Yesterday I reported that the New York State Bar Association was going to discuss whether to adopt new rules on social media later this week. It turns out that the official agenda for the meeting of the NYSBA states the discussion will be "informational" only. Apparently there will be no vote on the issue at this point.
Thanks to Art Garwin, the Director of the ABA Center for Professional Responsibility for letting me know.
Thursday, June 18, 2015
New York to consider social media rules
Since the ABA adopted a comment to Model Rule 1.1 on competence as it relates to "technology" there has been a lot of discussion (and literature) on the new meaning of the concept of competence. See here, here, and here for some podcasts on the subject.
Now, the New York State Bar Association is taking action. The ABA Journal is reporting today that, later this week, the NYSB house of delegates will discuss whether to adopt new legal ethics rules addressing appropriate social media practices by lawyers. The proposed rules would require lawyers to keep copies of communications with clients on social media, would hold lawyers responsible for correcting inaccurate or misleading information and would allow lawyers to do online research on public portions of social media profiles.
Applying the gist of the comment added to the Model Rules, the guidelines reportedly state that “[a] lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media.”
Now, the New York State Bar Association is taking action. The ABA Journal is reporting today that, later this week, the NYSB house of delegates will discuss whether to adopt new legal ethics rules addressing appropriate social media practices by lawyers. The proposed rules would require lawyers to keep copies of communications with clients on social media, would hold lawyers responsible for correcting inaccurate or misleading information and would allow lawyers to do online research on public portions of social media profiles.
Applying the gist of the comment added to the Model Rules, the guidelines reportedly state that “[a] lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media.”
Short comment on technology and the practice of law
Here is a short comment on whether using technology can constitute unauthorized practice of law. It starts "[a]s technology becomes smarter and automation more prevalent, lawyers and
bar associations have grappled with the question of whether the use of
technology constitutes as the unauthorized practice of law (UPL).
Layperson legal advocates and paralegals also are often accused of UPL.
So what exactly is UPL? And how do lawyers fight against it?"
Wednesday, June 17, 2015
Prosecutor disbarred for his role in capital murder conviction of innocent man
It is often said, and I have discussed it here many times, that prosecutors rarely face accountability for prosecutorial misconduct. Yet, every now and then courts do take action. In 2013, I wrote a number of posts about the ex-prosecutor (later judge) in Texas who was disbarred for having lied during an investigation on whether he withheld exculpatory evidence in a case that resulted in the conviction of an innocent man. See here for the most recent post on that case, with links to others.
Similarly, another former Texas prosecutor was disbarred this week for withholding evidence and presenting false evidence in a case that resulted in the conviction of an innocent man. The defendant in that case served 18 years and twice was scheduled for execution before he was exonerated and released four years ago. Go here for an article with more information.
Similarly, another former Texas prosecutor was disbarred this week for withholding evidence and presenting false evidence in a case that resulted in the conviction of an innocent man. The defendant in that case served 18 years and twice was scheduled for execution before he was exonerated and released four years ago. Go here for an article with more information.
Saturday, June 13, 2015
Florida Supreme Court opinion makes significant revisions to Florida Bar Rules
Lawyer Ethics Alerts Blog has the full story here.
Podcast on the ABA Commission on the Future of Legal Services
The Legal Talk Network has posted a podcast of an interview with Judy Perry Martinez, chair of the ABA Commission on the Future of Legal Services. Martinez discusses specific actions the commission is taking to address the changing landscape of legal services in the US. You can listen to the podcast by pressing the play button below. If you don't see the button, you can listen to the podcast by going here.
NY Legal Ethics Reporter
The most recent edition of the New York Legal Ethics Reporter is now available here. It includes three articles:
Tinker, Tailor, Lawyer, P.I.: Are Your Workplace Investigations Complying with the Law?
Understanding & Securing the LLP Shield in New York (Part 1)
Summaries of Recent New York Ethics Opinions
Tinker, Tailor, Lawyer, P.I.: Are Your Workplace Investigations Complying with the Law?
Understanding & Securing the LLP Shield in New York (Part 1)
Summaries of Recent New York Ethics Opinions
Monday, May 25, 2015
DQed on the effect of a disqualification order
When a court orders disqualification, the court obviously has authority to enjoin the attorney or law firm from appearing before the court on behalf of a party. It is also fairly uncontroversial that the court’s authority extends to so-called ancillary proceedings, such as depositions, in the same matter (even if the judge is not physically present). But does this disqualification authority extend to bar the lawyer from, for example, counseling (but not appearing for) the client? I would think so, but apparently there are differences of opinion on this. DQed has a short comment on the issue here.
Sunday, May 24, 2015
Another case on whether the appearance of impropriety can be used as a standard in conflicts cases
A few days ago I wrote about a case in which the Kentucky Supreme Court criticized the use of the notion of "appearance of impropriety" as a standard in conflicts cases. See here.
In contrast, in a case decided in New York about a month later, the court relied on appearance of impropriety in a routine former client conflict of interest case. See Avigdor v. Rosenstock (N.Y. Sup. Ct. May 12, 2015). The court held that if a party seeking to disqualify a lawyer meets the elements required to support the motion to disqualify, the order to disqualify should be issued in order to "free the former client from any apprehension that matters disclosed to an attorney will subsequently be used against it in related litigation" and to avoid "the appearance of impropriety' on the part of the attorney or the law firm."
Thanks to Bill Freivogel of Freigovel on Conflicts for the update.
In contrast, in a case decided in New York about a month later, the court relied on appearance of impropriety in a routine former client conflict of interest case. See Avigdor v. Rosenstock (N.Y. Sup. Ct. May 12, 2015). The court held that if a party seeking to disqualify a lawyer meets the elements required to support the motion to disqualify, the order to disqualify should be issued in order to "free the former client from any apprehension that matters disclosed to an attorney will subsequently be used against it in related litigation" and to avoid "the appearance of impropriety' on the part of the attorney or the law firm."
Thanks to Bill Freivogel of Freigovel on Conflicts for the update.
Improper comments during trial result in reversal of judgment in civil case
Over the years I have posted lots of links to recent cases in which courts reverse convictions because of improper comments by prosecutors. This is, unfortunately, not an uncommon occurrence. Yet, I don't remember a case reversing a judgment in a civil case. Until now.
Earlier this month, the appellate division of the New Jersey Superior Court issued an opinion vacating a multi-million dollar judgment because of the cumulative effect of comments made during trial by the plaintiff’s lawyer. In my opinion, some of the comments would have been acceptable rhetoric, but when put together with those others which crossed the line, the effect was too damaging. The comments included a statement during the opening statement telling the jury that it was their job to hold the defendant responsible, statements referring to facts not in evidence, expressions of opinion on the defendant's arguments and on defendant's lawyer's questioning of witnesses, attacks on the credibility of the defendant's lawyer and a request on the jury to "send a message" by finding for the plaintiff. Some of these would have violated Model Rule 3.4, and I know that "send a message" type argument has been held to be improper in another jurisdiction.
The case is called Burkert v. Holcomb Bus Service Inc.
Professional Liability Matters has more here.
Earlier this month, the appellate division of the New Jersey Superior Court issued an opinion vacating a multi-million dollar judgment because of the cumulative effect of comments made during trial by the plaintiff’s lawyer. In my opinion, some of the comments would have been acceptable rhetoric, but when put together with those others which crossed the line, the effect was too damaging. The comments included a statement during the opening statement telling the jury that it was their job to hold the defendant responsible, statements referring to facts not in evidence, expressions of opinion on the defendant's arguments and on defendant's lawyer's questioning of witnesses, attacks on the credibility of the defendant's lawyer and a request on the jury to "send a message" by finding for the plaintiff. Some of these would have violated Model Rule 3.4, and I know that "send a message" type argument has been held to be improper in another jurisdiction.
The case is called Burkert v. Holcomb Bus Service Inc.
Professional Liability Matters has more here.
Florida Bar Committee on Advertising rules texting is impermissible solicitation
Last year I posted a comment on 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. See here.
In contrast to that opinion, Legal Ethics in Motion is reporting that the Florida Bar Committee on Advertising recently held that a law firm’s proposed texting campaign was impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients. The committee apparently rejected the law firm’s argument that texting is similar to direct mail or email advertising, which is permissible if done in accordance with the Florida Bar’s rules. Read more here.
UPDATE August 2015: The Florida Bar Board of Governors rejected the Committee's analysis and recommendation. Go here for the story.
In contrast to that opinion, Legal Ethics in Motion is reporting that the Florida Bar Committee on Advertising recently held that a law firm’s proposed texting campaign was impermissible solicitation analogous to inappropriate phone calling or telemarketing to attract clients. The committee apparently rejected the law firm’s argument that texting is similar to direct mail or email advertising, which is permissible if done in accordance with the Florida Bar’s rules. Read more here.
UPDATE August 2015: The Florida Bar Board of Governors rejected the Committee's analysis and recommendation. Go here for the story.
Friday, May 15, 2015
North Carolina criticized for going after criminal defense attorneys
The Legal Profession blog has two stories on what it calls "the North Carolina State Bar's war on criminal defense counsel." I have not been following the underlying claims and issues, so I will not comment at this point. The stories have links to more information. Go here and here for all the details.
Oregon disbars attorney for conduct as a business partner
A few days ago, I commented on a couple of cases involving conduct outside the practice of law. See here. I mentioned the inconsistent decisions in Illinois involving dishonest conduct when not related to the practice of law.
In yet another story related to this question, the Legal Profession blog is reporting on a case from Oregon in which an attorney was disbarred because of conduct as a business partner - not as a lawyer. The case, again, takes the position that the conduct outside the practice of law shows the attorney is not fit to practice law. I think this is the proper approach to the question, and the reason the Illinois decision in In re Karavidas was wrong.
In yet another story related to this question, the Legal Profession blog is reporting on a case from Oregon in which an attorney was disbarred because of conduct as a business partner - not as a lawyer. The case, again, takes the position that the conduct outside the practice of law shows the attorney is not fit to practice law. I think this is the proper approach to the question, and the reason the Illinois decision in In re Karavidas was wrong.
Another court abandons the use of "appearance of impropriety" as a disciplinary standard
The Supreme Court of Kentucky, like many other jurisdictions, has used the notion of "appearance of impropriety" as a basis to disqualify attorneys in conflict of interest cases. Recently, however, the court decided to abandon its adherence to this standard concluding that "in deciding disqualification questions, trial courts should apply the standard that is currently in the Rules of Professional Conduct, which at this time requires a showing of an actual conflict of interest.” The case is called Marcum v. Scorsone (also available here). The Legal Profession blog has more here.
This is a good result. I have never liked the use of a standard based on an appearance of impropriety which is such a vague and subjective standard. Now, if we could only convince courts to stop talking about the "image of the profession"! But that is another story.
In terms of the appearance of impropriety, now there are essentially three approaches: some states hold it should not be used as a standard for discipline; others hold that it can be used as a factor when used in addition to other more clearly defined standards; and others still hold it can be used as a factor on its own.
The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to a standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite. See Rotunda and Dzienkowski, Professional Responsibility, A Student's Guide (2012-13), p. 20, stating that charges based on allegations of appearance of impropriety have increased at a rapid rate.
This is a good result. I have never liked the use of a standard based on an appearance of impropriety which is such a vague and subjective standard. Now, if we could only convince courts to stop talking about the "image of the profession"! But that is another story.
