New York Court imposes interim suspension on Rudy Giuliani

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

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

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

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

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

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

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

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

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

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

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

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

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

…

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

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

You should read the full opinion suspending Giuliani here.

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

South Carolina lawyers beware: anything you say can and will be used against you; Court imposes discipline because it found certain private speech offensive

I know that the big news item of the week was Rudy Giuliani’s getting an interim suspension, and I will comment on that tomorrow, but I want to start the week with a comment on an opinion from South Carolina which did not get any press but which I think is more interesting (and problematic.)

In this case, called In the Matter of Traywick, the Court accepted an agreement between the Office of Disciplinary Counsel (ODC) and a lawyer and suspended the lawyer from practice for six months. The case is important because the conduct upon which the disciplinary action was based was Constitutionally protected speech.  The Court did not address the First Amendment issue, however, because the lawyer did not raise it.  It is not clear why that was the case, but the court should have examined the issue anyway.  

There are so many things wrong with the opinion it is difficult to decide where to start, but since I am getting ahead of myself, let’s just start at the beginning.  

As the court explains it, beginning in June 2020, the ODC received complaints from forty-six separate individuals regarding statements that the lawyer made on his personal Facebook page.  Let's repeat that last point:  his personal Facebook page. The ODC identified twelve statements on the lawyer’s Facebook page that the court found problematic.  Yet, the opinion only cites two of them, which makes it impossible for us to evaluate whether the court's evaluation of the basis of the complaint is actually justified.

But I guess the point of only citing two of the statements is to suggest that those two statements, in and of themselves, justified discipline.  I guess the court did not feel the need to look at the other ten statements because those two were enough.  

Here is the problem.  Both statements were made in the lawyer’s personal page, both were statements of opinion and neither was related to the practice of law.  And, more importantly, even though offensive, both were protected speech under the Constitution.  The court seems to suggest that the statements constituted “incitement” but cites no proof that the statements were either directed at anyone in particular, nor had any actual effect on anyone’s conduct as a result.  Any way you look at it, the court simply imposed discipline because someone thought the content of what the lawyer said was offensive.  And that is precisely what the Constitution says the state can't do.

Yes, the lawyer’s expressions were offensive, but if the First Amendment stands for something, it stands for the principle that the state can’t impose sanctions simply because someone finds the speech offensive.  The fact that 46 people complained that the speech was offensive is irrelevant.  It may as well have been 460 people.  The result should have been the same.  Shame on the lawyer for saying what he said, but the state can’t take his license away for expressing himself unless the state can justify it without violating the lawyer’s rights under the First Amendment.

I find it laughable that the court says in the opinion that it considered the case being “mindful of [the lawyer’s] right to freedom of speech under the First Amendment to the United States Constitution.”  If the court had been mindful, it would have made an independent examination of the issue in order to make sure that the state's attempt to impose discipline did not violate the lawyer's rights.  And, I suggest to you, the state would have had a very difficult time supporting its position.

Ultimately, the court based its conclusion on the fact that apparently South Carolina still has a rule that allows the state to impose discipline for conduct that “brings the legal profession into disrepute” which is a standard that has been abandoned by most jurisdictions precisely because it is vague, difficult to justify and probably unconstitutional when used to regulate speech, as in this case.

Now, why do I think this obscure case is important?   

One reason it is important is that it is another example of why one of the arguments we keep hearing (and that I wish people would stop saying) in relation to Model Rule 8.4(g) is problematic.  The argument is that we don’t need to worry about Rule 8.4(g) because the rules are “rules of reason” and regulators and courts will not interpret them to discipline protected speech.  Really?  How many examples do we need of regulators imposing discipline for protected speech outside the practice of law to realize that if they can get away with it when there is no rule that justifies it, they will definitely try to get away with it when they have a rule that appears to justify it?

The lawyer's expressions in the South Carolina case would not have violated any version of 8.4(g) that I am aware of, and, yet, the court feels perfectly comfortable imposing discipline because the speech was offensive.  That worries me. 

Another reason the case is important is that it does not seem to be based on an allegation of a violation of any specific rule of professional conduct.  The type of general allegation that certain conduct violates "the sprit" of the rules or "the oath" would not be sufficient to support a claim for discipline in Illinois, where I live.  I am not sure what the state of the law is in other states, though.

Podcast with Arizona Supreme Court Justice on the regulatory changes adopted in Arizona

Last August, Arizona became the first state to eliminate the ban on non-lawyer ownership of law firms.  See here, here and here.  This significant change in the state's regulatory structure was suggested by a task force chaired by Arizona Supreme Court Vice Chief Justice Ann A. Scott Timmer.

In a recent podcast Justice Timmer discusses why the task force recommended such sweeping changes, why the court adopted them, the status of their implementation, and the implications for access to justice. You can listen to the podcast by clicking on the play button below or by going here.

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

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

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

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

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

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

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

Texas State Bar is investigating the state's Attorney General for filing frivolous lawsuit in attempt to attack the result of the presidential election

Last week, the AP reported that the Texas State Bar of Texas is investigating the Attorney General Ken Paxton based on the argument that Paxton's attempt to attack the result of the presidential election was both frivolous and unethical.  Law & Crime has more information here.  The Dallas Morning News has more here.  The ABA Journal has more here.

Recent developments on the law of practicing law remotely

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

You can read the full comment here.

State Accuses Attorneys of Filing ‘Entirely Meritless’ Court Documents to ‘Harass and Discredit’ Prosecutors, Inject ‘a False Narrative in the Public Domain’

Defense attorneys for former Minneapolis police officer Tou Thao recently filed a motion arguing that the Hennepin County Medical Examiner’s report into the death of George Floyd was “coerced” by outside influencers.  The reply by the state affirms that “This is yet another bad-faith attempt by Defendant Thao to debase the State, disqualify members of the prosecution team, and divert attention from his role in the death of George Floyd..."

Law & Crime has details on the story here.

