Last January I posted that California was moving closer to adopting a "self-reporting rule" a la Model Rule 8.3 (see here and here).
Today I am writing to report that the rule has now been officially adopted. You can read the court order and the text of the approved rule here.
Lawyer Ethics Alert Blog has coverage here.
Ethical Grounds has a comment here.
Attorney John Eastman fought to overturn the 2020 presidential election and keep Donald Trump in power. Now, he's fighting to keep his law license. The state bar of California argues Eastman knowingly pushed false conspiracy theories about the election and should be disbarred. Disciplinary hearings against Eastman started June 20.
You can read, or listen to, more about the story here: NPR, NPR audio, Courthouse News, Politico
Another article in Courthouse News reports that Eastman testified "about evidence gleaned from bad statistics and amateur ghost hunters" and that "[t]he disbarment hearing, initially set to last 8 days, is proceeding at a glacial pace. It will continue next week, then break for three weeks before finishing up at the end of August."
NPR has another audio report here.
For my previous coverage of Eastman's case go here, here and here.
For coverage on other Trump lawyers, go here.
Richard Painter, the chief White House ethics lawyer from 2005 to 2007 who helped prepare Justices Roberts and Alito for their confirmation hearings, has published an op-ed commenting on "what went wrong?" or, more specifically, "Why today do so many Americans have far less confidence in the ethics of the Supreme Court than we did in 2006?"
You can read the full article here.
Calling some of Alito's arguments "utter nonsense," Painter answers the question, partly, by concluding that "[t]he problem is that the justices interpret federal statutes that apply to themselves and ethics norms for judges as they see fit. And when their actions depart from generally accepted ethics practices, they claim that as an independent branch of government they can do whatever they want."
And then concludes as follows:
The Supreme Court cannot be the only branch of government without accountability to the other two. Just because the justices hold themselves to a lower ethical standard does not mean the public does. Reform must come, or Americans’ confidence in the court will plunge still further.
And that Congress can fix the issue by passing legislation installing an ethics lawyer and an inspector general for the Supreme Court. The inspector general would investigate and report to Congress on alleged violations of ethics rules by justices and other Supreme Court employees.
If you follow the news about Professional Responsibility you know that for years there has been a lot of debate about whether it is a good idea to allow non-lawyers to provide certain legal services in order to provide more, better and, presumably, less expensive access to legal representation. Several states have created programs that provide such services and many others are discussing the possibility.
Last week, the ABA Journal published a couple of short articles related to the subject:
"Nonlawyer advocates can help tenants facing eviction in program approved in 2 states" discusses the programs in Utah and Arizona.
"How could alternative licensure alter lawyer labor supply? Law prof's research may have answers" discusses the research of Kyle Rozema, an associate professor at the Washington University School of Law in St. Louis, which concludes that if jurisdictions eliminate the bar exam as an entry to attorney licensure, the labor supply of lawyers would increase by 16%. You can read the study's findings here.
It has been a while since I last posted a story in our running category of "how not to practice law" in which, as the name suggests, we take a look at dumb things that lawyers do sometimes. And today's story is an easy one: you are going to get in trouble if you write fake court orders. Yeah! You can't do that! Shocking, right? You can read the story here.
A few days ago I posted some links on lawyering and the use of artificial intelligence - a topic that seems to dominate the professional responsibility blogsphere lately. Here is an update with a few more stories from last week:
A nice short article discussing the issues raised by the use of artificial intelligence called Regulating AI in the practice of law. You can read it here.
Will AI Be Writing a Lawyer’s Blog Posts?
Chat GPT: A Lawyer’s Dream Come True or Their Worst Nightmare?
Lawyer Figures Out ChatGPT Made Up Fake Cases In His Brief On Day Of Hearing
As you know, and we have discussed in this blog many times, a number of states have programs that recognize "non-lawyer" legal professionals who can provide certain types of legal services. Some of these programs have been a success, while others have struggled but they continue to be part of the debate as to options for the market of legal services.
Today I am writing to report that the Institute for the Advancement of the American Legal System at the University of Denver recently released a new report called Allied Legal Professionals: A National Framework for Program Growth which includes multiple research-informed recommendations to help standardize a new tier of legal professionals across states, with the goal of increasing the options for accessible and affordable legal help for the public. You can read the report here. The announcement of the publication is here.
The ABA Standing Committee on Ethics and Professional Responsibility has issued a Formal Ethics Opinion (No. 506) on a lawyer's responsibilities regarding non-lawyer assistants. You can read it here. The abstract reads as follows:
A lawyer may train and supervise a nonlawyer to assist with prospective client intake tasks including obtaining initial information about the matter, performing an initial conflict check, determining whether the assistance sought is in an area of law germane to the lawyer’s practice, assisting with answering general questions about the fee agreement or process of representation, and obtaining the prospective client’s signature on the fee agreement provided that the prospective client always is offered an opportunity to communicate with the lawyer including to discuss the fee agreement and scope of representation. Because Model Rule 5.5 prohibits lawyers from assisting in the unauthorized practice of law, whether a nonlawyer may answer a prospective client’s specific question depends on the question presented. If the prospective client asks about what legal services the client should obtain from the lawyer, wants to negotiate the fees or expenses, or asks for interpretation of the engagement agreement, the lawyer is required to respond to ensure that the non-lawyer does not engage in the unauthorized practice of law and that accurate information is provided to the prospective client so that the prospective client can make an informed decision about whether to enter into the representation.
UPDATE 6-18-23: 2Civility has analysis of the opinion here.
As I reported earlier this week, there has been a lot of discussion about AI and the practice of law this year. See here for my blog posts on the subject. So, today I am writing to report that a Texas federal judge is now requiring attorneys to pledge they did not use artificial intelligence to draft their documents. See Courthouse News, and The Hill.
June 1, 2023
The Professional Responsibility blogsphere was dominated this week by a discussion of a New York Times story called “Here’s What Happens When Your Lawyer Uses ChatGPT." TechDirt has a good summary of the story here.