In terms of the appearance of impropriety, now there are essentially three approaches: some states hold it should not be used as a standard for discipline; others hold that it can be used as a factor when used in addition to other more clearly defined standards; and others still hold it can be used as a factor on its own.
The approach that considers the appearance of impropriety as a stand-alone standard for discipline has been rejected by the drafters of the Model Rules repeatedly, but many courts continue to cite the phrase, either as a standard in and of itself or as a factor to be considered in addition to a standard. One would think that the use of the phrase has lost its popularity, but some research suggests the opposite. See Rotunda and Dzienkowski, Professional Responsibility, A Student's Guide (2012-13), p. 20, stating that charges based on allegations of appearance of impropriety have increased at a rapid rate.
Tuesday, May 12, 2015
Review of the anti-contact rules and doctrine, part 2
When can you contact people who are or were represented by counsel? Last month I posted a link to the first comment on this issue in the New York Legal Ethics Reporter. The most recent edition of the Reporter is now available and part 2 of the article is here.
Comments on the proposed Supreme Court Ethics Act
There is only one judicial system in the United States
that has adopted some version of the Code of Judicial Conduct: United States Supreme Court, "which has steadfastly resisted promulgating
any rules of ethics." For this reason, a bill has been introduced to require the Supreme Court to adopt written ethics rules, but which does not specify the content of the rules, leaving that to the Court itself. The proposed bill, which is very short, can be found here.
Prof. Steve Lubet (Northwestern) has posted a comment on the act in both The Faculty Lounge and the Legal Ethics Forum. The post is the same but each blog has its own discussion in the comments section.
Prof. Steve Lubet (Northwestern) has posted a comment on the act in both The Faculty Lounge and the Legal Ethics Forum. The post is the same but each blog has its own discussion in the comments section.
Recent case discusses what makes screening "ineffective"
Recently DQed discussed a new case in which the court found that screening mechanisms would not be effective in a case involving the hiring of a paralegal from another firm even though the court found that the firm’s screening measures “mirror and, sometimes exceed, screens approved in other cases.” The case is called Ullman v Denco and it is available here.
Monday, May 11, 2015
Lawywer disbarred for "repugnant pattern of behavior." It was, indeed, repugnant, but was it sanctionable?
The Indiana Supreme Court recently issued an interesting opinion in which it disbarred a lawyer for what it called a “repugnant pattern of behavior.” The behavior was, indeed, repugnant and disturbing, but the opinion raises an interesting question about the standard that should be used to justify the imposition of sanctions for conduct outside the practice of law.
The facts of the case, in a nutshell, are as follows: The lawyer, who was 41 years old and married at the time, began a romantic relationship with his daughter’s college roommate. The roommate ended the relationship in March 2008 and for the next two years the lawyer continued to harass the young woman by e-mail, by phone and in person. The court describes the conduct in some detail and characterizes it as "threatening, abusive, and highly manipulative in nature.”The lawyer also left many “profoundly disturbing,” angry, and insulting voice mail messages for the woman. The lawyer also engaged in what is now known as "revenge porn," by sending nude photos of the woman to others in e-mails, and posting them on adult websites and on his own blog.
In another count of the complaint, the court considered the lawyer's conduct in representing an unrelated client. In that case, the lawyer failed to perform the work for which he was hired. For this particular conduct, the lawyer was charged with violating Indiana Rules of Professional Conduct 1.4(a)(2):Failing to reasonably consult with a client about the means by which the client’s objectives are to be accomplished and1.4(a)(3): Failing to keep a client reasonably informed about the status of a matter.
I have no problem with the conclusion that the lawyer violated those rules and should be disciplined. I also have no problem with the conclusion as another count related to rule 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit,or misrepresentation. This allegation was based on a number of arguments the lawyer made to the disciplinary authority which were found to be "tortured and not credible."
OK, that's all fine, but I am not sure that, if that was all, the lawyer would have been disbarred. It seems to me he was disbarred because of the, admittedly, very disturbing behavior related to his personal relationship and, therefore, which was mostly not related to the practice of law. (I say mostly because the conduct included the lawyer filing a complaint against the woman in question, which can be argued involves the practice of law in the sense that it suggests using the legal process for inappropriate purposes.)
Assuming that I am right in suggesting that the real reason for disbarment was personal (not professional) conduct, here is what I think is the interesting issue: what are the guidelines for discipline for conduct in a lawyer's personal life?
In class, I like to use the case In re Lamberis, in which the Illinois Supreme Court decides that a lawyer can be disciplined for personal conduct only when that conduct somehow relates to the lawyer's competence to practice law. According to this very broad approach, regardless of what the conduct is, or its context, if the disciplinary authority can somehow make the claim that the conduct shows the attorney is not fit to practice law, then the attorney can be disciplined. The conduct in Lamberis was plagiarism for a master's thesis, which the court found displayed dishonesty.
The problem in Illinois, however is that, more recently, in In re Karavidas, the same court decided, without mentioning Lamberis, that a lawyer can only be disciplined for conduct that violates a specific rule of professional conduct. The conduct in Karavidas was misappropriation and mishandling of money in a trust, but not when acting as a lawyer, which the court found did not justify discipline. In my opinion, the cases are not reconcilable. Whether a person can be trusted to manage a trust fund as a fiduciary officer, in my opinion, clearly reflects on an attorney's fitness to practice law since attorneys have a fiduciary duty toward their clients and have clearly defined duties related to trust accounts. Yet, the court did not find the conduct to be sanctionable.
I am not familiar with the law in Indiana, however, so I am only going to raise questions that maybe some of you can comment on.
For the disturbing personal conduct in Keaton the lawyer was charged with violating Indiana Rule 8.4(b): Committingcriminal acts that reflectadversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. The "criminal acts" in question was the conduct the court characterized as "stalking, harassment, and intimidation." The lawyer was at one point arrested and charged for stalking, but the charges were later dropped.
My first question is this: how are "criminal acts" defined by rules of professional conduct? On the one hand, you can argue that the act is not criminal until it is adjudicated as such. In other words, until a court has decided that the lawyer is guilty of criminal conduct (or the lawyer has entered a plea agreement, etc), neither one of which had happened in this case. On the other hand, you can argue that the disciplinary process should not have to wait until a criminal case is decided to determine if the lawyer should be disciplined. In that case, however, wouldn't it be better if the rule eliminated the word "criminal"? Otherwise, what constitutes "criminal" conduct would be decided by the disciplinary board. Is that the law in Indiana?
My second question is: if the conduct is not criminal but the court considers the conduct disturbing enough to warrant concluding the lawyer should not be allowed to practice law, isn't the court adopting the broad view that any conduct in a lawyer's personal life can subject the lawyer to discipline as long as the court sees a connection between the conduct and the lawyer's fitness to practice law?
Personally, I don't have a problem with that standard, just as I did not have a problem with its application in In re Lamberis, but I am not sure that is the prevailing standard. It does not seem to be in Illinois; I wonder if it is in Indiana. And if it is, why didn't the court discuss it?
The case is called In the Matter of R. Mark Keaton and you can find a copy of it here. The Legal Profession blog has more on the case here.
The facts of the case, in a nutshell, are as follows: The lawyer, who was 41 years old and married at the time, began a romantic relationship with his daughter’s college roommate. The roommate ended the relationship in March 2008 and for the next two years the lawyer continued to harass the young woman by e-mail, by phone and in person. The court describes the conduct in some detail and characterizes it as "threatening, abusive, and highly manipulative in nature.”The lawyer also left many “profoundly disturbing,” angry, and insulting voice mail messages for the woman. The lawyer also engaged in what is now known as "revenge porn," by sending nude photos of the woman to others in e-mails, and posting them on adult websites and on his own blog.
In another count of the complaint, the court considered the lawyer's conduct in representing an unrelated client. In that case, the lawyer failed to perform the work for which he was hired. For this particular conduct, the lawyer was charged with violating Indiana Rules of Professional Conduct 1.4(a)(2):Failing to reasonably consult with a client about the means by which the client’s objectives are to be accomplished and1.4(a)(3): Failing to keep a client reasonably informed about the status of a matter.
I have no problem with the conclusion that the lawyer violated those rules and should be disciplined. I also have no problem with the conclusion as another count related to rule 8.4(c): Engaging in conduct involving dishonesty, fraud, deceit,or misrepresentation. This allegation was based on a number of arguments the lawyer made to the disciplinary authority which were found to be "tortured and not credible."
OK, that's all fine, but I am not sure that, if that was all, the lawyer would have been disbarred. It seems to me he was disbarred because of the, admittedly, very disturbing behavior related to his personal relationship and, therefore, which was mostly not related to the practice of law. (I say mostly because the conduct included the lawyer filing a complaint against the woman in question, which can be argued involves the practice of law in the sense that it suggests using the legal process for inappropriate purposes.)
Assuming that I am right in suggesting that the real reason for disbarment was personal (not professional) conduct, here is what I think is the interesting issue: what are the guidelines for discipline for conduct in a lawyer's personal life?
In class, I like to use the case In re Lamberis, in which the Illinois Supreme Court decides that a lawyer can be disciplined for personal conduct only when that conduct somehow relates to the lawyer's competence to practice law. According to this very broad approach, regardless of what the conduct is, or its context, if the disciplinary authority can somehow make the claim that the conduct shows the attorney is not fit to practice law, then the attorney can be disciplined. The conduct in Lamberis was plagiarism for a master's thesis, which the court found displayed dishonesty.
The problem in Illinois, however is that, more recently, in In re Karavidas, the same court decided, without mentioning Lamberis, that a lawyer can only be disciplined for conduct that violates a specific rule of professional conduct. The conduct in Karavidas was misappropriation and mishandling of money in a trust, but not when acting as a lawyer, which the court found did not justify discipline. In my opinion, the cases are not reconcilable. Whether a person can be trusted to manage a trust fund as a fiduciary officer, in my opinion, clearly reflects on an attorney's fitness to practice law since attorneys have a fiduciary duty toward their clients and have clearly defined duties related to trust accounts. Yet, the court did not find the conduct to be sanctionable.
I am not familiar with the law in Indiana, however, so I am only going to raise questions that maybe some of you can comment on.
For the disturbing personal conduct in Keaton the lawyer was charged with violating Indiana Rule 8.4(b): Committingcriminal acts that reflectadversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. The "criminal acts" in question was the conduct the court characterized as "stalking, harassment, and intimidation." The lawyer was at one point arrested and charged for stalking, but the charges were later dropped.
My first question is this: how are "criminal acts" defined by rules of professional conduct? On the one hand, you can argue that the act is not criminal until it is adjudicated as such. In other words, until a court has decided that the lawyer is guilty of criminal conduct (or the lawyer has entered a plea agreement, etc), neither one of which had happened in this case. On the other hand, you can argue that the disciplinary process should not have to wait until a criminal case is decided to determine if the lawyer should be disciplined. In that case, however, wouldn't it be better if the rule eliminated the word "criminal"? Otherwise, what constitutes "criminal" conduct would be decided by the disciplinary board. Is that the law in Indiana?
My second question is: if the conduct is not criminal but the court considers the conduct disturbing enough to warrant concluding the lawyer should not be allowed to practice law, isn't the court adopting the broad view that any conduct in a lawyer's personal life can subject the lawyer to discipline as long as the court sees a connection between the conduct and the lawyer's fitness to practice law?
