NY City Bar Association recommends allowing non-lawyers to practice law under certain circumstances

Citing the  “justice gap” that leaves more than 2.3 million low-income New Yorkers each year to navigate the civil justice system on their own, the New York City Bar Association Committee on Professional Responsibility has issued a report recommending that non-lawyers be allowed to practice, with some limitations, as “Courtroom Aides” and “Legal Technicians.”  You can read more about the story here and here (which includes a link to the report itself).

Debate about the Commission 20/20's work

Professor James E. Moliterno (Washington & Lee) has published "Ethics 20/20's Successfully Achieved its Mission: It 'Protected, Preserved, and Maintained'" (Here), in which he comments and criticizes on the efforts of the Commission whose work resulted in the most recent wave of amendments to the Model Rules of Professional Conduct.  Over at the Legal Ethics Forum, the chief reporter for the commission and another member of the commission debate with Moliterno about his article.

What do you think should be the proper sanction for this conduct?

I am curious to see what you think should be the appropriate sanction give the following facts (which are taken from an actual case recently decided in Kentucky).

A client pays an attorney $50 to write a letter.  The lawyer takes the money and tells the client he will get it done and call him back.  The attorney does nothing.  The client tries multiple times to reach the lawyer but the lawyer does not call him back.  The client complains to Bar Counsel.  Bar Counsel calls the lawyer and lawyer says he inadvertently overlooked the matter.  (There is no explanation as to how he inadvertently also failed to call the client back after multiple requests.)  Lawyer promises Bar Counsel that he will do the work and get in touch with client. The lawyer then does nothing, doesn't contact the client and keeps the money.  The client tries to contact the lawyer; the lawyer does not reply.  Bar Counsel calls the lawyer; lawyer does not call back.

Bar Counsel then files a formal complaint and sends it to the lawyer.  The lawyer signs for it when delivered.  Lawyer does not reply to the complaint; does not reply to a second letter reminding him to reply to the complaint.  The complaint was processed and the charges entered.  The attorney was notified, but, again, did not reply or do anything about it.

After all that, a 20 member board found the attorney in violation of at least 4 rules (20 to 0 vote). 

Now, here is the question:  what is the best way to handle this type of conduct?

The Court issued a 30 day suspension.

I understand that, given that the attorney did not participate in the proceeding, we can't determine the reason for his conduct (Is he simply disorganized or is he incompetent?  Is he unfit to practice or just negligent?  Is he disabled in some way?).

I understand that without more information, a stronger sanction may be unfair.  We really can't determine if maybe the attorney should not be allowed to practice...  But what is the alternative?  If nothing is done about this, lawyers could avoid facing severe consequences for their conduct by simply blowing off the process.

If I had been in a position to decide this case I would have imposed a much harsher sanction.  The attorney clearly knew what he was doing was wrong.  He had been told by Bar Counsel.  He committed to correct the initial mistake but decided not to.  He clearly knew a disciplinary process against him was under way.  I would have interpreted his conduct as either so incompetent that it raised doubts as to his ability to practice or as evidence that he simply did not care - did not care about his client, about doing his job, about acting professionally or ethically, and about the process.  Either way, my conclusion would have been that he needed to be punished severely.  And if I were Bar Counsel, I'd check to make sure the attorney is not practicing during his suspension.

California follows New York in proposing mandatory pro bono for law students as pre-requisite for admission to the bar but not for attorneys

A task force of the State Bar of California has recommended that new attorneys be required to complete at 50 hours of pro bono service before they are admitted to practice. (Story in the National Law Journal, via Legal Ethics Forum).  This idea follows similar proposals in New York and New Jersey about which I have written several  times.  I can't say I am surprised by the proposal since it probably means well, but I am still not convinced it is a good idea.  Although some liked the idea in NY, most of the commentary I saw was negative.  For my previous comments (and lots of links) on this debate go here, here, here, here and here.

How not to practice law: fail to file your clients' briefs when ordered by the court and then fail to appear to the disciplinary hearing to explain your actions

Here is a story about an attorney who was reprimanded by the Supreme Court of West Virginia for "lapses in the representation of clients" including the fact that he failed to file appellate briefs in time in certain cases.  It did not help his cause that he did not show up to the disciplinary hearing because he mishandled his calendar.  So, he apparently he was just a good as handling his clients' matters as he was at handling his own.  I guess the attorney was  model of consistency.  You have to give him that. The case is Lawyer Disciplinary Board v Grindo.

Reminder: Google Reader will be going out of business soon

If you follow blogs as much as I do, you probably know by now that Google Reader will be shut down at the end of the month. If you are looking for a new way to keep up with your favorite blogs I recommend you take a look at Feedly which is very similar to Reader and, so far, has been working very well for me.  I hope it will continue to work well after Reader goes away.  For those of you who want to keep up with this blog in particular (and I hope that's all of you), the other alternative, of course, is to subscribe by e-mail, which you can do here by signing up on the lower right hand side of the blog.  Doing this will not inundate your inbox.  You will get one message a day and only if there is new content added to the blog. 

Should an attorney be disciplined for criticizing a judge?

Model Rule 8.2 states that a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth concerning the qualifications or integrity of a judge.  The comment to the rule, on the other hand, encourages attorneys to express candid and honest opinions because it contributes to improving the administration of justice.

A new case, pending in Indiana provides an interesting venue for the discussion of the issues raised by the rule.  In this case, an attorney has been charged with a violation of the rule for expressing his opinion about a certain judge in an e-mail he wrote to another attorney.

I am not familiar with all the details of the case, but from the little information I have gathered it seems to me there are several problems with the state's attempt to discipline the lawyer.

The rule's approach is obviously taken from the approach developed to deal with First Amendment concerns in defamation cases.  And one of the most important principles in defamation law is that the statements at issue have to be statements of fact.  Here the attorney's comments were clearly opinion. Imposing liability  (or in this case discipline) for expressing opinions raises serious constitutional concerns.  See for example, State v Semaan, 508 SW2d 429 (Tex App 1974) and Justices of Appellate Division v. Erdman, 301 NE2d 426 (1973) (isolated instances of vulgar or insulting disrespect for judges are not subject to professional discipline).  Unfortunately, there are cases out there that have held differently, though.

The lawyer who wrote the email filed a counterclaim against the disciplinary authorities arguing that the case against him violates his First Amendment right to free speech and that he’s being targeted.  I don't know if he is being targeted but I do think the speech is protected.

Indiana University School of Law associate professor Margaret Tarkington has argued that the vast majority of states interpret rule 8.2 to mean something very different than what it actually says and that the interpretation is probably unconstitutional.

You can read more about the case here. It will be interesting to see how the case develops.  I hope it eventually results in protecting the first amendment right to express our opinion about judges and the judicial system.

Can an attorney waive a criminal defendant's right to a public trial without consulting the client?

Regulatory agencies and courts have often had trouble defining exactly how the authority between an attorney and her client should be allocated.  It is often said that the lawyer can make decisions as to tactics while the client has the right to make decisions that relate to the objectives of the representation.  This language is derived from Model Rule 1.2, which in one way or another serves as the model for most jurisdictions, which states that a lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. 