In a nutshell, a lawyer used ChatGPT to do research in order to draft a brief. The lawyer did not double check the result and it was later determined the brief contained cases/citations that were totally made up by the AI.
The court has now issued an order to show cause against the attorney. You can read the full order here.
Joe Patrice has a good comment on the situation at Above the Law (here), which summarizes what should be obvious: don't blame the AI for the lawyer's conduct. The issue is bad lawyering, not bad AI. This other comment in Real Lawyers Have Blogs agrees.
UPDATE June 4, 2023
Above the Law has published a comment titled "Lawyers Who Used ChatGPT To Fake Opinions Are In Real Trouble". You can read it here.
Here is a link to a recently published short analysis of ethical rules regarding remote work.
Multidistrict litigation, or MDL, now dominates federal dockets, impacting hundreds of thousands of plaintiffs and routinely grappling with issues of national import. Though its rise is undeniable, its growth has also exposed, and helped to create, a series of deep cleavages regarding how best to adjudicate cases involving mass harms. Proponents tout MDLs’ procedural flexibility, efficiency, and access-to-justice benefits, while detractors criticize this procedural tool for restricting litigant autonomy, promoting unbounded judicial improvisation, and favoring wholesale settlements over substantive and procedural justice.
In light of these competing narratives, on May 20, 2022, the Deborah L. Rhode Center on the Legal Profession at Stanford Law School and the Berkeley Law Civil Justice Research Initiative hosted a small group of distinguished scholars, judges, policymakers, and practitioners to discuss the lawyer-client relationship in MDLs. . . . the Convening sought to analyze contemporary MDLs’ plaintiff-related strengths and weaknesses and to identify practical steps that judges, lawyers, or policymakers might take to address various deficiencies.
You can read the full report here.
Thanks to the TortsProf Blog for the update.
I have written about the notion of "wellness" before, including about a report on the negative effects of the practice of law and the fact that Vermont has adopted a comment [9] to its rule on competence which states that maintaining mental, emotional, and physical well-being necessary for practice is important aspect of competence.
Today I want to let you know that, earlier this month, the Supreme Court of Utah approved an amendment to the comments of Rule 1.1 of its Rules of Professional Conduct to add language about the mental, physical, and emotional health of attorneys. Here is the language of the new paragraph in the comment:
[9] Lawyers should be aware that their mental, emotional, and physical well-being may impact their ability to represent clients and, as such, is an important aspect of maintaining competence to practice law and compliance with the standards of professionalism and civility. Resources supporting lawyer well-being are available through the Utah State Bar.
Way back in 2016 the Board of Professional Conduct of the Ohio Supreme Court released an advisory ethics opinion on whether a lawyer may enter into an agreement requiring a client to pay a flat fee in advance of representation and on whether a lawyer must deposit such a fee into a trust account. See Board of Professional Conduct of the Supreme Court of Ohio, Opinion 2016-1 (February 12, 2016). Upon reading it, I thought the opinion reflected a common problem among jurisdictions that results in a confusing inherent contradiction within the applicable rule. So, I wrote an article for Ohio Lawyer magazine (available here) in which I argued why the Board should have corrected the deficient drafting and interpretation of the rule.
In essence, I argued a few relatively simple principles: that it would be unethical to charge or collect a fee that was not earned and that, therefore, if the fee was paid in advance, it had to be kept in trust until earned. And, I made very specific suggestions on how to amend the rule and its comment to reflect the correct doctrine and to help lawyers better apply it.
The problem with the Ohio opinion, which is not uncommon among a number jurisdictions, is that it concluded it would be fine for lawyers to “deem earned” fees that had not been earned yet in order to allow the lawyers to place the money in their general accounts rather than in their trust accounts, while, at the same time, assuring clients that if the money was not earned eventually, they would be guaranteed a refund of the unearned portion of the fee.
In my article, I argued this resulted in making the fees both earned and unearned at the same time, and inevitably lead to commingling regardless of where the money was placed. It also prioritized the lawyers’ interests in getting their hands on the money at the expense of clients who were placed at risk of losing their money. Thus, I suggested specific changes to the Ohio rules to fix the contradiction and to balance the interests of lawyers and clients.
But no one listens to me, and nothing changed.
So why am I writing about this today? Because last week the ABA’s Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (No. 505, available here), in which it adopts the views I argued for way back then. I guess it took a long time, but finally we have a good opinion on the subject and hopefully jurisdictions will take notice.
Opinion 505 frames the issue from a slightly different perspective, but in the end addresses the same questions. The opinion focuses on the question of whether lawyers can label advance fees as “non refundable” but in the process talks about the same practice I discussed years ago – the practice of saying that fees are “deemed earned” when in reality they are not. On this point, the opinion is very clear:
“The Model Rules of Professional Conduct do not allow a lawyer to sidestep the ethical obligation to safeguard client funds with an act of legerdemain: characterizing an advance as “nonrefundable” and/or “earned upon receipt.” This approach does not withstand even superficial scrutiny. A lawyer may not charge an unreasonable fee.” Thus, as the opinion points out, “[t]his approach departs from the safekeeping policy of the Model Rules described herein and creates unnecessary risks for the client.”
“Legerdemain,” by the way, means a skillful hiding of the truth in order to trick people. Hiding of the truth to trick people. That sounds bad. You wouldn’t want to be known as a lawyer who hides the truth to trick people, would you?
Interestingly, the ABA Opinion has generated some criticism from some that say that lawyers and clients should be free to contract in any way they see fit. Yet, this view forgets that rules of professional conduct interfere with lawyers’ “rights” all the time, for many reasons and on many topics because there are other interests at stake. In response to that, some then argue that there is no valid interest at stake on the topic of fees paid in advance. Yet, there is. As the opinion argues, the interest is client protection. The rules are there to protect clients and they do so by making sure that the lawyers abide by the rules related to safekeeping of money and the rules that mandate refunds of unearned fees.