Personally, I don't have a problem with that standard, just as I did not have a problem with its application in In re Lamberis, but I am not sure that is the prevailing standard. It does not seem to be in Illinois; I wonder if it is in Indiana. And if it is, why didn't the court discuss it?
The case is called In the Matter of R. Mark Keaton and you can find a copy of it here. The Legal Profession blog has more on the case here.
Wednesday, April 22, 2015
Podcast on competence regarding technology
As I am sure you know by now, the comment to ABA Model Rule 1.1 on the duty of competence states that there is a duty to understand the "technology" that lawyers use in the practice of law. To summarize what issues arise regarding this subject, the Legal Talk Network has posted a podcast interviewing Prof. Andrew
Perlman (Suffolk). Perlman discusses how the
lawyer’s ethical duty of competence is evolving and what level of
technological proficiency is reasonably expected today. He covers the
most basic knowledge of Adobe Acrobat, Microsoft Word, and Microsoft
Excel to automated document assembly and cybersecurity. You can access the podcast by pressing the play button below or by going here.
Monday, April 20, 2015
More on Better Call Saul
A few days ago I posted some links with information and comments about the TV series Better Call Saul (see here). Now here is a podcast featuring Nicole Hyland, author of the blog The Legal Ethics of Better Call Saul. Here is the official description of the program:
In this episode of Lawyer 2 Lawyer, host Bob Ambrogi interviews Nicole Hyland author of The Legal Ethics of Better Call Saul blog. Together they discuss the ethical blunders of Saul Goodman, why he’s so likeable, and whether ... he’s a good person. Tune in to hear how Saul’s questionable antics stack up against real life rules of professional conduct and how what’s technically legal isn’t always what’s right.
You can listen to the program by clicking on the play button below. If you can't see the play, you can go to the Lawyer to Lawyer website here.
In this episode of Lawyer 2 Lawyer, host Bob Ambrogi interviews Nicole Hyland author of The Legal Ethics of Better Call Saul blog. Together they discuss the ethical blunders of Saul Goodman, why he’s so likeable, and whether ... he’s a good person. Tune in to hear how Saul’s questionable antics stack up against real life rules of professional conduct and how what’s technically legal isn’t always what’s right.
You can listen to the program by clicking on the play button below. If you can't see the play, you can go to the Lawyer to Lawyer website here.
On the possibility of allowing legal professionals without JDs to provide limited legal services
A few days ago I posted a note about developments in Washington state's program to allow certified paralegals to provide certain limited legal services without attorney supervision. However, I don't think I provided enough background on this very interesting issue. So, here is a longer post with more information (which also incorporates the previous post).
While some jurisdictions are debating issues related on how to practice law, one of the more interesting debates that will likely become a national debate soon relates to who can practice law.
As is well known to anyone interested in professional responsibility issues, a large number of people don’t have access to legal representation even if there are enough lawyers to provide help. Not surprisingly, a number of companies have tapped into this need and created new forms to provide legal services. This type of legal services help, however, is also limited. Companies like LegalZoom, for example, can provide legal forms and instructions on how to create legal documents, but can’t provide lawyers to provide legal advice because of rules that ban relationships between lawyers and non lawyers. And, even if it does not violate those rules, LegalZoom has been accused of practicing law illegally in some states.
In response to the issues, some jurisdictions have started what could be a significant shift in the way legal services are provided in the US by addressing who can provide them. The leader has been the state of Washington which, in 2012, approved a plan to allow certified legal technicians (referred to as “Limited License Legal Technicians” or “LLLTs”) to provide limited legal services without the need of supervision by attorneys. The program has attracted the attention of other states and of the ABA, whose commission on legal education has urged states to provide licenses to practitioners without a juris doctor to provide limited legal services.
According to the rules adopted in Washington, the LLLT program will be supervised by a Board appointed by the Supreme Court of the state and the LLLTs will be required to take (and pass) a specific academic program, at least part of which will be taught by the state’s law schools. Additionally, LLLTs will have to pass an exam designed to test their competence in the area of law in which they will be providing services. As of now, that area of law is limited to family law, but it is quite possible the rules will be amended to open the practice to more topics.
LLLTs will be allowed to help clients review and prepare legal documents and forms, and discuss legal procedure but will not be allowed to represent clients in those procedures or in negotiations with other parties. You can take a look at the new Washington rules here.
Having, in essence, created a new legal profession, the Washington Supreme Court more recently took its initiative even further by announcing that lawyers can now share fees and even form partnertships with these new non-lawyer legal professionals. This makes Washington the second jurisdiction, but the first state, to allow fee sharing and joint ownership of law firms. The other jurisdiction that allows attorneys to share fees with non lawyers in limited cases is the District of Columbia.
The program is already considered the example to follow and it has been reported that California might be the next state to adopt a similar approach. Likewise, a commission in Oregon has already submitted a proposal and the idea is being considered by commissions or other groups in Connecticut, Massachusetts Vermont and New York.
Although there are certain types of legal services that are probably better left for attorneys, I have no doubt that programs like the LLLT program in Washington are a good idea. It may provide access to legal services to a large section of the population that may not have access to them now; and it may do so at a lower cost. Some have compared the program to the now common practice of providing access to medical care by nurse practitioners in drug store walk-in clinics, which provides access to basic medical care at a lower cost. Presumably, if we can rely on nurse practitioners to provide basic medical care, we can rely on certified legal professionals to provide limited legal services.
That is not to say, however, that there aren’t uncertainties. It is not clear, for example, whether the required course of study will be enough to prepare the LLLTs to handle the client’s problems. After all, it is not unusual for family law issues to be complicated with matters related to other areas of the law. Also, given economic factors, and the fact that many lawyers are underemployed, it is not clear that the services will be provided at a significant discount. These are all things that remain to be seen, and that, I am sure will be addressed as needed in the future.
What should be clear at this point, though, is that in the near future there will be many changes that will affect both how the law is practiced and who can provide legal services.
While some jurisdictions are debating issues related on how to practice law, one of the more interesting debates that will likely become a national debate soon relates to who can practice law.
As is well known to anyone interested in professional responsibility issues, a large number of people don’t have access to legal representation even if there are enough lawyers to provide help. Not surprisingly, a number of companies have tapped into this need and created new forms to provide legal services. This type of legal services help, however, is also limited. Companies like LegalZoom, for example, can provide legal forms and instructions on how to create legal documents, but can’t provide lawyers to provide legal advice because of rules that ban relationships between lawyers and non lawyers. And, even if it does not violate those rules, LegalZoom has been accused of practicing law illegally in some states.
In response to the issues, some jurisdictions have started what could be a significant shift in the way legal services are provided in the US by addressing who can provide them. The leader has been the state of Washington which, in 2012, approved a plan to allow certified legal technicians (referred to as “Limited License Legal Technicians” or “LLLTs”) to provide limited legal services without the need of supervision by attorneys. The program has attracted the attention of other states and of the ABA, whose commission on legal education has urged states to provide licenses to practitioners without a juris doctor to provide limited legal services.
According to the rules adopted in Washington, the LLLT program will be supervised by a Board appointed by the Supreme Court of the state and the LLLTs will be required to take (and pass) a specific academic program, at least part of which will be taught by the state’s law schools. Additionally, LLLTs will have to pass an exam designed to test their competence in the area of law in which they will be providing services. As of now, that area of law is limited to family law, but it is quite possible the rules will be amended to open the practice to more topics.
LLLTs will be allowed to help clients review and prepare legal documents and forms, and discuss legal procedure but will not be allowed to represent clients in those procedures or in negotiations with other parties. You can take a look at the new Washington rules here.
Having, in essence, created a new legal profession, the Washington Supreme Court more recently took its initiative even further by announcing that lawyers can now share fees and even form partnertships with these new non-lawyer legal professionals. This makes Washington the second jurisdiction, but the first state, to allow fee sharing and joint ownership of law firms. The other jurisdiction that allows attorneys to share fees with non lawyers in limited cases is the District of Columbia.
The program is already considered the example to follow and it has been reported that California might be the next state to adopt a similar approach. Likewise, a commission in Oregon has already submitted a proposal and the idea is being considered by commissions or other groups in Connecticut, Massachusetts Vermont and New York.
Although there are certain types of legal services that are probably better left for attorneys, I have no doubt that programs like the LLLT program in Washington are a good idea. It may provide access to legal services to a large section of the population that may not have access to them now; and it may do so at a lower cost. Some have compared the program to the now common practice of providing access to medical care by nurse practitioners in drug store walk-in clinics, which provides access to basic medical care at a lower cost. Presumably, if we can rely on nurse practitioners to provide basic medical care, we can rely on certified legal professionals to provide limited legal services.
That is not to say, however, that there aren’t uncertainties. It is not clear, for example, whether the required course of study will be enough to prepare the LLLTs to handle the client’s problems. After all, it is not unusual for family law issues to be complicated with matters related to other areas of the law. Also, given economic factors, and the fact that many lawyers are underemployed, it is not clear that the services will be provided at a significant discount. These are all things that remain to be seen, and that, I am sure will be addressed as needed in the future.
What should be clear at this point, though, is that in the near future there will be many changes that will affect both how the law is practiced and who can provide legal services.
Saturday, April 18, 2015
Puerto Rico considers adopting new Code of Ethics
Puerto Rico adopted its current Code of Ethics in 1970, but its content is essentially a copy of the ABA Canons of 1908, with a few changes derived from the ABA Model Code and one amendment regarding advertising adopted in 1980. For some reason, there has been very little interest in updating the Code since then. Back in 1996, the Puerto Rico Bar Association created a commission to prepare a new code, which, in 2000, recommended that adoption of the ABA Model Rules. Inexplicably, it wasn’t until 2005 that the Bar Association submitted the project and recommendation to the Puerto Rico Supreme Court and, even worse, it was not until 2013 that the Supreme Court considered the proposal. Then, abruptly and without any explanation, the Court issued an order in December 2013 rejecting the proposal in full.
Surprisingly, however, in the same order, the Court announced that it would consider another proposal that had already been prepared by the Commonwealth’s Judicial Conference. This was a surprise because there had been no announcement about this project until it was announced in the order. In fact, to this day, it is not known who participated in the project or when it was prepared. Yet, this new proposal is now being considered and may get approved by the Supreme Court this year.
The fact that there is a project on the table is a step in the right direction since the Code is long overdue for a complete revision. Unfortunately, in my opinion, it is more of a misstep than anything else. Instead of looking at the more modern sources of information about the regulation of the profession, the proposal copies material from a very strange combination of sources that includes, among many, the ABA Model Code and the Canons of 1908. In the end, it is a very mixed result, with some sections that are up to date with new approaches to the subject matter and others that are already outdated. Most surprising is the fact that the project has both canons (which are all aspirational) and rules (some of which are mandatory and some of which are permissive), which results in confusion over which sections are meant to be the basis of discipline.
In evaluating the structure and content of the project it would be helpful if we knew more about the deliberative process that resulted in the approval of the project, but the project does not include a legislative record or history with documentation that explains how any decisions about its content were reached. Also, the project itself does not have any substantive comments that explain or help interpret the text.
In sum, the Puerto Rico Supreme Court is considering a project with questionable content, that was prepared in secret and which does not provide background information, legislative history or comments that explain the reasoning behind the views and approaches it takes. Given these deficiencies it is debatable if the project is better than the old Code that currently applies in the island.
