Lawyer convicted for helping client/husband conduct gang activities from prison

A lawyer who years ago got in trouble when she was caught on tape engaging in sexual contact with a client in a room for attorneys to meet with defendants in police custody, has now been convicted after admitting that she had helped her husband, a client whom she married while he was in prison, conduct gang activities from prison by providing money and information to others at his direction.  Go here for more on this story.

Why was this judge not disbarred?

Yesterday, the Michigan Supreme Court issued an opinion (available here) removing from the bench a judge who was in the news some time ago after it was discovered that he "texted" a shirtless photo of himself to a courtroom bailiff and that he had sex in his chambers with a complaining witness in a child-support case.  The court found that (1) the conduct was clearly prejudicial to the administration of justice, (2) that the conduct exposed the legal profession or the court to contempt, censure, or reproach, (3) that the judge engaged in conduct that was contrary to justice, ethics, honesty, or good morals, (4) that he testified falsely under oath, (5) that he failed to maintain high standards of conduct so that the integrity and independence of the judiciary may be preserved, (6) that he failed to avoid all impropriety and appearance of impropriety, (7) that he failed to promote public confidence in the integrity and impartiality of the judiciary, (8) that he allowed sexual relationship to influence his judicial conduct or judgment, (9) that he failed to be faithful to the law, (10) that he engaged in ex parte communications, and (11) that he failed to disqualify himself when he should have.

As a sanction, the court removed the judge from the bench and, if the judge is reelected as a judge in November, suspended him for six years.

Sounds like a pretty substantial suspension; but it really isn't.  Essentially, the sanction is a way to prevent the judge from running for the position again.  Were he to get elected, he would not be allowed to serve because he would be suspended without pay.  But the suspension does not apply if he is not elected.  So what is the judge to do?  Simple.  Not run for re-election and continue to practice law.  Wait. What? Wasn't he suspended?  No.  He was suspended from the bench.  Not from the practice of law.

I don't understand why the sanction was so lenient.  I think the judge should have been disbarred.  Or at the very least, suspended from the practice of law.

UPDATE (3/29/14):  One of my readers e-mailed me to let me know that in Michigan, to disbar a judge removed from office, a separate disciplinary proceeding needs to be filed by the Attorney Grievance Commission.  So, that explains that.  I still would have liked to have seen the court take a stance on the issue, though.  I would have liked to have seen the court say that such a grievance should be filed.  This is not necessary and I assume the Commission might take on the case anyway, but it never hurts to have a state Supreme Court remind lawyers in the jurisdiction that misconduct should not be tolerated.

Illinois Appellate Court imposes sanctions for frivolous appeal

As you know, attorneys have a duty not to pursue frivolous claims, a principle that appears both in the rules of professional conduct and the rules of civil procedure (usually identified as Rule 11).

Today, the Illinois Court of Appeals reminds us that there are other rules that hold the same principle as to appellate practice. In a case called Fraser v. Jackson (available here), the court found a party and their lawyer should be sanctioned for pursuing a frivolous appeal.  Quoting an older case, the court stated

We find that this appeal, viewed as a whole, was frivolous, that it was taken for an improper purpose, and that it was filed specifically to harass and to cause unnecessary delay and needlessly increase the cost of litigation. We choose to impose sanctions for this conduct, finding that cases like this drain valuable resources intended to benefit those who accept the social contract of living under a law-based system of government

The sanctions will have to be paid by both the client and the lawyer.

Illinois Appellate Court issues opinion on splitting fee agreements

Just over a week ago, the Illinois Appellate Court, First District, issued an opinion addressing two important issues related to fee splitting (or sharing) agreements:  (1) whether attorneys can enforce fee-splitting agreements if they have not strictly complied with Rule of Professional Conduct 1.5(e), even if they can claim they "substantially complied" with the rule and (2) whether a lawyer accused of reneging on such an agreement can raise the non compliance with Rule 1.5(e) as a contractual defense where it was his own conduct that allegedly caused or contributed to a violation of the rule.  The court says NO to the first question but YES to the second one.  The case is called Fohrman & Assocs., Ltd. v. Marc D. Alberts, P.C., and it is available here.

As to the first issue, the court holds that lawyers' fee-splitting or referral agreements are unenforceable if the contracting attorneys do not strictly comply with the ethics rule that requires each lawyer to ensure that the clients are informed in writing about the basis for the arrangement—including the exact split in fees and the division of the lawyers' responsibilities.

I understand saying that the conduct is contrary to the rules if it does not follow the rule.  In other words, I understand saying that a lawyer can be disciplined for not following the rule.  That should be obvious and makes sense.

But the issue here is not about misconduct or discipline, it is about the validity of a contract.  For this reason, I am not so sure I like the result of the case, particularly the answer to the second question.

In deciding that an attorney could raise the non compliance of the rule as a defense even when that attorney had arguably caused the non compliance, the court stated that "we ... reject an argument that the referral agreement should be enforced because of defendants' alleged "nefarious" conduct. ... In doing so, we do not condone any alleged misconduct or encourage unfairness in relationships between attorneys. We uphold the Rules' interest in protecting clients above the interests of attorneys in recovering fees."

Taking this position, the court may not be condoning the misconduct, but it is allowing the attorney who allegedly engaged in it to get away with it.  And, more importantly, the reason it states to do so does not make sense.  The court says it is deciding the case this way because it is best to protect the interests of the clients "above" the interests of the attorneys in recovering fees.  Here is the problem with this:  enforcing the agreement would not affect the interests of the clients at all; the only interest affected is the interest of one of the attorneys.

Take the typical splitting fee agreement for example:  Lawyer A refers a case to Lawyer B.  Lawyer B agrees to take the case on a contingency of 1/3 of the recovery and agrees with Lawyer A to share that fee.  According to the agreement, Lawyer A would get 1/3 of the 1/3 Lawyer B gets out the eventual recovery.  Now assume that Lawyer B dupes Lawyer A into believing that Lawyer A has done everything he needed to do for the agreement to be valid.  [I am not saying this is what happened in the real case; this is a hypothetical].  Continue to assume that even though Lawyer B told Lawyer A the agreement is in order, the agreement does not strictly comply with the Rule 1.5(e). Months later, the case settles for $9,000.  Lawyer B gets the check and gives the client $6,000, and keeps the $3,000 that corresponds to his fee.  Lawyer A then calls Lawyer B asking him to share the fee as promised.  Lawyer B refuses and they end up in court arguing over it.

Here is the important part:  the client has been satisfied and is out of the picture.  He does not care what happens next.  His rights have been well taken care of.  The fight that ensues is between the attorneys and if they want to fight over it for years to come, that's their business.  The client is not involved and couldn't care less.  He has his money and has moved on.

The question for the court relates to the right of Lawyer A to be able to recover the fee he negotiated with Lawyer B.  Would it be fair to allow Lawyer B to deny Lawyer A his share of the fee because Lawyer A did not comply with the rule if it is true that the reason that happened was because of Lawyer's B's assurances to Lawyer A?  I don't think so.

As a contractual matter, it seems to me there were two more equitable solutions to the problem presented by the case in Illinois.  First, it could be held that even though the conduct was in violation of the rules, the contract should be enforced between the parties (the lawyers) and then refer the matter of the misconduct to the authorities.  In the alternative, the court could have adopted a view used in other jurisdictions that have decided that when lawyers from different firms agree to jointly represent a client, they enter into a “joint venture” or an “ad hoc partnership” in which the lawyers implicitly agreed to share profits or losses equally regardless of whether one attorney provides more labor or skill than the other.  As a contract interpretation matter, wouldn't either one of these be a more equitable solution to the problem?

Is a claim for breach of fiduciary duty a torts claim or a contracts claim?