Some have argued that lawyers who might steal money from clients will take the money from trust accounts anyway, so mandating which account must be used to keep fees paid in advance makes no difference. But this forgets that the idea behind mandating the use of trust accounts is not only to protect clients from the lawyer, but, more importantly, from the lawyer’s creditors.
Finally, I’ve also heard some cite a case from Michigan called Grievance Administrator v. Cooper, 757 N.W. 2d 867 (Mich. 2008), in support of the position that it would be fine for a lawyer to charge a non-refundable flat fee paid in advance. Unfortunately, this analysis is wrong for a basic reason: the case was wrongly decided since it did not involve a flat fee paid in advance. It involved a security retainer, which, by definition, would be unreasonable if it were non-refundable.
One last point: the ABA Opinion refers to circumstances in which a lawyer does not have consent from a client. An interesting question is whether a lawyer should be allowed to place an unearned fee in the lawyer’s operating account if the client gives consent. In the District of Columbia, for example, that is allowed. See In Re Mance 980 A. 2d 1197 (D.C. 2009).
So, in conclusion, I think we can agree that when fees are paid in advance, they raise some ethical concerns. One way to address these concerns is to ban lawyers from asking clients to pay in advance. Another solution might be to stop requiring that lawyers use client trust accounts. See, here and here, for example. Yet, many reasons justify allowing the practice of asking for payment in advance and of requiring lawyers to keep separate trust accounts.
The concerns can be addressed without having to go that far. A better alternative is to eliminate the “legal fiction” of “deeming” a fee as “earned” when it is just a way to pretend that the amount of the fee belongs to the lawyer even though the work it is supposed to pay for has not been performed. Instead of allowing this, lawyers and clients should agree on how (or when) portions of the fee are actually earned so that ownership of that portion of the money can be transferred to the attorney. This way, the fee amount paid in advance is kept in the trust account, but the attorney can withdraw funds as they are earned before the end of the representation.
In a recent post, Michael Kennedy (Ethical Grounds) reviews issues related to lawyers leaving firms. If you need a quick reminder of some of the ethical issues involved, you can read it here.
Meanwhile, over at Above the Law, another recent article discusses the key trends shaping today’s lateral moves landscape.
Poor defendants in Mississippi are routinely jailed for months, and sometimes even years, without being appointed an attorney due to the state’s inadequate public defender system. The Mississippi Supreme Court now says this practice must end. The state’s highest recently rules that criminal defendants who can’t afford their own attorney must always have one before an indictment. You can read the opinion here and a comment on the opinion here.
April 9, 2023
Last month, the Colorado Supreme Court adopted new rules to create a program to license legal paraprofessionals to perform certain limited legal services. You can read the Supreme Court's full opinion here. You can also read a press release here.
As you probably know, Arizona, Minnesota, Oregon [also here], and Utah already have similar programs. California is considering creating one. The first one in the country was created in Washington (state, not DC) but it was abandoned a few years later.
According to the new rules in Colorado, licensed paraprofessionals will be allowed to complete and file standard pleadings, represent clients in mediation, accompany clients to court proceedings, and respond to a court’s factual questions but will not be allowed to represent clients in oral arguments or to examine witnesses in a hearing.
To obtain a license, the paraprofessional will be required to pass a written licensed legal paraprofessionals exam, submit to a character and fitness review, pass an ethics class, and pass a professional conduct exam. They will also have to complete 1,500 hours of law-related practical experience, including 500 hours of experience in Colorado family law. The rules also provide for a disciplinary process which is similar to the process for Colorado lawyers.
UPDATE 4/10/23: Thanks to a reader of the blog for letting me know that New Hampshire also has a rule that allows paraprofessionals to provide certain types of legal services under certain circumstances. You can find the rule here.
Could attorney Robert Costello have to face ethics questions for testimony on Michael Cohen? Professor Steven Lubet (Northwestern) thinks so. His column is on Law & Crime.
Last year, a Federal District Court judge found that New York’s unauthorized practice of law statute violated the First Amendment’s protection of freedom of speech of a pastor who wanted to help members of his congregation sued in debt collection cases by providing forms and explanations on how to fill them out and on how to file them. The case is currently pending on appeal before the Court of Appeals for the Second Circuit.
I am writing about this today because a couple of weeks ago, Professor Bruce Green (Fordham Law) wrote an Op-Ed piece in the New York Times supporting the view that states should ease up on restrictions on the practice of law. The article summarizes his view which he also argued in an amicus brief filed before the court. You should read the whole thing, but here is an excerpt:
[L]aws prohibiting the “unauthorized practice of law” hurt those who cannot afford a lawyer. Even those who have relevant training or personal experience but are not lawyers may not offer free advice on how to handle a common legal problem. . . .
. . . .
New York’s attorney general, Letitia James, argues in part that this is not a freedom-of-speech issue at all because [if allowed to do what he wants to do, the plaintiff would be applying “legal knowledge, judgment and skill to the facts” of an individual’s legal problem. That, she says, is the“practice of law,” not speech . . .
When legal assistance requires highly specialized skills and knowledge, it becomes increasingly legitimate for the state to insist that only a lawyer provide it – for example, representing a client in a courtroom where one needs to know particularly complex procedural and evidentiary rules and other law, or drafting certain legal documents without a reliable model.
But it is unreasonable for states to forbid people to apply a modicum of legal knowledge, judgment and skill to their neighbors’ legal problems. . . . But for the unauthorized practice restrictions [social workers, librarians and teachers] too could learn how toassist people in low-income communities who have simple legal problems and no meaningful access to lawyers.
The broad-reaching laws barring the unauthorized practice of law impose too high a cost on those who can least shoulder it. . . .
. . . .
The unauthorized practice prohibitions should not stand in the way of those seeking help with common legal problems from others in their communities who can capably provide it. . . .