Louisiana Supreme Court Amends Lawyer Advertising Rules

On May 6, 2021, the Louisiana Supreme Court issued an order revising the Louisiana Rules of Professional Conduct provisions governing lawyer advertising. The court’s revisions become effective on January 1, 2022. The Louisiana Legal Ethics blog has a summary of the major changes here:

Florida Supreme Court approves advisory opinion permitting out of-state lawyer to practice federal law remotely from Florida home

The Florida Supreme Court recently approved an Advisory Opinion issued by the Florida Bar’s Standing Committee on the Unlicensed Practice of Law stating that an out-of-state licensed attorney who is working remotely on federal intellectual property rights matters (and not Florida law) from his or her Florida home for an out-of-state law firm and no public presence or profile in Florida as an attorney would not be engaging in the unlicensed practice of law.  The advisory opinion will be filed with the Florida Supreme Court on August 17, 2020.   You can read the opinion here. 

For more on this story go to the Lawyer Ethics Alert Blog and the Legal Profession blog.

Supreme Court reviewing cert petition in mandatory bar membership case

In the last couple of years we have seen a number of challenges in different states to mandatory bar membership rules.  I have posted a few stories on the subject here.

Back in June 2020, the US Supreme Court denied review to a case attacking the rule in Wisconsin. The Court had also declined to grant review in cases involving the state bar in North Dakota.

Yet, I just heard that the Court is in the process of deciding whether to review the question based on a constitutional challenge to Oregon’s mandatory bar membership and dues.  

Stay tuned!

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

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

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

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

 

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

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

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

 

Can a lawyer pay a non-expert witness for time spent testifying at a deposition or a trial, preparing for such testimony, and other related costs?

Can a lawyer pay a non-expert witness for time spent testifying at a deposition or a trial, preparing for such testimony, and other related costs?   Brian Faughnan explains the answer here.

Arizona and Utah continue to approve entities to provide some legal services as "alternative business structures"

As I am sure you know by now, Utah and Arizona recently became the first two states to make changes to their regulatory structure to allow, among other things, lawyers to partner with non-lawyers, non-lawyer ownership of law firms and alternative business structures.  For my previous comments on this go to the section of the blog on news from Utah and the one for Arizona and scroll down for lots of stories.

In one of those stories I reported that Utah had approved the first non lawyer owned law firm in the state back in March, and that Arizona had approved some alternative business structures.

Today I am reporting that the Arizona Supreme Court has approved three entities to be licensed as alternative business structures, enabling businesses owned by non-lawyers to deliver legal services.

The first two, approved back in March are Trajan Estate, LLC, a legal service provider focused on estate planning and Payne Huebsch, PLC, a firm that provides transactional legal services combined with tax and accounting advice.

The most recent entity, approved on April 22, is Arete Financial LLC. which will provide accounting and tax services, and legal services in the areas of trust, probate and corporate transactional.

Law Sites has more details.

It is interesting to note that the main argument to allow for alternative business structures is always that it will result in better/more access to legal services to those whose needs are not met. Yet, if you look at all the alternative business structures created so far, it really does not sound that any of them are dedicated to do that.  They all seem to be boutique firms to provide services for wealth management (ie, clients with wealth).   

Meanwhile, Utah seems to be taking a different approach.  There, two non-profit pilot programs secured approval this week under Utah’s regulatory sandbox to provide non-lawyer legal assistance to individuals with medical debt.  That sounds more like providing access to justice.

Judge imposes $21,000 in sanctions on Devin Nunes' lawyer for filing frivolous lawsuit

I often complain that judges do not do enough to discourage misconduct in litigation.  My complaint is usually related to stories on discovery abuse, but it also applies to discouraging frivolous lawsuits.  So I am happy to report today that at least one judge is dong his part.

Law & Crime is reporting that U.S. District Judge Richard Bennet ruled recently that attorney the attorney for Representative Devin Nunes had “unreasonably and vexatiously” attempted to continue litigating a lawsuit against CNN after the case had already been dismissed with prejudice for failing to state a claim.  Despite that ruling, the lawyer filed an amended complaint that the court went on to describe as “nothing more than a repetition of the original complaint with no new material factual allegations.”  The judge ordered the lawyer to pay $21,000 to CNN as a sanction. 

You can read the full story here and here; and you can read the judge's order here.  

Arizona Supreme Court rejects draft ethics opinion on surrepticious recordings

Two years ago, I published a short magazine article on whether it is ethical for a lawyer to secretly record a conversation with a client. (See here.)  In it, I pointed out that whether it is unethical to record a conversation in a state that does not require all parties to the conversation to consent to the recording is not entirely clear.  Some state advisory opinions have held that the conduct should be considered to be inherently unethical, but that is not the view of the ABA Standing Committee on Professional Responsibility nor is it the law in many states.

I am writing about this today because I just found out that the Arizona Supreme Court has rejected the Attorney Ethics Advisory Committee’s attempt to upend this state’s decades-long position that surreptitious recording by lawyers is per se unethical even though it may be legal.  The Committee had proposed a new ethics opinion, but the Court rejected it and ordered that it not be posted.  

Ethics at Law has the story here.

Florida Committee approves proposal to amend confidentiality rule to allow disclosure to reply to online criticism

Back in March I reported that Florida Bar’s Professional Ethics Committee requested comments on a formal Ethics Advisory Opinion to provide guidance to lawyers in responding to negative online reviews.  

I am writing today to let you know that the Committee has agreed to publish the opinion; but more importantly also that the committee approved an amendment to Florida Bar Rule 4-1.6 Confidentiality that would allow a lawyer to reveal confidential information that the lawyer deems reasonably necessary to respond to an allegation of criminal wrong doing posted on the internet by a former client.  The Committee will next send the amendment to the Florida Bar Board of Governors. 

The Legal Ethics Advisor blog has the story.

Advice on what not to do in your retainer agreement

 Here is some advice on how not to prepare a retainer agreement by Carolyn Elefant of MyShingle.

Leaving your firm?

 Leaving your firm?  My friend Michael Kennedy has some advice for you on what not to do here.

More on Sydney Powell's frivolous defense to a motion for sanctions for a frivolous lawsuit

Yesterday I commented on Sidney Powell's recent reply to a motion for sanctions for her complaint related the presidential election results in Wisconsin.  See here.  Here is an update: Law & Crime has more on the story here and given this new reporting, I can totally see the support for the state's argument.