As you probably know, a cause of action against a lawyer for "breach of fiduciary duty" is different than a cause of action for malpractice.  The latter is clearly a cause of action in tort which requires the plaintiff to meet the elements of a negligence claim.  The former, however, is different and, in fact, sometimes allows a plaintiff to state a claim under circumstances where a claim for malpractice will not be recognized.  See Tante v. Herring  453 S.E.2d 686 (Ga. 1994) for an example of this.

Having said this, then is a cause of action for breach of fiduciary duty not a torts claim?  If not, what type of claim is it?  A claim for breach of contract, perhaps?  I imagine there are cases out there that have addressed this question, but I have not done the research to determine what seems to be the majority view on this.

What I can tell you today is that there is a new case on the subject and that it holds the claim is a torts claim.  Interestingly, the holding worked in favor of the defendant because the statute of limitations just happened to be shorter for torts claims.

As reported in the Legal Profession Blog, the Connecticut Supreme Court concluded that "the plaintiff’s allegations sound in tort rather than in breach of contract, and, as a consequence, the plaintiff’s claim is barred by the three year statute of limitations applicable to tort claims."

The case is called Meyers v. Livingston and you care read it here.

Colorado amends comment to Rules of Professional Conduct to deal with concerns about providing legal advice regarding marijuana

Because many aspects of the use of marijuana and the marijuana industry violate federal law, there is some debate as to whether counseling clients about legal matters related to state legalized marijuana would be a violation of the rule that bans an attorney from helping a client commit a crime. In response to these concerns, the Colorado Supreme Court has adopted a new Comment to Rule 1.2, which says that a lawyer "may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, secs. 14 & 16 and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state or local provisions implementing them. In these circumstances, the lawyer shall also advise the client regarding related federal law and policy." Prof. Andrew Perlman shares his views on the issue at the Legal Ethics Forum.

Is financing your law practice through "crowdfunding" ethical?

Can an attorney accept a loan from a private lender if the attorney must commit to pay it back by agreeing to grant the lender a certain percentage of the attorney's earnings for a number of years? This is a new issue raised by a new form of funding known as "crowdfunding." I must confess I don't know much about it, but I think it presents an interesting question for lawyers.

Starting a law practice can be difficult under any circumstances, and it becomes even more difficult when you consider a bad economy and student debt. So what can a lawyer do? Crowdfunding offers a source of funds that is different from traditional loans. In a traditional loan situation, the lender will recover the loan by charging a set amount per month (including interest). Crowdfunding allows you to raise capital in exchange for a portion of your future income. In essence, through some crowdfunding websites, you can ask people to give you money and then promise to give them a share of your earnings.

Is this just like the TV show "The Shark Tank" , but online and with "investors" who are just every day people? Would it be unethical for a lawyer to go on the TV show The Shark Tank and ask for money in exchange for a share of the law firm the lawyer wants to create? Assuming "the shark" is not a lawyer, it sounds to me a strong argument can be made the answer is yes because the end result would be that the shark would become a partner in the law firm.

Is crowdfunding different? This blogger says no. He argues that agreeing to the terms of a crowdfunding funding agreement would constitute a violation of rules against fee splitting with non lawyers. On the other hand, My Shingle argues crowdfunding is different and should not be considered to be a violation of the rules.

UPDATE August 19, 2015:  New York State Bar Association issues opinion on whether using crowdfunding is ethical.  Go here for the story and links.

Project on Government Oversight report on department of justice attorneys' misconduct

Long time readers of this blog know that I have posted many stories on prosecutorial misconduct and that I have been critical of the Department of Justice's approach to misconduct by federal prosecutors.  I have also criticized the practice of many judges who refuse to disclose the names of prosecutors who engage in misconduct while they have no problem disclosing the names of other lawyers.

Now comes news of a very disturbing report that supports my concerns.  The Project on Government Oversight (POGO) has published a disturbing report that concludes that the Department of Justice has been concealing hundreds of ethical violations by its prosecutors.  According to the POGO website,

An internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work. The violations include instances in which attorneys who have a duty to uphold justice have, according to the internal affairs office, misled courts, withheld evidence that could have helped defendants, abused prosecutorial and investigative power, and violated constitutional rights. From fiscal year 2002 through fiscal year 2013, the Justice Department’s Office of Professional Responsibility (OPR) documented more than 650 infractions, according to a Project On Government Oversight review of data obtained through the Freedom of Information Act and from OPR reports.In the majority of the matters—more than 400—OPR categorized the violations as being at the more severe end of the scale: recklessness or intentional misconduct, as distinct from error or poor judgment.

The report itself is available here, and there is more analysis of it here.  The Legal Ethics Forum has more here and Seeking Justice has a comment here.

Is there something wrong with offering unpaid internships in a law firm?

I don't think there is anything illegal or unethical about offering unpaid internships in a law firm.  However, the fact you can do something does not necessarily mean you should do it.  Go here for a short post arguing that lawyers should not offer unpaid internships.

Article about prosecutorial misconduct in North Carolina

Here is a new article on the latest prosecutorial misconduct scandal in North Carolina.

Maryland Disbars Attorney For Accusing Judges of Misconduct in Emails. Was it justified?

Disbarring the Critics is reporting that in late February, the Maryland Court of Appeals disbarred a long-time Maryland attorney for alleging in emails that several Maryland judges had engaged in misconduct. The decision, Attorney Grievance Commission v. Frost, is available here.

Disbarring the Critics has a long comment on the case here, in which it concludes: "Make no mistake about it, the the justices on Maryland's highest court were not taking the action they did to protect the public, but were instead acting to protect their colleagues from what they believed to be unfair criticism by Frost. Undoubtedly those judges also know that the Frost case will be a warning shot to let other Maryland attorneys know that if they dare to criticize a judge publicly or privately they can be targeted for discipline."

Former rapper turned lawyer's ad goes viral

Just when we thought we had seen the worst attorney ad of the year during the Super Bowl (see here and here), in comes an internet commercial for a lawyer in the Pittsburgh area.  You can watch it below.  It speaks for itself.  But to give you a hint of how it has been received, here is a quote from the blog Res Ipsa Loquitur: "The advertisement is clearly tongue-in-cheek but in the end I find it less than comical. Muessig [the lawyer] promises to help felons get back to crime and proclaims that he “think like a criminal.” It fulfills the worst stereotypes of criminal defense lawyers as felons are shown committing crimes and saying “Thanks, Dan.” Muessig may have a skill for thinking like a criminal but he clearly has yet to master the talent of thinking like a lawyer."  You should read the full comment here.

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Tom Loftus, spokesman for the Allegheny County Bar Association, said he found the ad "insulting to Pittsburgh lawyers and lawyers across the country, who take great pride in their profession."  Without more, of course, that is not enough to justify the state to ban the ad or to discipline the lawyer.  In the end, the issue here is not whether the state has the authority to intervene, but whether it is really a good idea for the lawyer to engage in this type of campaign. Just because you have the right to do something does not mean you should do it.  For more comments on the ad go here, here and here and check out the short video below.

Controversial Supreme Court decision on asset forfeiture and access to legal services

About two weeks ago. the Supreme Court decided a case that has important implications on a criminal defendant's access to legal representation.  The case is called Kaley v. US and the opinion is available here.  You can also find links to the lower court's opinion and many other documents in the case here.

An editor of the SCOTUS blog summarizes the facts as follows:  "In 2007, Kerri Kaley and her husband, Brian, were indicted on charges arising from a plan to steal and then re-sell prescription medical devices. Based on the indictment, the federal government also got a restraining order to freeze their assets. The Kaleys asked the district court to lift the asset freeze so that they could pay their lawyers: although they did not dispute that the frozen assets could be traced to the conduct for which they were indicted, they argued that the charges against them were “baseless.” Both the district court and the U.S. Court of Appeals for the Eleventh Circuit denied the request, holding that it was prohibited because the Kaleys had no right to a hearing to challenge the grand jury’s determination that there was probable cause to support the charges against them. This morning a divided Supreme Court agreed, preserving a frequently used tool in the government’s arsenal for prosecuting crimes."  This author's analysis of the case is available here.