As you probably know by now, a federal judge recently ruled that one of Donald Trump's former lawyers must testify about communications between him and his client because of the "crime fraud exception" to attorney-client privilege. Here are some links to the coverage.
On March 22
On March 23
Last week we celebrated the 60th anniversary of the decision in Gideon v. Wainwright, which recognized that defendants accused of serious crimes have the right to get an attorney appointed by the state.
Yet, the celebration of the landmark case and the right it recognized is often hard to vindicate because of the obstacles faced by public defenders.
This unfortunate reality was highlighted in a couple of articles this week:
You have the right to a lawyer, but public defenders note a lack of resources, respect (NPR)
Reframing the Indigent Defense Crisis (The Harvard Law Review Blog)
The Legal Profession Bog is reporting that Rudy Giuliani recently filed a post-hearing brief in the District of Columbia bar discipline case arguing that Disciplinary Counsel failed to establish any ethics violations by clear and convincing evidence or, in the alternative, that if a violation is found, the proper sanction should be just an informal admonition or reprimand. The office of the Disciplinary Counsel filed a reply.
You can read the information and follow the links to the documents here.
The other day I saw a story with the title: "Trump lawyer's ethics issue: He initially was approached by Daniels." In it, the author recalls the fact that the lawyer currently representing Trump in the case related to the hush money payment made to Stormy Daniels had been consulted by Ms. Daniels before he agreed to represent Trump. The article suggests that this means that Trump's lawyer (Joe Tacopina) has a conflict of interest. However, I don't think we have enough information to reach that conclusion... yet.
What we know is that Stormy Daniels approached Tacopina about representing her but he declined. It appears that that "approach" included at least one conversation between Daniels and the lawyer, but that does not necessarily mean that "an attorney-client relationship was established at the point of that consultation" as the article states.
When a person approaches an attorney to discuss whether the attorney will take on their representation what is formed is a relationship between the attorney and a prospective client, and the duties owed to a prospective client are different than those owed to a client.
Whether the prospective client actually establishes an attorney-client representation depends on what transpires during the conversation(s) leading to the decision by the lawyer not to take on the representation. And that is the information we don't have in this case.
Having said that, assuming there was no attorney-client relationship formed, is there "an ethics issue" as the article says? Assuming the rules that apply are the ones from New York, a lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter although a different lawyer from the same firm could if certain conditions are met.
Now, let's keep assuming things we don't know. Assuming that there was a consultation during which Stormy Daniels disclosed confidential information that could be used against her in some way in the future, what would be the consequences?
Assuming all that as true, it could be argued that the lawyer violated a duty toward Stormy Daniels and could be subject to discipline for it.
But could it lead to having the lawyer disqualified from representing Trump in the criminal case? Well, the interesting thing about that is that the person who could object to the lawyer's representation of Trump would be the prospective client, ie, Stormy Daniels, and she is not a party in the criminal case. She might be a witness, but according to some news reports I have seen, she did not testify before the grand jury.
This means that the State would have to argue that she will be a witness and that Trump's lawyer should be disqualified from representing him because the lawyer would be in a position to disclose or use confidential information obtained from her during her original consultation that could be significantly harmful to her. Not just harmful. Significantly harmful.
I don't know what the rules is about who has standing to file a motion to disqualify in New York so I don't know if the State can even bring the argument.
Most states have adopted the view that the duty of competence includes a duty to keep up with modern technology. Also, most states have adopted the view that the duty of confidentiality includes a duty to take reasonable measures to protect confidential information from unauthorized or negligent disclosure (which can happen if a lawyer is not familiar with certain aspects of modern technology).
So, given those two facts, do lawyers need to implement e-mail encryption? I have not seen any specific decision or opinion that answers that question with an unequivocal "yes" but I have seen articles suggesting that it would be the logical answer.
And here is the latest, published in Law Technology Today.
Last week I reported that the "world's first robot lawyer" was getting sued... sort of... It would be funny if the robot lawyer had been sued for malpractice, but that is not what is happening. The company that advertised offering the world's first robot lawyer is getting sued for unfair competition, restitution and an injunction barring it from offering its legal services.
So, here is an update and a bit of commentary from Tech Dirt, which also has a full copy of the complaint.
There has been a lot of discussion about artificial intelligence recently and I am sure there will be many articles soon on different ways in which AI will affect the practice of law. I will post links when I see new ones, but to get you started here are a few I saw this week:
Why ChatGPT Matters for the Future of Legal Services
How AI Has Become Increasingly Practical In Law and Where We Are Heading
Latest version of ChatGPT aces bar exam with score nearing 90th percentile
This week saw a lot of coverage and debate about the decision by the Colorado disciplinary authorities to agree to a stipulated public censure for attorney Jenna Ellis who admitted that she misrepresented facts (with "at least a reckless state of mind") at least ten times during Trump’s attempts to challenge the election results in 2020, and to doing so for a selfish motive as an aggravating factor. You can read the opinion here.
A day later, however, she took to Twitter to claim that she did not admit to lying, or that she didn't lie, or something. According to her, "lying requires intentionally making a false statement" which I guess means she admitted to making misrepresentations but that she did not know what she was doing or saying at the time; or maybe that she only admitted to making misrepresentations recklessly? I don't know; it is hard to tell.
Interestingly, as reported by Steve Benen, "[a]s recently as 2016, Jenna Ellis was not a Donald Trump admirer. She repeatedly described the then-candidate as an “idiot,” adding that she considered him an “unethical, corrupt, lying, criminal, dirtbag.” Ellis even took aim at Trump’s supporters, saying they didn’t care about “facts or logic.”"
Yet, somehow, at some point I guess Ellis herself became uninterested in facts and began to misrepresent them or maybe she just did not care enough to know she was misrepresenting them or maybe she thinks it is ok to make statements with reckless disregard for the truth...? Again, it is hard to tell.