Surprisingly, however, in the same order, the Court announced that it would consider another proposal that had already been prepared by the Commonwealth’s Judicial Conference. This was a surprise because there had been no announcement about this project until it was announced in the order. In fact, to this day, it is not known who participated in the project or when it was prepared. Yet, this new proposal is now being considered and may get approved by the Supreme Court this year.
The fact that there is a project on the table is a step in the right direction since the Code is long overdue for a complete revision. Unfortunately, in my opinion, it is more of a misstep than anything else. Instead of looking at the more modern sources of information about the regulation of the profession, the proposal copies material from a very strange combination of sources that includes, among many, the ABA Model Code and the Canons of 1908. In the end, it is a very mixed result, with some sections that are up to date with new approaches to the subject matter and others that are already outdated. Most surprising is the fact that the project has both canons (which are all aspirational) and rules (some of which are mandatory and some of which are permissive), which results in confusion over which sections are meant to be the basis of discipline.
In evaluating the structure and content of the project it would be helpful if we knew more about the deliberative process that resulted in the approval of the project, but the project does not include a legislative record or history with documentation that explains how any decisions about its content were reached. Also, the project itself does not have any substantive comments that explain or help interpret the text.
In sum, the Puerto Rico Supreme Court is considering a project with questionable content, that was prepared in secret and which does not provide background information, legislative history or comments that explain the reasoning behind the views and approaches it takes. Given these deficiencies it is debatable if the project is better than the old Code that currently applies in the island.
Tuesday, April 14, 2015
Discussion of California proposed ethics opinion on e-discovery and the duty of competence
As you know by now, I am sure, the comment to Model Rule 1.1 on competence has been amended to state that the duty of competence includes the duty to be knowledgeable about "technology." And that probably includes "e-discovery."
Enter California’s Proposed Formal Opinion 11-0004, a proposed opinion, not yet adopted by the rules committee, that discusses the issues that arise when an attorney who doesn’t know anything about e-discovery suddenly finds himself facing e-discovery problems that have crept into his case. It suggests that litigators should have minimal competence in e-discovery and may be violating their duty of competence if they do not either become competent or bring in someone who is competent. Go here for a discussion of this important Opinion.
Enter California’s Proposed Formal Opinion 11-0004, a proposed opinion, not yet adopted by the rules committee, that discusses the issues that arise when an attorney who doesn’t know anything about e-discovery suddenly finds himself facing e-discovery problems that have crept into his case. It suggests that litigators should have minimal competence in e-discovery and may be violating their duty of competence if they do not either become competent or bring in someone who is competent. Go here for a discussion of this important Opinion.
Sunday, April 12, 2015
DC Court finds that prosecutor's duty to disclose exculpatory evidence under Rules of Professional Conduct is broader than duty under Brady v Maryland
Back in 2012, I reported on a case from Washington DC called In re Kline in which the U.S. Justice
Department and the D.C. Office of Bar
Counsel argued for different interpretations of the District of
Columbia's version of Rule 3.8 on "special responsibilities of
prosecutors." The rule states that prosecutors have a duty to timely disclose to the
defense "all evidence or information known to
the prosecutor that tends to negate the guilt of the accused or
mitigates the offense." This language originated in the ABA Model Rule which has been interpreted to mean that the duty
under the rules of professional conduct is broader than the duty
imposed by the constitutional standards in Brady v. Maryland. (This was explained in ABA Formal Opinion 09-454).
However, not all jurisdictions agree with this interpretation. I posted a note about this here, when the Wisconsin Supreme Court held in a disciplinary proceeding that prosecutors' ethical obligation to disclose exculpatory evidence is not broader than the constitutional standards that apply under Brady v. Maryland.
The proper interpretation of the rule in Washington DC was unclear because, although the text of the rule followed the language of the ABA Model Rule, the comment to the DC rule says that the rule "is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes and court rules of procedure."
Almost a year after my first post on the case, in August 2013, I reported that the District of Columbia Board on Professional Responsibility recommended a 30 day suspension for the prosecutor in In re Kline. You can see that post here.
The case is now back in the news because the DC Court of Appeals has reversed the sanctions while clarifying the extent of the duty to disclose exculpatory evidence under the Rules of Professional Conduct.
The court held that the prosecutor violated ethical obligations of disclosure under Rule 3.8, but that it was not unreasonable for the prosecutor to believe that he did not have a duty to disclose because of the confusion created by the discrepancy in the rule and its comment. For that reason, the court reversed the sanction, but then proceeded to clarify the extent of the duty. In doing so, the court joined what appears to be the prevalent interpretation of the duty. You can read the opinion here.
For more on this case, you can check out The Legal Profession blog, the White Collar Crime Prof blog, and The Legal Ethics Forum.
However, not all jurisdictions agree with this interpretation. I posted a note about this here, when the Wisconsin Supreme Court held in a disciplinary proceeding that prosecutors' ethical obligation to disclose exculpatory evidence is not broader than the constitutional standards that apply under Brady v. Maryland.
The proper interpretation of the rule in Washington DC was unclear because, although the text of the rule followed the language of the ABA Model Rule, the comment to the DC rule says that the rule "is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes and court rules of procedure."
Almost a year after my first post on the case, in August 2013, I reported that the District of Columbia Board on Professional Responsibility recommended a 30 day suspension for the prosecutor in In re Kline. You can see that post here.
The case is now back in the news because the DC Court of Appeals has reversed the sanctions while clarifying the extent of the duty to disclose exculpatory evidence under the Rules of Professional Conduct.
The court held that the prosecutor violated ethical obligations of disclosure under Rule 3.8, but that it was not unreasonable for the prosecutor to believe that he did not have a duty to disclose because of the confusion created by the discrepancy in the rule and its comment. For that reason, the court reversed the sanction, but then proceeded to clarify the extent of the duty. In doing so, the court joined what appears to be the prevalent interpretation of the duty. You can read the opinion here.
For more on this case, you can check out The Legal Profession blog, the White Collar Crime Prof blog, and The Legal Ethics Forum.
Iowa Supreme Court rejects recommendation to disbar lawyer because of insufficient notice in the complaint; correct result?
The Legal Profession blog is reporting on a case from Iowa in which the Supreme Court refused to adopt a recommended sanction because according to the court, the attorney did not have sufficient notice of the possibility that he faced disbarment. The court held that
So, I am willing to be convinced that I am wrong, but for now, I stand with the Board. Granted, the complaint may have been drafted better, but I don't find the court's conclusion convincing.
The complaint only alleged he obtained retainers and did not deposit them into his trust account, even though the retainers had not been earned. [The lawyer] admitted, as required by the commission’s sanction, all the allegations in the complaint, but the possibility that he faced a revocation of his license to practice law was not raised until the conclusion of the hearing. . . .Under the circumstances, [the lawyer] did not have a fair opportunity to know the issue of theft was in play and to produce evidence to show he had a future colorable claim to the retainer.I am with the Disciplinary Board that recommended disbarment on this one. An allegation that the attorney "obtained retainers and did not deposit them into his trust account, even though the retainers had not been earned" is, by definition, an allegation of misappropriation and anyone who went to law school knows that misappropriation, if proven, is more than likely going to result in disbarment. In short, if the accusation is for misappropriation, any lawyer knows that they are facing disbarment. I would say that not knowing this is, in and of itself, incompetence.
So, I am willing to be convinced that I am wrong, but for now, I stand with the Board. Granted, the complaint may have been drafted better, but I don't find the court's conclusion convincing.
Nevada Supreme Court sets out very specific rules for conduct during depositions
There are many cases out there discussing what constitutes improper conduct during depositions. Many of them discuss conduct that any litigator will tell you is not uncommon, like running objections, personal attacks, frequent interruptions during questioning and so on. Unfortunately, because the conduct is most often away from the court and not under the direct supervision of judges, the problems continue. In a recent case, however, the Supreme Court of Nevada has set very specific rules of conduct for one common occurrence during depositions, holding that:
We hold that attorneys may confer with witnesses during requested recesses in depositions only to determine whether to assert a privilege. For the attorney-client privilege to apply to these conferences, however, counsel must state on the deposition record (1) the fact that a conference took place, (2) the subject of the conference, and (3) the result of the conference. In the instant case, we conclude that the communications between the witness and plaintiffs counsel during the break in the witness's deposition are discoverable because plaintiffs counsel requested the recess in the deposition and failed to make a sufficient, contemporaneous record of the privileged communications.The case is called Coyote Springs Inv. v. Eighth Judicial District Court and you can find it here.
When Does Advice to a Client Violate an Attorney’s Ethical Obligations?
"Many attorneys have experienced situations in which a client has sought
advice about proposed actions which “push the legal limit” or are even
clearly illegal. How far—if at all—may attorneys go in assisting a
client to engage in questionable activity?"
This is the introduction to an excellent short comment published in the most recent New York Legal Ethics Reporter. Go here to read the full article.
This is the introduction to an excellent short comment published in the most recent New York Legal Ethics Reporter. Go here to read the full article.
Friday, April 10, 2015
Does an attorney violate Rule 4.4 by reading a document the attorney knows should not have been sent to the attorney, if the document was not sent inadvertently and if the attorney does not know who sent it?
The ABA Journal is reporting today that a New
Jersey appeals court has ruled that a lawyer can’t continue to represent a medical malpractice plaintiff
after reading hospital documents sent by an anonymous source. The court held that the attorney's conduct violated Rule 4.4, which I don't find very convincing.
Here is the story in a nutshell: New Jersey has something called the Patient Safety Act, which requires hospitals to report adverse events. In order to "encourage health care workers to candidly disclose their observations and concerns, and promote self-critical evaluation by professional and administrative staff," the Act states that any documents generated as part of the process regulated by the Act will not be subject to discovery or be admissible as evidence or otherwise disclosed in any civil, criminal, or administrative action or proceeding.
As he was preparing his case on behalf of a medical malpractice plaintiff, the attorney for the plaintiff received an envelope that contained documents that appeared to have been prepared as part of the process regulated by the Act. The envelope did not have any information about who sent the documents. He read and kept the documents and did not disclose the fact that he had them to the defendant's lawyers until he disclosed he had them as part of discovery. When the defendant found out the lawyer had the documents, it requested that the attorney for the plaintiff be disqualified (among other things). The court held that the attorney should be disqualified and the appeals court affirmed.
I understand that the lawyer was not supposed to have access to the document, and that the document would not be admissible in court. But I am bothered by the court's interpretation that the lawyer's conduct was a violation of rule 4.4, which states that "[a] lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, properly notify the sender, and return the document to the sender."
This rule imposes more duties than the current Model Rule 4.4, which only requires that the attorney notify the sender, but I think both rules are based on the same underlying circumstances. As the comment to Model Rule 4.4 makes clear, the rule is meant to apply when the document in question is sent by one of the parties in a case or one of their attorneys.
In this case, however, the document was not sent by the defendant nor its attorney, and it is pretty clear it was not sent "inadvertently" either. Also, the duties imposed by the rule are to notify the sender and to return the document to the sender. How is the lawyer to comply with these duties if the lawyer does not know who the sender is?
My worry is that the rule could be interpreted too broadly to impose a duty (enforceable by disqualification) that is not what the rule is about. What if the lawyer receives a smoking gun document from an unknown source, a whistleblower, as in Fisons? Would the lawyer have a duty to not read the document and contact the other side, etc? Should lawyers be disqualified any time they get anonymous information of this sort?
The case is Jablow v Wagner and you can read the opinion here.