As the comment to the rule explains, however, even though sometimes a lawyer and a client disagree about the means to be used to accomplish the client’s objectives, the rule does not prescribe how such disagreements are to be resolved.  Thus, lawyers are left to interpret the rule as best as they can under the circumstances.  This is not always easy given that sometimes what can be argued to be a tactical decision can affect a fundamental right of the client.

The rule does, however, set some limits to the lawyers authority to make decisions for the client.  For example, in a criminal case a lawyer can’t take away from the client the right to decide whether to agree to a plea offer, whether to testify and whether to waive jury trial.

Thus, one would think that if the decision involves one of these fundamental rights, the attorney must consult the client (at least) and that it is the client who has the right to make the final decision.

Thanks to a recent decision of the Supreme Court of Massachusetts, however, even this is not as clear anymore - at least in that jurisdiction.

Earlier this year, in Commonwealth v. Lavoie, 981 N.E.2d 192 (Mass. 2013), the court was asked to consider whether a Superior Court judge properly denied a criminal defendant’s motion for a new trial, in which he claimed that his right to a public trial was violated when his counsel failed to object to the exclusion of family members from the court room during jury selection. The trial judge denied the defendant’s motion, but the Appeals Court concluded that the defendant’s right to a public trial was violated and reversed.

On appeal, the state supreme court reversed holding that counsel may waive a defendant’s right to a public trial during jury selection without his client’s express consent because the decision was tactical.

In my opinion, this decision is wrong.  It contradicts the fundamental basis of the allocation of authority within the attorney-client relationship and illustrates the difficulty of explaining the proper allocation in terms of “tactics", "means" or "objectives.”

The facts of the case are relatively simple.  When the jury selection for the defendant’s trial began, court officers excluded his family from the court room. The defendant’s attorney did not object.  After his conviction, the defendant moved for a new trial, arguing that his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitution was violated when the court officers closed the courtroom to the public during the voir dire.

The judge, who was not aware that the officers had excluded the defendant’s family until he filed his motion for a new trial, conducted an evidentiary hearing during which the defendant’s lawyer testified that “it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with court officers who he perceived engaged in a difficult job.” The attorney also explained that he thought the defendant’s family members “could present a distraction.”

After the hearing, the judge concluded that the two-day closure of the court room violated the defendant’s Sixth Amendment rights, but denied the motion for a new trial because “there was no miscarriage of justice” because, among other things, “defense counsel’s failure to object to the closure was a reasonable tactical decision.”

At this point, I wonder how it is that it can be a tactical decision to make a decision that belongs to the client and that is so fundamental that taking it away from the client results in a violation of the client’s constitutional rights.

But, let’s continue.

On appeal from the judge’s ruling, a divided Appeals Court reversed concluding that the defendant’s right to a public trial had been violated.  (As I hinted above, I would think that is the correct view on this.)

However, the story does not end there. The case then went to the state supreme court, which agreed with the trial judge.  The opinion is available here.

The court clearly understood that the decision in the case depended on an understanding of the allocation of authority to make decisions within the attorney-client relationship.  The court explained that an attorney is best equipped to make choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance because they depend upon “tactical considerations.”  But, as the court explains, in order to preserve the basic rights of the accused, when it comes to fundamental rights, it is the defendant who has the right decide to waive his or her rights.

Once the court cites numerous US Supreme Court cases to explain that a criminal defendant has a constitutional right to a public trial, which includes the jury selection process one would think it would conclude the decision whether to waive the constitutional right belonged to the client.  Yet, it did not.  It ruled that the attorney could make the decision without consulting the client because it was tactical.

What I don’t understand is how the decision to waive a constitutional right of a client without consulting the client can ever be considered to be a tactical decision.  How is it that the lawyer can deprive the client of the opportunity to make a choice that the constitution (and the rules of professional conduct) clearly say belongs to the client?

Simply stated, if it is clear that it is the client who has the right to make the decision, the court should not say the lawyer can make the decision for the client.  Otherwise, an attorney could always claim the decision was tactical.  Isn’t it tactical to decide whether to plead guilty to avoid a trial?  If so, then the attorney could decide for the client.  Isn’t it a tactical decision to waive the right to a jury trial?  Then why not allow the attorney to decide for the client?

The decision to waive a public trial is no more tactical than the decision to waive a jury trial.  In both cases, the decision affects the client’s fundamental constitutional rights and, thus, the attorney should not be allowed to decide for the client without consultation. 

According to the court, an attorney can waive a client's constitutional right without consent if the attorney does so as part of a tactical decision.  In my opinion waiving a client's constitutional right should never be considered a tactical decision.  It is a decision that belongs to the client. 

How not to (start the) practice of law: fail to disclose information during the admission process

I have not updated the on-going "how not practice law" series in a while, so I thought I'd revive it by mentioning a topic I have written about before because it does not hurt to remind students and recent graduates about it: Failing to disclose information as part of the bar admission process can affect your chances even if what you fail to disclose would not have.

The most recent example comes from the Florida Supreme Court, which recently revoked the admission of an attorney for lack of candor in his application for bar admission. In that case, the candidate had passed the bar exam, but questions were raised in the character and fitness process. The court's opinion explains the obligation to update and supplement answers and underscores the crucial importance of absolute candor in the admission process, as the information that was not disclosed here would likely not have prevented the applicant from becoming a member of the Florida Bar.

Thanks to the Legal Profession blog for the information.

Prosecutorial misconduct reported in Zimmerman case

As reported in Legal Ethics in Motion and discussed in the Legal Ethics Forum, The Miami Herald reports that a former prosecutor has come forward with allegations that evidence of deleted text messages and photo’s retrieved from Traynon Martin’s cell phone has been withheld by the prosecution in the Zimmerman case, which has been set for trial on June 10th. The former prosecutor, Wesley White, has come forward citing his responsibility as an officer of the court to inform the court of any misconduct or potential misconduct occurring in the case. White, who is now in private practice, apparently recently learned about the information from the Fourth Judicial Circuit’s Information Technology Director. A hearing on the turning over of evidence has been scheduled by Judge Nelson for next week.

 

New Illinois State Bar Association opinion on fees in estate matters

The ISBA has issued its first ethics opinion of the calendar year. It was approved in January and designated number 13-01. the summary reads as follows: "It is not ethically permissible for a lawyer for a representative of a decedent’s estate to enter into a fee agreement, or to collect a fee, for an amount in excess of the amount of fees allowed by a probate court as reasonable."

 

Not everyone agrees with that conclusion, though. In the May ISBA Trusts and Estates newsletter, Thomas Bransfield and Darrell Dies argue that the the Opinion "condemns attorneys from seeking payment of any 'disallowed portion' of a fee petition, even if the fee is reasonable and the client is willing to pay," which they say "conflicts with the Probate Act that entitles attorneys to be paid reasonable compensation for services." Here's their analysis. You can read the opinion here. If you are a member of the ISBA, you can see the Trusts and Estates newsletter here.

 

Is it a violation of the rules to say one specializes in a certain area of the law?