Either way, it all has now caught up with her, although only in a minimal way. And this is the first issue debated this week. Why impose such a minimal sanction, which does not include any type of suspension from practice and which she evidently felt was easy to ignore? It is hard to say, but clearly this was a settlement. The disciplinary authorities wanted to impose discipline and she did not want to risk a worse outcome. Should the authorities have tried to get a more significant penalty? I think so, but it is hard to know what limitations they were dealing with. Not knowing what the evidence and other factors were, it is hard to say if the disciplinary authorities did the right thing.
The one thing we can say is that the sanction does not seem to have had much on an effect on the lawyer's willingness to believe in facts or logic as a result, so not much has changed. As argued by Dennis Aftergut in a short piece published at Verdict,
There is honor in holding oneself to account, in admitting one’s wrongdoing when it occurs. . . .
Unfortunately, the lesson seems to have been lost on Jenna Ellis. Within hours of her censure agreement being publicized, she parsed its words and severed herself from whatever redemption she might have claimed from confessing error.
. . . .
In Ellis’s case, . . . [t]he stipulation she signed cites 10 of her false statements . . .
The stipulation then states: “Respondent has . . . violated [Rule of Professional Responsibility ] 8.4(c) (dishonesty).” It cites Colorado case law establishing that “reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.”
Ordinary folk could be forgiven for thinking that “knowingly” engaging in dishonest, fraudulent, or deceitful conduct by making false statements is a pretty good description of lying. “I knew my statements were false, but I didn’t intend to lie when I made them” is some heavy water to carry.
Most people who acknowledge their wrongdoing at least seek the public benefit from saying that they held themselves to account. Jenna Ellis has managed to get the worst of both worlds—being professionally sanctioned by agreement and abdicating all responsibility for her behavior.
For more on the disciplinary decision you can go to the Legal Profession blog, Politico, MSNBC, Rolling Stone or Above the Law,
Another issue debated during the week by some is whether the statements were protected by the First Amendment, and whether it would be valid to impose sanctions for protected speech even if the lawyer was acting as a lawyer and the statements were made in order to advance the interests of a client. This is an interesting question that may have played a factor in the Colorado authorities decision to settle the case rather than to risk having to litigated further.
Dennis Aftergut mentions this issue in his piece also:
Ellis’s statements . . . were made in the media and purely for political purposes. First Amendment protections broadly apply in these arenas, and—whether you agree or not—some of the country’s foremost legal experts believe that free speech rights raise formidable barriers to disciplining lawyers who deliberately engage in political lies.
But now, thanks to Jenna Ellis, we have a discipline case on the record against a lawyer whose only misconduct was in misleading the public in the public square. . . .
As reported in Courthouse News Service, "[t]he world’s first robot lawyer has been practicing law without a license — doing a pretty poor job of it to boot, according to a putative class action filed Tuesday in San Francisco Superior Court."
This is the latest chapter in the Do Not Pay saga I have been reporting recently. A lawsuit has been filed against DoNotPay seeking class certification and restitution on a state-law claim of unfair business practices. You can read about it here.
There has been a lot of attention lately to issues related to Artificial Intelligence ("AI"), particularly to the use of ChatGPT to generate written content and the claims that a company called DoNotPay made about offering the first robot lawyer.
Obviously, there is a lot of uncertainty about the future of AI and whether it will be a positive or a negative in society in general and in the legal profession in particular. If you are interested in this topic, take a look at a short article by Lance Eliot (Stanford) published in Jurist called ChatGPT and Other AI Programs Aid and Muddle Access to Justice as Non-Lawyers Seek Their Advice, available here. It starts with this:
Can access to justice be enhanced via the advent of generative AI such as the widely and wildly popular ChatGPT app? I get asked this pointed question quite frequently. The straightforward answer is that generative AI provides a mixed bag, namely that in some respects this type of AI will indeed enable greater access to legal information and bolster access to justice, though there are downsides that muddle the otherwise hoped-for positive benefits. Great care and mindful attention need to be diligently considered on how AI comes into play for legal tasks.
And, if you want a quick look at some of the issues raised by the use of AI in general, you may want to watch a recent segment in John Oliver's show Last Week Tonight (below) or here if you can't see the player below.
The Illinois Supreme Court recently announced amendments to Illinois Rules of Professional Conduct 1.5 and 1.15 to clarify the law related to retainers. Unfortunately, the changes do not address the most important issue that needed to be addressed.
On the positive side, the amendments explicitly note that nonrefundable fees and nonrefundable retainers are prohibited, and “any agreement that purports to restrict a client’s right to terminate the representation or that unreasonably restricts a client’s right to obtain a refund of unearned or unreasonable fees is prohibited.” This is a clarification that would be helpful in many other states where the issue is still confusing.
However, the amendments did not get rid of the notion of a "special purpose (or advance payment) retainer." The concept originates in the Court's decision in Dowling v. Chicago Options Associates, a case that was wrongly decided and which, in the end, validated a scheme to use a law firm to hide assets from a creditor.
A special purpose retainer is defined as a “present payment to the lawyer in exchange for the commitment to provide legal services in the future." Note how that is exactly the same definition of a security retainer, so to distinguish them it is said that the special purpose retainer "may be used only when necessary to accomplish some purpose for the client that cannot be accomplished by using a security retainer” and that, unlike the security retainer, a special purpose retainer is "earned immediately."
Thus, the special purpose retainer is considered to be a fee that immediately becomes the property of the lawyer, whether the services are performed or not. If that means that the retainer pays just for the commitment to perform the services, then how is it different than a classic retainer? On the other hand, if it pays for the actual services, then it is nothing other than a fee paid in advance, which can't be earned immediately because they can't be earned until the work is done. So, in the end, if the special purpose retainer pays for services not yet rendered but is earned immediately nonetheless, it is actually earned and not earned at the same time. And, if that is the case, it does not matter where the lawyer deposits the money, the lawyer will be commingling. And that is just two of the problems with it.
Years later, the Court was confronted with the consequences of that new type of retainer and had a chance to get rid of it, but instead decided to ban it in certain types of cases only. See, In re Marriage of Earlywine (2013). I wrote about that case back then here.