Here is the story in a nutshell: New Jersey has something called the Patient Safety Act, which requires hospitals to report adverse events. In order to "encourage health care workers to candidly disclose their observations and concerns, and promote self-critical evaluation by professional and administrative staff," the Act states that any documents generated as part of the process regulated by the Act will not be subject to discovery or be admissible as evidence or otherwise disclosed in any civil, criminal, or administrative action or proceeding.
As he was preparing his case on behalf of a medical malpractice plaintiff, the attorney for the plaintiff received an envelope that contained documents that appeared to have been prepared as part of the process regulated by the Act. The envelope did not have any information about who sent the documents. He read and kept the documents and did not disclose the fact that he had them to the defendant's lawyers until he disclosed he had them as part of discovery. When the defendant found out the lawyer had the documents, it requested that the attorney for the plaintiff be disqualified (among other things). The court held that the attorney should be disqualified and the appeals court affirmed.
I understand that the lawyer was not supposed to have access to the document, and that the document would not be admissible in court. But I am bothered by the court's interpretation that the lawyer's conduct was a violation of rule 4.4, which states that "[a] lawyer who receives a document and has reasonable cause to believe that the document was inadvertently sent shall not read the document or, if he or she has begun to do so, shall stop reading the document, properly notify the sender, and return the document to the sender."
This rule imposes more duties than the current Model Rule 4.4, which only requires that the attorney notify the sender, but I think both rules are based on the same underlying circumstances. As the comment to Model Rule 4.4 makes clear, the rule is meant to apply when the document in question is sent by one of the parties in a case or one of their attorneys.
In this case, however, the document was not sent by the defendant nor its attorney, and it is pretty clear it was not sent "inadvertently" either. Also, the duties imposed by the rule are to notify the sender and to return the document to the sender. How is the lawyer to comply with these duties if the lawyer does not know who the sender is?
My worry is that the rule could be interpreted too broadly to impose a duty (enforceable by disqualification) that is not what the rule is about. What if the lawyer receives a smoking gun document from an unknown source, a whistleblower, as in Fisons? Would the lawyer have a duty to not read the document and contact the other side, etc? Should lawyers be disqualified any time they get anonymous information of this sort?
The case is Jablow v Wagner and you can read the opinion here.
Comments on withdrawal of attorney for police officer accused of murder in South Carolina
As I am sure you know by now, a few days ago a police officer shot and killed an unarmed man who ran away from the officer after being stopped for a broken tail light.
The officer has since been arrested and charged with murder. At first, his lawyer declared that he believed that the officer had followed proper procedure.
But he quickly withdrew his representation after the now widely broadcast video of the incident was made public. Eric Turkewitz, of the New York Personal Injury blog and several participants in the Legal Ethics Forum have comments on the attorney's withdrawal. The general consensus seems to be that the lawyer's comments in "explaining" why he withdrew (something he did not have to do at all) comes close to disclosing confidential information.
Better Call Saul
For those of you who enjoyed (or just watched) the TV series Better Call Saul, here are a few links.
The Legal Ethics of Better Call Saul.
In this blog New York lawyer and Legal Ethics Forum contributor Nicole Hyland has been posting excellent comments on the ethical issues raised in every episode of the series.
KafkaEsq and Above the Law offer some thoughts on the series.
The Legal Ethics of Better Call Saul.
In this blog New York lawyer and Legal Ethics Forum contributor Nicole Hyland has been posting excellent comments on the ethical issues raised in every episode of the series.
KafkaEsq and Above the Law offer some thoughts on the series.
Washington State Supreme Court approves rules to allow lawyers to share fees with non lawyer legal technicians
While some jurisdictions are debating issues related on how to practice law, one of the more interesting debates that will likely become a national debate soon relates to who can practice law.
Washington state became the leader in this discussion when it approved rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians, or LLLTs) in 2012.
Having, in essence, created a new legal profession, the Washington Supreme Court has now taken its initiative even further by announcing that lawyers can now share fees and even form partnertships with these new non-lawyer legal professionals. This makes Washington the second jurisdiction, but the first state, to allow fee sharing and joint ownership of law firms. The other jurisdiction that allows attorneys to share fees with non lawyers in limited cases is the District of Columbia.
You can take a look at the new Washington rules here. For comments on the new rule allowing lawyers to share fees with non lawyers go to LawSites and Bloomberg law.
This is a major development for the future of legal services and it will surely not be the last. I think more states will follow suit (several other states, including New York and California are working on similar proposals) and soon we will have a broader market for legal services that will include both lawyers and non lawyers. For a comment on the future of the legal services profession you can read a good paper by Prof. Andrew Perlman (Suffolk) here.
Washington state became the leader in this discussion when it approved rules to allow (and to regulate) the provision of limited legal services by state certified legal technicians (known as Limited License Legal Technicians, or LLLTs) in 2012.
Having, in essence, created a new legal profession, the Washington Supreme Court has now taken its initiative even further by announcing that lawyers can now share fees and even form partnertships with these new non-lawyer legal professionals. This makes Washington the second jurisdiction, but the first state, to allow fee sharing and joint ownership of law firms. The other jurisdiction that allows attorneys to share fees with non lawyers in limited cases is the District of Columbia.
You can take a look at the new Washington rules here. For comments on the new rule allowing lawyers to share fees with non lawyers go to LawSites and Bloomberg law.
This is a major development for the future of legal services and it will surely not be the last. I think more states will follow suit (several other states, including New York and California are working on similar proposals) and soon we will have a broader market for legal services that will include both lawyers and non lawyers. For a comment on the future of the legal services profession you can read a good paper by Prof. Andrew Perlman (Suffolk) here.
Sunday, April 5, 2015
Massachusetts Adopts Changes to Rules of Professional Conduct
The Legal Ethics Forum is reporting that Massachusetts has adopted a number of changes to the state's Rules of Professional Conduct most of which are designed to align the rules more closely with the ABA Model Rules. Go here for the story and a link to the rules' changes.
Review of the anti-contact rules and doctrine
When can you contact people who are or were represented by counsel? The New York Legal Ethics Reporter has a good review of the doctrine here.
Texas lawyers protest suspension of prominent death row inmates' lawyer
I just read a recent story about about the suspension of a prominent capital defense attorneys by Texas’ Court of Criminal Appeals for filing a late petition in a death penalty case. The author of the article argues that
Again, quoting from the article I just read,
This is not the only story about a state going after successful capital punishment defense lawyers. The Legal Profession blog has a similar recent story from North Carolina here.
"the sanction was doubly bonkers . . . because other death penalty lawyers never seem to be sanctioned for sleeping, drinking, or otherwise rendering themselves incompetent at trial. In any event, Dow was barred from appearing before the CCA for 12 months. Which means that his death row clients—whom he represents pro bono, and who may not find other lawyers to do so—literally have their lives on the line because a motion may or may not have been filed a few hours late. Or, as one lawyer quipped after the piece was posted: “Apparently Texas finally found one lawyer to be incompetent: the one who is actually good at his job.”In response to the sanction, some 300 lawyers have filed a petition in the Texas Supreme Court seeking a declaratory judgment or, in the alternative, a writ of mandamus, overturning Dow's suspension.
Again, quoting from the article I just read,
The gist of the petition has to do with the case Dow was handling on appeal. His supporters say that if the original trial counsel had done the things he was supposed to do at the original trial (like, say, put on mitigating evidence; explain to the jury that his client was mentally ill; call even a single witness at punishment phase), Dow would not have needed to step in at the last minute to try to stay the execution. In our topsy-turvy capital defense universe, Dow is being sanctioned for trying to (quickly and with an execution date looming) do what defense counsel should have done in the first place.I really don't know anything about this case or its background, so will let you read the full story and make up your own mind. You can find the story here.
This is not the only story about a state going after successful capital punishment defense lawyers. The Legal Profession blog has a similar recent story from North Carolina here.
Lawyer suspended for being drunk at a CLE program
The Legal Profession blog is reporting that a Virginia lawyer has been been suspended for six months and ordered to enroll in a two-year treatment and monitoring program for being intoxicated and disruptive at a Continuing Legal Education program last year. You can read more details on the story here.
I have seen cases of discipline for not complying with CLE requirements but I don't remember another case involving conduct during a CLE program.
Prof. Jonathan Turley has a comment on the case here.
I have seen cases of discipline for not complying with CLE requirements but I don't remember another case involving conduct during a CLE program.
Prof. Jonathan Turley has a comment on the case here.
Can lawyers lie during negotiations?
Can a lawyer lie during negotiations?
The Comment to Model Rule 4.1 (Truthfulness in statements to others) states that the duty not to make false statements of material facts refers only to "statements of fact" and that under "generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact." But what does that really mean?
To help us understand, Professor Ron Rotunda has published a short review of the issues here.
The Comment to Model Rule 4.1 (Truthfulness in statements to others) states that the duty not to make false statements of material facts refers only to "statements of fact" and that under "generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact." But what does that really mean?
To help us understand, Professor Ron Rotunda has published a short review of the issues here.
Monday, March 30, 2015
Supreme Court denies cert petition in Truvia v. Connick
Last month I wrote about the cert petition in Truvia v. Connick, the most recent in a series of cases from New Orleans on whether an exonerated
criminal defendant who spent years in prison after a prosecutor violated
the duty to disclose exculpatory evidence can recover for damages. You can read my original post here.
I was hoping the Court would grant the petition and revise its view on the issue, but it was not to be. I found out today that the Court denied the petition a week ago. Here is a page where you can find links to the documents in the case.
I was hoping the Court would grant the petition and revise its view on the issue, but it was not to be. I found out today that the Court denied the petition a week ago. Here is a page where you can find links to the documents in the case.
Thanks to Prof. Joan (Shaun) Shaughnessy (Washington & Lee) for the update.
Wednesday, March 25, 2015
Another opinion on the duty to disclose client's death
Last month I posted a comment on a recent Illinois case on whether an attorney has a duty to disclose the death of his client when the attorney is negotiating a settlement in litigation.
About ten days ago, the Legal Profession blog reported on another opinion on the same subject. In this one, an attorney who had failed to disclose his client's death prior to settling an employment claim was suspended for one year. The case is called Matter of Rosner and it is available here.
About ten days ago, the Legal Profession blog reported on another opinion on the same subject. In this one, an attorney who had failed to disclose his client's death prior to settling an employment claim was suspended for one year. The case is called Matter of Rosner and it is available here.
Better Call Saul
Anyone who knows me knows I like to watch legal themed movies and TV shows (and read novels too). I have written reviews of some of those shows and movies here on the blog, and I often make references to, and show clips of, movies in class.
The most recent TV show I have been watching is Better Call Saul which is a prequel to the very popular series Breaking Bad, focusing on lawyer Saul Goodman from that series (although one of the first things we learn in the new show is that Saul Goodman is not his original name).
I like the show, and I really like the blog The Legal Ethics of Better Call Saul by Nicole Hyland. In the blog, Nicole discusses the ethical issues of each episode of the show in great detail. If you have been watching the show, you really ought to check out the blog.
The most recent TV show I have been watching is Better Call Saul which is a prequel to the very popular series Breaking Bad, focusing on lawyer Saul Goodman from that series (although one of the first things we learn in the new show is that Saul Goodman is not his original name).
I like the show, and I really like the blog The Legal Ethics of Better Call Saul by Nicole Hyland. In the blog, Nicole discusses the ethical issues of each episode of the show in great detail. If you have been watching the show, you really ought to check out the blog.