Back in 2011, I wrote about a case from Indiana in which two attorneys were disciplined for stating in an ad in the yellow pages that they "specialized" in bankruptcy practice. The disciplinary authority reasoned that this was the equivalent of saying that the attorneys had been certified as specialists in a given field of law, something with which I do not agree.

Now, a recent case from Louisiana repeats the mistake, and worse.

But first, some background. As you probably know, states can, without violating the attorney's first amendment rights, discipline attorneys who engage in advertising that is misleading. Claiming that an advertisement is misleading is, in fact, the easiest way for the state to impose discipline in advertising cases. But what exactly constitutes a misleading ad? That is not such an easy question to answer.

Should an ad in which the lawyer says "I get results!" while pounding on a table be considered misleading because it suggests the lawyer always wins? I don't think so. I think we can use some common sense here and trust that consumers will not understand that to be the meaning of the message of the ad.

Likewise, I don't think that an ad that says an attorney specializes in a certain area of the law is a problem. After all, "to specialize" is simply a phrase that means "to concentrate one's efforts in a special activity, field, or practice."

If an attorney's main area of practice is bankruptcy law then he or she, in fact, specializes in bankruptcy law. Can't a lawyer advertise that they specialize in a particular area of the law anymore? How about saying "specializing in criminal defense" or "specializing in representing victims of accidents" and so on.

In the new case from Louisiana, a Hearing Committee has recommended a reprimand for an attorney based on the fact that his web page stated that he specializes in maritime personal injury and death cases.

Again, I don't see how that can be a problem. But wait! There's more! In this case, the lawyer had in fact received a certificate of maritime specialization from his law school. In other words, he did have a special certificate in the area of law.

Yet, the committee rejected the attorney's First Amendment defense without discussion.

I think this case should be reviewed by the courts and reversed simply because I don't think it is a violation of the rules to say that one specializes in a certain type of practice (as long as it is true that one does, of course).

On the duty supervise non lawyers

"Your ABA" has posted a short article discussing the duty to supervise non lawyers in the office here.

 

For a recent example of a case of discipline for failure to supervise, go here.

NJ considering imposing pro bono requirement for admission (as in New York)

A working group appointed by the NJ Supreme Court has released a report and recommendations in which it urges the adoption of a 50 hour law-related pro bono service requirement as a condition of admission to the NJ Bar.  The proposed rule is modeled after, but not identical, to the recently adopted rule in New York.   For more information and description of the proposed rule go here and here.

It is interesting to note that, surprisingly, there was a good deal of negative reaction to the adoption of the rule in New York, particularly from proponents of pro-bono programs.  I believe these proposals do have good intentions, but I am not sure that they are needed nor that they are a good idea.  I am willing to be convinced but most of the arguments I have seen have been negative and pretty convincing.  For more go here, here and here.

Brady v. Maryland turns 50 while many articles lament comment on how it has failed to fulfill its promise

About ten days ago Brady v Maryland turned 50 years old.  That landmark decision, one of those so important most lawyers will recognize it by name, recognized that prosecutors have a duty to disclose exculpatory evidence to criminal defendants.  This duty was later expanded as part of Model Rule of Professional Conduct 3.8.

Unfortunately, it is well known that failure to abide by the duty is a common argument in support of post-conviction relief claims.  In some instances (as in the cases of Smith v. Cain and Connick v. Thompson) it has been claimed that prosecutors' offices routinely violate the duty.

A number of articles during the past few days have discussed the issue.  Here are a few links:

The New York Times laments in an editorial that "there is good reason to believe that violations [of the Brady rule] are widespread" and that "[the rule] has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases."  You can read the full article here.

Seeking Justice comments on the NYT editorial here.

Seeking Justice also wished Brady a Happy Birthday here.

The Atlantic published an article on Brady here.

Prof. Bruce Green has published an article proposing a possible new approach to the duty under Brady that would address the fact that discovery is far narrower in federal criminal cases than in federal civil litigation.  You can access the article here.  (thanks to The Legal Ethics Forum for this link.)

Finally, for a comment on Bruce Green's article go to Otherwise.

For the professors going to the ABA National Conference in San Antonio...

For those of you planning to attend the upcoming ABA National Conference on Professional Responsibility in San Antonio, I would like to let you know of two activities organized by the Professional Responsibility section of the Association of American Law Schools.

First on May 30th at 12:05, the section will host a lunch for the law professors attending the conference at Michelinos. If you would like to attend PLEASE contact me at abernabe@jmls.edu before May 21st. We need an accurate count to make the reservation. 

Second, on June 1st at noon, Carol Needham will be moderating our annual Scholarship Roundtable. This will be an opportunity  to get together to discuss works in progress or recent articles. For information please send a message to Carol at needhamc@slu.edu with "Roundtable Speaking Slot" in the subject line.

I am looking forward to seeing you in San Antonio!

New York D.A. to Review 50 Murder Cases for Possible Wrongful Convictions

A NY Times Sunday front page article reports: The Brooklyn district attorney’s office has ordered a review of some 50 murder cases assigned to an acclaimed homicide detective, an acknowledgment of mounting questions about the officer’s tactics and the legitimacy of the convictions.  Seeking Justice has more on the story here.

Witness preparation and the uncontrollable witness

Prosectuor's Discretion has published a short comment by a prosecutor with some good advice on how to prepare a witness and the concerns over what he calls "uncontrollable witnesses."  The most interesting part of the comment relates to the concern over witnesses giving media interviews, which states, in part, "[i]t is never a good idea for a witness to give media interviews. The interviews are taped and are now prior statements where even the slightest misstatement may come back to haunt them at trial. The more interviews, the more possible inconsistencies. Plus, a person's hidden past might emerge once the media begins digging."  Go here to read the full comment.

The one thing I would add to the advice is to remind client's and witnesses about the risks of using social media.  It is surprising how many people post things on Facebook and other sites not realizing it how easily their comments can be read by others!

Prosecutorial misconduct

I have often commented on how it is important for courts to take prosecutorial misconduct seriously.  What incentive is there to stop acting improperly, if courts give the conduct a pass?

Seeking Justice, a blog I discovered recently on prosecutorial misconduct, agrees with me.  Commenting on the case in Texas where the former prosecutor is facing charges for not having disclosed exculpatory evidence, Seeking Justice states that prosecution of prosecutors is a rarity, but it has to be done.  It concludes that "we urge all attorneys who seek justice to demand that prosecutors be held to the highest standards and abide by the laws they swear to uphold.  Anything less renders any notion of  Justice a farce."

I couldn't agree more.  See the full story here.

New Arizona opinion on Groupon for lawyers

Long time readers of this blog will remember previous posts on whether it is permissible for lawyers to use pre-paid discount services like Groupon to advertise and finance their legal services.  There are a number of state opinions out there now but there does not seem to be a general consensus on the matter.  The NY Bar Association has approved participating in Groupon (see here), as have North Carolina, South Carolina and Maryland (see here).  On the other hand, the Alabama State Disciplinary Commission has ruled attorneys can't use Groupon (see here).