Apparently, the main point of Powell’s argument is that her failed complaint cannot be found frivolous because it was rejected on procedural grounds such as standing and timeliness.  

This argument is itself frivolous.  Any second year law student can tell you that according to both rules of procedure and rules of professional conduct, lawyers have a duty to avoid frivolous litigation.  The most common source of sanctions for frivolous claims are the state equivalents of Rule 11 of the Federal Rules of Civil Procedure, which provide that all pleadings must be well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that they must not be filed for any improper purpose.  The Model Rules of Professional Conduct mirror the duties expressed in the procedural rules in Model Rules 3.1 and 4.4(a).

If a lawyer files a complaint that is not well grounded in fact or warranted in law, the filing is frivolous, regardless of the reason for which it is eventually dismissed.  It is the fact that the court and the other parties brought to the suit have to waste time, effort and money for the filing that justifies the sanctions.  Lawyers can also be subject to discipline under both procedural and ethical rules  for pursuing claims for an “improper purpose.”   

If the claim is frivolous, there is no right to bring the claim to begin with and the lawyer is subject to sanctions for helping the client to do so.  

In her recent motion, Powell apparently is asking for an evidentiary hearing.  She shouldn't get one; but if she does, she is going to lose.  Badly.  The standard for imposing sanctions for frivolousness is based on an objective determination of whether the attorney made a reasonable inquiry into the facts and the law before filing the claim, for which the court could consider whether the attorney had sufficient time for investigation before filing, the extent to which the attorney had to rely on his or her client for the factual foundation underlying the claim, the complexity of the facts, and whether discovery was necessary to develop the underlying facts.  Many courts have made clear, however, that it is not permissible to use discovery as a “fishing expedition” or as the sole means to find out whether the claim is well grounded in fact or law. 

Does anyone really think that an objective application of this standard benefits Powell's position?  

Lawyers for Wisconsin Governor argue Sydney Powell's reply to motion seeking action against Sydney Powell is so improper it deserves its own sanctions

About two weeks ago I reported that Wisconsin filed a motion seeking hundreds of thousands of dollars in attorneys’ fees from Donald Trump and Sidney Powell for their attempts to overturn the state’s election results via lawsuits that were “frivolous, dilatory, and without merit.”  

Now, there is news that Powell filed a reply which the lawyers representing Wisconsin Gov. Tony Evers claim is so improper that the filing merits its own sanctions.  Law & Crime has the story here.

Lawyer in Utah files lawsuit challenging mandatory bar association membership

One recurring story last year was the number of lawsuits filed throughout the country challenging the authority of states to mandate membership in bar association groups in order to be allowed to practice law.  Go here and scroll down for the stories I posted on this topic.  Typically, the claims are based on the fact that the bar association supports causes the individual complaining member would rather not.

Well, it happened again.  Courthouse News Service is reporting that a Utah attorney has sued the state bar association claiming it spent mandatory dues on political and ideological speech she disagrees with in violation of her First and 14th Amendment rights.

At last count, I have heard of current challenges filed in Texas, Oklahoma, Oregon, Wisconsin, Louisiana, Washington and Michigan.  The Wisconsin challenge was defeated and the Supreme Court denied cert.  The Oregon case was recently remanded by the Court of Appeals.  I do not know the status of the others.

DC Bar Rules Committee proposes new rule akin to Model Rule 8.4(g)

On the same day that the New York State Bar Association Committee on Standards of Attorney Conduct submitted a proposal to adopt a rule akin to Model Rule 8.4(g), the District of Columbia Bar Rules of Professional Conduct Review Committee submitted its own proposal to do the same.  

As I reported here, I really like the NY proposal which I think addressed the most important concerns regarding the Model Rule.  The proposal in Washington is better than the Model Rule in at least one important respect, but it is not as limited as than the one in New York.

The Executive Summary of the report accompanying the proposal explains the background: 

The D.C. Rules of Professional Conduct currently contain two rules that address harassment and/or discrimination: D.C. Rule 9.1, which prohibits discriminatory conduct that violates employment law; and D.C. Rule 8.4(d), which prohibits conduct that “seriously interferes with the administration of justice.” Comment [3] to Rule 8.4 clarifies that paragraph (d) prohibits “offensive, abusive or harassing conduct that seriously interferes with the administration of justice,” and may include words or actions that “manifest bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.” 

. . . .

In 2016, the D.C. Bar Rules of Professional Conduct Review Committee began studying whether the District should amend the D.C. Rules to adopt a provision similar to Model Rule 8.4(g). For reasons detailed in this report, the Rules of Professional Conduct Review Committee recommends adopting new proposed Rule 8.4(h) to expand the scope of the existing anti-harassment and anti-discrimination provision found in D.C. Rule 8.4(d), similar to Model Rule 8.4(g), but with some modifications.

The Committee reached this final proposal after publishing for public comment in 2019 a proposal to essentially adopt ABA Model Rule 8.4(g) as a revised D.C. Rule 9.1. The Committee received 52 comments in response which were largely critical of the 2019 proposed rule, principally, although not exclusively, on First Amendment grounds. Upon careful consideration of the issues identified in the comments, the Committee revised its proposal.

The new proposal leaves Rule 9.1, a rule that has existed in the District for 30 years without issue, unchanged. As with ABA Model Rule 8.4(g), proposed Rule 8.4(h) moves the D.C. Rules’ current prohibition on harassing and discriminatory conduct from a comment to Rule 8.4 to a “black-letter rule” that, like Model Rule 8.4(g), sets a standard for how members of the D.C. Bar should interact with others with respect to the practice of law.

Currently, D.C. Rule 8.4(d) addresses discrimination and harassment only in the context of the administration of justice, which narrows the reach of the rule to a lawyer’s conduct while representing a client before a tribunal. Proposed Rule 8.4(h) includes harassing and discriminatory behavior by a lawyer directed at another person with respect to the practice of law, which would include such abusive conduct that occurs outside of a courtroom and/or the representation of a client.

. . . . 

Proposed Rule 8.4(h) is not intended to chill speech on controversial topics, but rather to prohibit harassing and discriminatory conduct directed at another person or persons by a lawyer with respect to the practice of law.

As proposed, the new Rule 8.4(h) and its comment read:

It is professional misconduct for a lawyer to:

.... 

