Delegates was due to consider a resolution that proposed model rules for companies that offer legal documents online, but the resolution was withdrawn after the ABA Center for Innovation, the Standing Committee on the Delivery of Legal Services, the Business Law Section and the Section of Dispute Resolution argued the proposed guidelines needed more work before going forward.

You can read the proposed resolution here.

According to a story in the ABA Journal, there were concerns regarding warranties, intellectual property and dispute resolution. There was also uncertainty over whether the proposed guidelines would apply to courts offering online forms.  The ABA Journal has more details here.

Report on alternative legal services providers

A recent report by Thomson Reuters concludes that the "alternative legal services provider" market grew approximately 25 percent from $8.4 billion in 2015 to $10.7 billion in 2017 amid growing demand from both corporations and law firms.

The report found that the five most common types of alternative legal service providers are litigation and investigation support, legal research, document review, e-discovery, and regulatory risk and compliance.

The ABA Journal has details, and a link to the report, here. 

Thoughts on the regulation of the profession

A recent column in Above the Law reflects on the regulation of the profession.  It concludes that "the legal profession is one of the best-regulated professions out there, and we can all kind of be happy that we have more safeguards against bad actors than other professions."

I generally agree with the underlying sentiment but the conclusion needs to be more nuanced than that.  It is true that the legal profession is highly regulated and that much of that regulation is in place for good reasons, but it is debatable whether all regulation is needed.  For example, I think there are good arguments to suggest that it is time to revise the limits to multijurisdictional practice, for example.  Also, whether we can be "happy" depends on how the regulation is implemented, which varies a lot from jurisdiction to jurisdiction.

Ohio Supreme Court continues trend of suspending lawyers for violation of rule against having sex with clients

The Law for Lawyers Today is reporting that "[t]he Ohio Supreme Court is continuing its trend of suspending lawyers who violate the disciplinary rule on sex with clients, and has again rejected arguments that pointed to the consensual nature of the relationship.  In a recent opinion involving sex between criminal defense counsel and his client, the court characterized the lower disciplinary Board’s analysis as “blaming the victim,” and increased the penalty above what the Board recommended."  Go here for details and analysis.

Can a paralegal (or other non-lawyer employee) cause a conflict that disqualifies a law firm when the paralegal joins the firm?

This is a question that is addressed in the comments to Model Rule 1.10, but it is not a bad idea to review it once more.  Michael Kennedy, of Ethical Grounds, did so earlier this week here.

DC Ethics Committee new opinion on crowdfunding -- UPDATED

The District of Columbia Bar Legal Ethics Committee has issued a new Ethics Opinion (Number 375) on whether an attorney can finance the representation of a client through "crowdfunding."

The opinion is short and straightforward and essentially follows the reasoning of other jurisdictions that have issued opinions on the subject.  You can read the full opinion here. Its summary describes its conclusions as follows:

Lawyers are generally free to represent clients who pay for legal services through crowdfunding. The ethical implications of crowdfunding a legal representation vary depending on the lawyer's level of involvement in the crowdfunding. When the client directs the crowdfunding and the lawyer is merely aware of it, the lawyer incurs no specific ethical obligations although the lawyer should consider potential risks associated with receipt of such funds and may counsel the client on the wisdom of publicly sharing confidential information. When the lawyer directs the crowdfunding, the lawyer must comply with the Rules governing a lawyer's receipt of money from third parties. Further, a lawyer who directs the crowdfunding should be cognizant of ethical obligations regarding fee agreements, communications with donors, and the management of the funds raised. 

Again, this is equivalent to what has been decided elsewhere, but there is one point the opinion does not address, and that is that under certain circumstance crowdfunding can lead to sharing fees with a non-lawyer.  Now, if my memory is correct, DC allows sharing fees with non lawyers under certain circumstances but I don't think its rule applies to crowdfunding.

I published a short article on the subject in which I discuss the issues and the few opinions available back then.  You can read it here.