And now, the State Bar of Arizona has issued the most recent opinion on the subject.  It found that although perhaps not impossible, it would be very difficult for an attorney to justify participating in Groupon given all the rules that would be implicated.  For a discussion of, and a link to, this new opinion you can check out the discussion over at the Legal Ethics Forum. You can access the opinion here.

Advice from a public defender: what to say when the DA insists you agree to the amount of bail the DA wants

Go here for the answer.

Seeking Justice: a blog dedicated to prosecutorial misconduct

Thanks to the Legal Ethics Forum, I recently found out about a blog called Seeking Justice which is dedicated to commenting on issues of prosecutorial misconduct.  It describes itself as a blog that "exists to provide both a source of current information and a forum for those who have experienced or  witnessed misconduct by federal prosecutors in particular.  We are especially interested in seeking reform of the legal system in the way it deals with “Brady violations” or the prosecutors’ suppression of evidence favorable to the defense."  You should check out Seeking Justice here.

The Atlantic: "What is the most important Supreme Court case no one's ever heard of?"

The Atlantic Magazine asked a number of "experts" (law professors, lawyers, judges, authors, etc) for their opinion on the most important, yet not widely known, Supreme Court case.  Their responses are very interesting and you can read them here.  One author picked Strickland v. Washington, stating that

Decided in 1984, Strickland v. Washington created a procedural rule that makes it virtually impossible for a criminal defendant to successfully argue that he or she has been denied the “effective assistance” of counsel—and thus the Sixth Amendment right to a fair trial. The ruling is directly responsible for thousands of Americans’ incarceration after trials in which their lawyers drank, or were using drugs, or were sleeping, or were otherwise clearly incompetent.

New article and debate about the problem of the client who intends to commit perjury

Over at the the Legal Ethics Forum, an article by Richard Zitrin has ignited the never ending debate as to what to do when a criminal defendant client wants to commit perjury.  It is well worth taking a look at here and here.

Illinois disciplinary annual report

The Illinois Attorney Registration Commission has posted its Annual Report for 2011. As usual, it has a lot of useful information about complaints, investigations and sanctions broken down by age, gender, practice setting, areas of law and other factors.

One interesting fact from the report:  almost 3/4 of the disciplined attorneys were solo practitioners. 


Thanks to the Legal Profession blog for the link.

Judge sets good example: holds himself in contempt

There is a first time for everything.  This is the first time I have heard of a judge finding himself in contempt.   Apparently, the judge has a well known policy in his courtroom banning the use of electronic devices, or at least warning that if the devices cause a disturbance, the owner will be found in contempt.  According to the story (here), the judge was surprised when his own phone began to "talk" in the middle of a hearing.  Apparently, the judge had mistakenly pressed the button that activates the voice command system ("Siri", for the iPhone users out there).  Understanding he was not above his own policy, the judge declared himself in contempt and paid a fine.  That's my kind of judge: tough but fair and with a sense of humor...

Thanks to Jourdan Levy for the link.

More comments on the state of access to representation in criminal cases

As you probably remember this year we are celebrating the 50th anniversary of Gideon v. Wainwright, the case that recognized the right to counsel in criminal cases and the state of access to counsel by indigent defendants. I have posted on some of the many comments on the state of access to representation here, here, and here. 

Unfortunately,  much coverage focuses on the unfulfilled promise of access to representation.  (I also reported (here) on the possibility of a lawsuit against the state of Utah for its failure to provide funding for legal representation of the poor.)

Adding his voice to the chorus, Paul Butler, a professor of law at Georgetown University and a former federal prosecutor, has published an Op-Ed piece in the New York Times in which he argues that "fifty years after the Supreme Court, in Gideon v. Wainwright, guaranteed legal representation to poor people charged with serious crimes, low-income criminal defendants, particularly black ones, are significantly worse off."  You can read his full editorial here.


Thanks to George Conk for the link.

Texas judge to face criminal charges for his misconduct as prosecutor 25 years ago

Long time readers of this blog might remember a case in Texas in which a judge was under investigation for misconduct when he was a prosecutor.  My original post, which includes a segment from the tv show 60 minutes on the case, is available here.   More comments - by me and others - followed here and here.  The bottom line is that the now judge-then prosecutor, Ken Anderson, concealed exculpatory evidence in a case which resulted in sending an innocent man to prison for 25 years. 

The case is now back in the news, because after all these years, finally the ex-prosecutor will face justice.  The New York Times is reporting (here and here) that the judge overseeing the case found that there was sufficient evidence that the former prosecutor should be tried for criminal contempt, tampering with evidence and tampering with government records. He said Anderson concealed the availability of exculpatory evidence.

At some point in the past, when it was determined the defendant was innocent, Anderson offered an apology for what he called "failures in the system" but continued to argue he believed that there was no misconduct. In my opinion, the apology, like his original conduct, was dishonest.  The system did not fail; he failed.  He lied and cheated and robbed an innocent man of 25 years of his life.  You can see the apology here.

Given my previous post on the lack of accountability for prosecutorial misconduct, a conviction in this case would go a long way to deter future prosecutors from violating their duties.

UPDATE 4/26/13: There is a good discussion in the comments by readers of the story at the ABA Journal here.

Prosecutorial misconduct in the news

Here are some links to recent stories on prosecutorial misconduct:  ProPublica has a two part story on "who polices prosecutors" in which they discuss the fact that, even though there is a lot of publicity about prosecutorial misconduct, there seem to be few prosecutions for it.  So, who polices the proscutors?   Usually nobody.  In the second part, they discuss the specific case of a prosecutor who was disciplined for his misconduct.  He is described as a serial abuser of his authority. His misconduct actually led to disciplinary action by his superiors. He lost his job, and eventually his law license, after an appellate court determined he had lied to a judge about the whereabouts of a key witness.  State appellate courts reversed three convictions based on his wrongdoing.  That story is available here.

ProPublica later published an opinion piece suggesting that a solution to the problem is to compel judges to report prosecutorial misconduct.  (See here).  The problem is that judges already have that obligation, imposed both by the rules of professional conduct and the code of judicial ethics.  The problem is not that the judges don't have the obligation to do something about prosecutorial misconduct, the problem is that they don't do it. 

In a related, and contrasting, story, the Legal Ethics Forum discusses the discipline of several prosecutors in California and asks whether it is "a trend"?  (See here).  Some readers of the Forum seem skeptical.
 

Thanks to the Leagl Ethics Forum for the links.

Attorneys disciplined when employees steal money from clients

In two recent cases, attorneys have been disciplined when employees stole money from clients. In one case, it was a paralegal and in the other it was a secretary (who also happened to be the attorney's wife). The key to remember here is that in these cases, discipline is not imposed as a form or vicarious liability. The attorneys are not disciplined for the other person's misconduct. The attorneys are disciplined for their own misconduct in not having mechanisms in place to supervise or control in a way that would prevent the misconduct of the employees. Read more about these recent cases here and here.