In the days that followed the announcement of the decision a number of very critical reviews have been published.  The White Collar Crime Prof Blog, for example, concludes that

The opinion, written by Justice Kagan, exalts the inviolability of the grand jury and demonstrates a naive misunderstanding of (or lack of concern about) the reality of its role in the determination of probable cause, ignores the presumption of innocence, and denigrates the importance of independent defense counsel in the criminal justice system. It tilts the playing field of justice in the government's favor by giving the government, in some cases, the option to deprive the defendant of the counsel he has selected or intends to select. [You can read the full comment here.]

Likewise, Simple Justice states:

In considering the Court’s adherence to beloved legal fictions, one of which is that a grand jury indictment conclusively proves the existence of probable cause to believe that a crime occurred and the defendants committed the crime, the majority reduced the issue before it to an absurdity. What about the presumption of innocence? What about the right to counsel of choice? What about the constraints of forfeiture to the proceeds of crime?  [You can read the full comment here.]

CT Law Tribune article on prosecutorial misconduct

Here is a link to a good article in the Connecticut Law Tribune about prosecutorial misconduct.

Florida Supreme Court rules illegal immigrants can't be admitted to practice

As you probably remember, back in January the California Supreme Court issued a long awaited decision holding that an undocumented immigrant should be allowed to practice law. Go here, here and here for older posts on the case, including a link to the oral argument.

A similar case had been making its way through the courts in Florida and today the Supreme Court issued its decision reaching the exact opposite result, holding "that unauthorized immigrants are ineligible for admission to the Florida Bar." Thus, applicants are required to demonstrate that they are legally present in the United States.  One of the judges concurred "reluctantly."  Go here for a copy of the opinion.  The Legal Profession Blog has more.

New York changes its regulations on contingency fees

Eric Turkewitz, of the NY Personal Injury Law Blog, reports on an amendment to the New York rule that describes how contingency fees should be calculated.

UPDATE on the proposed amendments to the Florida rules

Earlier today I posted a comment about proposed changes to the rules in Florida.  See here.  I just received the proposed new text and here are my comments.

First, the rule will use the following definitions:

(A) Retainer. A retainer is a sum of money paid to a lawyer to guarantee the lawyer's future availability. A retainer is not payment for past legal services and is not payment for future services. 

(B) Flat Fee. A flat fee is a sum of money paid to a lawyer for all legal services to be provided in the representation. A flat fee may be termed "non-refundable."  

(C) Advance Fee. An advanced fee is a sum of money paid to the lawyer against which the lawyer will bill the client as legal services are provided.

The choice of words is interesting.  The proposal is using the word "retainer" to mean what other jurisdictions call a "classic retainer" while it is using the words "advance fee" to define what others call a "security retainer."

The Comment to the rule explains the analysis related to the issue of whether a fee can be non refundable:

     A lawyer may require advance payment of a fee but is obliged to return any unearned portion. . . . A lawyer is not, however, required to return retainers that, pursuant to an agreement with a client, are not refundable. A nonrefundable retainer or nonrefundable flat fee is the property of the lawyer and should not be held in trust. If a client gives the lawyer a negotiable instrument that represents both an advance on costs plus either a nonrefundable retainer or a nonrefundable flat fee, the entire amount should be deposited into the lawyer's trust account, then the portion representing the earned nonrefundable retainer or nonrefundable flat fee should be withdrawn within a reasonable time. An advance fee must be held in trust until it is earned. Nonrefundable fees are, as all fees, subject to the prohibition against excessive fees.

Although I am not totally convinced the language used in the definitions is the best, as I said in my previous post, I think the analysis this proposal is much better than the one offered in many of the cases that have been decided on this issue.

Florida Bar of Governors proposed amendment to clarify the concept of flat fees and retainers

I have often complained about the confused state of the law as it relates to the notion of non refundable "flat fees" which in many jurisdictions converts the flat fees into security retainers.   Go here for an example of the problem and here and here for more.

Into this mess, now comes the Florida Bar Board of Governors which has proposed an amendment to Florida's Rule 4-1.5.  The amendment states that non refundable fees are considered earned on receipt and must not be placed in lawyers’ trust accounts.  I have not seen the exact language of the proposal (I requested a copy here).  However, I can say that I think saying that non refundable fees are earned on receipt seems like a good idea, but only as long as the total amount of the fee remains reasonable, which is the accepted standard to evaluate any fee's ethical validity.

According to Lawyers Ethics Alerts, the proposed language in the comment to the rule provides: “A nonrefundable retainer or nonrefundable flat fee is the property of the lawyer and should not be held in trust. If a client gives the lawyer a negotiable instrument that represents both an advance on costs plus either a nonrefundable retainer or a nonrefundable flat fee, the entire amount should be deposited into the lawyer’s trust account, then the portion representing the earned nonrefundable retainer or nonrefundable flat fee should be withdrawn within a reasonable time. An advance fee must be held in trust until it is earned. Nonrefundable fees are, as all fees, subject to the prohibition against excessive fees.”

Client Red Flag Bingo

As all practicing lawyers know, it is important to listen carefully to prospective clients.  It is important to understand their concerns, the details of their concerns and what it is they want us (the lawyers) to do for them.  It is also important to determine if they can be "problem clients."  That's right, "problem clients."  We all know them and often we don't realize they are a problem until it is too late.  But there are many ways to pick up on the signs early on.  There are a few obvious red flags we can learn to spot quickly.  

My favorite is the client who begins an interview by complaining (or, worse, insulting) their former lawyers.  Red Flag!  That idiot lawyer who did not know what he or she was doing the prospective client is complaining about could be you some day.  

Learning to recognize the signs of a problem has always been part of the learning curve of all new lawyers, but now there's help.  Thanks to this wonderful chart prepared by L. Maxwell Taylor and discussed over at MyShingle.com, you too can learn to spot the reg flags.  Read the chart carefully and keep it handy.  Fill a spot during an interview and you will know how to handle it.  Fill more and you are warned.  Fill a full row, and you should probably consider asking the client to Go!

How not to protect confidential information: throw your client files in boxes where anyone can find them and read them

The Legal Profession blog is reporting that the Indiana Supreme Court has imposed a suspension of not less than two years without automatic reinstatement on an attorney for, among other things, discarding client files without protecting the confidential information in them.  According to the story:     "When moving his office location in 2009, Respondent threw several client files containing confidential client information into a trash bin, where they remained for several days. A newspaper reporter found information in the files relating to paternity and divorce cases, as well as Social Security numbers and financial records."

The court found the conduct violated the duty of confidentiality because he attorney revealed confidential information in violation of rule 1.6(a).  However, it does not sound like the attorney intended to reveal the information.  He was just careless about it.  Applying 1.6(a) under the circumstances means that the attorney's negligent handling of the files is enough to support a finding of a violation of the duty.  Or, in other words, that an accidental disclosure is, by itself, evidence of a violation of the duty.

This would not necessarily be the case under the most recent version of Model Rule 1.6.  This version recognizes two different duties:  under 1.6(a) attorneys have a duty not to purposely disclose confidential information, while under 1.6(c) attorneys have a duty to take reasonable measures to prevent inadvertent or unauthorized disclosures.  This means that an accidental disclosure, by itself, does not mean the attorney violated the duty of confidentiality.  

Applied to the facts of the Indiana case, however, I think the result would be the same because the attorney could not even argue he meets the lower standard.  Clearly, he did not take reasonable measures to protect the confidential information in the files.

