Ohio amends rules to allow out of state lawyers to practice remotely in Ohio

 The Legal Profession Blog is reporting that the Ohio Supreme Court has adopted an amendment that will allow a lawyer admitted to practice in another state to provide legal services remotely from Ohio.  This is a big deal and appears to be a trend among jurisdictions which are finally recognizing the reality that given advances in technology, lawyers can easily work remotely from anywhere.

The amendment will go into effect Sept. 1.  You can read a copy of the "redline" version of the rule here.

According to the new rule, a lawyer admitted and in good standing in any United States jurisdiction may practice the law of that jurisdiction while working remotely in Ohio as long as the lawyer is providing services that the lawyer is providing services that are authorized by the lawyer’s licensing jurisdiction and provided the lawyer does not (1) solicit accept clients for representation within Ohio, (2) appear before Ohio tribunals, except as otherwise authorized by rule or law; (3) state, imply, or hold himself or herself out as an Ohio lawyer or as being admitted to practice law in Ohio; or (4) share fees with non-lawyers for the provision of legal services (ie, violate rule 5.4) or (5) violate the provisions of Rules 7.1, and 7.5.

More coverage on the opinion imposing sanctions on lawyers' for the Trump campaign in Michigan

 As I reported a few days ago, a judge in Michigan issued an order imposing sanctions on nine lawyers for filing a frivolous lawsuit for an improper motive in violation of Rule 11 of the Federal Rules of Civil Procedure, Rules of Conduct and other statutes.  See here. As you can imagine, the story has received quite a bit of coverage.  Here are just three links to some of the stories:  Law & Crime, Above the Law, Courthouse News Service.  And here is the 6 minute report from the Rachel Maddow Show:

Comments on recent developments in the regulation of the profession

 As I am sure you know, one of the (if not the) hottest topics in Professional Responsibility today is the development of new approaches to regulation of the profession, including the significant changes approved in Utah and Arizona.  The topic continues to be debated and here are two good sources of information.

In a short article published by the solo practitioners division of the ABA, the authors argue that Model Rule 5.4 is unnecessary because it causes more harm than it provides benefits to the profession and the public.  

The article is one of several published in the magazine on subjects related to regulation reform, and Law Sites hosted a podcast in which five of the articles published in the magazine discuss their articles and ideas.  You can listen to the podcast here or click on the play button below.  The panelists discuss, among other things, Model Rule 5.4, whether lawyers should be allowed to share fees and partner with non-lawyers, the regulatory changes in Utah and Arizona, and the now abandoned Legal Technicians program in Washington state.

Breaking News: Michigan judge imposes sanctions on nine attorneys for the Trump campaign

Back in July and earlier this month I reported that a Michigan judge held a hearing on whether to impose sanctions on the lawyers who represented Trump's campaign in a lawsuit challenging the results of the presidential election.  See here. 

Earlier tonight, the judge issued her opinion and in it she imposes sanctions on Sidney Powell, Lin Wood and seven other pro-Trump lawyers.  The opinion is 110 pages long and everyone seems to agree that it is "scathing."  You can read it here.  

In the end, the judge holds that the lawyers engaged in misconduct for filing a lawsuit for an improper motive and imposes sanctions under Rule 11 of Civil Procedure, 28 U.S.C. § 1927 and as justified by the inherent power of the court.  Here is the beginning of the opinion (excluding footnotes):

... America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.

Specifically, attorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.

This matter comes before the Court upon allegations that Plaintiffs’ counsel did none of these things. To be clear, . . . the question before the Court is whether Plaintiffs’ attorneys engaged in litigation practices that are abusive and, in turn, sanctionable. The short answer is yes.

The attorneys who filed the instant lawsuit abused the well-established rules applicable to the litigation process by proffering claims not backed by law; proffering claims not backed by evidence (but instead, speculation, conjecture, and unwarranted suspicion); proffering factual allegations and claims without engaging in the required pre-filing inquiry; and dragging out these proceedings even after they acknowledged that it was too late to attain the relief sought.