(h) engage in conduct directed at another person, with respect to the practice of law, that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, family responsibility, or socioeconomic status. This Rule does not limit the ability of a lawyer to accept, decline or, in accordance with Rule 1.16, withdraw from a representation. This Rule does not preclude providing legitimate advice or engaging in legitimate advocacy consistent with these Rules.

Comment

. . . . 

[3] Paragraph (h) reflects the premise that the concept of human equality and respect for all individuals lies at the very heart of our legal system. A lawyer whose conduct demonstrates hostility or indifference toward the principle of equal justice under the law may thereby manifest a lack of character required of members of the legal profession. Discrimination and harassment by lawyers in violation of the Rule undermine confidence in the legal profession and the legal system.

[4] Discrimination includes conduct that manifests an intention to treat a person as inferior, to deny a person an opportunity, or to take adverse action against a person, because of one or more of the characteristics enumerated in the Rule. Harassment includes derogatory or demeaning verbal or physical conduct based on the characteristics enumerated in the Rule. In addition, sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. Antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (h).

[5] Conduct with respect 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 events and work-related social functions.

[6] A lawyer’s use of peremptory challenges is exclusively addressed by Rule 3.4(g). A lawyer does not violate Rule 8.4(h) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their professional obligations under Rule 6.1 to provide legal services to those who are unable to pay, and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good cause. See Rule 6.2(a), (b), and (c). A lawyer’s representation of a client does not constitute an endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).

As in the proposal in New York, this proposed rule tries to solve the vagueness and First Amendment issues by limiting it to conduct “directed at another person.”  This attempts to eliminate the possible interpretation of the rule as regulating protected speech about general topics or even general groups of people simply because someone in the audience may find the comment offensive.  That is a good thing, but I am not so sure the language is clear enough.  I would prefer it if the rule said "at another individual person."

The new proposed rule, however, includes two categories that may be problematic.  It is not clear to me what is meant by “family responsibility,” and “socioeconomic status.”  Suppose a lawyer made a comment at a firm meeting discussing a specific client saying “we should stop representing that rich bastard.  I am tired of seeing them get all the breaks.”  That statement expresses bias against rich people because of their socio economic status, and, therefore, seems to violate the rule.  Yet, it seems to me that statement is protected speech.  That is a problem.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article on regulatory changes in Utah and Arizona

 As you probably know, last year Utah and Arizona adopted new rules to fundamentally change the way the practice of law is regulated, including allowing lawyers to partner with non lawyers to practice law and allowing certain non lawyer owned entities to provide legal services.  For more on this go here, and here.

I am writing about this again today because Law360 just published a short comment on the situation in Utah, where . . . "the group of approved participants includes LawPal, an entity planning to offer a "TurboTax-like" platform for divorce and eviction disputes, and 1LAW, which helps clients complete court documents and offers related legal advice through tech including chatbots. A pro bono service provider in Utah is also seeking approval to permit domestic abuse victim advocates to give legal advice while filling out protective order requests. . ."

Michigan AG files supplemental brief arguing Sidney Powell’s defense in defamation case supports argument for sanctions in election case

In case you don't remember, Sidney Powell is the former lawyer for the Trump campaign who at one time promised to "release the Kraken," argued that the Dominion vote counting machines had somehow been rigged to favor Venezuela's Hugo Chavez and that Dominion had bribed public officials in Georgia, among many other things. 

Some time later, Dominion sued her for defamation and in reply Powell argued that her statements could not constitute defamation because they were so crazy that no one would believe them to be true.  

This defense is somewhat problematic for her because if the statements were so unbelievable, then she herself must have known they were not true when she affirmed them.  And, since she affirmed them in support of litigation, by making the defense in the defamation case she is admitting to either being incompetent or to having instituted litigation improperly, both of which can subject her to professional discipline.

For this reason, it is not surprising to learn that the Michigan attorney general has filed a supplemental brief in the case in which the judge is considering imposing sanctions to draw the judge’s attention to Powell’s latest defense against the defamation lawsuit.  Law & Crime has more on the story.

Over at Verdict, Michael Dorf (Cornell Law) has published a good comment on the defamation case.

UPDATE:  TechDirt picked up the story here.

UPDATE 4/27/21:  Law & Crime has more on the story here. Above the Law has more here.

Wisconsin is seeking attorneys' fees from Trump and Sidney Powell for frivolous litigation attempting to overturn the results of the presidential election

Wisconsin is seeking hundreds of thousands of dollars in attorneys’ fees from Donald Trump and Sidney Powell for their attempts to overturn the state’s election results via lawsuits that were “frivolous, dilatory, and without merit.”  Above the Law has the details here.

NPR: When It Comes To Email, Some Prisoners Say Attorney-Client Privilege Has Been Erased

 NPR has published a short article on threats to the attorney-client privilege by surveillance of by prison authorities.  The article is available here.  Below you can listen to a short summary by clicking on the play button.

California Becomes 39th State To Adopt Duty Of Technology Competence

 Back in November of 2019 I reported that Georgia became the 38th state to adopt the Model Rules proposition that the duty of competence must include a duty to be knowledgeable about technology.  See here.  And for all other posts on "technology" generally go here and scroll down.

Today I am writing to report that California is the next state to adopt the notion of technology competence.  For details go here.

On the new business structures in the market of legal services

 A few days ago I reported that the era of non-lawyer owned firms is here, now that Arizona and Utah have approved some version of such an alternative business structure.  

As I have written elsewhere, the debate on whether this is a good idea is not new. (See here, for example).  What is new is that these two states have decided to give it a try.  And, not surprisingly, this has reinvigorated the debate again.

One of the main arguments used to justify opening up the practice of law to non-lawyers (whether by allowing non-lawyers to provide some types of legal services or by allowing lawyers to get capital from and to partner with non-lawyers, or by allowing non-lawyers to “own” law firms) is that it will provide more “access to justice.”

This notion of “access to justice” is, of course, a misnomer, since there is no guarantee of that.  What we should be asking is whether the new regulatory system will provide more access to legal services, or, better yet, to affordable legal services.

Unfortunately, there is no evidence that it will, and if we go by the experiment with Legal Technicians in Washington state, there is evidence that it won’t work. 