How not to practice law: tell your client what to say when testifying

As all litigators know, there is an important difference between helping a witness prepare in advance of their testimony and telling the witness what to say.  The first is not only allowed, not doing it may be considered a violation of the duty of diligence and an example of malpractice.  The second, however, is improper and can subject a lawyer to discipline.  A recently reported case in the Legal Profession blog illustrates the difference (here).  In this case, the lawyer was disbarred after it was revealed he told a witness what to say prior to a hearing.

As if we need any more stories of prosecutors who do not abide by their obligations

As if we need any more stories of prosecutors who do not abide by their obligations, here is a particularly troubling one.

Still talking about the decision to refuse admission to Stephen Glass

I recently posted a link to comments about the California Supreme Court's decision to deny admission to Stephen Glass.  Here's more:  Over at the Legal Ethics Forum, two renowned scholars have published short comments.  In the first one, Mitchell Simon (University of New Hampshire) argues that although  the court had ample legal basis to reach the decision it reached, the opinion emphasized the wrong analysis.  You can read his comments here.  In the other comment, Brad Wendell (Cornell) discusses social psychology issues presented by the case and the approach to the evidence presented and the question of whether the decision should have been based on the notion that past conduct is a good way to predict future conduct.  You can read his comment here.

Still talking about the Super Bowl... the commercial, that is...

When attorney Jamie Casino spent who knows how much money on a 2 minute commercial spot during the Super Bowl, I am sure he was looking for publicity.  And, say what you want about the commercial itself, publicity is just what he has gotten.  Everyone seems to be talking about it.  I have seen it mentioned in news blogs, legal blogs, academic blogs, you name it.  I talked about it in class yesterday, and here I am again today to give you a link to yet another comment about it...  So, he wanted publicity and he got it... but, unlike the saying goes, not all publicity is good publicity.   Over at Res Ipsa Loquitur, comparing the lawyer to a car salesman and an informercial pitchman, Prof. Jonathan Turley writes: "I found the commercial ... to be unprofessional and self-serving and just a bit creepy" and "I found the video to be uncomfortable to watch as Casino seems to live out his fantasy of being some action figure with tight jeans and a flaming sledgehammer with a cross on it. Sort of Nicholas Cage meets Clarence Darrow meets El Mariachi. "  You can read the full post (and the many comments below it) here.

Are law firm blogs governed by advertising rules?

Real Lawyers Have Blogs is asking whether law firm blogs are governed by advertising rules: "...why throw blogs in with things that are closer to buying billboards and television ads? Am I the only one who sees blogging as a form of networking? Networking not unlike that done by lawyers before the Internet. Networking that really has nothing to do with advertising."

These are valid questions, and the easier one to answer is "why throw blogs with the billboards?"  I'll tell you why:  because some blogs are just like billboards.

Take a look at the blogs of the law firm in the Super Bowl ad I wrote about earlier tonight.  The first story in one of them is about a verdict the firm obtained.  I then glanced at a few posts in the other blogs.  Every single one of them ends with a paragraph that, in one way or another, advertises the firm.  For example:  "If you’ve been injured by a DUI driver, call ... for help.   We offer free consultations to review your claim, and our services are free unless we win your case." or "If you need to hire an experienced DUI injury lawyer, call .... Our attorneys will fight hard to get you maximum compensation for your case while making the process less stressful for you and your family."  or "If you have suffered injuries caused by a defective pharmaceutical product, please give us a call. Our team is prepared to answer any questions you may have, and we will evaluate the facts of your case to determine if it qualifies for a potential claim."...  You get the idea.  These blog posts are, in my opinion, clearly a form of advertising and I have no problem thinking that, if we are going to have rules related to advertising, they should apply to those blogs.

But not all blogs are created equal.  Compare those mentioned above with Litigation and Trial, the New York Personal Injury Law Blog, Day on Torts and Abnormal Use all of which are published by, and the posts are authored by, practicing lawyers.  But they write about the law, not about their cases, not about how you should hire them, etc.  Those blogs, in my opinion, should not fall within the category of advertising. They provide news and commentary on the law and other matters of interest to their authors and their readers.

Which brings us back to the original question.  Are all blogs subject to the rules on advertising?   For now, the closest we have to an answer is "it depends." Perhaps until it is universally understood that a blog is something other than advertising, it depends on the content of the blog.  As the court decided in Hunter v. Virginia, if the case can be made that the content of the blog is disguised advertising, then a court can easily find that the blog is subject to the rules related to advertising.  (Go here to see my first post about Hunter, published before it was decided.)

In other words, I guess the answer to whether blogs are subject to rules on advertising is yes if the rules say they are, until someone challenges it and wins.

Unfortunately, I am not sure this answer is satisfactory for a law firm considering adding a blog to its website.  What if the state adopts a rule that says that law firm blogs will be subject to advertising rules (as it appears to be the case in Florida)?  The firm would have two options; the same two options Hunter had: to comply with the rules or to challenge them.   Hunter challenged them and lost.  The challenge in Florida is pending.

Stay tuned.

UPDATE 6/18/17:  The Professional Committee of the California Bar has issued an opinion on whether blogs are subject to advertising rules.  Go here for the details and links.

Illinois disciplinary authority seeks sanctions against prosecutor for improper comments during opening statement

I have reported on many cases where courts reverse convictions because of improper arguments by prosecutors.  Here, here and here are three recent examples.  In many of those cases, however, the prosecutor is not disciplined for the conduct.  Today, however, the Legal Profession blog is reporting that the Administrator of the Illinois Attorney Registration and Disciplinary Commission has filed a formal complaint against a prosecutor for comments made during a murder trial's opening arguments.  According to the complaint, the argument was improper "because it served no purpose other than to appeal to racial prejudice."   You can read the complaint here.

Troubling Super Bowl ad

There is a new contender in the worst attorney ad category.  Take a look below at a commercial aired during the Super Bowl by an attorney in Georgia.  It has gathered some attention in a number of legal blogs...

John Steele, at the Legal Ethics Forum, does not hate the commercial, but he correctly points out that slighting your former clients is not OK.

Similarly, at the New York Personal Injury Law Blog, Eric Turkewitz points out that "[i]f he will diss his former criminal defense clients today, ... what will he say about his current clients tomorrow? How do you trust someone who will rip into his prior clients?"

Professor Jonathan Turley has more comments here.  He found the commercial to be unprofessional and creepy.

Finally, in a longer comment that is worth reading, over at Litigation and Trial, Max Kennerly correctly points out that the underlying story of "redemption" by switching over from criminal law defense to personal injury is "troubling" (to say the least):

"Much as I can relate to the promotion of my own field of work (representing plaintiffs, which Casino just started doing in 2012) as a noble calling . . .  I’m dismayed by his negative portrayal of his former field, criminal-defense. In his prior work as a criminal-defense lawyer, did he break ethical rules? Did he conspire with clients to commit crimes? If not, then what’s the problem? What is he ashamed of? The ethical practice of criminal defense? He’s of course allowed to have whatever opinion he wants, and to practice in whatever field he wants, but when he starts implying that criminal-defense representation is inherently immoral or repugnant in an advertisement watched by millions of non-lawyers, he does a terrible disservice to our whole justice system, from the Constitution to the public defenders."   [The comment is longer and goes into other issues.  It is worth reading here.]

Judge for yourself.

Concurrent or Joint representation in adoption cases

The District of Columbia Bar Legal Ethics Committee has just issued a new Opinion in which it addresses ethical issues that commonly arise in private adoption matters.  The summary of the opinion states:

... Private adoptions frequently give rise to a number of significant ethical obligations, not the least of which are duties arising under conflict of interest rules, that the lawyer must squarely address with his or her client or clients, often at the onset of the representation. In many instances, a lawyer will be required to obtain the informed consent of one or more clients, and in some circumstances that of former clients, regarding certain aspects of the representation, in order to commence or continue representation. Private adoption practitioners should be particularly mindful of ethical duties attendant to communications with unrepresented persons, as well as duties of confidentiality owed to both current and former clients.