Utah may be facing a lawsuit for failing to provide legal defense for indigent defendants

According to a story in the San Francisco Chronicle, available here, the state of Utah could be vulnerable to a lawsuit for falling short on its role to provide legal defense for poor people because it is one of only two states that does not fund or provide oversight for its system to supply defense attorneys to those who can't afford them. Thanks to the Legal Ethics Forum for the link.

Follow-up on the story about the prosecutors in Senator Steven's case

Yesterday I reported and commented on the fact that an administrative judge has overturned the suspensions of the prosecutors who engaged in prosecutorial misconduct in the prosecution of the late Senator Ted Stevens.  See here. As you would expect, others are now commenting on the issue too.

Professor Jonathan Turley has a comment here.  He argues, in part, as follows:

The Justice Department has long been accused of whitewashing misconduct of its own prosecutors and rarely acting on acts of prosecutorial misconduct, including common complaints of federal prosecutors withholding evidence and making misrepresentations to counsel or the courts. Even in high profile cases of misconduct, the Justice Department often drags out investigations only to later quietly end them without sanctions.. . .

The result is that even this mild punishment will now be tossed out in one of the Department’s most damaging scandals. With the earlier sweeping DOJ finding in favor of the litigation team, the result is all too familiar for those who watch the department. Since the suspensions were viewed as laughable by most objective viewers, the ruling is not going to generate much discussion. What should be the focus is the continuation of the Justice Department’s record of insulating its attorneys from discipline for even the most egregious forms of misconduct. The result of such cases sends a clear message to the rank and file attorneys that they have little to fear from allegations of misconduct.

Over at the Legal Ethics Forum, John Steele comments that "[a]s I've seen the DOJ's internal discipline process play out, I've wondered why the DOJ does the disciplining of the DOJ lawyers. The process seems plagued by cozy insider-ism punctuated by the occasional burst of politically inspired discipline. I suppose there's no one else who can do the disciplining" Read the comments here.

The Blog of the Legal Times also has more details on the story here.

Judge overturns suspensions of prosecutors in Ted Stevens' case

Long time readers of this blog will remember I have been following the story about prosecutorial misconduct in the prosecution of the late Senator Ted Stevens and that I have posted numerous comments and links on it.  To access those, type "Stevens" in the "search this blog" box on the right side panel.

As you may recall, back in 2011, a court-appointed investigator found that the prosecution was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial. See here.  However, the investigator recommended against imposing a finding of contempt on the prosecutors involved because the judge who presided over the trial did not issue an order specifically instructing prosecutors to obey the law, and act according to their ethical duties, both of which required them to turn over any exculpatory evidence. I criticized this report here. I argued that it was inconceivable that a report could find clear and intentional misconduct and then not recommend sanctions. 

Contrary to that criminal investigation, however, the Department of Justice's own investigation did not find that the prosecutors acted intentionally and for that reason the prosecutors were sanctioned merely with suspensions without pay (one for 40 days and one for 15 days), which I argued was a joke.

Now the joke is even worse, as an administrative judge has overturned the suspensions.  As reported in the New York Times, in a 29-page ruling released late Friday night, the administrative judge ruled that the Justice Department violated its own procedures on whether professional misconduct had occurred.  This is just the latest chapter on the comedy of errors this case has become.

Florida opinion on website design and search engine optimization

As reported in Legal Ethics in Motion:

On March 5, 2013, the Florida Bar Standing Committee on Advertising issued a Proposed Advisory Opinion that addressed the use of misleading “content or techniques in the design and optimization” of attorney websites. The Committee wrote that while website design, content, and search engine optimization are acceptable marketing techniques, “deceptive or inherently misleading advertising” is prohibited under the new Florida advertising rules, specifically, Rule 4-7.13. The opinion included several examples of how website optimization crosses the line including examples of deceptive “hidden text,” “meta tags,” and purchased advertising such as buying Google Adwords. The Committee concluded by reminding attorneys that if they outsource their website design or optimization, they should take steps to assure that the website designers and optimizers are conscious of the Rules Regulating the Florida Bar.

Out of control judge suspended until 2017

You may remember my previous posts on a video in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties. See here (includes the video), here, here and here.  Not surprisingly, it was later determined that the conduct had not been an isolated incident.  The claim against the judge was eventually decided by a Commission on Judicial Ethics and The ABA Journal is now reporting that the state Supreme Court has affirmed the decision.  The Opinion is available here.  It concludes that the judge should be suspended for the rest of his term - until December 31 2016.

Oregon Bar Issues Ethics Opinion on Accessing Information on Social Networking Website

The Oregon Bar has published an ethics opinion addressing the following specific questions:

1. May Lawyer review a person’s publicly available information on a social networking website?

2. May Lawyer, or an agent on behalf of Lawyer, request access to a person’s non-public information?

3. May Lawyer, or an agent on behalf of Lawyer, use a computer username or other alias that does not identify Lawyer when requesting permission from the account holder to view non-public information?

The opinion is available here.  Go here for more information and links to opinions from other jurisdictions on the same or similar topics.

Even more comments on the right to counsel

 A few days ago I posted a few links to articles commenting on the 50th anniversary of the case that recognized the right to counsel in criminal cases and the state of access to counsel by indigent defendants.  Unfortunately, as I said in my previous post, much coverage focuses on the unfulfilled promise of access to representation.  Here are a few more links: 

ReligiousLeftLaw:  The 50th Anniversary of Gideon v. Wainwright

The PopTort:  Gideon, Legal Aid and Contingency Fees

Blog of the Legal Times:  Kagan, Holder Address the Five Decades Since Historic Gideon Decision

The Huffington Post: Gideon v. Wainright 50th Anniversary: Serious Problems Persist In Indigent Legal Defense

More comments on the state of the right to counsel

A few days ago I posted a link to an editorial in the NY Times on the state of the right to counsel (here).  As we celebrate the 50th anniversary of the case that recognized the right to counsel in criminal cases, a few other comments on the subject have been published.  Sadly, the common theme in all of them is that even though there is a right to counsel, poor defendants still have inadequate access to representation.  The New York Times published an article called Right to Lawyer Can Be Empty Promise for the Poor.  Meanwhile, NPR featured  a segment called 50 Years After Key Case, Problems Defending The Poor Persist.

Claiming the client made you do it will not save your license

The Legal Profession blog is reporting on a case that reiterates an important lesson for all lawyers.  Lawyers can't blame their clients for misconduct.  Lawyers have a duty to exercise independent professional judgment which, in some cases, may require the lawyer to quit, get rid of a client, talk the client out of a proposed course of action or taking other preventive or remedial measures.

In this new case, the disciplinary authorities believed the attorney when he testified that he was "used" or "led down the wrong path" by his employer, which the lawyer characterized as an unscrupulous real estate development company.  The lawyer testified that, among other things, the client forged his name on checks. The lawyer testified to his remorse, his efforts to make his victims whole, and the fact that he did not misappropriate any funds for his personal use and realized no monetary gain from the subject transactions.

That was all fine, but the attorney was still suspended for two years by the New York Appellate Division for the Second Judicial Department. The court noted that the lawyer knew that his conduct was improper but took no action to blow the whistle or to step down from his position as in-house counsel with the company. Rather, he knowingly allowed his services to be used by another to perpetrate a fraud.