Florida Bar considers three hot topics: multijurisdictional practice, a national bar exam and legal services by non lawyers
Talk about timing! Tomorrow morning I am leaving town to go speak at a conference in Puerto Rico on the future of the regulation of the profession. For my talk I used the title "Current Debates on the Regulation of the Profession" and in it I outline a few topics I think are the current (or next) "big things" in the field of professional responsibility. In my opinion, these are: the possibility of allowing non lawyers to provide some legal services, the possibility of allowing lawyers to form partnerships with non
lawyers or to get non lawyer investors, the possibility of a national bar exam and issues related to multijurisdictional practice.
So, while I was reading my notes one more time just a few minutes ago, the Puerto Rico Supreme Court issued an opinion on admission by motion (that underscores the debate on mutijurisdictional practice in the island) and the Florida Bar Association posted a podcast discussing these exact same issues! The podcast appears below and you can listen to it by pressing on the play button, or by going here. More proof that these topics are pretty "current", I guess.
So, while I was reading my notes one more time just a few minutes ago, the Puerto Rico Supreme Court issued an opinion on admission by motion (that underscores the debate on mutijurisdictional practice in the island) and the Florida Bar Association posted a podcast discussing these exact same issues! The podcast appears below and you can listen to it by pressing on the play button, or by going here. More proof that these topics are pretty "current", I guess.
Sunday, March 8, 2015
On the need to make prosecutors accountable for their misconduct
Long time readers of this blog know how much I have argued over time that courts do not do enough to discourage misconduct on the part of prosecutors. I am, of course, not alone in expressing this sentiment. Here is a very good recent post in the "a public defender" blog on the subject.
Friday, February 27, 2015
California Bar issues opinion on whether attorney can refuse to disclose confidential information in support of motion to withdraw from representation
The California bar's ethics committee recently issued an opinion (Formal Op. 2015-192) attempting to clarify whether an attorney seeking to withdraw from a litigation for ethical reasons might have grounds for resisting a court order that would require the lawyer to disclose client confidences to a judge who wants more information before ruling on the motion. Although it admits there is no on-point guidance in California, the committee urged lawyers not to reveal confidential information to support their withdrawal motion. If the judge insists, the committee said, there is no clear legal or ethical authority in California that either permits or forbids an attorney to comply with the court's directive. You can read the opinion here. The summary reads as follows:
An attorney may disclose to the court only as much as is reasonably necessary to demonstrate her need to withdraw, and ordinarily it will be sufficient to say only words to the effect that ethical considerations require withdrawal or that there has been an irreconcilable breakdown in the attorney - client relationship. In attempting to demonstrate to the court her need to withdraw, an attorney may not disclose confidential communications with the client, either in open court or in camera. To the extent the court orders an attorney to disclose confidential information, the attorney faces a dilemma in that she may not be able to comply with both the duty to maintain client confidences and the duty to obey court orders. Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed. Although this Committee cannot categorically opine on whether or not it is acceptable to disclose client confidences even when faced with an order compelling disclosure, this Committee does opine that, whatever choice the attorney makes, she must take reasonable steps to minimize the impact of that choice on the client.
Thursday, February 19, 2015
Podcast on lawyers and modern technology
The Legal Talk Network has a new podcast on lawyers and modern technology. You can listen to it by clicking on the play button below. If you can't see the button, you can go here.
Here is the description of the program:
As we’ve heard time and time again, many lawyers are averse to becoming knowledgeable about modern technology. Older attorneys often do not want to learn a computer-based management tool and feel as though they can hire someone to manage the security and encryption of their sensitive information. Often, even having a young lawyer in the firm can seem like a solution since they will most likely have grown up with a certain level of technology knowledge. But none of these are valid excuses to a proper level of technological education. The luddite lawyers need to face the ethical implications of their ignorance.
In this episode of The Digital Edge, Sharon Nelson and Jim Calloway interview lawyer and legal technology blogger Sam Glover about when technology became an issue for attorneys, how they can get in trouble due to ignorance, and what all attorneys need to know about hackers, cloud services, and the resulting ethical duties. First, Glover explains that lawyers are getting into trouble in the courtroom by not knowing about how technologies like Twitter work... Concerning cyber security, Glover discusses the many reasons lawyers cannot simply outsource technology knowledge. ... Simply put, you cannot avoid technology as a lawyer anymore. There are courses, blogs, webinars, books, and many other ways to become educated about legal technology.
Here is the description of the program:
As we’ve heard time and time again, many lawyers are averse to becoming knowledgeable about modern technology. Older attorneys often do not want to learn a computer-based management tool and feel as though they can hire someone to manage the security and encryption of their sensitive information. Often, even having a young lawyer in the firm can seem like a solution since they will most likely have grown up with a certain level of technology knowledge. But none of these are valid excuses to a proper level of technological education. The luddite lawyers need to face the ethical implications of their ignorance.
In this episode of The Digital Edge, Sharon Nelson and Jim Calloway interview lawyer and legal technology blogger Sam Glover about when technology became an issue for attorneys, how they can get in trouble due to ignorance, and what all attorneys need to know about hackers, cloud services, and the resulting ethical duties. First, Glover explains that lawyers are getting into trouble in the courtroom by not knowing about how technologies like Twitter work... Concerning cyber security, Glover discusses the many reasons lawyers cannot simply outsource technology knowledge. ... Simply put, you cannot avoid technology as a lawyer anymore. There are courses, blogs, webinars, books, and many other ways to become educated about legal technology.
Wednesday, February 18, 2015
Cert petition before the Supreme Court on whether exonerated defendant can sue New Orleans parish prosecutor's office, ... again
A new case has reached the Supreme Court on whether an exonerated criminal defendant who spent years in prison after a prosecutor violated the duty to disclose exculpatory evidence can recover for damages. The case is called Truvia v. Connick and you can read the certiorari petition here. (And, before you ask, yes, that is the same Harry Connick, whose office was involved in Connick v. Thompson and Smith v. Cain).
As you probably remember, in Connick v. Thompson, the defendant conceded that the
prosecutor in the case against the plaintiff John Thompson did not comply
with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before his conviction was reversed. He sued and won a multi-million dollar verdict, but the Supreme Court, in a five-four opinion by Justice Thomas, reversed holding that there was no evidence of a deliberate indifference to the
rights of persons or a pattern of similar constitutional violations. The dissenters in the case argued the evidence was sufficient stating that "the evidence presented to the jury that awarded
compensation to Thompson . . . points distinctly away from the Court’s
assessment. As the trial record ... reveals, the
conceded, long-concealed prosecutorial transgressions were neither
isolated nor atypical." (It is now known that the DA's office’s failure to
disclose exculpatory evidence led to the exoneration of at least twelve
people since 1990.)
A year later, after listening to the oral arguments in Smith v. Cain, during which the justices discussed the history of misconduct at the same prosecutors' office, maybe the Court would have been ready to accept the fact that there was a pattern of misconduct. However, that was not at issue in that case and the Court simply (and almost unanimously, Justice Thomas being the only dissenter) reversed the conviction because of the prosecutor's misconduct.
I hope the Court grants the petition because it would give the Court the opportunity to define the level of evidence needed to support a claim for civil rights violations by prosecutors due to violation of the duty to disclose exculpatory evidence. As the petitioners argue in their petition, this is an issue of national importance.
In Connick v. Thompson the Court held that the single incident of prosecutorial misconduct in withholding exculpatory evidence was not sufficient to create local government liability. The Court's conclusion was based on the finding that the plaintiff “did not prove a pattern of similar violations that would establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution.” The Court, however, did not indicate what would be sufficient to establish a "pattern of violations" sufficient for a finding of a “policy” or “custom” with regard to the failure to turn over exculpatory evidence. This is the question the Court will have a chance to answer if it grants review.
Also, as I have argued many many times in this blog, I think courts do not do enough to discourage misconduct on the part of prosecutors. Recognizing a standard that could open the door to claims by exonerated defendants who suffer because of such misconduct would hopefully have a deterrent effect on what Judge Alex Kozinski recently called an “epidemic” of misconduct.
UPDATE (March 30, 2015): The Supreme Court denied cert. Go here for the full story.
Thursday, February 5, 2015
So you thought that the attorney-client relationship is a fiduciary relationship, right? Not in Delaware, apparently!
Raise your hand if you think the attorney client relationship is a fiduciary relationship. Wait, not all hands are up? How come? Yesterday, a judge of the Delaware Superior Court for Sussex County issued an opinion in a civil case which concludes the notion of a fiduciary relationship is not what we have always been told. The case is called Dickerson v. Murray and you can read the opinion here.
In this case, the plaintiffs hired a lawyer to represent them in a transaction. Then, according to the plaintiffs, they suffered an injury as a result of the fact that the lawyer had a conflict of interest. They sued for malpractice, but the complaint included a separate count for "conflict of interest." The judge found that the plaintiffs could support the cause of action for negligence, but dismissed the other cause of action.
The court dismissed the second count of the complaint because, according to the judge, “merely establishing an attorney-client relationship does not de facto give rise to fiduciary duties.”
That is news to me!
Pick any Professional Responsibility book and somewhere in it you will find an explanation of the basic principles of the attorney-client relationship. And somewhere within that explanation you will find a statement that, in one way or another, defines that relationship as a fiduciary relationship. Take for example Gillers, Regulation of the Legal Profession, page 2: "The lawyer's relationship to the client is fiduciary..." or Rotunda & Dzienkowski, Professional Responsibility, A Student's Guide, page 42: "Lawyers are fiduciaries of their clients" and "[m]uch of the law of ethics is derived from, or related to, the law of fiduciaries." (emphasis in the original).
Yet, incredibly, the judge in this case concluded that “[a]n attorney must act in some capacity beyond the mere provision of legal services to owe actionable fiduciary duties” and the plaintiff “failed to allege factual contentions sufficient to prove the existence of a special trust, or relationship to substantiate a breach of fiduciary duty claim.”
The only factual allegation the plaintiff needs to allege to support the claim is that the defendant was the plaintiff’s lawyer, period. The attorney-client relationship is, by definition, one based on special trust. Again, citing Rotunda & Dzienkowski, "Clients have every right to expect trust from their lawyers, who are expected to act for the benefit of their principals, their clients."
The second count of the complaint was obviously argued poorly by calling it simply "conflict of interest" instead of arguing it as a separate claim for breach of fiduciary duty, but the court understood the allegation as such. Thus, the problem is not that the judge did not understand the claim; the problem is that the judge does not understand the law.
As the court put it, "[i]n order to prevail on a breach of fiduciary duty action, unlike a negligence claim, Plaintiff must demonstrate the attorney-client relationship between the Defendants and Plaintiff was fiduciary in nature." Yet, as any second year law student knows, a plaintiff does not have to "demonstrate" this. It just is.
Thanks to the Legal Profession blog for the link.
In this case, the plaintiffs hired a lawyer to represent them in a transaction. Then, according to the plaintiffs, they suffered an injury as a result of the fact that the lawyer had a conflict of interest. They sued for malpractice, but the complaint included a separate count for "conflict of interest." The judge found that the plaintiffs could support the cause of action for negligence, but dismissed the other cause of action.
The court dismissed the second count of the complaint because, according to the judge, “merely establishing an attorney-client relationship does not de facto give rise to fiduciary duties.”
That is news to me!