In considering the amendments recently announced it seems that the Court had yet another opportunity to fix its original mistake but again failed to do so.
You can read more about the recently adopted changes here or here. You can read more about my thoughts on fees that are earned and not earned at the same time here and here.
Ipse Dixit has posted a podcast with Elise Bernlohr Maizel, Acting Assistant Professor of Lawyering at NYU Law School, in which she discusses her article "The Case for Downsizing the Corporate Attorney-Client Privilege." Maizel begins by describing the attorney-client privilege and work product doctrine. She explains why the attorney-client privilege doctrine has always been a poor fit for corporate clients. And she proposes a new model for the attorney-client privilege in the corporate context that is both more conceptually coherent and practically desirable.
You can listen to the podcast by clicking on the play button below or by going here.The Arizona Senate recently approved a bill that "prohibits the Supreme Court from requiring an attorney to be a member of any organization in order to become or remain a licensed attorney in Arizona."
You can read a summary of the bill here.
The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Ethics Opinion (no. 504) on the issue of choice of law. The abstract reads:
When a lawyer practices the law of more than one jurisdiction, choice-of-law questions arise concerning which jurisdiction’s ethics rules the lawyer must follow. Model Rule 8.5 provides that when a lawyer’s conduct is in connection with a matter pending before a tribunal, the lawyer must comply with the ethics rules of the jurisdiction in which the tribunal sits, unless otherwise provided. For all other conduct, including conduct in anticipation of litigation not yet filed, a lawyer must comply with the ethics rules of the jurisdiction in which the lawyer’s conduct occurs. However, if the predominant effect of the lawyer’s conduct is in a different jurisdiction, then the lawyer must comply with the ethics rules of that jurisdiction.
For now, you can find the opinion here. Go find it soon because the opinions are available free only for a limited time. For a short comment on the opinion go to the ABA Journal here.
If you have been following the story of DoNotPay -- the company that claimed to offer a "bot" lawyer, but which after some bad publicity decided to "quit the profession" you will be interested in the more recent developments. If you have not been following the story, go here, here and here first to catch up, then take a look at the links below.
LawSites podcast/interview with the paralegal who broke the story to begin with and who concluded that DoNotPay’s "supposed AI-driven products were little more than smoke and mirrors and that its representations about its products constituted consumer fraud." You can also find the podcast here.
TechDirt's podcast/interview with the same paralegal.
TechDirt: "FTC Fires Warning Shot At ‘AI’ Companies Like DoNotPay: Do Not Oversell Your AI"
February 27, 2023
Several Professional Responsibility lawyers and scholars recently published a proposal to renew the American system of lawyer discipline. It is not very long and it is worth reading.
The authors point out that although there has been "a steady drumbeat of discussion" about questions of nonlawyer ownership of law firms, fee-sharing with nonlawyers, and licensing of legal para-professionals, there are other important aspects of lawyer regulation that need to be updated. For that reason, they are calling for the ABA to engage in a revision of the infrastructure of lawyer regulation, rather than the substance of ethics rules.
For example, the proposal suggests that we should consider whether the boundaries of regulation should change, or expand. They ask, among other things, whether regulation should expand through new types of regulation of lawyers or by bringing others under some form of regulation and whether lawyers should be the ones in charge of the regulation or whether there should be new regulators?
The authors of the proposal also point out that there are several old documents adopted by the ABA to help jurisdictions implement their regulatory systems that have been largely ignored or that are in need of updates. For example, the ABA Model Rules for Lawyer Disciplinary Enforcement were adopted to provide jurisdictions a template for investigations and proceedings governing lawyer discipline. These model rules were adopted in 1989 but have not been revised in decades. The same is true for the ABA Standards for Imposing Lawyer Sanctions which were last amended 30 years ago and for the Model Rules for Lawyers’ Funds for Client Protection Funds (last updated in 1989) and the Model Rules for Client Trust Account Records which were last amended in 2010.
Given all this, the authors of the proposal suggest
. . . that the ABA president should appoint a group of experts from all the relevant constituencies to survey the current landscape and experience of the last few decades. This review should include the more than 50 versions of disciplinary enforcement rules currently operating in US jurisdictions, as well as innovations in regulation US jurisdictions might adopt from other countries.
This group should examine carefully the full scope and record of other regulatory approaches and should also reinforce the strengths in our current system.
If you are reading this blog, you must be interested in Professional Responsibility issues; and if you are interested in Professional Responsibility issues you must be interested in discussing lawyer regulation. And for those reasons you should read the proposal in full. You can find a copy here. The Legal Profession Blog also has an excerpt here.
Update 10-21-23
The New York Legal Ethics Reporter has a comment here.
I recently reported that Donald Trump and his lawyers were fined to the tune of almost a million dollars in one of the many frivolous cases he has filed. See here, here and here.
The YouTube channel "Legal Eagles" recently dedicated an episode to the case. You can watch it here.
It is difficult to keep up with all the different legal actions that Trump is in the middle of these days. A few days ago I reported on an order in federal court imposing almost a million dollars in sanctions against Trump and his lawyers. See here and here.
Now comes news that in a different case a judge found Trump to be in civil contempt for delaying or evading discovery requests and imposed a sanction of $10,000 per day until Trump complies with discovery as ordered by the court.
Trump and his lawyers appealed the order, but two days ago the order was upheld by an appellate court. You can read the two page order here.
The special counsel investigating Donald Trump’s handling of classified documents is seeking to compel a lawyer for the former president to testify before a grand jury. Because the lawyer is likely to (if he hasn't already) argue that the information sought is protected by the attorney-client privilege, the special prosecutor is reportedly arguing that the privilege has been waived because the information relates to the client's intent to commit a crime or fraud.
Overcoming the privilege is no easy task, and I am very interested in what will happen next! Stay tuned!