You can find the opinion here.

(In my class, we discuss some of these issues by discussing a case from Arizona called In re Petrie in which an attorney attempts to negotiate a private adoption.)  

Thanks to the Legal Profession Blog for the link.

Court of Appeals for the Seventh Circuit decides question left open by the US Supreme Court in 2010: prosecutor should not be immune to civil claims for misconduct during investigation phase of a case

Back in 2009, the U.S. Supreme Court heard oral arguments in a case called Pottawattamie County, Iowa v. Harrington in which it was asked to decide an important issue related to possible civil liability for prosecutorial misconduct. In that case, two white prosecutors participated in fabricating, and then presenting at trial, perjurious testimony that resulted in the conviction of two black youths for the murder of a white former police chief. The black youths each served 25 years in prison. The key witness at trial then recanted his perjured testimony, and the men were released from prison. They then sued the prosecutors for having violated their civil rights.  In response to the claim, the prosecutors contended that they had absolute immunity from liability because it has been held that prosecutors have absolute immunity from civil liability for their conduct in the process of prosecuting the case.  The issue in the case, though, was whether the same immunity should apply to the prosecutors' conduct in the process of investigating or "building" a case.

Should their right to immunity (or the level of that immunity) change depending on the role prosecutors play at the time of the alleged violation of civil rights? In Pottawattamie, the prosecutors' misconduct initially took place while they were involved in investigating the crime but it continued during the trial since they presented perjured testimony.  Should the immunity that protects the conduct during trial affect the right to recover for the misconduct that took place before the trial?  If so, couldn't a prosecutor avoid liability for pre-trial misconduct by making sure he introduced the tainted evidence during trial?

These are all important questions that the Supreme Court was ready to address, but it never got to decide the issues because the case settled soon after the oral argument (for $12 million).

Three years later, in an opinion written by the very influential Judge Richard Posner, a split panel of the Court of Appeals for the Seventh Circuit has held that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case which results in a wrongful conviction.  The case is called Fields v. Wharrie and the opinion is available here.

The case is remarkably similar to the one before the Supreme Court back in 2010.  Here a prosecutor fabricated evidence against a defendant during the investigative stage of the case. He then coerced witnesses to give testimony that the prosecutor (as well as the witnesses) knew to be false.  Based on the false evidence, the defendant was convicted of two murders. The defendant eventually was acquitted in a retrial and subsequently received a certificate of innocence from the court in which he had been tried.

In the opinion, Judge Posner addressed the same issues raised back in 2010.  For example, he explains that "[a] prosecutor cannot retroactively immunize himself from conduct by perfecting his wrongdoing through introducing the fabricated evidence at trial and arguing that the tort was not completed until a time at which he had acquired absolute immunity. That would create a ‘license to lawless conduct,’which the Supreme Court has said that qualified immunity is not to do."

For more information and commentary on this important case go to Seeking Justice, Res Ipsa Loquitur and the ABA Journal.

New Hampshire considers new jury nullification statute

In class we discuss the concept of jury nullification and the issue of whether it would be proper for an attorney to ask the jury to ignore the law when deliberating.  As you know, this is an issue that has been around forever and one about there seems to be a never ending debate.  There are organizations devoted to informing the public about nullification and there is literature warning about its dangers.  Now the topic is back in the news because the state of New Hampshire is considering enacting a law that would require judges to inform the jury of its power to engage in nullification.

As you would expect, not everyone agrees this would be a good idea.  An Op-Ed piece in the Chicago Tribune states, for example, that "[f]or judges to offer this as an option, as the New Hampshire bill proposes, would undermine the rule of law. The power to nullify is not the same as the right to do so."

Over at Gawker, a short article explains how jury nullification can be double edge sword: "Jury nullification seems like a great idea when you imagine using it to free, say, low-level drug offenders who face long mandatory sentences that are fundamentally unjust. It seems like a terrible idea when you imagine racist southern white juries using it to railroad a black defendant just because they don't like his looks."  And then concludes that "[t]he notion that twelve randomly selected citizens are the most effective backbone of a fair justice system is already a bizarre one; to give them explicit instructions to ignore the law if they so choose seems like a dangerous step towards a legal system in which slick rhetoric, outward appearance, and expensive lawyers are more important than the actual law. Uh... even more so than now. If you're a consequentialist, it might be fair to support jury nullification under the assumption that striking a blow against the War on Drugs will do a great deal of good. But the long term consequences of this policy are impossible to know."

I am still undecided on this one...  I am sympathetic to the argument that says that attorneys should be allowed to argue nullification to the jury, but since nullification can be used for evil purposes as well as for good, I have always been afraid of the dangers of nullification.

For this reason, I think I would allow attorneys to decide if they would want to encourage the jury to engage in nullification (ie, I would not consider it improper for them to urge the jury to ignore the law), but I would not favor a statute that would mandate the judge to do so.  I think the decision on whether to present the option to the jury should be a case by case tactical decision left to the defense counsel.

ABA Journal Poll: Do you think character and fitness standards for the bar are too lenient or too harsh?

In light of the controversy generated by the case of Stephen Glass in California, The ABA Journal is asking its readers to comment on whether they think the character and fitness standards for the bar are too lenient or too harsh.  To post a reply or to read what others have written, go here.  Right now there are only three responses, but my guess is the poll will be open for about a week, so you can go back to read more comments in a few days.

Should lawyers be disciplined for criticism of judges?

Issues related to the freedom of speech of lawyers continue to hit the headlines.  A few days ago, I posted a comment on the on-going debate about whether an attorney should be disciplined for inappropriate and offensive comments about another lawyer.  I have also posted on the question as it relates to the limits on comments about judges (see here).  I am writing about that second question again just to point out that A Public Defender has posted his own comments (here) on whether attorneys should be disciplined for criticizing judges.

How not to practice law (as a judge); and some thoughts on social media

I have not posted a "How not to practice law" story in a while, so here is a short one from today's headlines, as reported by Res Ipsa Loquitur:

Judge Linda D. Schoonover appears to have a different concept of a “friend of the court” party. The Seminole Circuit judge has been removed from a divorce case where she tried to “friend” one of the litigants, Sandra Chace. Chace declined on the advice of counsel to be a friend of Judge Schoonover. Her lawyer says that Schoonover responded with retaliation against her in a type of “scratch a Friend find a Foe” ploy. The judge proceeded to shift most of the marital debt in her divorce to Chace and giving her husband, Robert Loisel Jr., a larger alimony award. Now Schoonover’s colleagues have overturned her order that denied Chace’s motion for disqualification. The panel found that “a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook ‘friend’ request creates a reasonable fear of offending the solicitor.” The panel held that “The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case, or risk offending the judge by not accepting the ‘friend’ request.” 

Clearly, the judge should be disqualified.  The court got that part right.  However, the incident raises a couple of other questions in my mind.

First, should the judge be disciplined?  Assuming all the allegations are true, she exercised incredibly bad judgment which, in my opinion, raises a question as to her ability to serve as an impartial judge.  Some people have become so involved in Facebook they seem to forget that they (and Facebook) actually operate in the real world.

Secondly, there is the issue of competence.  The rules of professional conduct in almost every (if not all) jurisdictions now include as part of the measure of competence the duty to understand how to use "technology" and the duty to understand the risks involved in using it.  This, as you may recall, was the result of the debates about metadata a few years ago, but it also relates to the use of social media.