Although the new business models may provide more access to consumers, they won’t necessarily reduce the cost of legal services, prevent conflicts of interest or guarantee competent representation.  That is so because the new non-lawyer owners of the law firms are in the business to make a profit.  They need a good return for their investment and that margin is likely to come out of the difference between costs to provide the services and the fees that can be generated.  

Unfortunately, maybe this means that companies more interested in making a profit than in providing wide ranging legal services will devote their attention to reviewing would be clients’ claims in order to find only high value cases, while the others will be swept aside or will not be given the attention they deserve.  Thus, depending on how the new model is structured, it may result in clients with smaller cases actually getting less access to legal services.

But, let’s not rain on the parade.  We won’t know how it will work until we try it so let’s see what happens in Utah and Arizona.  Maybe they can make it work better than Washington could. I am sure we will be talking about this for a long time.  And, as some have said, maybe this is an inevitable shift in the legal services market, in which case, just wait, it will soon be coming to a jurisdiction near you.

ABA issues new formal opinion defining "materially adverse interests" for purposes of conflicts of interest analysis -- UPDATED x2

February 14, 2021  (updates at the end)

Last week, the ABA’s Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (number 497) on conflicts involving materially adverse interests.  Its summary states as follows:

Rules 1.9(a) and 1.18(c) address conflicts involving representing a current client with interests that are “materially adverse” to the interests of a former client or prospective client on the same or a substantially related matter. But neither Rule specifies when the interests of a current client are “materially adverse” to those of a former client or prospective client. Some materially adverse situations are typically clear, such as, negotiating or litigating against a former or prospective client on the same or a substantially related matter, attacking the work done for a former client on behalf of a current client, or, in many but not all instances, cross-examining a former or prospective client. Where a former client is not a party to a current matter, such as proceedings where the lawyer is attacking her prior work for the former client, the adverseness must be assessed to determine if it is material. General economic or financial adverseness alone does not constitute material adverseness.

You can read the opinion here. 

UPDATE 3/4/21:  Faughnan on Ethics has a short comment here.  I agree with his conclusion that the terminology in the rule is a mistake and that the opinion does not really say anything particularly new or interesting.  The terminology is a mistake because it is inconsistent with the terminology used in other rules related conflicts of interest.  Rule 1.7 defines conflicts as involving either direct adversity or material limitation.  Rule 1.9 merged those two terms into "material adversity"  and I honestly believe that was by mistake.  But it has never been corrected and here we are...

UPDATE 3/21/21:   The Louisiana Legal Ethics blog has a comment here.

Florida lawyer facing discipline for calling himself a pitbull lawyer and using image of a dog on his website -- UPDATED

March 13, 2021

The ABA Journal is reporting that a Florida lawyer is facing an ethics complaint for describing himself as a pit bull lawyer and using an image of a pit bull on a blog and a Facebook page. The lawyer also used the name “Pitbull” on business cards and on the door to his office.

The complaint apparently argues that using the pitbull image and nickname harms the legal profession and the public’s trust and confidence in our system of justice.

I don't like pitbulls and I think that calling yourself a pitbull lawyer in advertising is tacky, but trying to impose sanctions for it is nonsense.  I don't know what the specific Florida rules say, but the notion that the state can impose sanctions for protected speech merely because it harms "the image of the profession" and the "trust in the system" is a very weak argument.  

The standard by which commercial speech is evaluated has been established for ages.  As the US Supreme Court has explained: 

Our general approach to restrictions on commercial speech is . . . by now well settled. . . .  Commercial speech that is not false or deceptive and does not concern unlawful activities, . . .  may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. . . . Our application of these principles to the commercial speech of attorneys has led us to conclude that blanket bans on . . . advertising by attorneys and rules preventing attorneys from using nondeceptive terminology to describe their fields of practice are impermissible . . . but that rules prohibiting in-person solicitation of clients by attorneys are, at least under some circumstances, permissible.

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638 (1985).  Arguing that protecting the image of the profession is a substantial governmental interest is akin to saying that the speech can be banned because someone may find it offensive, and if we know one thing about the First Amendment, it is that it is there precisely to prevent from punishing speech because someone finds it offensive.  

UPDATE (3/21/21):  The Louisiana Legal Ethics Blog has a comment here suggesting that the same conduct would probably not be subject to discipline in Louisiana because the rules in Florida are stricter.  I suspect this is the case pretty much everywhere else.

Breaking news: Pennsylvania Bar abandons fight over constitutionality of anti-discrimination Rule 8.4(g) -- UPDATED

 March 16, 2021  (update, below)

Back in December, a federal district court declared unconstitutional Pennsylvania's version of ABA Model Rule 8.4(g) holding that it violated the First Amendment.  I wrote about the decision here and here.  

At the time, I said I was hoping the Pennsylvania Bar would appeal so we could get a decision from a Court of Appeals on the subject.  Then, as expected, in January, the Pennsylvania Bar field a notice of appeal to the Third Circuit. 

However, I just heard that yesterday, the Bar voluntarily dismissed the appeal.  I hope there will be more coverage about why in the next few days and I will surely report it when I see it.  

Now, presumably the Pennsylvania Bar will go back to try to draft a new version of the rule.  

I am sure the debate is not over.  Stay tuned.

UPDATE (3/21/21):   The ABA Journal has a short comment here.  In it, I noticed a common mistake regarding the debate on this topic.  Citing another source, the story attempts to distinguish the Pennsylvania rule from the Model Rule by suggesting that the model rule does not attempt to regulate speech.  This is nonsense.  The Comment to the Model Rule explicitly states that the rule applies to "verbal conduct" as well as "physical conduct."  And, if nothing else, let's be realistic.  Part of the motivation for the rule was clearly to get lawyers to stop saying bad things.   

The era of alternative business structures and law firms owned by non-lawyers is officially here

 As I am sure you know by now, Utah and Arizona recently became the first two states to make changes to their regulatory structure of the practice of the profession to allow, among other things, lawyers to partner with non-lawyers, non-lawyer ownership of law firms and alternative business structures.  I reported on those developments here and here (regarding Arizona) and here, here, here and here (regarding Utah).

