Want to help the economy? Don't cut legal aid

Over at Above the Law, David A. Lash, the Managing Counsel for Pro Bono and Public Interest Services at O’Melveny & Myers LLP, has published a short article on the importance of supporting legal aid.  In it, he argues that "allocation of funding for legal aid is a wise investment. In addition to the lives it saves, investment in lawyers for the poor, on a strictly economic, cost-benefit analysis, is an investment worth making. For every dollar spent in support of legal services, an astonishing rate of return results. By any measure, an investment yield of ten-to-one is an investment worth making."

You should read the article here.

Court of Appeals for the Second Circuit rejects argument that rules that ban lawyers from raising capital from non lawyers are unconstitutional -- UPDATED

In an important and highly anticipated opinion, the Court of Appeals for the Second Circuit has rejected an argument against the rules of professional conduct which ban lawyers from accepting capital investment from non-laywers.  In this particular case, the specific rules challenged were those of the state of New York, but the reasoning of the court is likely to influence courts in other jurisdicitons.

The ruling is a big blow to those who have been proposing adopting different rules, now in use in the UK and Australia, that would allow lawyers to practice law through "alternative business structures."

On the other hand, the ruling should not be unexpected since the American legal profession has proven to be very reluctant to adopt such a view.  There is a lot of literature about this and it was the hot issue in Professional Responsibility circles for the last couple of years. 

Many thought the ABA was ready to point the way toward change when, in 2014, it created the Commission on the Future of Legal Services and charged it with the task of studying how legal services are delivered in other countries and of recommending innovations that would improve the delivery of, and the public’s access to, legal services in the United States.

Yet, when the Commission presented its final report at the 2016 ABA Annual Meeting it essentially merely encouraged states to “explore how legal services are delivered by entities that employ new technologies and internet-based platforms and then assess the benefits and risks to the public.”  As for the notion of alternative business structures, the Commission’s report’s language was even more tentative, merely stating that “[c]ontinued exploration of alternative business structures will be useful.”  For my comment on the Commission's report go here.  I also have a short article on the debate regarding the future of the profession in 41 Journal of the Legal Profession 1 (2016).

Not content on waiting for the ABA to act, the law firm Jacoby & Meyers, challenged the constitutionality of a collection of New York regulations and laws that together prevent for‐profit law firms from accepting capital investment from non‐lawyers.

In its opinion rejecting the argument, the court explained that the law firm alleged that, if they were allowed to accept outside investment, they would be able to—and would—improve their infrastructure and efficiency and as a result reduce their fees and serve more clients, including clients who might otherwise be unable to afford their services, and that the challenged rules unconstitutionally infringe the firm's rights as lawyers to associate with clients and to access the courts—rights that are grounded, they argue, in the First Amendment.

The District Court dismissed the complaint, concluding that the firm failed to state a claim for violation of any constitutional right and that, even if such rights were to be recognized, the challenged regulations withstand scrutiny because they are rationally related to a legitimate state interest.

The Court of Appeals agreed and affirmed.  You can read the full opinion here.

UPDATE (3-28-17):  The ABA Journal has a short post on the story here.  The NY Personal Injury Blog has a comment here.

Yet another case on whether a fee sharing contract that does not follow the rules can be enforced

A few days ago I posted a note about a recent case on the issue of whether a fee sharing contract that does not strictly meet all the requirements of the rules of professional conduct can be enforced.  Since then, I have learned that the issue is currently under review by the Illinois Supreme Court.  You can listen to the oral argument here.

This is an interesting question and there are a few cases out there on the subject.  I will write a longer comment on the case soon.

Is a fee sharing contract that violates the rules of professional conduct enforceable?

A few years ago I reported on an Illinois case that held that a contract that violated the rules of professional conduct could not be enforceable.  I did not like the decision, and my comments on it are here.

I was reminded of this case because just a couple of days I ago I read that a court in Washington DC recently reached a different result.  The Legal Profession blog has a report here.

ABA is seeking comments on proposal to amend advertising and solitication rules -- UPDATED

Feb. 24, 2017 
The ABA Standing Committee on Ethics & Professional Responsibility is currently accepting comments on APRL’s comprehensive proposal which seeks to standardize the rules and focuses regulation on false and misleading communications about legal services. It includes amendments to Model Rules 7.1, Communications Concerning a Lawyer’s Services; 7.2, Advertising; 7.3, Solicitation of Clients; 7.4, Communications of Fields of Practice and Specialization; and 7.5, Firm Names and Letterheads. The APRL proposal can be found here.  For more information, go to the ABA website here.