Finally, given that Facebook is causing so many problems, there is the more general question of whether states can do something to regulate or at least provide more guidelines for the proper and improper use of Facebook and other social media by lawyers.  A lot of attention has been devoted to the use of social media as marketing tools for attorney advertising but maybe not enough for the purely social aspects of social media.  Last year, the ABA issued an opinion on the use of social media by judges.  See my post on it here.

Not everyone agrees with the California Supreme Court regarding denial of admission to Stephen Glass

Yesterday I posted a comment on the decision by the California Supreme Court to deny admission to Stephen Glass.  (See here.)  Today I found a comment by Prof. Shaun Martin (San Diego) in which he argues the decision is wrong.  He makes a good argument for the position that Glass should have been admitted.  It is worth reading (here).

Among other things, he argues "Is Glass likely to be a sleazy lawyer? No. No way. In large part (if not entirely) because of his prior misdeeds."  And later concludes: "So if the relevant inquiry is (as it largely is) whether we believe that Glass will be a good and proper lawyer, who'll faithfully protect the interests of his clients, I think the answer's pretty clearly "yes"."

As I discussed in my previous post on the case, the key question in these cases is whether evidence of past conduct is a reliable indicator of future conduct.  I know there is some research on this, but it is limited and I am not sure how much we can learn from it.  If there was reliable research that helped answer the question with some degree of certainty then I would be fine relying on that answer.  However, absent that, all we have is the human perception of those passing judgment on the conduct.  They may be right or they may be wrong, but that is what we have.

Admission to the profession by motion?

As reported in the Legal Ethics Forum:

The ABA Journal is running a story this month that is rather critical of states that have no admission by motion rule or have procedures that are more restrictive than those contained in the Model Rule.  

As some readers may recall, the ABA Commission on Ethics 20/20 successfully proposed a modest liberalization of the Model Rule, which now allows lawyers to gain admission by motion after three, rather than five, years of practice.  The Commission also successfully proposed a resolution calling for states that have not adopted the Model Rule to do so and for states that have admission by motion procedures to delete requirements (like reciprocity provisions) that are more restrictive than the Model Rule.

Professor Andrew Perlman, who served in the ABA Commission 20/20, is quoted in the article saying that restrictions beyond those contained in the Model Rule (such as reciprocity provisions) “serve no public policy purpose.  In my view they are indefensible from the standpoint of public and client protection and should be eliminated.”

Should an attorney be disciplined for comments about another lawyer in a blog?

As we all know, the practice of the profession is heavily regulated and part of that regulation includes limits on our freedom of speech.  However, that does not mean that attorneys do not have the right to express their opinions, including their opinions about other lawyers.

As reported in a number of blogs, a law professor from the University of Denver has filed a complaint with the Illinois disciplinary authorities based on the fact that a certain Illinois lawyer has been engaging in what she considers cyber-harassment (or cyber-bullying) by leaving insulting, racist and sexist comments on her blog and other blogs.

I have not seen all the actual comments the professor is complaining about and maybe if I did I would change my mind, but from what I have read about the allegations, I am skeptical that allegations of improper speech should be sufficient to support a disciplinary complaint and, if they are, I am troubled by the implications of such a complaint on the principles of freedom of speech.

There is no question that some of the comments cited in the various blog posts about this story are inappropriate, and many are quite offensive, but others are just exaggerated expressions of opinion meant to make fun of the work of law school professors.  (Some of the comments could very well have been about me and my work.)  Yet, I don't think that the comments, or more accurately, the conduct of posting the comments, should be the basis for disciplinary sanctions.

(If you want to pause now and look at the blog posts in which the professor explains her views and some of the comments to which she is responding, go here, here, here, here and here.  Otherwise, finish my post and come back to them later.)

As law professors, scholars and bloggers we put ourselves and our ideas out there for open criticism.  The fact that some of that criticism is done behind the protection of anonymity, the fact that some of the criticism is offensive, and the fact that sometimes we have no recourse to respond to the criticism should not allow us to ask the state to impose sanctions upon those who have exercised their right to criticize.

The rules of conduct in most states do recognize a duty not to engage in speech that is prejudicial to the administration of justice (a standard that is too vague also), but that standard is not at issue in this case.

The professor's effort to punish the attorney who criticized her threatens free speech and may result in a chilling effect on those who wish to engage in discussions whether in writing, in the classroom, on the internet or anywhere else.  The most basic principle underlying the notion of freedom of speech is that the state cannot punish someone for protected speech merely because someone might find the speech offensive.  That could be the result of the complaint at issue here, and that is why I think the request for sanctions is troubling.  If the state agrees with her, the precedent will diminish the freedom we now have as academics to engage our students in the discussion of controversial and important issues because of the fear that someone might be offended.

The controversy reminds me of Richard Delgado's work on hate speech and the possibility of recognizing a cause of action for damages inflicted by words - other than defamation.  It was an interesting proposal but it was very difficult to reconcile it with the principles of freedom of speech.  Similarly, in his works on hate speech he has argued for what some call a "responsible regulation" of speech.  Again, I understand the concern and I am sympathetic to the idea, but the problem is how to define what is responsible regulation.  And who will define that?  By definition, someone will have to decide what is acceptable speech and what isn't, and if that someone is the state... well, that is what the first amendment is there to prevent.

Neither the Illinois Rules of Professional Conduct nor the ABA Model Rules have a specific section on offensive speech, but both have clarified in the comment to rule 8.4 that manifesting bias by words may be considered misconduct if it is prejudicial to the administration of justice.  However, this is limited to circumstances where an attorney is "in the course of representing a client," as opposed to where the attorney is expressing his or her own biased opinions or world views.

Interestingly, the issue of whether an attorney can be disciplined for offensive speech is not new to Illinois, although in a different context.  If the case moves forward and if it reaches the state Supreme Court, it may give the Court the chance to address the question it did not address in 1999 when it decided not to review the denial of admission to practice to a white supremacist.  In that case, the Committee on Character and Fitness denied admission and the applicant appealed arguing that "the Committee’s use of his expressed views to justify the denial of his admission to the bar violates his constitutional rights to free speech."  The Supreme Court denied review thus avoiding the issue and not setting any precedent.  In a short but interesting dissenting opinion, however, one of the justices argued that the appeal raised a significant constitutional question that deserved explicit, reasoned resolution by the court. Unfortunately, the Court did not go for it.

Although the context is different, I think the issue is similar.  One of the issues discussed by the dissenting opinion in that case is the question of whether an applicant can be denied admission to practice for expressing views that would not subject a practicing lawyer to discipline.  The judge, thus, seems to imply that there is a strong argument that expressing racist views would not subject an attorney to discipline.

For more commentary on the freedom of speech implications of this case, you can check out:

Prof. Jonathan Turley's Res Ipsa Loquitur blog ("That does not sound like the basis of an ethics complaint.")

My Shingle (the "decision to file an ethics complaint against the commenter sets unspeakably bad precedent for bloggers exercising their First Amendment rights.")

Above the Law (I don’t see how it’s workable to sanction lawyers who say disgusting things online. Lawyers say racist, sexist things all time.)

Disbarring the Critics ("...disdain for the First Amendment by attempting to silence a critic, albeit an anonymous one, by using very general rules in the Rules of Professional Conduct...")

Having said all that, however, it is possible there is more to the story.  My comments (and those of the other blogs I linked to) are based on the assumption that the disciplinary complaint is based merely on commentary (speech), not on conduct.  The distinction is, of course, significant.  If the allegations are about conduct, particularly conduct that can be classified as criminal, then the issue is different and there would be a lot more support for the argument in favor of discipline.