And this case was never about fraud – it was about undermining the People’s faith in our democracy and debasing the judicial process to do so.

While there are many arenas – including print, television, and social media—where protestations, conjecture, and speculation may be advanced, such expressions are neither permitted nor welcomed in a court of law. And while we as a country pride ourselves on the freedoms embodied within the First Amendment, it is well-established that an attorney’s freedom of speech is circumscribed upon “entering” the courtroom.

Indeed, attorneys take an oath to uphold and honor our legal system. The sanctity of both the courtroom and the litigation process are preserved only when attorneys adhere to this oath and follow the rules, and only when courts impose sanctions when attorneys do not. And despite the haze of confusion, commotion, and chaos counsel intentionally attempted to create by filing this lawsuit, one thing is perfectly clear: Plaintiffs’ attorneys have scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way. As such, the Court is duty-bound to grant the motions for sanctions filed by Defendants and Intervenor-Defendants and is imposing sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its own inherent authority.

The sanctions included the payment of a reasonable amount for attorneys fees and costs, mandatory continuing legal education in the subjects of pleading standards and election law, and a referral for investigation and possible suspension or disbarment to the appropriate disciplinary authority for every state bar and federal court in which each attorney is admitted.  

For commentary, take a look at NPR, Politico, and Faughnan on Ethics.

UPDATE (August 29):  More coverage here.

Legal Zoom seeks alternative business structure license in Arizona

 As I am sure you know by now, last year Arizona and Utah became the first jurisdictions in the US to allow lawyers to partner with non-lawyers to form alternative business structures to provide legal services.  This is a significant change in the way the legal market functions but it is still too early to tell what all the consequences (positive and negative) of it are.  For more on the changes in Arizona go here and scroll down for lots of stories, links, podcasts and comments.

As I am sure you also know, this type of regulatory shift has been part of a debate for a long time and needless to say, the changes adopted in Arizona and Utah have been somewhat controversial.  As stated in an article in the ABA Journal, "[t]raditionalists and unauthorized practice of law regulators in the U.S. have long feared the possibility of a legal technology company like LegalZoom becoming a publicly traded law firm-like entity with its own attorneys serving clients. They have argued that such a business setup would result in the company’s economic interests being put before the best interests of its clients."

Actually, the old debate was always about whether "department stores" like Sears or Walmart should be allowed to offer legal services (like they offer optical services departments), but that is another story.

The news today is that, to no one's surprise, LegalZoom is seeking to be admitted to the practice of law so to speak in Arizona. And if permitted, which I would expect will happen, it may finally provide some empirical evidence on whether the "traditionalists'" worries are legitimate.

In case you did not know, and unlike what it appears to do from its commercials, LegalZoom does not provide legal services.  It is not allowed because it is not a law firm, and does not employ lawyers.  What it does is it provides a platform to connect people seeking legal representation with lawyers who are available to provide that representation.  In essence, it is a matchmaking service and makes its profit from collecting fees from those who use it.  Importantly, it does not have control over the quality of the lawyers or the services they provide.

The reason LegalZoom can't provide legal services is the generally accepted notion (reflected in Model Rule 5.4) that lawyers can't partner with non-lawyers to provide legal services.  Now that this rule has been abandoned in Arizona, companies like LegalZoom (or Walmart, for that matter) are free to hire attorneys to provide legal services as long as they meet the requirements set up by the new rules in those states.  And that is what LegalZoom is seeking to do in Arizona.  They want to become a registered legal services provider even though the company is not a law firm and it is owned and funded by non-lawyers.

The ABA Journal has a good short article on the issue here.

Lucian Pera for President

My friend Lucian Pera, one of the most well known and respected members of the ABA Center for Professional Responsibility, is running for President of the ABA.  The individual members of the ABA don't have a vote in the election which is limited to 69 members of the ABA’s Nominating Committee. However, you may be interested to know what the candidates stand for and why they are interested in the position.  Also, maybe some of you are voters, or maybe some of you out there know some of the voters.  So, in case you are interested, here is a link to a short article in which Lucian talks about his views for the future of the ABA. 