And, here is the latest:  Yesterday, the first entirely nonlawyer owned law firm in the United States opened for business in Utah while the Arizona Supreme Court announced (news release) that it has approved the first two alternative-business structure entities to operate in the state.  The ABA Journal has a story from Utah.

Mental Health and Bar Admissions

Many lawyers and recent law school graduates believe they would benefit from mental health or substance abuse treatment but do not seek help because they fear that doing so will affect their ability to practice law.

Some jurisdictions have stopped asking questions about mental health in their character and fitness applications to the bar, but others have not.

As explained in a recent article in Bloomberg Law, “[w]hile states like Vermont have taken steps to assure students that receiving treatment will not affect bar admission, . . . students planning to seek admission in other states are not guaranteed the same reception, an issue that weighs heavily on students’ minds.”  In Florida, for example, the Bar Examiners encourages treatment, but applicants with certain types of disabilities are required to submit treatment records even if they have no current issues which means that applicants may later be asked invasive questions by lawyers with no experience in mental health or substance abuse.

Other states have adopted a system of conditional admission. Once the conditions are met, the lawyer is fully admitted, but not everyone agrees this is a good alternative.  Some states do not offer conditional admission, in part because of a lack of resources to monitor those subject to conditions and because of concerns about the imposition of conditions not based on individualized assessments. 

For a good discussion of the issue you can read the full article at Bloomberg law, here.*

*I am not sure if you need a subscription to be able to read the full article.  I can get access to it using one browser, but not Chrome for some reason.

Attorney fee award can be reduced because of attorney's incivility

Earlier this week in a case called Karton v. Ari Design & Construction, Inc., the California Court of Appeal decided that a court can deny the amount requested in attorney's fees in a case based on the fact that the attorney requesting the fee award was uncivil and "over litigated" the matter.

Ethical Grounds has a good summary of the case.  The lawyer in question requested “$271,530 in attorney fees, $52,021 in discovery sanctions, and $203,646 for proving matters at trial that had been denied in discovery.” The trial court determined that the lawyer had not provided sufficient evidence to assess whether the fee request was reasonable and gave the lawyer additional time to make the argument.  The trial court instructed the lawyer to limit the additional argument to 10 pages of text, plus any exhibits.  In turn, the lawyer submitted additional evidence – 11 pages of text, over 400 pages of exhibits – and requested an additional $16,000 in fees.  Yet, in the end, the trial court awarded $90,000 in fees and explained that it decided not to award the full amount requested because of the lawyer’s incivility and over-litigation of the matter.

You can read the opinion here.  The Volokh Conspiracy has a comment here.  

UPDATE 4/4/21:  Above the Law has a comment here.

Today in Supreme Court History: Justice Benjamin Cardozo is sworn in as Associate Justice

Benjamin Cardozo is better known to my students as the New York Court of Appeals judge who wrote Palsgraf v. Long Island Railroad, which developed what has become the standard analysis for proximate cause in Tort law.  But in 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes.  Interestingly, Hoover, a Republican, appointed Cardozo even though he was a Democrat. I would be curious to know how many times that has happened since.

According to an article in The New York Times about Cardozo's appointment, "seldom, if ever, in the history of the Court has an appointment been so universally commended."

Cardozo was confirmed by a unanimous voice vote in the Senate on February 24 and was sworn in on March 14, 1932.

To celebrate and because I know you must be eager to know why I am writing about this today, here is a link to my article Ahead of his time: Cardozo and the Current Debates on Professional Responsibility, 34 Touro Law Review 101 (2018).

Recent story makes me wonder if this is an example of a violation of the hot potato doctrine

NPR has a long story that reminded me of the "hot potato doctrine."  In case you don't remember, this is the doctrine that says that it is misconduct to dump a current client ("like a hot potato") in order to "convert" that client into a former client to clear the way to accept the representation of a new client with an interest adverse to that of the (now) former client.

The story in a nutshell is that a big law firm had been representing, pro-bono, a non-profit organization for several months.  At one point during that representation, the non-profit sought help from the firm because a government agency was trying to eliminate its only source of funding.  In response to the agency's threat, lawyers from the firm met with the non-profit organization's board and president to discuss a potential lawsuit against a federal agency.  

Later, however, the firm decided they did not want to get involved in the case because “the case might be too political” and withdrew from representation.  

Ok, nothing wrong there, I suppose.  The firm has a right to decided whether it wants to represent a client.  

But then, eight weeks later, the firm agreed to represent the Agency threatening to take away the nonprofit's money for the year.  And all this without ever asking for consent or even informing the (now) former client.

The general counsel for the non-profit organization is quoted in the story as saying "I was speechless." . . . "I had no idea that they would ever turn around and represent our actual adversary in a lawsuit, after an attorney in their practice had spoken to our board about our strategy and asked me for internal documents to help frame up the theory of our case."

Once the firm undertook the new representation, the lawyer and several staffers who had been representing the non-profit organization left the firm.  The firm continued to represent the agency and, according to the story, made well over $2 million dollars over the next five months.

Does this sound like a violation of the hot potato doctrine to you?   

You can read the full story here.

ABA issues opinion on practicing virtually

 The ABA Standing Committee on Ethics and Professional Responsibility has been busy issuing formal ethics opinions recently.  Formal Opinion 498 is the most recent one, issued March 10, and it deal with ethical concerns related to practicing law virtually.  Evidently, this is an important opinion now that so many lawyers are practicing law from home due to the pandemic.

The opinion's summary reads as follows:

The ABA Model Rules of Professional Conduct permit virtual practice, which is technologically enabled law practice beyond the traditional brick-and-mortar law firm.  When practicing virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology. In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information. Additionally, the duty of supervision requires that lawyers make reasonable efforts to ensure compliance by subordinate lawyers and non-lawyer assistants with the Rules of Professional Conduct, specifically regarding virtual practice policies.

I am not sure that says anything we did not know already, but there you go.  You can read the full opinion (or download it) here.  For more commentary you can go to LawSites, The ABA Journal, iPhone JD, Lawyers Ethics Alert Blog, 2Civility, LexBlog and My Shingle, which criticizes the opinion as a wasted opportunity.