New case holding it is improper to represent buyer and seller in same transaction

Here is a link to another case holding it is improper to represent the buyer and seller in the same transaction.

Washington DC to decide whether there is a civil liability duty to non clients

Under what circumstances should an attorney have a duty in tort toward the affiliates of an entity client? 

The question is now before the District of Columbia Court of Appeals.  The case involves a claim by Boston-Maine Airways Corp. against a law firm that represented its sibling companies and a shared owner.  After a District of Columbia Superior Court judge granted the law firm's motion for summary judgment, finding that Boston-Maine failed to prove that Sheppard owed them any care, it appealed arguing that the firm's representation of its sibling companies meant the firm couldn't take actions that would harm members of the corporate family. For a more detailed summary of the case and the issues go here.

My guess is that the court will follow the analysis suggested in the comment to Model Rule 1.7 on conflicts of interest.  Even though the issue is different, the analysis is helpful.  According to the Rule's approach, lawyers who represent entities do not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary of the entity.  For this reason, an attorney for an entity is not barred from accepting a client whose interests are adverse to an affiliate of the entity client in an unrelated matter, unless the circumstances are such that the affiliate should also be considered a client of the lawyer, or there is an understanding between the lawyer & the entity client that the lawyer will avoid accepting new clients in those circumstances, or if the lawyer’s obligations to either the entity client or to the new client are likely to materially limit the representation of the other client.

NY Times: The Right to Counsel, Badly Battered at 50

A couple of days ago, The New York Times published a good editorial on the state of the right to counsel.  It starts:

A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge. The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.” The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.” 

This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency. 

While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases. This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.

 You can read the full article here.

Should the International Criminal Court adopt a code of ethics for prosecutors?

For a short comment on this question, go here.

In case of first impression, Kentucky Supreme Court to decide whether fee arrangement violates rule vs contingency fees in criminal defense cases

Tomorrow, the Kentucky Supreme Court will hear an interesting case that asks the court to determine whether an attorney entered into an invalid fee agreement and a conflict of interest when representing a criminal defendant.

In this case, the defendant was accused of murdering his adoptive father.  Because he did not have money to pay for his representation, the attorney agreed to represent him for a fee based on assets from the defendant's family’s 160-acre farm, which the defendant was due to inherit.  The problem, though, is that under Kentucky law, you can’t inherit property from someone you are convicted of killing which meant the attorney could only collect her fee if she was able to secure an acquittal.

Does this make the agreement a contingency fee, which is banned by the rules of professional conduct in criminal defense cases?

Yes, according to a disciplinary hearing officer.  One reason the rules ban contingency fees in criminal defense cases is to avoid circumstances in which the lawyer — needing an acquittal to win a fee — would urge a client to reject a guilty plea bargain that would be in the best interest of the client.  And, according to the disciplinary officer, this is precisely what happened in this case. Apparently, a prosecutor offered a good deal to the defendant but the attorney didn’t advise him to take it.

Interestingly, however, the Kentucky Bar Association’s board of governors reversed most of the findings of the hearing officer and unanimously exonerated the attorney from the alleged violation of the contingent-fee rule.

The Kentucky Supreme Court could reinstate any of the charges or none of them. It is the first case in which the court has ever considered a violation of the contingent contract rule in criminal cases.

You can read a detailed report on the case here.

New Hampshire issues opinion on cloud computing

The New Hampshire Bar Association has issued an opinion on the use of cloud computing. It joins a number of other jurisdictions holding that lawyer may use cloud computing consistent with his or her ethical obligations, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential. You can read the opinion here. You can read more about it here.

How not to (start) the practice of law: cheat during the bar exam

A couple of years ago I reported on a case in which  the Appellate Division of New York's Supreme Court  affirmed a decision nullifying the results of a candidate's bar exam because it was determined that he or she was trying to cheat during the exam.  Today, Lowering the Bar is reporting on a case in which a candidate in Ohio will have to reapply for admission because she kept writing after time expired. This is despite the fact that she passed the test even after being given a zero on the most important question as a penalty.

How not to practice law: get married when you are already married, part 3

Here is a story we have seen before.  If you are looking for another example of conduct outside the practice of law which can result in discipline, think about the cases involving bigamy.  The most recent case was reported yesterday.  A New York attorney was suspended for six months after it was determined that he married his mistress while he was still married to his wife.  I reported about similar decisions in the past here (Ohio) and here (Massachusetts).

New ISBA opinions

In its January meeting, the Illinois State Bar Association's Board of Governors approved three ethics opinions addressing probate fees, conflicts of interest in representing partnerships, and Unauthorized practice of law.

Opinion No. 13-01: Fees and Expenses; Court Obligations

It is not ethically permissible for a lawyer for a representative of a decedent's estate to enter into a fee agreement, or to collect a fee, for an amount in excess of the amount of fees allowed by a probate court as reasonable.

Opinion No. 13-02: Arbitration and Mediation; Conflict of Interest; and Multiple Representation

A lawyer ordinarily represents a partnership as an entity for conflicts of interest purposes. Where a lawyer has represented a partnership and all individual partners in various matters in a common representation, and one partner subsequently files an arbitration matter against another partner, whether the lawyer may represent the defending partner with informed consent will depend on the circumstances. Similarly, whether the lawyer can continue to represent the partnership or any of the partners in other matters with informed consent will depend on the circumstances.

Opinion No. 13-03: Arbitration and Mediation; and Unauthorized Practice of Law

A nonlawyer’s representation of parties to a FINRA arbitration generally constitutes the unauthorized practice of law.

Florida issues opinion on whether lawyers can use "the cloud" to store confidential documents

Legal Ethics in Motion is reporting (here) that last month the Florida Bar Professional Ethics Committee issued Proposed Advisory Opinion 12-3 on lawyers’ use of cloud computing to store and remotely access client files.  (The ABA Center for Professional Responsibility has information and links to all the opinions on this topic here.)  The Florida opinion emphasizes an attorney’s duty to perform due diligence in investigating a vendor’s “terms and conditions” prior to storing sensitive client information on that vendor’s cloud computing service.  It also reiterates New York’s recommendation to limit the use of cloud computing services to vendors who contractually agree to preserve confidentiality and security.  Also, the Committee adopted the view expressed by the Iowa Ethics Opinion 11-01, which states that attorneys need to have unlimited access to their own secure documents, while being able to provide only limited access to third parties.

How does a prosecutor feel when the court issues a guilty verdict?

Prosecutor Discretion has some thoughts on the subject here.

ABA issues opinion on judge's use of social media

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new opinion (here) on issues relating to a judge's use of social media.  Among other topics, the opinion address whether a judge should have to disclose electronic social media connections with lawyers or parties who appear before the judge.  Legal Ethics in Motion has a comment on the opinion here.

Top Ten International Legal Profession Stories of 2012

Go here for a great summary of last year's top stories in international legal ethics.