UPDATE (1/27/19):  Karen Rubin, of The Law For Lawyers Today, has posted a comment on the opinion here.

Texas Committee proposes new rules on advertising

As you probably remember, the ABA recently amended the rules related to advertising and solicitation.  Some states are now following its lead.

The Texas Committee on Disciplinary Rules has proposed revisions to Texas’s ethics rules on advertising that are open for public comment until March 1, 2019.  You can read the proposal here.  Brian Faughnan has a short comment on what he sees as the pros and cons here.

Supreme Court issues opinion on federal cap on attorneys' fees

The US Supreme Court recently issued its opinion in Culbertson v. Berryhill holding that a federal law imposing 25 percent cap on attorney’s fees in Social Security cases applies only to fees relating to court proceedings rather than all fees incurred. 

You can read the opinion here.

The SCotUS blog has a comment on the opinion go here, a comment on the oral argument here and more documents and links here.

Courthouse News has a short summary here.

The grades you don't want as a student and basic duties owed to clients, or the basic principles of ethical lawyering

Years ago, I wrote a short essay on whether we could reduce the professional conduct rules to just a few basic principles.  I concluded that, although we need the rules for guidance on specific issues, we can use a few general principles to define the notion of professional responsibility upon which all rules are generally based.

Along the same lines, a few weeks ago, Brian Faughnan posted a comment on “A recipe for ethical lawyering?” in which he expressed a similar idea by referring to the 5 Cs of lawyering:

Be COMPETENT at what you do
Recognize and respect your obligations of CONFIDENTIALITY
COMMUNICATE appropriately with your clients (and others) both as to content and frequency
Employ CANDOR in all situations in your practice [If you absolutely cannot be 100% truthful, and can’t simply stay silent, then don’t be false.]
Avoid CONFLICTS for which you don’t have, or cannot get, consent.

A few days later, Michael Kennedy followed up with his own commentary on the 5 Cs.

There is little to add to these two fine comments, but I will mention my own take on the 5 Cs, which is this: to try to get my students to remember the basic duties attorneys owe their clients, I tell them to think about the grades the do NOT want to get this semester: 1 F, 1 D and 4 Cs:

The F is for the Fiduciary duty owed to clients which in fact includes most, if not all, the others.

The D is for Diligence.

The Cs are for Competence, Confidentiality, Communication and Conflicts.

There are a couple of problems with my little word game for my students,* but it works for its purpose, I guess.... I hope...


*Note that “Conflicts” is, of course, not a duty – the duty is loyalty – but I needed a “C” to make the saying work!  Also note that I did not mention candor because, technically, the rule on candor says candor is owed to the tribunal, and my lesson was on duties owed to the client.  The equivalent of candor owed to the client would be Honesty, which I mention separately.  It is covered in the "catch-a;;" Rule 8.4 but can also be included in the notion of a fiduciary duty.

The Virginia State Bar has proposed a significant revision to Rule 4.4(b) and its comments

The Virginia State Bar has proposed a significant revision to Rule 4.4(b) and its comments that does NOT follow the text of the Model Rules. 

The Model rule states: "A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender."

In contrast, the proposed new rule in Virginia states:  "A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information is privileged and was inadvertently sent shall immediately terminate review or use of the document or electronically stored information, promptly notify the sender, and abide by the sender’s instructions to return or destroy the document or electronically stored information."

Do you see the difference?  The proposed rule imposes a much more detailed duty on the lawyer and addresses what the comments to the Model Rules refer to as matters "beyond the scope of [the] rules." 

In particular, comment [2] to Model Rule 4.4(b) states that "[w]hether the lawyer is required to take additional steps, such as returning the document or electronically stored information, is a matter of law beyond the scope of these Rules ..."  But, as you see above, the Virginia proposed rule does impose specific duties that go beyond notifying the sender.  They impose a duty to immediately terminate review or use of the materials, and abide by the sender’s instructions to return or destroy the document or electronically stored information.  Presumably, this means to stop reading the moment it is evident the attorney should not be reading whatever it is that was sent by mistake. 