Wisconsin Advisory Opinion Offers Cybersecurity Tips on Working Remotely

 Wisconsin Advisory Opinion offers cybersecurity tips on working remotely.  Ethical Grounds has the full story here.

New Jersey Supreme Court on arbitration clauses in attorney retainer agreements

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

The Law for Lawyers Today has a comment here.

New ethics opinion in Pennsylvania on practicing law from a state in which a lawyer is not admitted

 About a week ago, the Pennsylvania Bar Association and the Philadelphia Bar Association issued a joint ethics opinion on whether a lawyer licensed in Pennsylvania may work remotely from another jurisdiction, even if the lawyer is not licensed in that jurisdiction.  The opinion concludes that the answer is YES, as long as it is OK with the jurisdiction where the attorney is located.

This conclusion is consistent with the ABA’s Formal Opinion 495, issued last December, but it does not really provide a lot of guidance to lawyers practicing from home in a different jurisdiction that the jurisdiction where they licensed.

Let’s say that a lawyer lives in New Jersey, where she is not licensed, but has an office in Philadelphia, where she is licensed.  Typically, the lawyer commutes to the office and practices law in Pennsylvania.  But due to the pandemic, she is now working from home in New Jersey.  The question is whether the lawyer is engaged in the unauthorized practice of law in New Jersey, and the Pennsylvania opinion does not answer that question.  To find and answer to that question, the lawyer will have to research what the law is in New Jersey.  

LawSites has a short comment here.  

How not to practice law: ask your paralegal to lie for you to cover your mistakes, and then fire the paralegal when they refuse

Here is a little piece of advice: don’t ask your paralegal to lie for you, particularly to cover your mistakes.  

Common sense, right? Apparently not for everyone.  Here is the story of a case called Sieranski v. TJC Esq, decided a few days ago by the Appellate Court of Connecticut.  The case involved a complaint for wrongful termination filed by a paralegal against her lawyer boss.  In the complaint, the plaintiff alleged that after the attorney she worked realized that he had missed the deadline to appeal an arbitrator's decision on a case, the lawyer asked the plaintiff to prepare an affidavit stating that he had never received the arbitrator's decision.  This was a lie, and the plaintiff refused to notarize the document because she knew it was false.  The lawyer then fired the paralegal arguing that she “was not a good fit” for the office.  I suppose that if lying is a job requirement, refusing to lie is, indeed, a sign that you are not a good fit for the job.

The paralegal sued and, not surprisingly, the court found that the alleged facts are sufficient to support a finding that the plaintiff's employment was terminated because she refused to assist the defendant in misleading the court and others involved in the subject litigation. 

The question for us now is whether the lawyer should be disciplined.  In my opinion, the answer is yes.  I don’t know the rules in the specific jurisdiction, but using the Model Rules as a guide, I would say that the conduct violates several sections of Rule 8.4.  For example, the conduct constitutes an attempt to violate the rules “through the acts of another” in violation of Rule 8.4(a).  It also constitutes conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c), and conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d).   

Thanks to Roy Simon for alerting me to this new case!

California creates Commission to look into bias in disciplinary system

About a month ago I read a short article about two things happening in California related to the appearance of bias in the state's disciplinary system.  I meant to write about it, but for one reason or another I didn't...  So now I am.

Back in 2019, the California State Bar discussed a study that concluded that there is evidence of disparities in the disciplinary process based on race and law firm size.  The study found significant differences between discipline rates of Black male and white male attorneys and between those of sole practitioners and attorneys in large firms.  You can read a summary of the study here.  A second study, commissioned to review the first one, confirmed the findings and made some recommendations.

In response, the Board of Trustees of the State of California created an Ad Hoc Commission on Lawyer Discipline to review the disciplinary system and to make recommendations for changes.  Presumably, that commission is active.  That's the first thing that is happening.

Meanwhile, the other thing that is happening, is that a disciplinary case has made its way through the courts and was recently remanded to the State Bar Hearing Department for further evidentiary hearings to determine whether the State Bar’s disciplinary practices had the effect of discriminating against the lawyer on the basis of race. 

I am really interested to see what happens next in this case.  The debate on whether there is some type of bias based on race, gender and/or firm size is not new, and I am happy to see that something is being done about it.  

Stay tuned...

Short article on how disciplinary agencies are likely to handle complaints about Trump's attorneys and supporters

 Here is a link to a short article on how disciplinary agencies are likely to handle complaints about lawyers who supported Trump or represented hi.

Ninth Circuit Sends Mandatory Bar Membership Question Back to Lower Court

 Long time readers of this blog might remember that I have been following the many lawsuits filed around the country alleging that mandatory membership to state bar associations is unconstitutional. (Go here for my most recent post on the issue, which has links to more posts.)

I am writing about this again today because a few days ago, Courthouse News reported that the Oregon case that had been making its way up the courts has been remanded to the lower federal court for trial. The case raises the issue of whether the Oregon State Bar can require a lawyer to join the State Bar Association, if the lawyer objects to the Association's political commentary.

The case was filed lawyers who objected to commentary published in the Bar Association's newsletter.  When the lawyers objected, the Association refunded $1 and change to the lawyers, arguing that was the amount their membership fees contributed to the publication of the newsletter.  Back in December 2018, the lawyers responded by filing the lawsuit.  

The case was dismissed by the lower court, and on appeal, a three-judge panel of the Ninth Circuit agreed with the dismissal of all of the claims except the one on the basis of the right to free association.  

You can read the opinion here.

Washington DC lawyer files bar complaint against lawyers who brought lawsuit seeking to overturn the 2020 presidential election

Law & Crime is reporting that a Washington DC lawyer has filed complaints before the District of Columbia Court of Appeals Office of Disciplinary counsel arguing that several lawyers should be disciplined for having participated in a frivolous lawsuit seeking to overturn the 2020 presidential election.  

The lawyers had represented Rep. Louie Gohmert (R-Tex.) in a lawsuit that named then Vice President Mike Pence as the defendant (Gohmert v. Pence).  The case was quickly dismissed by a federal district court. Later, the decision was affirmed by the appellate court and the U.S. Supreme Court denied review in early January.

Even if you can argue that the lawsuit was frivolous, I highly doubt that the complaint will result in any type of sanctions. You can read the story here.