Pick any Professional Responsibility book and somewhere in it you will find an explanation of the basic principles of the attorney-client relationship. And somewhere within that explanation you will find a statement that, in one way or another, defines that relationship as a fiduciary relationship. Take for example Gillers, Regulation of the Legal Profession, page 2: "The lawyer's relationship to the client is fiduciary..." or Rotunda & Dzienkowski, Professional Responsibility, A Student's Guide, page 42: "Lawyers are fiduciaries of their clients" and "[m]uch of the law of ethics is derived from, or related to, the law of fiduciaries." (emphasis in the original).
Yet, incredibly, the judge in this case concluded that “[a]n attorney must act in some capacity beyond the mere provision of legal services to owe actionable fiduciary duties” and the plaintiff “failed to allege factual contentions sufficient to prove the existence of a special trust, or relationship to substantiate a breach of fiduciary duty claim.”
The only factual allegation the plaintiff needs to allege to support the claim is that the defendant was the plaintiff’s lawyer, period. The attorney-client relationship is, by definition, one based on special trust. Again, citing Rotunda & Dzienkowski, "Clients have every right to expect trust from their lawyers, who are expected to act for the benefit of their principals, their clients."
The second count of the complaint was obviously argued poorly by calling it simply "conflict of interest" instead of arguing it as a separate claim for breach of fiduciary duty, but the court understood the allegation as such. Thus, the problem is not that the judge did not understand the claim; the problem is that the judge does not understand the law.
As the court put it, "[i]n order to prevail on a breach of fiduciary duty action, unlike a negligence claim, Plaintiff must demonstrate the attorney-client relationship between the Defendants and Plaintiff was fiduciary in nature." Yet, as any second year law student knows, a plaintiff does not have to "demonstrate" this. It just is.
Thanks to the Legal Profession blog for the link.
Wednesday, February 4, 2015
Court of Appeals for the Third Circuit declares unconstitutional NJ rule banning use of quotes from court opinions
Back in 2012, in response to a complaint filed by a judge, the New Jersey Supreme Court approved a new ruled that stated that an attorney “may not include, on a website or other advertisement, a quotation or excerpt from a court decision (oral or written) about the attorney’s abilities or legal services.” The attorney whose ad had initiated the whole discussion on the issue challenged the rule in federal court and the Court of Appeals for the Third Circuit recently declared the rule unconstitutional. I agree with the result. Lawyer Ethics Alerts Blog has a good summary of the case here.
Wednesday, January 28, 2015
Florida Bar Ethics Committee issues opinion on whether an attorney can advise clients to "clean up" a social media page before starting litigation
Legal Ethics in Motion is reporting that the Florida Bar’s Professional Ethics Committee has just issued Proposed Advisory Opinion 14-1, which discusses the ethical obligations when advising a client to “clean up” the client’s social media pages before litigation is filed. The opinion is only three pages long and you can read it here. Agreeing with an opinion by the New York County Lawyers Association published in 2013, the opinion concludes as follows:
In summary, a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.
Friday, January 23, 2015
Yet another conviction reversed because of improper use of PowerPoint by prosecutor
Yesterday I wrote about cases on improper arguments by prosecutors, and in particular about the improper use of PowerPoint slide shows. Amazingly, today, the Marshall Project is reporting on yet another case in which an appellate court has reversed a conviction because of improper use of PowerPoint. According to the story, the prosecutor presented 250 slides to the jury and the court found problems with more than 100 of them. The post has photos of some of the slides. The case is called State of Washington v. Walker and it is available here.
Wednesday, January 21, 2015
An update on improper arguments, and use of powerpoint, by prosecutors
Long time readers of this blog will remember the many cases I have reported over the years where courts had to decided whether to reverse a conviction because of improper arguments by prosecutors (usually during closing arguments). Many of these cases involved prosecutors making references to facts not in evidence, expressing their personal opinions or using inflammatory rhetoric. Some cases involved prosecutors being more creative, like the case where a prosecutor performed magic tricks for the jury and the one where a prosecutor used a big jigsaw puzzle with one piece missing to suggest to the jury that they could "see the picture" (or "know the truth") even though they did not have all the pieces of the puzzle. Sometimes courts have reversed the convictions and sometimes they have criticized the conduct but not reversed the conviction.
The Legal Profession blog has a note on the most recent example here. It involves a case where the conviction (for the murder of four police officers) was reversed because the prosecutor misstated the law to the jury five times during closing argument, and then again during the rebuttal argument. Although the court easily finds that the prosecutor's statements were improper, and at one point states that "the misconduct by the State is particularly egregious", it does not attempt to determine whether they were the result of negligence, incompetence or intent and does not make a recommendation for sanctions. Once again, as I have criticized time and time again, the court does nothing to deter the type "egregious" conduct that it complains about.
Interestingly, there was another aspect of the prosecutor's presentation to the jury that the court commented on. The prosecutor used a "slide show" (presumably something like PowerPoint) in which it showed the jury the improper statements.
This is interesting because the use of PowerPoint has attracted some attention lately. The Marshall Project has an interesting post on this new trend. According to the article,
The Legal Profession blog has a note on the most recent example here. It involves a case where the conviction (for the murder of four police officers) was reversed because the prosecutor misstated the law to the jury five times during closing argument, and then again during the rebuttal argument. Although the court easily finds that the prosecutor's statements were improper, and at one point states that "the misconduct by the State is particularly egregious", it does not attempt to determine whether they were the result of negligence, incompetence or intent and does not make a recommendation for sanctions. Once again, as I have criticized time and time again, the court does nothing to deter the type "egregious" conduct that it complains about.
Interestingly, there was another aspect of the prosecutor's presentation to the jury that the court commented on. The prosecutor used a "slide show" (presumably something like PowerPoint) in which it showed the jury the improper statements.
This is interesting because the use of PowerPoint has attracted some attention lately. The Marshall Project has an interesting post on this new trend. According to the article,
At least 10 times in the last two years, US courts have reversed a criminal conviction because prosecutors violated the rules of fair argument with PowerPoint. In even more cases, an appellate court has taken note of such misconduct while upholding the conviction anyway or while reversing on other grounds ... . Legal watchdogs have long asserted that prosecutors have plenty of ways to quietly put their thumb on the scales of justice ... Now they can add another category: prosecution by PowerPoint. “It’s the classic ‘A picture is worth a thousand words,’” said Eric Broman, a Seattle attorney who focuses on criminal appeals. “Until the courts say where the boundaries are, prosecutors will continue to test the boundaries.”The article explains how PowerPoint has been used in many of these cases and includes photos of the more problematic slides. You can read the full article here.
Wednesday, January 14, 2015
Former prosecutor sues DA's office claiming he was fired for refusing to act unethically
A man who worked for several years as a prosecutor in Corpus Christi, Texas is suing the District Attorney's office arguing that he was fired because he refused to act unethically.
According to this story aired in Action News 10 and published here, the prosecutor says he lost his job for following his duty under the law. According to the complaint (as explained in the story), when the prosecutor uncovered a witness who had the potential to help someone he was prosecuting, his bosses told him not to share the information with the other side. Instead, the prosecutor called the State Bar of Texas for an opinion which confirmed he had a duty to disclose the information. Following his duty, however, the prosecutor told his supervisors he was going to disclose the witness and was fired the morning of the trial.
According to this story aired in Action News 10 and published here, the prosecutor says he lost his job for following his duty under the law. According to the complaint (as explained in the story), when the prosecutor uncovered a witness who had the potential to help someone he was prosecuting, his bosses told him not to share the information with the other side. Instead, the prosecutor called the State Bar of Texas for an opinion which confirmed he had a duty to disclose the information. Following his duty, however, the prosecutor told his supervisors he was going to disclose the witness and was fired the morning of the trial.
Thursday, January 8, 2015
Bar counsel taking plea deals to avoid disbarment? What would you do?
Mike Frisch (Georgetown) who runs the Legal Profession blog has posted a great question:
You are Disciplinary Counsel in your jurisdiction. You have completed an investigation and believe you have persuasive evidence that the Respondent attorney has engaged in acts that amount to intentional misappropriation of entrusted funds.
The presumptive sanction for such misconduct in your jurisdiction is disbarment absent extraordinary circumstances. Disbarment, in functional effect, is a five-year suspension with any reinstatement conditioned on proof of the Respondent's present fitness to practice law.
Respondent, through counsel, approaches you with an offer to consider. The attorney tells you that the Respondent knows he likely will eventually be disbarred. Respondent is 67 years old and wishes to retire without the stigma of disbarment. He offers to immediately accept a three-year consent suspension with any possible reinstatement conditioned on proof of fitness.
You know (1) that a fully litigated case might take five years or longer to result in disbarment, (2) the three-year suspension will mean there is virtually no possibility of actual reinstatement in less than five years, and (3) the earliest that an interim suspension will be imposed is when there is a board report that approves a hearing committee finding of the charged misconduct. That happy event is likely at least two to three years away.
So, you can get Respondent out of the practice today. He accepts the functional equivalent of the most severe sanction but avoids the Mark of Cain. He may (but then, may not) try to get his license restored someday.
Do you take the deal if your system gives you the authority and responsibility to do so? If your system does not permit a consent disposition under these circumstances, is there something wrong with your system?
Please go here to post your comments on this question.
As for me, I think I would take the deal because under the circumstances it would likely result in the equivalent of permanent disbarment (given the attorney's age and plans to retire). Others might disagree and I am willing to be convinced I am wrong...
To me, the worst part of the scenario is the fact that disbarment is only the equivalent of a five year suspension. If it were up to me, disbarment would always be permanent.
You are Disciplinary Counsel in your jurisdiction. You have completed an investigation and believe you have persuasive evidence that the Respondent attorney has engaged in acts that amount to intentional misappropriation of entrusted funds.
The presumptive sanction for such misconduct in your jurisdiction is disbarment absent extraordinary circumstances. Disbarment, in functional effect, is a five-year suspension with any reinstatement conditioned on proof of the Respondent's present fitness to practice law.
Respondent, through counsel, approaches you with an offer to consider. The attorney tells you that the Respondent knows he likely will eventually be disbarred. Respondent is 67 years old and wishes to retire without the stigma of disbarment. He offers to immediately accept a three-year consent suspension with any possible reinstatement conditioned on proof of fitness.
You know (1) that a fully litigated case might take five years or longer to result in disbarment, (2) the three-year suspension will mean there is virtually no possibility of actual reinstatement in less than five years, and (3) the earliest that an interim suspension will be imposed is when there is a board report that approves a hearing committee finding of the charged misconduct. That happy event is likely at least two to three years away.
So, you can get Respondent out of the practice today. He accepts the functional equivalent of the most severe sanction but avoids the Mark of Cain. He may (but then, may not) try to get his license restored someday.
Do you take the deal if your system gives you the authority and responsibility to do so? If your system does not permit a consent disposition under these circumstances, is there something wrong with your system?
Please go here to post your comments on this question.
As for me, I think I would take the deal because under the circumstances it would likely result in the equivalent of permanent disbarment (given the attorney's age and plans to retire). Others might disagree and I am willing to be convinced I am wrong...
To me, the worst part of the scenario is the fact that disbarment is only the equivalent of a five year suspension. If it were up to me, disbarment would always be permanent.
Sunday, January 4, 2015
Four things the next attorney general needs to know about the indigent defense crisis in the U.S.