The Legal Profession Blog has the full text of the proposed new rule here.

Texas Bar issues opinion on whether attorney can renegotiate a flat fee

Long time readers of this blog might remember that I have published a couple of short articles on flat fees. (See here and here, for example.)  One issue related to flat fees that is interesting is whether an attorney should have the right to renegotiate the fee if it turns out that he or she miscalculated the amount of time the legal services would take.  Obviously, you would think that once the fee agreement is set, the attorney can't unilaterally change it to force the client to pay more.  The main reason a client would agree to a flat fee is the fact they know ahead of time how much the total fee will be.

This puts an attorney in a difficult position when it turns out the amount of work the fee pays for turns out to be a lot more than expected.  The attorney could ask the client to pay more, but what if the client refuses?  After all, they have a contract that says the services would be provided for the agreed amount and therefore have the right to expect the work will be done regardless of how much work it is.  In a case like that, the lawyer miscalculated and would suffer the consequences of his/her mistake.  Like I said, I guess there is nothing that says that the lawyer can't ask the client to pay more, but if the client refuses, the lawyer has to suck it up -- do the work diligently, competently and completely even if it means taking a financial loss.

So the question I would ask is whether it would be ethical for the lawyer to include in the initial contract a clause allowing the lawyer to recalculate or at least to force the client to agree to renegotiate the fee under certain conditions.

A few months ago, the Texas Bar issued an Ethics Opinion partially addressing the issue.  It concludes as follows:

A lawyer may renegotiate his fixed, flat fee for representing a client in a litigation matter after the litigation is underway if modification of the fee agreement is fair under the circumstances. The burden of proving fairness is the lawyer’s and will depend upon factors such as the length of the lawyer-client relationship, whether the reason for the renegotiation could have been anticipated at the outset of the representation, and the client’s level of sophistication. Before seeking to renegotiate a fixed fee, the lawyer should be mindful of the risks that the lawyer voluntarily assumed when proposing or agreeing to that fee—including the possibility that the fixed fee might not be adequate to compensate the lawyer when compared to other fee arrangements.

Notice that the opinion refers to "renegotiating the fee" not to including something in the initial contract.  Does that mean that the opinion considers it ethical for an attorney to seek to renegotiate with the client, or that it would be ethical for the attorney to change the terms of the original agreement?   It is not clear, but it seems to me it is talking about whether it is ethical to ask the client to renegotiate, and it concludes that it would be depending on certain factors.

But, to me, that does not really answer some of the other important questions.  Let's say it is ethical for the attorney to ask, what happens if the client refuses to agree to the new proposed fee?  Can the attorney force the client to accept new terms?  Does the fact that the attorney can ask a client to renegotiate the terms of the contract, make the new terms themselves part of the contract?    My guess is that these questions would need to be addressed in the original contract and the client would have to agree to the terms ahead of time.

Also notice that the opinion seems to be limited to litigation.  Why is that?  What if a client asks me to prepare a will and I agree to do it for a flat fee of $100, which is my hourly fee, because I think it won't take me more than an hour.  Later I realize it will take me a lot longer than that. If the language of the opinion is limited to litigation, I'd have to suck it up, which a litigator wouldn't.  Why the difference?  What makes their time or work more valuable than mine?

You can read the full opinion (which is very short) here.

Louisiana Supreme Court disbars prosecutor for posting internet comments

If you need another reminder about the perils of posting internet comments that may disclose confidential information, take a look at this story in The Law for Lawyers Today, discussing a recent decision disbarring an assistant U.S. attorney for the Eastern District of Louisiana for publishing comments (under an pseudonym) on the website of the New Orleans Times-Picayune.  The opinion of the court is here.