As you would expect, this story has gotten some attention, so here are some links:
Special counsel seeks to force Trump lawyer to testify, reports say (Politico)
Prosecutors Seek Trump Lawyer’s Testimony, Suggesting Evidence of Crime (NY Times)
Special counsel seeks answers from Trump lawyer on classified docs (MSNBC)
Why Jack Smith going after crime-fraud on Trump attorney privilege matters (MSNBC)
Prosecutors Sent Trump A Special Valentine's Motion To Pierce Attorney-Client Privilege Under The Crime-Fraud Exception (Above the Law)
I have been following the story of DoNotPay, a company that at one point offered a million dollars to anyone who’d let its chatbot argue a case at the Supreme Court. If you don't know what I am talking about go read my posts here and here, and follow the links to the original sources.
If you do know what I am talking about, you know that through a series of articles, Kathryn Tewson, has been criticizing DoNotPay's claims that it can use its AI to provide legal services and eventually the company's CEO Joshua Browder announced it was not going to continue providing legal services after all.
Commenting on the articles and the "back and forth" between Tewson, Browder and others, an article in Above the Law stated that "[t]here is some disagreement at ATL was to whether DoNotPay CEO Joshua Browder is an obnoxious charlatan or a pioneering entrepreneur providing a good service for the underserved. Time will tell."
Fast forward to today, when it is now clear (as if it wasn't already) that Tewson is in the camp that thinks Browder is a charlatan.
As reported in TechDirt, a couple of days ago, Tewson filed a petition with the NY Supreme Court asking for an order for Browder and DoNotPay to preserve evidence, while also seeking pre-action discovery, as she plans to file a consumer rights suit, arguing that DoNotPay is fundamentally a fraud. The petition lays out that DoNotPay is advertising a bunch of legal services that there is little indication it can actually provide, and calls out the similarities to Theranos.
For more details on this new development in the story, go read the article at TechDirt.
A few days ago I posted a story on a company called DoNotPay which at one point offered a million dollars to anyone who’d let its chatbot argue a case before the Supreme Court. The company had planned to help represent some clients in a lower court, which ended poorly before it even happened, all of which in the middle of some bad publicity. See here.
In response, the owner of the company decided to speak out in a very well known podcast on law and technology.
So, how did it go? You can decide for yourself by listening to the podcast, but as described in an article in Above the Law which summarizes most of the recent controversy,
There is some disagreement at ATL was to whether DoNotPay CEO Joshua Browder is an obnoxious charlatan or a pioneering entrepreneur providing a good service for the underserved. Time will tell... But there can be zero dispute that the 26-year-old CEO made a spectacularly bad choice when he agreed to do Bob Ambrogi’s Legalnext podcast.
You can listen to the podcast here, or by using the player below. For more on the controversy and lots of links, read the latest at article on the subject at TechDirt.
Most states now adhere to the notion that the duty of competence includes an element of competence over the use of technology. But there are lots of cases and stories out there involving lawyers making mistakes, getting cases dismissed, disclosing confidential information, and more because they don't seem to understand how to use technology. So, here is the latest.
Here is a story of a lawyer working on an airplane in a way that another lawyer siting several seats away could "in a matter of seconds, and without really trying to," figure out the lawyer's specialty and "what her major upcoming deadlines were, her staffing needs for the next few months, and the fact that she was waiting for a particular federal appellate decision to guide her strategy in her case in the lower court."
To read the full story, go here.
More importantly, try not to work in public, but if you must, try to do so in a way that protects the privacy of your work.
The Legal Profession Blog is reporting that the District of Columbia Disciplinary Counsel just filed a 46-page Proposed Findings of Fact and Conclusions of Law in In re Giuliani concluding that Rudy Giuliani should be disbarred. It concludes that
The Hearing Committee should recommend that the Court of Appeals disbar Mr. Giuliani because the integrity of the legal profession demands it. The Court must send a message that lawyers who misuse their law licenses to undermine our constitutional form of government cannot continue to practice law. One hopes that no other lawyer will ever engage in comparable conduct. Alas, as divided as our country is and as distrustful as many of us are of the basic institutions of our democracy - a distrust that Mr. Giuliani fostered and continues to foster - that may be a forlorn hope. But at the very least, the bar needs to know clearly that the consequences of such a betrayal of one's oath to support the Constitution is the loss of the privilege to practice law.
A few days ago I reported that the California Bar has filed a disciplinary complaint against John Eastman, a main player in the plot to overturn the 2020 presidential election. See here and here.
As you would expect, the case has attracted a bit of attention and here is yet another article on the subject.
The ABA Standing Committee on Ethics and Professional Responsibility and ABA Standing Committee on Professional Regulation is seeking comments on the Committees’ Third Discussion Draft of possible amendments to the ABA Model Rules of Professional Conduct (Model Rules).
The Third Discussion Draft addresses possible amendments to ABA Model Rule 1.16 (Declining or Terminating Representation) relating to lawyers’ client due diligence obligations. Your comments will assist the Committees in determining how to proceed with a Resolution for the 2023 ABA Annual Meeting.
You can access the discussion drafts and other information here.
Pleases submit written comments to Natalia Vera, ABA Center for Professional Responsibility Senior Paralegal at natalia.vera@americanbar.org by March 3, 2023. All written comments may be posted online.
The Committees will hold a Zoom public roundtable on the Third Discussion Draft on February 28, 2023. Those wishing to present comments will be allotted five minutes for their presentation. The Committees would appreciate if speakers also submit written comments by March 3, 2023. To register to attend, please contact Ms. Vera at natalia.vera@americanbar.org by February 17, 2023.
Here is a link to an article and a video discussion on why John Eastman should be disciplined.
Last week, the State Bar of California filed 11 disciplinary charges against attorney John Eastman based on his efforts to help overturn the results of the 2020 election in order to allow then-President Donald Trump remain in office. The news release by the State Bar of California is here.
According to an Op-Ed published in the Los Angeles Times, "[a]ccountability for Eastman is long overdue" because, even though he knew he was providing unlawful advice, he advised Mike Pence "to reject [Joe] Biden’s certification or otherwise tamper with it."