The Sixth Amendment Center, a non-profit organization founded to assist states and local governments in meeting their constitutional obligation to provide competent counsel to the indigent accused, has posted an important comment on the indigent defense crisis in the United States. You should read it here.
Top Professional Responsibility Stories of 2014
Tuesday, December 23, 2014
NY State Bar issues opinion on whether an attorney can disclose confidential information in order to rebut comments by a client on a website
A couple of months ago, the New York State Bar Association
Committee on Professional Ethics
issued an opinion on an interesting question: “When a lawyer’s former client posts accusations about the lawyer’s
services on a website, may the lawyer post a response on the website
that tends to rebut the accusations by including confidential
information relating to that client?”
Holding that the "self-defense" exception to the duty of confidentiality does not apply to this type of case, the Committee answered "no." You can read the opinion (Opinion 1032 (10/30/2014)) here. The Committee finds that the "self-defense" exception should be limited to cases involving allegations of lawyer wrongdoing in formal proceedings such as legal malpractice or other civil actions, disqualification proceedings, or sanctions motions.
The result seems sensible to me. An ttorney would not be allowed to discuss confidential information about this matter with another person (say, someone who read the review and asks the attorney about it), so it would make sense the attorney can't disclose the information to the world at large. In both instances, the attorney is not "defending" against an action by the client but addressing comments made by the client. Take the website aspect out the equation and what you have is a former client talking to others and the attorney wanting to take a chance to give his/her side of the story to the same audience. The attorney is free to do so, but can't disclose confidential information in the process.
The fact the comments are "published" (on the website) and can reach a much wider audience should not change the analysis. The Committee suggested, however, that the answer might be different if client had somehow waived his expectation of confidentiality by posting the comments. The Committee did not address that possibility because question was not presented by the facts before the committee.
h/t The Lawyers Ethics Alert Blog
Holding that the "self-defense" exception to the duty of confidentiality does not apply to this type of case, the Committee answered "no." You can read the opinion (Opinion 1032 (10/30/2014)) here. The Committee finds that the "self-defense" exception should be limited to cases involving allegations of lawyer wrongdoing in formal proceedings such as legal malpractice or other civil actions, disqualification proceedings, or sanctions motions.
The result seems sensible to me. An ttorney would not be allowed to discuss confidential information about this matter with another person (say, someone who read the review and asks the attorney about it), so it would make sense the attorney can't disclose the information to the world at large. In both instances, the attorney is not "defending" against an action by the client but addressing comments made by the client. Take the website aspect out the equation and what you have is a former client talking to others and the attorney wanting to take a chance to give his/her side of the story to the same audience. The attorney is free to do so, but can't disclose confidential information in the process.
The fact the comments are "published" (on the website) and can reach a much wider audience should not change the analysis. The Committee suggested, however, that the answer might be different if client had somehow waived his expectation of confidentiality by posting the comments. The Committee did not address that possibility because question was not presented by the facts before the committee.
h/t The Lawyers Ethics Alert Blog
NY Times and ABA Journal on the interview with Robert McCulloch
Yesterday, I commented on the recent interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri, in which he seems to admit to having used perjured testimony. Today, the New York Times and the ABA Journal picked up the story (here and here). Both mentioned the fact that McCulloch admitted to allowing a certain witness to testify even though he "was sure" she was not telling the truth.
Again, if the prosecutor was "sure" the witness was not telling the truth, then why is allowing her to testify not a violation of the duty not to present false evidence? Is saying that he was sure she was lying the same as saying he "knew" she was lying? Or, is saying that he was sure simply saying that he strongly suspected that the witness was lying, but did not actually know it?
If it is the former, he admitted to violating the rules. If it is the latter, he did not.
Again, if the prosecutor was "sure" the witness was not telling the truth, then why is allowing her to testify not a violation of the duty not to present false evidence? Is saying that he was sure she was lying the same as saying he "knew" she was lying? Or, is saying that he was sure simply saying that he strongly suspected that the witness was lying, but did not actually know it?
If it is the former, he admitted to violating the rules. If it is the latter, he did not.
Monday, December 22, 2014
Federal District judge finds that certain aspects of the Florida rules regarding advertising violate First Amendment
Almost exactly one year ago, I reported on a challenge to the advertising rules in Florida (here). Coincidentally, just a few days ago, the Lawyers Ethics Alerts blog reported that a Federal Southern District Judge issued an opinion (apparently in a different case) granting summary judgment in favor of those challenging the rule (and against the Florida Bar) and enjoining the Bar from enforcing it. The case is Robert Rubenstein v. The Florida Bar. You can read the order/injunction here.
Sunday, December 21, 2014
Did the St. Louis County prosecutor admit to a violation of the rule regarding perjury?
This discussion starts at the 9 minute mark of the recording. The interviewer asks "Why did you allow people to testify in front of the grand jury in which you knew their information was either flat-out wrong, or flat-out lying, or just weren't telling the truth?" In response, McColluch is vague as to whether he agrees with the premise of the question (that he knew some of the witnesses were not telling the truth), but later he specifically says it was clear some of the witnesses were not telling the truth and, further, admits that he would not normally use witnesses like those - that he did that specifically for this one case. Later he adds that he was "absolutely sure" that some witnesses lied under oath, but that he would not seek perjury charges (at minute 16:15 or so).
Was that an admission that he knowingly presented false evidence/perjured testimony?
Are the rules related to grand juries so different that they allow the knowing use of false evidence in an effort to have the jury assess credibility? That is how McCulloch tries to explain his conduct. He states that "I knew that no matter how I handled it, there would be criticism of it. So if I didn't put those witnesses on, then we'd be discussing now why I didn't put those witnesses on. Even though their statements were not accurate. So my determination was to put everybody on and let the grand jurors assess their credibility, which they did. ...I wanted to put everything on there. I thought it was much more important to present everything and everybody, and some that, yes, clearly were not telling the truth. No question about it."
If the prosecutor was so concerned with how "we'd be discussing now why I didn't put those witnesses on," let try this on for size: How about stating "because I have an ethical obligation not to put those witnesses on the stand. Those witness are lying and the system can't function if we allow prosecutors to knowingly use false evidence." That wouldn't be so difficult, would it?
I understand the prosecutor's decision to allow the witnesses to testify if he merely believed, but did not know, that they were lying. That essentially means he thought they had poor credibility and that it would be better to let the jury assess that credibility. Allowing witnesses to testify when you have doubts as to whether they are telling the truth (as long as there is no knowledge) is not a violation of the rules. But the prosecutor here used different language. He essentially said he knew they were lying. Once you have knowledge, the rule is clear.
Maybe the prosecutor meant the former but said the latter. Otherwise, I think he admitted to using false evidence. I should clarify that this is not an admission of suborning perjury because suborning suggests he encouraged the witness to lie. Here what he seems to admit to is allowing someone to testify falsely when he knew they were lying. That is not suborning perjury but it is knowingly using false evidence which is a violation of Rule 3.3.
In the end, the question is whether the comments should be interpreted to mean he knowingly violated the rules or that he merely had doubts as to the credibility of the witnesses and allowed the jury to decide, which would not be a violation of the rules.
Here is the video:
Friday, December 12, 2014
Richard Zitrin on what's going on in California
Richard Zitrin (UC Hastings) has published a column in The Recorder on what has been happening in California. As you know, not too long ago, the state's supreme court rejected a proposal to substantially change the state's rules of professional conduct. This was followed by the dismissal of a member of the Board of the State Bar, who followed up with a lawsuit. It is quite an intriguing story. You can read the article here.
Debate on the need for special prosecutors
A couple of days ago I posted a link to an article discussing prosecutorial discretion and what The New York Times called a "prosecutor's inherent conflict of interest" in cases that involve the possible indictment of police officers. I also posted a link to a discussion in the Legal Ethics Forum on whether the prosecutor in Ferguson, Missouri had a conflict of interest.
As part of that discussion, many are calling for the use of special prosecutors in cases involving police officers. The New York Times' Room for Debate has published five short comments on this issue here.
As part of that discussion, many are calling for the use of special prosecutors in cases involving police officers. The New York Times' Room for Debate has published five short comments on this issue here.
On using the phrase "and associates" when in fact the attorney does not have any associates
I have mentioned in the past that the use of the phrase "and associates" in a firm name can be found to be misleading when, in fact, there are no associates. I doubt a lawyer would be sanctioned just for that reason, but it has been discussed as a violation of the rules in cases where the attorneys violated a number of rules. For example, see Virginia State Bar v Head.
In that same context, Eric Turkewitz of the New York Personal Injury Blog is reporting that a recent case in New York listed the use of "and associates" as a violation of NY rule 7.5, as part of a list of violations discussed in the case. The case is Matter of Cardenas and you can read it here.
In that same context, Eric Turkewitz of the New York Personal Injury Blog is reporting that a recent case in New York listed the use of "and associates" as a violation of NY rule 7.5, as part of a list of violations discussed in the case. The case is Matter of Cardenas and you can read it here.
California joins Massachusetts and Georgia holding the intra firm communication is privileged in case against the firm by former client
Back in July 2013, the Massachusetts Supreme Court held that confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by one of the firm's clients are protected from disclosure to the client by the attorney-client privilege. Shortly after that, Georgia issued an opinion agreeing with this position. A strong debate followed (see here and here). Oregon was next, and the debate continued.
And now, California Supreme Court has joined the list of jurisdictions recognizing the applicability of the privilege: "The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications." The decision is called Palmer v. Superior Court and you can read it here. Go here for a little more information.
And now, California Supreme Court has joined the list of jurisdictions recognizing the applicability of the privilege: "The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications." The decision is called Palmer v. Superior Court and you can read it here. Go here for a little more information.
Attorney sues disciplinary board alleging the board has been engaging in unethical conduct
In an interesting turn of events, the Legal Profession blog is reporting that two Nashville lawyers are suing the Tennessee ethics board for what they call ethical violations and a cover-up.
Article on prosecutorial discretion
Here is an interesting article on prosecutorial discretion called Prosecutorial Discretion Under Fire: The Common Thread in the
President’s Executive Action on Immigration and the Non-Indictment in
the Michael Brown Case by Michael C. Dorf (Cornell). You can also listen to the article here (press the "play" triangle button).
Tuesday, December 9, 2014
New York Times article on what it calls a prosecutor's "the inherent conflict of interest"
About two weeks ago, I posted a link to a comment on whether the prosecutor in Ferguson, Mo., had acted unethically because of a conflict of interest. See here. Yesterday, the New York Times published an editorial on the issue. It starts as follows:
It is a long-established and basic reality of law enforcement in America: Prosecutors who want an indictment get an indictment. In 2010 alone, federal prosecutors sought indictments in 162,000 cases. All but 11 times, they succeeded.You can read the full article here.
Yet the results are entirely different when police officers kill unarmed civilians. In those cases, the officers are almost never prosecuted either because district attorneys do not pursue charges in the first place or grand juries do not indict, as happened most recently in Ferguson, Mo., and Staten Island.
There are various explanations for this, but the most obvious is the inherent conflict of interest that exists for prosecutors, who rely heavily on the police every day. Cops arrest suspects; they investigate crimes; they gather evidence; and they testify in court, working essentially in partnership with prosecutors.
Whether or not bias can be proved in a given case, the public perception of it is real and must be addressed.
The best solution would be a law that automatically transfers to an independent prosecutor all cases in which a civilian is dead at the hands of the police. This would avoid the messy politics of singling out certain district attorneys and taking cases away from them.
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