California Lawyers Association Ethics Committee Provides Guidance on the Elements of Effective Ethical Screens

Hinshaw has a report on the California Lawyers Association Ethics Committee Formal Opinion 2021-1, which identified the "Elements of Effective Ethical Screens" that comply with the California Rules of Professional Conduct ("California Rules"). The Committee identified six mandatory elements of effective screens, along with several non-mandatory factors. The Committee noted that its opinion applies to circumstances where the ethical screen is implemented without client consent. Ethical screens implemented with client consent are governed by independent agreement rather than the California Rules. Go here to read the opinion or Go here for a summary of the opinion.

Florida Supreme Court imposes sanctions for use of pitbull imagery in advertising

Back in March I commented on a pending case in Florida in which the state requested the Supreme Court to impose sanctions on an attorney for describing himself as a pit bull lawyer and using an image of a pit bull on a blog, a Facebook page, on business cards and on the door to his office.  As I said back then, I find the use of the word and imagery tacky but the attempt by the state to impose sanctions is contrary to First Amendment principles and, as I said back then, complete nonsense.  You can read my my comment here.

I am writing about this again today because I just heard that the Court decided the case against the lawyer and imposed a reprimand, which, as you can imagine what I said in the previous paragraph, is wrong. The ABA Journal has the story here, which includes links to the complaint and other documents.

Unless the constitutional standards to determine how the state can justify regulating commercial speech have changed while I wasn't paying attention, the Court's decision can't be justified.  Unfortunately, it is also not surprising.  Remember this is the same court that decided Florida Bar v. Went for it, later affirmed by the US Supreme Court in one of the worst opinions in First Amendment jurisprudence ever. 

In the end, the position of the state of Florida is that it can ban the speech because someone may find it offensive.  But if we know one thing about the First Amendment, it is that it is there precisely to prevent  the state punishing speech because someone finds it offensive.  

US Magistrate for District of Colorado imposes sanctions on lawyers who challenged the presidential election results in a lawsuit based on "enormous conspiracy theory"

While we await the result of the debate over whether to impose sanctions on the lawyers involved in an election challenge case in Michigan by the "Kraken team" of lawyers for the Trump campaign (see here), the ABA Journal and Politico are reporting that a federal magistrate judge in Colorado has imposed sanctions on lawyers who challenged 2020 election methods (rather than the result) in an order that criticized their “woeful lack of investigation” into the law and the facts and which characterized the claims as "one enormous conspiracy theory.”  You can read the court's order here.

The opinion states that although the lawsuit did not aim to challenge or reverse the election results, “the effect of the allegations and relief sought would be to sow doubt over the legitimacy of the Biden presidency and the mechanisms of American democracy (the actual systems of voting) in numerous states.” The magistrate judge said that the filing was in bad faith, and that “no reasonable attorney” would have believed the plaintiffs had standing to bring the suit.

The sanctions seemed mild to me since the judge simply ordered the lawyers who filed the lawsuit to pay attorney fees to cover the cost of their opponents’ motions to dismiss the lawsuit and to oppose an amended complaint.  Go here for the ABA Journal story.  Go here for Politico.

Michigan judge holds hearing on whether to impose sanctions on Trump's lawyers - UPDATED

July 13, 2021

In case you don't remember, a number of attorneys for the Trump campaign filed a lawsuit in Michigan challenging the results of the election.  The case later came to be known as the "Kraken lawsuit" because attorney Sydney Powell promised to "release the Kraken."  

Well, the Kraken never made an appearance, and the complaint was not supported with any real evidence.  In response, the city of Detroit and state of Michigan requested sanctions, including fines and referral for disbarment for Trumps' lawyers.

The hearing to discuss possible sanctions was held today and it did not go well, apparently.  As reported by Above the Law, "[d]uring a six-hour slugfest sanctions hearing in the Michigan “Kraken” case, the [court's] team worked to corral a dozen screaming, interrupting, crying, filibustering lawyers. It was worse than herding cats — at least cats are cute."