Mississippi and Kentucky adopt exoneration requirement for malpractice claims against criminal defense attorneys

Some jurisdictions have recently abandoned the view that a convicted criminal defendant who wants to recover for malpractice against his or her former lawyer has to prove that he or she was actually innocent of the crime for which they were convicted.  My most recent post on this is here.   Some of those, however, still require that the plaintiffs show they were exonerated through the criminal process (or what some call "post conviction relief").  In other words, in cases in which a convicted defendant wants to sue a former lawyer alleging they would not have been convicted but for the negligence of the lawyer there are three approaches:  requiring that the defendant show actual innocence, requiring that the defendant show post conviction relief (but not necessarily innocence) and not requiring anything other than the typical elements of a torts claim.

In two recent decisions, the Supreme Courts of Mississippi and Kentucky have decided to adopt the approach that requires "exoneration" for the malpractice claim to proceed.

The case in Mississippi is called Trigg v. Farese, and you can read the opinion here.  In it, the court concludes that "We join the substantial majority of courts in holding that, because these allegations would entitle the plaintiff to relief from his underlying conviction, he must first pursue them through the criminal-justice process. In other words, a convict must “exonerate” himself by obtaining relief from his conviction or sentence before he may pursue a claim against his defense attorney for causing him to be convicted or sentenced more harshly than he should have been. To the extent prior decisions of this Court or the Court of Appeals suggest otherwise, they are overruled."

The case in Kentucky is called Lawrence v. Bingham, Greenbaum,Doll, LLP, and you can read the opinion here.  In it, the court adopted the following articulation of the Exoneration Rule: "to survive a motion to dismiss for failure to state a claim in a professional malpractice case against a criminal defense attorney, the convicted client must plead in his complaint that he has been exonerated of the underlying criminal conviction. He or she need not prove actual innocence, but they also may not rely solely upon a claim of actual innocence in the absence of an exonerating court decision through appeal or post-conviction order. Further, the statute of limitations on the legal malpractice claim does not begin to run until the postconviction exoneration occurs."

The Three Most Read Professional Responsibility Stories of 2018

Recently, the ABA Journal posted its “Top 10 most-read legal news stories of 2018.”  Three related to professional responsibility.  Michael Kennedy, of Ethical Grounds, discusses them here.

A different view on the justice gap and ABA Opinion 484

My most recent post was about ABA Opinion 484, which attempts to contribute to the effort to help close the access-to-justice gap.

Today, over at the ABA Journal, Jason Tashea offers a different perspective on the issue.  You should read his full post, but here is the gist of it:

Time and again, the proposed solutions to close the gap—whether loans, technology, professional rule changes, process and business model improvements—are missing the larger point. The access-to-justice gap doesn’t exist because of absence of loans or the lack of technology or the intractable billable hour. It exists—and continues to grow—because the cost of life in America has increased dramatically while wages for most Americans have been stagnant or even falling for decades.

ABA Opinion 484: can a lawyer refer a client to a financing company in which the lawyer owns a financial interest?

At the end of November, the ABA Committee on Professional Responsibility issued Formal Opinion 484 on whether a lawyer may refer a client to a fee financing companies in which the lawyer owns a financial interest.  I have not read the opinion in full, so I can't comment on it at this time.  Here is the summary:

Lawyers may refer clients to fee financing companies or brokers in which the lawyers have no ownership or other financial interests provided they comply with Model Rules 1.2(c), 1.4(b), 1.5(a) and (b), 1.6, 1.7(a)(2), and 1.9(a). If a lawyer were to acquire an ownership or other financial interest in a finance company or brokerage and thereafter refer clients to that entity to finance the lawyer’s fees, the lawyer would be entering into a business transaction with a client, or obtaining a security or pecuniary interest adverse to the client, or both. In that instance, the lawyer would also be required to comply with Model Rule 1.8(a).