Here are a few links to more on this story:
Professional Responsibility: A Contemporary Approach
In November 2021, the Idaho State Bar Commissioners recommended an amendment to Idaho Rule of Professional Conduct 8.4 to include anti-discrimination and anti-harassment provisions along the lines of those in Model Rule 8.4(g). After the resolution was adopted by the members of the Bar, the proposal was sent to the Idaho Supreme Court but the Court declined to adopt the proposed amendment.
Last week, the Court issued a resolution providing a full explanation of its rejection of the resolution explaining that it was “appropriate to explain our decision in some detail to explain our rationale for taking the action we are in order to provide guidance going forward in the event the Bar should seek to amend Idaho Rule of Professional Conduct 8.4 in the future.”
The Court then proceeded to explain that although it commends the Bar’s continued attempts to address unlawful discrimination and harassment in the legal profession it felt obliged to reject the proposed resolution because, among other things, the proposed amendment “violates the First Amendment because it is not narrowly tailored to withstand strict scrutiny” and because it is void for vagueness and could have a chilling effect on speech.
You can find the court's resolution here or, through another link here.
I am not surprised by the opinion. I, and many others, have been arguing that Model Rule 8.4(g)'s constitutionality is questionable for a long time. You can read all my posts on the subject by going here and scrolling down.
Yesterday I reported that a federal court imposed almost a million dollars in sanctions on Donald Trump and his lawyers for a frivolous case that the court said "should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it."
Interestingly, soon after the imposition of sanctions, the Trump team decided to withdraw another case they had filed in a different court, which suggests that the sanctions may have had an effect!
Not surprisingly the news about the sanctions has generated a lot of coverage. Here are some links:
MSNBC (story and video)
And here are a few links on the story about the withdrawal of the other case
Why Trump abandoned his suit against New York’s attorney general (MSNBC)
Trump withdraws Florida lawsuit against New York attorney general (Politico)
It can't be a good thing for the petitioner when the opinion of the court starts by saying "This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it."
Those are the first lines in an order filed yesterday by US District Judge Donald M. Middlebrooks in a case filed by Donald Trump against Hilary Clinton.
And, as you would expect, the result was not favorable to the petitioner. In fact, in the end the judge concluded that "Plaintiff Donald J. Trump and Plaintiff’s lead attorney—Alina Habba and Habba Madaio & Associates—are jointly and severally liable for $937,989.39."
Ouch! Jointly and severally liable. That means that Trump himself may have to pay part or all of that sanction.
You can read the full order here. The Guardian has the story here.
UPDATE (1/21): More coverage here.
As I reported yesterday, California is moving quickly to approve a modified version of Model Rule 8.3. Click here for the full text of the proposal.
If you are interested in the topic of jury nullification, Radio Lab has a recent 1 hour long podcast on the subject. You can listen to it here.
January 9, 2023
If you are reading this blog, you probably know already that the US Supreme Court agreed to hear a case on whether a communication involving both legal and non-legal advice is protected by the attorney–client privilege if obtaining or providing legal advice was one of the significant purposes behind the communication. The case is called In re Grand Jury, and the oral argument is today!
Here are a few links with commentary. I will continue to update the list as more commentary is published after the oral argument.
UPDATE (1-13-2023): Here are a few more links to stories that discuss the case:
Justices debate test for attorney-client privilege when lawyer’s advice has multiple purposes
ABA Law Journal: "Law firm's more protective test for attorney-client privilege 'is a big ask,' Kagan says"
The National Law Review: "The Scope of Attorney-Client Privilege Over Dual-Purpose Communications"
The National Law Review: "U.S. Supreme Court Is Asked to Adopt the ‘Significant Purpose’ Test to Permit the Withholding of Dual-Purpose Communications as Subject to the Attorney-Client Privilege"
Above the Law is reporting that last Wednesday New York Supreme Court Justice Arthur Engoron sent a note to lawyers for the Trump family and the Trump Organization stating that "[u]pon thoroughly reviewing the papers in support of some defendants’ pending motions to dismiss, this Court is considering imposing sanctions for frivolous litigation . . ., for setting forth the same legal arguments that this Court previously rejected . . ."
You can read the full story here.
UPDATE 10-5-23: Judge in Trump's NY fraud case imposes sanctions on his lawyers for repeating frivolous arguments
A lawyer for conspiracy theorist Alex Jones has been suspended from practicing law in Connecticut for six months for improperly giving Jones' attorneys in Texas confidential documents, including the medical records of relatives of victims of the Sandy Hook Elementary School shooting.
“We cannot expect our system of justice or our attorneys to be perfect, but we can expect fundamental fairness and decency,” the judge wrote. “There was no fairness or decency in the treatment of the plaintiffs' most sensitive and personal information, and no excuse for the respondent's (Pattis') misconduct.”
Pattis said Friday in a text message that he plans to appeal the discipline and seek a stay of the punishment while he challenges it.
You can follow the story her:
As reported in Louisiana Legal Ethics, last year, the Louisiana Legislature enacted La. Rev. Stat. 9:5605.2, which provides that "[i]n any action for damages by a client against an attorney, the client’s recovery against the attorney shall be limited to the amount of damages which the attorney shows by a preponderance of the evidence would have been the maximum amount of damages that the client could have collected in the client’s underlying action in which he was represented by the attorney."
The statute is unusual in that it switches the burden of proof to the defendant to prove the amount of the recoverable damages. This should not be the case. The burden should remain on the plaintiff.
The statute is a response to the Louisiana Supreme Court’s 2020 decision in Ewing v. Westport Insurance Corporation, 315 So. 3d 175 (La. 2020) in which the court held that “proof of collectibility of an underlying judgment is not an element necessary for a plaintiff to establish a claim for legal malpractice, nor can collectibility be asserted by an attorney as an affirmative defense in a legal malpractice action.”