How not to practice law: charge the client six hours worth of time for the time it took you to prepare the bill

I've always thought that lawyers should not charge at all for the time it takes to prepare a bill.  That is not time spend on the client's representation.  That's time spend on office management.  But I know there are many lawyers who do include that time in their bills.  Here is the story of a lawyer who not only did what I think should not be done at all, he overdid it.  He was disciplined for, among other things, charging unreasonable fees and what made one of the bills unreasonable was that he charged the client charged the client six hours worth of time to prepare the bill itself. 

Kansas Supreme Court holds flat fee agreement in murder case is sufficient evidence of conflict to support a finding of ineffective assistance of counsel

In a very surprising move the Kansas Supreme Court recently ruled that an overworked and inexperienced defense lawyer's flat-fee arrangement in a capital murder case created a conflict of interest that deprived the client of his Sixth Amendment right to effective assistance of counsel.  The case is called State of Kansas v. Cheatham.

I have not read the opinion itself which is fairly long, but according to a report in the ABA/BNA Lawyers' Manual on Professional Responsibility, the court found that "the fee structure gave the lawyer, a solo practitioner with a high-volume practice, little incentive to put any significant effort into the case" and that "this conflict so fundamentally undermined the representation that the defendant did not need to prove how the lack of effort actually prejudiced his defense."  (See 29 Law. Man. Prof. Conduct 89)

I find this to be surprising for a few reasons.  First, courts are usually reluctant to grant motions based on allegations of ineffective assistance of counsel.  Second, all fee agreements, in one way or another, create some level of conflict of interest between attorneys and their clients.  Third, it seems to me that even if one concludes that the agreement itself was sufficient evidence of a conflict, the standard analysis for ineffective assistance of counsel requires that the defendant show the conflict resulted in deficient representation and prejudice.  Here the court assumed the first and excused the defendant from proving the second.

Given all this, I have to believe that what was important here was not the fee agreement but the conduct of the lawyer.  The emphasis on the fact that the lawyer charged a flat fee is misplaced.  The court should emphasize the inadequacy of the representation.  Otherwise, other lawyers who use flat fee agreements but who provide excellent representation may be discouraged from continuing to offer their services for a flat fee.  This, in turn, could make it more difficult for some defendants to afford quality legal services.

Attorney fired for refusing to help a client commit fraud does not have a claim for wrongful discharge

About ten days ago, the Washington Court of Appeals issued a decision on whether an attorney can sue for wrongful discharge.  The court held that the attorney, who allegedly had been fired after she refused to perpetuate a fraud in a client's case, cannot assert the tort of wrongful discharge against the law firm that fired her. Instead, the court held the lawyer's sole remedy is to file an ethics complaint with disciplinary authorities. The case is called Weiss v. Lonnquist and it is available here.  

Like other court opinions that have taken this approach to the issue, the problem is that the result does nothing to deter wrongful conduct by law firms and goes a long way to discourage attorneys from doing the right thing.

Prison commander testifies that government hid microphones in Guantanamo, but no one listened

Yesterday I reported that defense attorneys in the case against the alleged 9/11 mastermind have argued that the US government have been listening in on privileged attorney-client conversations (see here).  Today, reports are coming in that it is true the FBI had hidden microphones inside his compound where lawyers meet prisoners.  However, the army officer in charge of the prison testified that he was unaware of it.   The Miami Herald has the story here.  The Jurist also has a report here.

ABA approves resolution on unbundling legal services

The ABA Journal is reporting today that an ABA House of Delegates has approved a resolution encouraging lawyers to consider providing unbundled legal services when appropriate.  Resolution 108 supports unbundled services, also known as limited-scope representation, in which lawyers provide some but not all the work involved in a legal matter. According to a report accompanying the resolution, such representation can increase access to legal services. Go here for the story and for readers' comments on it.

ABA adopts new proposals to amend the Model Rules and more

Professor Andrew Perlman, the Chief Reporter for the ABA's "Commission on Ethics 20/20," is reporting that just a few days ago, the ABA House of Delegates approved four remaining proposals from Commission:

Resolution 107A amended Model Rule 5.5 so that it expressly permits qualified foreign lawyers to serve as in-house counsel while based at their employers’ U.S. offices. (The accompanying report is here.)

Resolution 107B amended the 2008 ABA Model Rule for Registration of In-House Counsel to bring foreign lawyers within the scope of that Rule.  (The accompanying report is here.)

Resolution 107C amended the ABA Model Rule on Pro Hac Vice Admission so that it provides guidance to judges who may be asked to grant pro hac vice admission to qualified foreign lawyers.  (The accompanying report is here.)

 Resolution 107D amended Comment [5] to Rule 8.5 of the Model Rules of Professional Conduct so that it expressly allows a lawyer and client to specify a particular jurisdiction as the jurisdiction where the “predominant effect” of the lawyer’s conduct will occur for purposes of a choice of law analysis under Model Rule 8.5. (The accompanying report is here.)

An overview report describing each of these Resolutions is here. 

The ABA Journal has short reports on some of these here, here and here.

For all the latest information and more links go to the ABA's Commission's website (here).

Defense attorney questions wether US government is disregarding client's right to confidentiality in 9/11 prosecution

On of the defense attorneys in the case against alleged 9/11 mastermind Khalid Sheik Mohammed and four accused co-conspirators in the murder of nearly 3,000 people in the Sept. 11, 2001 attacks argued an emergency motion in a pre trial hearing arguing that unidentified intelligence agencies have channels to listen in on privileged attorney-client conversations. The chief prosecutors denied the allegation.  Go here for more on the story.

Thanks to the Legal Ethics Forum for the link.

Update on advertising rules

The Association of Professional Responsibility Lawyers is currently holding a national meeting and today they had a discussion on recent developments regarding advertising rules.  Nicole Hyland was there and she posted this short report on the Legal Ethics Forum.  For other posts on recent developments in Florida and Tennessee go here and here.

Article: "America's broken criminal justice system"

Blogger has published a long but interesting article on what he calls "America's broken criminal justice system." In it, he discusses certain aspects of our legal system that he argues "serve to destroy the notion of a Criminal Justice System that operates fairly towards each citizen and make that system into an instrument of oppression." The items he discusses include (using his words): unfairness of representation, under-funding of the court system, plea bargaining as an insult to justice, the political nature of judges, prosecution as a career stepping stone, the corruption of law enforcement and public ignorance of our criminal justice system. Go here to read the full article.

More comments on allegations against former prosecutor in Texas for concealing evidence

Back in March of last year I posted a comment on a case in Texas in which a judge was under investigation for misconduct when he was a prosecutor.  My original post, which includes a segment from the tv show 60 minutes on the case, is available here.  A few months later, Professor Jonathan Turley published his own comment on the case here. Today, he published an update and more comments here.

Florida Supreme Court amends, and some say "loosens," lawyers’ advertising rules

A divided Florida Supreme Court yesterday eliminated a number of existing limits in the state's regulations on advertising by lawyers but also extended the rules to websites.