ABA Opinion 483 on the duties related to data breaches

Last October, the ABA Committee on Professional Responsibility published Formal Opinion 483 to provide guidance on how lawyers should handle data breaches before, during, and after an event. In short, lawyers must take proactive steps to protect sensitive client data and they must disclose material data breaches.

You can read the opinion here.  Here is a summary by the National Law Review:

The ABA states that data breaches pose a “major professional responsibility and liability threat” to the entire legal profession.  It defines a data breach as “a data event where material client confidential information is misappropriated, destroyed or otherwise compromised, or where a lawyer’s ability to perform the legal services for which the lawyer is hired is significantly impaired by the episode.”  When there is data breach, attorneys must first comply with state and federal legislation. Next, attorneys must disclose a breach to a current client if (a) that client’s material, confidential information is or reasonably may have been compromised (e.g., unauthorized access, use, theft, or destruction), or (b) the breach has materially disrupted the attorney’s ability to serve the client (e.g., ransomware limiting access to client information for any material amount of time). In essence, lawyers must notify clients when incidents like ransomware materially impair operations—even when there is no evidence of exfilatrated or compromised data.  Here, strong defense mechanisms include up-to-date, accessible, and easily restorable back-ups to fend off disruption of legal services

For some commentary on the opinion go here:

Faughnan on Ethics (on the relationship between the opinion and Model Rules 1.15 and 4.4)

Above the law

Lawyer Ethics Alerts Blog

Articles about lawyering and artificial intelligence

While I was away from blogging during the last few weeks I saw a few articles about artificial intelligence that you might find interesting.  Here are the links:

LawTech: Time for a cybernetic legal ethics?

What’s Artificial About Ethical AI In The Legal Industry? Everything

Legal Ethics: The Ethical Dilemma of Artificial Intelligence (The National Law Review)

Where Avvo Legal Services left off, Basic Counsel picks up

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

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

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

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

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

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

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

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

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

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

Florida Supreme Court: there is no reason to treat "Facebook friendships" differently when it comes to disqualifying judges

Almost a year ago, I wrote that the Florida Supreme Court was considering the question of whether a judge should be disqualified from presiding over a case because he or she was a "Facebook friend" of one of the lawyers.  In my post I argued that 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.  I agreed with my friend and colleague Ray McKoski who had written an article in which he argued that imposing a per se rule 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 stated, there is no rule that automatically bars a lawyer from appearing before a judge when the two share an actual friendship.

Well, now we have the official answer to the question from the Florida Supreme Court.  Last month, the Court released its long awaited decision, holding that

In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships”—which regularly involve strangers—should be singled out and subjected to a per se rule of disqualification. 

The case is called Law Offices of Herssein & Herssein v United Services Automobile Association.  You can read the opinion here.

It seems to me the opinion reaches the correct result, and what it surprising is that the decision was actually 4 to 3.  The position of the dissenting judges was that "a judge’s involvement with social media is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter. . . . I would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook “friends” appears before them. This rule does little to limit the judge’s personal liberty, while advancing the integrity of the judicial branch as the one branch of government that is above politics."

Yet, it is not clear how the fact the friendship originates in Facebook makes it so different from an actual old fashioned "personal" friendship that we need a strict rule.

For more commentary on the opinion go to:

Ethical Grounds

Faughnan on Ethics

The ABA Journal

Jurist

Hinshaw

Lawyer Ethics Alert Blog

Free Webinar on Confidentiality and Privilege

On December 17, 2018, the ABA will host a webinar with the author of The Attorney-Client Privilege: A Practitioner's Guide, on client confidentiality and attorney-client privilege. This webinar is free to ABA members.

To register, go here.

I know, I know, it has been a long time....

It has been a while since I posted on the blog, and I am sorry about that.  My semester became extremely busy at one point because I had to take on two other courses and other projects, so I had very little time...  But now I am done with classes and, although I still have to grade exams for a couple of weeks, I have more free time.  There is a lot to talk about and I will try to catch up with the news before the end of the year.