Judge finds practice of using a waiting list to assign cases to public defenders is unconstitutional

Ten days ago, a judge in Missouri found that the state’s practice of putting poor criminal defendants on a waiting list to be appointed a public defender is unconstitutional.  However, the judge issued a stay to give legislators more time to remedy the situation.  You can read the opinion here and a summary here.

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

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

Another Trump lawyer tries to distance himself from the team of lawyers he joined to file a lawsuit in Michigan - UPDATED

February 7, 2021

Law & Crime is reporting that a lawyer who joined Sidney Powell‘s so-called “Kraken” lawsuit in Michigan is now attempting to avoid sanctions by arguing that he was merely a “conduit” for Powell’s overall litigation scheme.  Go here for the full story.  Isn't that convenient!  As in the case of the lawyers who claimed they should not be sanctioned because they did not sign the documents they filed in court (see here), the lawyer would rather make an argument that makes him look incompetent than admit what he did.  

UPDATE 2/8/21:  Above the Law has a comment on the case here, and they provide examples to illustrate my point that the lawyer is essentially using his own incompetence as a "defense."

Almost 150 law professors sign letter dismissing Trump's arguments against impeachment; but they don't all agree on what the letter says

Yesterday I posted a link to a review of the briefs filed in Trump's upcoming impeachment trial.  See here.  Today, the New York Times is reporting that 144 law professors have signed a letter providing further analysis and concluding that Trump's arguments have no merit.  

However, if you read the letter signed by the law professors more carefully, you will see that they do not all agree on the content.  You can read the letter for yourself here, and then you can read an analysis of what it says here.

Excellent review of the briefs filed in Trump's upcoming impeachment trial

Over at Verdict, Professor Dean Falvy (University of Washington School of Law) has published a very detailed review of the briefs filed by both sides in the Trump impeachment proceeding.  You can read it here.  

As you know, Trump's original team of lawyers quit suddenly, leaving his new team just a few days to prepare for the case.  They had very little time to work on their answer to the brief, and it shows.  

How not to practice law: have sex on camera during a hearing on Zoom

Need I say more?   This actually happened.  Here is the story:  Above the Law and Law & Crime have more details.

Short update and comment on the regulatory changes in Utah

 Back in September of 2020 I posted a few comments and links on the recent regulatory changes in Arizona and Utah which opened the possibility of allowing non-lawyers to provide some legal services and to partner with lawyers to provide legal services.  See here, here and here.  As you know, the debate on whether it is a good idea to allow such partnerships goes back a long time and relates to the prohibition in rules like Model Rule 5.4, originally thought to be needed to protect the public from the dangers of having lawyers forming partnerships with non-lawyers.

I am writing about this today because I just saw a a short article from a few days ago that provides a little bit of background and commentary on the changes in Utah.  It is published in Law 360 and you can read it here.

More news on why Trump's lawyers quit over the weekend: money

As I am sure you know by now, the five lawyers who had originally agreed to represent Trump in his upcoming impeachment trial quit over the weekend.  (See here.)  Initial reports indicated that they did so because they disagreed with what Trump asked them to do (argue the case based on allegations of voter fraud and that the election was "stolen" from him).  But new reports claim that this disagreement was not the only reason for the attorneys' withdrawal.

Axios is reporting today that Trump argued with one of the leading lawyers over fees, which Trump thought were too high.  In all fairness, this is a common complaint among clients, so it is not an unusual claim.  But it is a little unusual that the lawyers had already agreed to represent the client before finalizing the agreement about fees.  Business Insider has a little more on the story.

According to the report, Trump was initially open to paying $250,000 individually to the lawyer in question but balked after being presented with a total price — including "more lawyers, researchers, and other legal fees" — of $3 million.  Reportedly the parties agreed to lower the fee to $1 million, but evidently that did not prevent the lawyers from walking away.

Trump quickly announced had obtained a new team of lawyers (see here) and now I am curious how much he is paying them.

Trump announces new team of lawyers

Trump has announced a new team of two attorneys who will represent him in the impeachment trial after his original team quit on him over the weekend.  For more, see Courthouse News, Law & Crime, NPR, the New York Times and Politico.

Freedman Institute program on the disciplinary process and Trump's legal team

 Last week the Freedman Institute of Legal Ethics (at Hofstra Law School) hosted an excellent panel discussion (on Zoom) on whether it is a good idea (or good policy) to use the disciplinary process to regulate the conduct of lawyers who were recently involved in the representation of the Trump campaign in its efforts to challenge the results of the election.  The panel included one of the lawyers who signed a complaint arguing that Rudy Giuliani should be disciplined in New York, law professors and a professional responsibility and criminal defense lawyer.

You can watch the full program here.

More breaking news: Top Michigan Officials File Complaints Seeking Disbarment of Sidney Powell and Her ‘Kraken’ Team -- UPDATED

February 1, 2021

As you know, the "Kraken team" of lawyers for the Trump campaign is facing possible procedural sanctions in a case in Michigan.  That's the case in which some of the lawyers are arguing they should not be sanctioned because they failed to sign the documents they filed in court. See here.

Now comes news that Governor Gretchen Whitmer, Attorney General Dana Nessel and Secretary of State Jocelyn Benson have filed complaints arguing for the disbarment of Sidney Powell, the lead attorney in that case and three other lawyers.

Law & Crime has more information.

UPDATE 2/4/21:  Here is a copy of the complaint.

Trump lawyers argue they should not be disciplined because they did not sign the documents they filed in court

The different Trump teams of lawyers are the gift that keeps on giving.  

In yet another interesting twist, in response to a motion asking for sanctions against lawyers who brought a lawsuit challenging the results of the election in Michigan, some of the lawyers have argued they should not be disciplined because they did not sign the documents they filed in court.  

I have not seen the documents in this case, but according to one report, the argument is based on an interpretation of Rule 11 of the Rule of Civil Procedure, the rule upon which the request for sanctions was based, which is fine.  

But the problem is that the argument is based on the version of the rule that was abandoned in 1993.  Since 1993, the notion of “signature” has been interpreted to mean more than the mere actual act of putting pen to paper.  

Law & Crime and Above the Law have very good analysis of the arguments.