A majority of the seven justices agreed to permit previously prohibited ads that characterize the quality of legal services being offered, information about past results and testimonials, but held that all advertising must be “objectively verifiable,” whether distributed over the Internet or through traditional media such as print, outdoor and broadcast.  Thus, lawyers will be allowed to refer to verifiable facts about their past cases, but not to simply assert that they are one of "the best trial lawyer in Florida.”  The court held this would be misleading and prohibited.  Two justices filed dissenting opinions.  You can read the opinions here and a short summary here.

New report on contingency fees

The Center for Justice & Democracy has published a new study called Courthouse Cornerstone: Contingency Fees and Their Importance for Everyday Americans in which it discusses the debate over the use of contingency fees and the efforts by tort reformers to limit or eliminate the use of contingency fees in the US.  You can download a copy of the report here.  For a summary Fact Sheet click here.  For the Press Release announcing the report click here.

How not to conduct a hearing: leave a woman requesting a protective order with the guy she wants protection from in a room with no security personnel

By now you may have heard of this story or seen the video; but in case you haven't here it is.  The video shows how a judge left a woman with her ex-boyfriend in a room despite her saying that she was fearful of him and seeking protection.  Once alone, the man attacks the woman.  (The other woman in the room was the attacker's grandmother).

How not to practice law: represent yourself in a disciplinary hearing when you have faced discipline four times in the past

I found this headline at the Legal Profession blog very interesting:  "Self-Representation In Bar Discipline Case Is Evidence Of Incompetence."  Go here for the full story.

The Wisconsin Supreme Court ended up disbarring the attorney stating that the fact the lawyer has had so many disciplinary problems "indicate[s] a failure to grasp or adhere to the standards that are required of attorneys practicing in this state and a lack of remorse for his prior ethical violations" and that his self-representation knowing his license was at stake was essentially incompetent.

What are the consequences of the amendment to the comment to Model Rule 1.1?

Last August, the ABA amended the comment to Model Rule 1.1 to extend the notion of competence to include knowledge about "technology."  Specifically, the new comment states, in part, that "[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology..." 

The comment does not define or explain the concept of "technology" leaving much to interpretation.  However, the history of the debates within, and the proposals of, the Commission 20/20 which suggested the amendments does provide some guidance. At the very least, the initial concern related to the possibility that attorneys were risking disclosing confidential information by mistake because of their lack of understanding of how computer programs work (particularly how they create and store data and metadata).  (For previous posts on that subject go here and here or search in the internet/social media section of the blog here.)

But "technology" is a much broader concept which means there can be serious implications to the application of the new comment.  For this reason it will be interesting to see how this new duty to be knowledgeable about computer programs and other technology is interpreted and applied.

One question that is now being debated is whether it would be incompetence not to use certain computer programs or social media.  This was the topic in a panel at a recent ABA Professional Responsibility conference and it is now the topic of an article published today in the Student Lawyer.

The article starts by stating:  "Most law students have been thoroughly warned about the dangers of social media, misuse of the Internet, importance of protecting online reputations, and so on. The message is don’t make anything available on the web that you would not want a potential employer to access.  But as a practicing lawyer, you may have an ethical responsibility to use the Internet and social media as tools to actually help you in your practice"  Go here to read the rest of the article.

New York issues opinion on duties to prospective clients

The Ethics Committee of the New York City Bar Association has just issued a very informative new ethics opinion on the duties owed to prospective clients under Rule 1.18. You can read the full opinion here. It is a very good summary of the issues that arise in cases involving prospective clients, especially those that relate to confidentiality and conflicts of interest. Here is a summary of the opinion:

Rule 1.18 codifies the established principle that New York lawyers owe duties to prospective clients even when no lawyer-client relationship ensues. These duties are determined by the nature of the information received from the prospective client and may restrict the lawyer‟s ability to use or reveal the information or to represent adverse parties in the same or a substantially related matter. While these duties may be significant, they are less restrictive than the comparable duties owed to former and current clients and permit the use of ethical screens to take on adverse representations.

Thanks to Nicole Hyland of the Legal Ethics Form for the link.

Tips for settlement talks

Injured has a short post with some common sense advice on settlement talks here.

Tennessee Supreme Court considers new rules on advertising; FTC doesn't like them; I don't either

The Tennessee Supreme Court is considering proposals to amend the rules related to advertising but I find it difficult to believe most would withstand Constitutional scrutiny.  The proposals, among other things, would ban the use of actors playing the role of clients, prohibit ads narrated by well-known spokespeople, forbid certain background sounds and limit the images in ads to gavels, scales of justice, the Statue of Liberty, flags, eagles, courthouses, columns, law books or photos of attorneys.

I don't have a problem with requiring some form of disclaimer that says "actor" (or something like that) on the screen of a tv ad, but I don't think that any of the other proposals can be justified given the Supreme Court's cases on the issue.  As the Court has repeatedly held, the First Amendment prohibits the state from banning communications simply because they may be offensive to some or because they are delivered in a way that may be thought of as in poor taste.  If this ad is protected speech, then a tv ad narrated by well known actor certainly is.

Here is an example of what I mean: according to an article in the Blog of the Legal Times, the attorney who suggested the most restrictive rules has stated the new rules are needed because "some current and past lawyer advertisements rely on outrageous, misleading, and deceptive advertising techniques."

There are several problems with this "logic."  First, if the problem is that an ad is misleading, false or deceptive, there is no need for any new rules since, according to established Constitutional principles, misleading ads are not protected speech and the state can regulate them.  Second, if the problem is that an ad is "outrageous" - whatever that means - to have the state regulate the speaker for what this lawyer finds outrageous or offensive is contrary to established principles.

In other words, the argument simply has no basis in law or logic.

Interestingly, in response to the debate about the proposals, the Federal Trade Commission has issued a press release urging the Supreme Court of Tennessee to reject the new restrictions on attorney advertising, calling the proposed new rules unnecessarily broad and not in the best interest of consumers.

You can read the full report sent by the FTC to the Tennessee Supreme Court here, which concludes that the "FTC staff believes consumers receive the greatest benefit when reasonable restrictions on advertising are specifically and narrowly tailored to prevent unfair or deceptive claims while preserving competition and ensuring consumer access to truthful and non-misleading information. Ru1es that unnecessarily restrict the dissemination of truthful and non-misleading information are likely to limit competition and harm consumers of legal services in Tennessee."

What is the most ridiculous case someone has asked you to file?

The ABA Journal has asked its readers about the most ridiculous cases they have encountered, and the readers have responded with pages worth of stories. You can read them here. It is an entertaining read and there are some good examples to discuss the issues related to the duty not to file frivolous claims.

 

How not to practice law: Have sex with your client, then charge her for your time

The title says it all. The story is available here.

Thanks to Ross Good for sending me the link.

How not to practice law: help your boyfriend escape from prison and then post a photo of the two of you together on facebook just hours later

Continuing our long running list of really dumb things to do, this one could be one of my favorites:   The Legal Profession Blog is reporting today that an Oklahoma attorney has been allowed to resign her license after it was determined that she helped her boyfriend escape from prison.  As if that was not dumb enough, incredibly, she then proceeded to post a photo of the two of them together a few hours later on Facebook.  Go here, here and here.