You can read the full account at Above the Law.  Others with coverage include Courthouse News Service, Law & Crime, and Politico.

In a separate story Law & Crime is also reporting that one of Trump's lawyers violated a court order immediately after the hearing ended.  

UPDATE August 8, 2021

Law & Crime is reporting that "[i]n a blistering final salvo in their request for sanctions, the city of Detroit held back nothing against pro-Trump conspiracy theorist lawyers Sidney Powell, Lin Wood and more than a half dozen other attorneys behind the so-called “Kraken” litigation in Michigan."  Read the report here.  

Above the Law also has a detailed comment on the latest developments after the hearing on sanctions here.  

NY and Georgia issue opinions on advising clients in the marijuana industry which reach opposite conclusions - UPDATED

Ethics authorities in New York and Georgia recently issued opinions on whether lawyers can advise clients on matters related to both recreational and medical marijuana that reach opposite views.  The problem relates to the fact that marijuana use is now legal in many states while it remains illegal under federal law.

The New York opinion, issued on July 8, 2021, states that attorneys are free to provide advice for clients in the medical cannabis industry, while the Supreme Court of Georgia took the exact opposite position in an order issued on June 21, 2021.

The Law for Lawyers Today has a comment here.

Update 8/11/21:  Legal Ethics Advisor has a comment here.

Bar complaint filed against Texas AG Ken Paxton

 As you know by now, Rudy Giuliani's law license was suspended in New York and Washington DC as a result of his involvement in the frivolous lawsuits seeking to overturn the election.  See here and here .

Now comes news that a complaint similar to the one filed against Giuliani in New York has been filed against Ken Paxton in Texas.  Paxton, who is under indictment for securities fraud and also facing allegations from his own staff that he took bribes and abused his office, filed a lawsuit in the Supreme Court of the United States seeking to invalidate the electoral votes in Pennsylvania, Michigan, Georgia, and Wisconsin.  The Supreme Court dismissed the suit almost immediately for lack of standing.

The complaint against Paxton, filed by 31 legal professionals including several past presidents of the Texas state bar, alleges that Paxton violated the Texas Disciplinary Rules of Professional Conduct by filing a frivolous suit, making false statements of fact and law to a tribunal, engaging in deceitful conduct, and failing to uphold the Constitution.

Above the Law has more information here.

Discipline for replying to online reviews improperly

One topic that has received a lot of attention this year is the question of how to reply to negative online reviews.  

Earlier this year, the ABA issued an ethics opinion concluding, among other things, that lawyers should not disclose confidential information when replying to negative online reviews. See here. Some time later, a Committee in Florida proposed to amend confidentiality rule to allow disclosure to reply to online criticism.  See here.

I am writing today about this because earlier this month, the Oregon Supreme Court reprimanded an attorney for violating the duty of confidentiality in response to negative online reviews.  The case has attracted some attention around the internet and you can read commentary on it in Lex Blog, The Legal Profession Blog, The Chicago Legal Malpractice Lawyer Blog, The ABA Journal, and the Lawyers Ethics Alert Blog.

Pennsylvania announces amendments to rule 8.4(g) which had been declared unconstitutional last year

 As you probably remember, 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.  

After appealing the decision, the Pennsylvania Bar voluntarily dismissed the appeal thus giving up the fight over the adopted version of the rule.  Instead, The Disciplinary Board of the Supreme Court of Pennsylvania set to work on finding a way to amend the rule in order to meet Constitutional scrutiny.  

Today, the Pennsylvania Supreme Court published the recommended changes, which will take effect on August 25.

The amended rule removes “by words” and “knowingly manifest bias or prejudice, or engage in,” provisions that were challenged in the suit. Several comments also were added defining harassment and discrimination. 

You can read the new version of the rule here.

How not to practice law: tell the judge "F@*! you"

 Do I really need to tell you this?  Really?   

I guess I do because a Missouri medical malpractice attorney has been ordered to spend a week in jail in a contempt order issued last week.