UPDATE (July 21, 2014):   The ProfsBlawg and Legal Ethics Forum are now reporting (here and here) that the state disciplinary authorities have decided not to pursue an action against the blogger. Even though I found many of the comments by the blogger to be offensive, I think the decision is correct (for the reasons I explained in my original post) as long as the basis of the complaint was merely speech that expressed opinions. If the complaint was based on conduct, or on speech that could be construed as actual threats, the story would be different. However, it seems like the issue is now closed.  

California Supreme Court denies admission to Stephen Glass (based on evidence of past dishonesty as a journalist and lack of support for argument on rehabilitation)

Since the end of 2011 I have been following the case of Stephen Glass, once described by Vanity Fair as “the most sought-after young reporter in the nation’s capital" who was later exposed as a fraud who completely fabricated many of his articles, including some while he was a law student.  Glass graduated and passed the bar exams in New York and California, but he withdrew his application in New York after learning his admission would likely be denied.  His application in California was denied by the Committee of Bar Examiners (CBE) but the decision was overruled by both a State Bar Court hearing judge and a split review panel. The CBE appealed the decision and the California Supreme Court just issued its opinion.  My first post on the case is available here.  Since then, I updated the story with more information and links here, here, and here.  You can read the briefs filed before the California Supreme Court here, and watch the oral argument here.

The case generated a very interesting debate (and the links above will bring you to articles that argue for and against admission).  As I understand it, the nature of the debate has two elements:  the question of whether the conduct supports the denial of admission to the profession and the question of whether regardless of the original conduct, whether the candidate's conduct since the original conduct shows he has "changed."  Or, in other words, whether his evidence of "rehabilitation" shows he can be trusted to be a lawyer.

As to the first question, the Court is very clear.  The opinion is available here. The first sentences of the Court's opinion give you a good hint: "Stephen Randall Glass made himself infamous as a dishonest journalist by fabricating material for more than 40 articles for The New Republic magazine and other publications. He also carefully fabricated supporting materials to delude The New Republic‟s fact checkers."

Evidently, the Court's emphasis is on the calculated dishonesty involved in the original conduct, which, as the court emphasizes, "violated ethical strictures governing his profession."  (It seems to me this comment essentially says that if Glass could not be trusted to abide by the ethical rules of his profession, there is no reason to believe he should be trusted to abide by those of the legal profession.)  The Court also emphasized the fact that the "misconduct was also reprehensible because it took place while he was pursuing a law degree and license to practice law, when the importance of honesty should have gained new meaning and significance for him."

The Court describes the conduct in great detail and eventually gets to its conclusion stating that "[h]onesty is absolutely fundamental in the practice of law; without it ...the profession is worse than valueless in the place it holds in the administration of justice....“[M]anifest dishonesty . . . provide[s] a reasonable basis for the conclusion that the applicant or attorney cannot be relied upon to fulfill the moral obligations incumbent upon members of the legal profession.”

This last sentence summarizes the basis for the Court's first conclusion: that evidence of past misconduct can be used to predict future conduct.  If the candidate has been dishonest to this extent in the past, it is reasonable to expect that he probably will continue to be dishonest in the future.

This brings us to the second question: whether there is enough evidence of rehabilitation to conclude that this expectation is wrong.  Glass, obviously argued the evidence was in his favor, but the Court disagreed.  The Court dismisses Glass' arguments that he should be considered to be rehabilitated enough to show he is worthy of the public's trust.  The court wrote about instances of dishonesty and disingenuousness occurring after Glass's exposure and described his testimony as hypocritical.

To decide the case, the Court looked to cases discussing the standards that apply to lawyers seeking reinstatement, concluding there is no difference in the underlying principles between those cases and the issue in this case.  According to the Court's analysis, because the State Bar presented evidence of moral turpitude, Glass had the burden to demonstrate his rehabilitation and good moral character, which is usually done by showing a "substantial period of exemplary conduct following the applicant's misdeeds.” This, the Court concluded, he did not do, stating that "much of Glass's energy since the end of his journalistic career seems to have been directed at advancing his own career and financial and emotional well-being."

Thanks to the Legal Ethics Forum for the link to the opinion.

Proposals to encourage more "innovation" in the practice of law

Carolyn Elefant, a blogger on issues that affect solo practitioners and small firms, has posted an interesting short comment on some obstacles solos and small firms face when it comes to innovation.  She argues, among other things, that "[i]t’s no coincidence that many of the innovations in the legal profession – the Axioms or RocketLawyers and matchmaking platforms are non-law firm entities that aren’t subject to ethics rules. As a result, these companies can push the ethics envelope without fear of serious repercussions. By contrast, if a solo or small firms experiment with a new approach to serving clients, like a virtual office space or a networking arrangement, they can lose their license or reputation if it turns out they made the wrong call (like the Connecticut solos who were prosecuted for ethics violations for participating in Total Attorneys’ lead gen program)."

In response she makes a few proposals including the adoption of "safe harbor within ethics rules to protect lawyers from disciplinary sanctions if they can demonstrate that they were diligent in researching the ethics rules associated with their action and made a reasonable decision based on their analysis."

You can read the full comment here.

What should be the proper discipline for dishonesty on a resume?

When discussing the inconsistencies among states when it comes to disciplinary sanctions, I always tell my students that what they need to remember is that regardless of the conduct "you always risk disbarment" (simply because you never know what the authorities are going to do).

Now, this leads me to the question of the day.  Should an attorney be disbarred for embellishing his resume?

The ABA Journal is reporting today that a former Paul Hastings partner in London has been disbarred for embellishing his resume. He originally faced a three-year suspension, but the United Kingdom's Bar Standards Board imposed disbarment instead.

Are the authorities stricter (or the standards higher) in the UK?  I don't know about that, but I don't think an attorney would be disbarred in the US for just one instance of dishonesty on a resume.  Over the past few years, I wrote about a case in California where an attorney was suspended for using an outdated resume (here), and a case in Illinois where the attorney was suspended for altering a law school transcript in an attempt to get a job (here).  In that second case, I argued the attorney should have been disbarred because the conduct was particularly egregious in my opinion (and was not limited to the issue with the transcript).  Yet in the end the attorney was suspended for three years.  That is a pretty severe sanction, but it is not disbarment.

CNN story about rates of suicide among lawyers

Here is link to a story by CNN.com on suicide among lawyers. It states, in part

One by one, state by state, bar associations say the tally is rising: Lawyers are killing themselves. The Centers for Disease Control and Prevention provided CNN with the latest available data on suicide deaths by profession. Lawyers ranked fourth when the proportion of suicides in that profession is compared to suicides in all other occupations in the study population (adjusted for age).They come right behind dentists, pharmacists and physicians.
Lawyers are also prone to depression, which the American Psychological Association, among others, identified as the most likely trigger for suicide. Lawyers are 3.6 times more likely to suffer from depression than non-lawyers.
....
CNN's review of 50 state bar associations found eight associations so concerned about suicides that they took measures to stop the deadly pattern. California, Montana, Iowa, Mississippi, Florida, South Carolina and North Carolina added a "mental health" component to mandatory legal continuing education. Kentucky starts its annual conference on continuing education with a presentation on behaviors that increase the risk of suicide. So far, Kentucky has reached 7,000 lawyers.

In addition here is a short video on the story:


Thanks to the Legal Ethics Forum for the link.

Minimum sentences and prosecutorial discretion

Interesting short comment on how minimum sentencing laws result in more prosecutorial discretion and other dangerous effects on or criminal justice system.

What if a lawyer wanted to represent a Colorado-based business that sells marijuana in compliance with state law but in violation of federal law?

As discussed by Prof. Anita Bernstein at the Legal Ethics Forum: "A federal law, governing pretty much everyone, prohibits the possession and use of marijuana—even by medical patients with scripts from doctors. Some state laws defy this prohibition. DoJ has declared that, for now, it will look the other way from well-behaved adult users in those states. And every jurisdiction has a counterpart to Model Rule 1.2(d), which says lawyers who “counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal…” are subject to discipline." So can a lawyer ethically represent a Colorado-based business that sells marijuana in compliance with state law but in violation of federal law? Go here for the full discussion.