Above the law and the ABA Journal have the story.

Sixth Circuit rejects a challenge to Michigan's mandatory membership requirement

 Five days after I reported that the Court of Appeals for the Fifth Circuit held that the mandatory bar system used in Texas was unconstitutional, the US Court of Appeals for the Sixth Circuit rejected a challenge to the mandatory membership requirements imposed by the State Bar of Michigan. 

Jurist has the details here.

Florida Committee files final report recommending regulatory changes, including non-lawyer ownership of firms and legal technicians -- UPDATED

On June 28, the Special Committee to Improve the Delivery of Legal Services submitted its final report to the Florida Supreme Court, recommending that Florida adopt a new regulatory approach that would adopt the two most common new approaches to regulation seen in other states.

Among other things, the report recommends amending Florida’s Rule 5.4 to allow nonlawyers to have a non-controlling equity interest in Florida law firms, with restrictions.  It also recommends the approval of a program to allow qualified registered paralegals to assist clients in preparing and filing legal forms, provide information to clients regarding their legal matters, and provide ministerial assistance in court proceedings. All services in the program would have to be provided within a law office and are limited to specific areas of law (those in which litigants are often self-represented and access is limited).

You can read the report here, and some commentary on it here.

UPDATE 8/22/21:  The Institute for the Advancement of the American Legal System (IAALS) has a short comment here.

Court of Appeals for the Fifth Circuit finds that mandatory bar system used in Texas is unconstitutional

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.  For my posts on this topic go here.

Today I am writing to report that the Court of Appeals for the Fifth Circuit recently invalidated the mandatory bar system used in Texas finding that because the State Bar of Texas engages in political activities that fall outside the scope of the interests of all its members, it cannot force attorneys to join it and pay mandatory dues.  But the court also provides some options to remedy the problem.  As the court explains:

In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in nongermane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York’s; or Texas can adopt a hybrid system, like California’s. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.

The case is called Mcdonald v.  Longley and you can read the opinion here.  

Courthouse News Service has more information here.  The Louisiana Legal Ethics Blog has commentary and a link to the opinion here.

Rudy Giuliani gets suspended in Washington DC

 About two weeks ago I reported that Rudy Giuliani's license to practice law was suspended by a court in New York.  One question that suspension raised, of course, was whether other jurisdictions in which he was licensed would suspend him "reciprocally" also.  Now we have the answer.

Last week a District of Columbia court suspended Giuliani from practicing law in the nation’s capital.  Because the suspension was just an order based on the fact that he was suspended already in another jurisdiction, the order was very short.  It essentially simply said that the D.C. court system had received a “certified copy” of New York’s decision to suspend Giuliani’s law license which triggered D.C. Bar Rule XI, § 11(d) related to “reciprocal discipline.”   Law & Crime has a good explanation here.  

For more coverage and commentary go to Above the Law, NPR, and Politico.

In addition, here is a short podcast discussing Giuliani's suspension and his possible future in the practice of law.  You can listen to it below by clicking on the play button or by going here.

Oregon's Board of Bar Examiners suggests supervised practice or law school experiential learning programs as bar exam alternatives for attorney licensure

The ABA Journal is reporting that the Oregon State Bar Board of Bar Examiners has adopted a task force report suggesting supervised practice or law school experiential-learning programs as bar exam alternatives for attorney licensure. The Oregon Supreme Court is now considering the recommendations in the report.

You can read the full report here.  

The report does not propose eliminating the use of a bar exam.  Candidates can still take the bar exam and use the results to gain admission, but the proposal now adds two alternative ways for admission.  For candidates who go to law school in Oregon, there is a law school experiential pathway, and for candidates who come from out of state, there is a supervised practice pathway. 

The ABA Journal has more details here.

Last Reminder: if you currently get this blog's updates by e-mail, you need to change "carrier"; here's how to do it

Hopefully, by now you don't need this last reminder, but just in case...

In case you have missed the previous posts on this, you should know that Google has announced changes that will affect your ability to get updates by e-mail after July 1 (in two days). So if you currently get your blog stories by e-mail, this message is for you.  

I already posted about this a few days ago and what follows is essentially the same message, including information on how to sign up for updates by e-mail from different websites.  If you already signed up with one of the new services, whatever services you picked should be working already and you do not have read any further.  

So, the bad news is that Google will terminate the system they use now to send updates by e-mail.  The good news is that there are other options you can use to re-subscribe so you don't miss the blog's content.  

Please take a minute to select a new e-mail delivery service so you don't risk missing content.  It really takes only a few minutes.  I explain how to do it in detail below.  Feel free to contact me by e-mail if you need more information.

As you know, there are two main ways in which readers can get updates when I post new stories.  One is to add the blog to a “news aggregator” such as “Feedly” which is the one I use myself to collect the stories from all the blogs I follow.  The changes announced by Google will NOT affect the use of an aggregator.

The other way to keep up with the new stories is to subscribe by email and that is the system Google is going to eliminate in two days.

So, if you want to continue receiving your updates by e-mail, you will need to sign up using a different service, and below I will describe two options in detail.  

The first option is Blogtrottr.  This is the easiest to set up BUT when you get the e-mail message with the blog stories, there will be a big ad at the top and another at the bottom.  I don't like ads, so this is not my preferred way to subscribe.  If you don't mind the ads, then feel free to sign up for the updates this way.  If you don't want ads, I recommend a service called Follow it.  It has ads but they appear at the bottom of the message and are not intrusive.

I also prefer Follow-it because you can set it up as a news aggregator just like Feedly.  So it is both an email subscription service and a news aggregator in one.  Here is what you need to do to sign up.  It only takes a few minutes but there are a few steps.  (I will also explain how to set up Blogtrottr below).

To sign up for email update through Follow it, here is what you need to do:

Go to https://follow.it/intro where you will see this page:

Click on "No, I am a reader..."  This will take you to this page:

Here, type in his blog's address (https://bernabepr.blogspot.com/) in the blank (as shown) and hit Go.  This will bring you to this page:

These are the different options on how to follow the blog.  If you want only one message per day with all the stories published the previous day, choose the first box (maroon) that says "Newspaper" by email.  If you want to use Follow it as a news aggregator, click on the purple box that says "News page."  You can sign up for more than one option.

Once you pick your options click on Follow it, and this will bring you to another page with more options

As you can see, these are optional, so you can decide what to do there.  I did not select any of these.  

Once you are done with all this, you will get a message by email asking you to confirm.  Make sure you do so because otherwise you will not be signed up and won't get the email updates.  If you don't get the message right away, make sure you check your junk or spam folder just in case.

The other option is easier to set up, but, as I said before, the e-mail messages you will get will have ads.  If you don't mind that, here is what you need to do: 

Go to Blogtrottr.com , where you will see this page 

Once there, enter the URL for this blog (https://bernabepr.blogspot.com/) in the first blank on the left (where you see "http://").

Then enter your email address in the blank in the middle.

Then select how you want the updates to be delivered by clicking on the drop down menu on the left, where it says "realtime".  Realtime means you will get a message by email the moment I post something.  This means you will get multiple messages if I publish more than one story on any given day.  Click on the down arrow to see the other options.  If you want only one message per day (if there is new content) pick the daily digest option.

Once you have filled out these blanks, click on "Feed me".  That will take you to this page:

Pick one of the two options (I picked the one that says Feed Type: RSS) and you will then get a message by email asking you to confirm your subscription.  Check your junk or spam folder if you don't see it right away and make sure you follow the instructions to confirm.  You won't get the updates unless you do so.

I hope this message helps you figure out how to re-subscribe so you continue to get the email updates you are used to.  There may be other options out there that I am not aware of too.  These two are the two I know of.  I tried them both and they work well.  I prefer Follow it for the reasons stated above but they both work.  

Please let me know by email or by leaving a comment here if I can help you make the transition.  

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.