Yet another judge finds that government lawyers committed egregious misconduct

Just a few days ago I posted links to articles and editorials commenting on the many cases where judges have found prosecutorial misconduct.  This week the Blog of the Legal Times is reporting on yet another case involving misconduct of government lawyers.  In this case, a litigation that challenges how the Federal Bureau of Prisons treats inmates classified as terrorists, the judge stated that lawyers in the U.S. attorney's office in Washington committed "egregious misconduct" in their handling of discovery.  Go here for the full story.

Possible liability for referring a case to another attorney?

Just as with everything else, when an attorney refers a case to another attorney there is a duty to use reasonable care.  Here is a short review of the issue.

Ohio lawyers are not prohibited from soliciting potential clients via text messages

Is it ethical for attorney's to solicit clients by "texting"?  There has been some discussion on this recently and here is a post arguing against it. The big question is whether texting can be distinguished from using regular mail or e-mail which are protected speech subject to the limits imposed by the rules. I think texting does result in more of an invasion of privacy than regular mail or e-mail. Also, it can result in a minimal financial burden on the person who receives the message. However, I am not sure the difference in the level of invasion of privacy is enough to justify a different analysis and, as the story mentions, the lawyers are supposed to pay for the cost of the message - although it is not clear how this can be enforced.

The issue was in the news recently because of an Advisory Opinion of the Ohio Board of Commissioners on Grievances and Discipline which states that Ohio lawyers are not prohibited from soliciting potential clients via text messages. The Advisory Opinion is available here and discussed here.

Are law firms buying bogus likes and followers?

Links to the story over at the Legal Ethics Forum.

Complying with Brady, from the prosecutor's perspective

There has been a lot of discussion of prosecutorial misconduct (here and elsewhere) during the past few years and most of it relates to prosecutors' failing to disclose evidence as required by Brady v. Maryland.  And, as readers of this blog know, I have been extremely critical of prosecutors who violate their duties and of judges to let them get away with it.  But we have not heard much from the prosecutors' perspective; so I was glad to see Prosecutor's Discretion, a prosecutor's blog I like to follow, post a comment on that.  In it he describes how sometimes the issue is not so clear cut.  Sometimes, there are multiple issues to consider and the choices the prosecutor has to make are not as easy as they might seem.  You can read the comment here.

Washington Post joins NY Times and Los Angeles Times on prosecutorial misconduct

Just a few days ago I commented on recent developments related to prosecutorial misconduct including links to articles in the New York Times and the Los Angeles Times.  Today, Seeking Justice is announcing that the Washington Post has added its voice to the chorus.

NY Times editorial on programs designed to provide access to counsel to indigent defendants (and one response)

A few days ago, The New York Times published an editorial commenting on the need for states to provide alternatives to meet the needs of indigent defendants.  It discusses a model which uses "vouchers" that allow defendants to choose their representation.  Professor Stephen Gillers comments on that proposal here.

California Supreme Court rules that undocumented resident has a right to a law license

Since 2012, I have been following a case in California on whether an undocumented immigrant should be allowed to practice law.  Go here for links to many of those posts.  Here is a link to the oral argument before the California Supreme Court, soon after which the California legislature passed a bill on the issue which was promptly signed in to law.

Last week, the California Supreme Court issued its decision on the case holding that the candidate has the right to the law license.  I have not read the opinion, but according to reports, the court holds that the fact that practicing law by an undocumented immigrant might result in some violations of the law is not a bar to licensing.  For links and comments go to the Legal Ethics Forum and the Legal Profession Blog.

Chief judge of the 9th Circuit Court of Appeals warns of "epidemic" of Brady violations by the Justice Department

Long time readers of this blog know that I often complain how courts do not seem to take the problem of prosecutorial misconduct seriously. (Go here and scroll down for all my posts on the subject of prosecutorial misconduct.)  Last October, however, I posted a story (which I started with that same first sentence) about how "luckily, there is one court that is doing its part: the Court of Appeals for the Ninth Circuit."  In that story, I wrote about an oral argument (the story has a video of it) and a recent opinion.

Unfortunately, the latest on the subject from that court is not so encouraging. Last month it was reported that the court voted overwhelmingly to deny a rehearing in United States v. Olsen, 704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. Chief Judge Kozinski (joined by four other judges), however, issued a dissenting opinion opposing the denial of the rehearing. He begins the opinion with a sentiment I have been repeating for as long as I have been commenting on prosecutorial misconduct: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”  The dissenting Opinion is available here.

The case and the opinion by Kozinski have generated much commentary. For more information and comments go to:  Jonathan Turley, Seeking Justice, The Legal Ethics Forum, Seeking Justice, again, Huffington Post, The Los Angeles Times, and The New York Times,

The underlying problems in this case, like in so many others, deal with two related issues:  the extent to which a prosecutor has a duty to disclose material to the defendant and how to determine if a conviction should be reversed because of Brady violations.  Typically, courts will say that, under Brady, prosecutors have a duty to disclose evidence that is favorable and material.   Many jurisdictions, and the ABA, have adopted rules that impose a broader duty to disclose; others have denied that the rules impose a broader duty.

In this particular case, the Circuit Court found that the information in question was evidence favorable to the defendant and that it had not been turned over to the defendant's attorneys, but the court also determined that the evidence wasn't material.  And, having decided that the evidence wasn't material, the court did not decide whether the prosecutor engaged in misconduct.

To this, Kozinski reacted as follows:   "The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

This is a very important issue and I am going to take the chance here to predict that it will one of the hottest topics in Professional Responsibility circles this coming year.

Top Ten Stories of the Year

John Steele, of the Legal Ethics Forum, has posted has posted a great list of top stories of the year here.  It is definitely worth a look.  

There is also a "Top Stories List" on Canadian Professional Responsibility here, and one top story on the international front (here).

A few headlines

I am still away, but I am taking some time away from my time away between semesters to catch up with some of the headlines from the last few weeks:

The Supreme Court of Ohio rules that a Texas company with offices in Ohio engaged in the unauthorized practice of law when it prepared and filed a tax appeal and appeared before the Ohio Board of Tax Appeals.

Retired lawyer suspended for lack of e-mail address.  (Sounds odd, but if you read the story carefully you'll see the attorney was really disciplined for violating a specific court rule that requires a lawyer to provide an email address.  The more interesting question is whether that rule is warranted.)

Is it ethical for attorney's to solicit clients by "texting."  There has been some discussion on this recently and here is a post arguing against it.  The big question is whether texting can be distinguished from using regular mail or e-mail which are protected speech subject to the limits imposed by the rules.  I think texting does result in more of an invasion of privacy than regular mail or e-mail.  Also, it can result in a minimal financial burden on the person who receives the message.  However, I am not sure the difference in the level of invasion of privacy is enough to justify a different analysis and, as the story mentions, the lawyers are supposed to pay for the cost of the message - although it is not clear how this can be enforced.

The Utah State Bar Ethics Advisory Committee recently issued a new opinion on "A Lawyer’s Options When a Client with Diminished Capacity Refuses to Act."   The opinion is available here.

Can lawyers advise marijuana growers in Colorado?  Lawyers are caught between the new state law that says marijuana is legal and federal law that still treats marijuana as an illegal drug.

Representatives from LinkedIn met with Florida Bar officials last month and outlined changes to the social media site that should help allay concerns raised by the Board of Governors and the Standing Committee on Advertising.

Attorney suspended for seeking sex with opposing counsel and having sex with client (in different case).

Lawyer prosecuted for an alleged ethical violation that occurred in the course of representing an attorney accused of an ethical violation.