UPDATE (3-11-17):  The Illinois Supreme Court Commission on Professionalism has published an article summarizing the debate on this issue here.

Tennessee adopts duty of competence regarding "technology"; Two recent articles explore the meaning of such a duty

Last week, the Supreme Court of Tennessee issued an order adopting a number of amendments to the state's rules of professional conduct, including adopting a duty of technology competence.  Twenty seven states have now adopted such a duty.  Law Sites has more details here.

Meanwhile, Law Technology Today has published a two part article on the ethical duty of technology competence.  Part I is here; Part II is here.

New Ohio opinion reminds us of the difference between fees and expenses

The Ohio Board of Professional Conduct recently issued an advisory opinion on lawyer advertising that emphasizes the need to be clear about the difference between fees and expenses.  The opinion, Advisory Opinion 2017-01, states that lawyers who provide services on a contingent fee basis may not use statements such as “There’s no charge unless we win your case,” or “No fee without recovery,” if the lawyer intends to recover the value of litigation costs and expenses from the client. If a lawyer intends to recover advanced costs and expenses of litigation from the client, a disclaimer is required in the advertisement that explains the client’s obligations for repayment.

California Committee issues final draft of opinion on whether blogs are subject to advertising rules

Legal Ethics in Motion is reporting that the California Standing Committee on Professional Responsibility and Conduct has finalized an opinion on whether attorney-authored blogs should be governed by the advertising regulations. The Committee concluded that blogs should be governed as attorney advertising if the blog directly or indirectly expresses the attorney’s availability for professional employment. Thus, a blog that is a part of a firm’s professional website is governed by the advertising guidelines.  “Stand-alone” blogs, or blogs that exists independently of any website an attorney maintains or uses for professional marketing purposes, are also subject to the rules if its content has the same effect as professional blogs.  For more information go here.

New York State Bar Association launches new platform to provide better access to legal representation

The New York State Bar Association, and Legal.io, a developer of referral-network and marketplace platforms for the legal industry, have teamed up to launch a state-of-the-art lawyer referral platform that they say will significantly expand access to legal services in that state.  Interestingly, the developers of this new platform have been reported to describe it "as a more ethical alternative to privately run referral sites such as Avvo..." It will serve New York residents seeking legal help as well as businesses anywhere seeking advice on New York law.  Law Sites has more information here.

Judge finds party waived privilege by placing information on unprotected file sharing website

Earlier this month a federal magistrate judge in Virginia held that placing privileged materials on an unprotected file-sharing site waived a plaintiff's attorney-client privilege and work product protection for those materials.  The case is called Harleysville Ins. Co. v. Holding Funeral Home, Inc.  (also here).  For more details, go to 33 Law. Man. Prof. Conduct 76.  The ABA Journal has more information here.

Although some jurisdictions are divided on the issue of whether accidental disclosure automatically waives the privilege, in this case the judge held that the party's actions "were the cyber world equivalent of leaving its claims file on a bench in the public square and telling its counsel where they could find it. It is hard to imagine an act that would be more contrary to protecting the confidentiality of information than to post that information to the world wide web."

Legal ethics professors file disciplinary complaint against Kellyanne Conway - UPDATED

If you saw the original story, scroll down to the end for an update:

I am sure you have heard by now that fifteen professors of legal ethics have sent a letter to the Washington DC Office of Disciplinary Counsel arguing that Kellyanne Conway has incurred in multiple violations of Rule 8.4(c) which recognizes as misconduct engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

The complaint has sparked a spirited debate among ethicists and other commentators. It certainly dominated the discussion for most of the day yesterday in the listserv of the Association of Professional Responsibility Lawyers.

Some of the debate has centered on whether the complaint has any basis in the rules [it does]; whether the rule is (or should be considered to be, rather) unconstitutional [it hasn't and there is precedent in many jurisdictions to suggest it wouldn't] and whether the bar has the authority to regulate Conway's conduct since it was not in the practice of law [there is precedent in many jurisdictions to support the view that it does].  Also, a separate question is whether the bar would (or should) spend resources on a complaint based on these types of allegations.

Given that the answer to that last question is that disciplinary agencies usually do not go after lawyers for relatively "minor" and or "private" instances of dishonesty, the issue depends on how important you think Conway's conduct (or alleged misconduct) really is. 

I am sure that if you "google" (a word that is now a verb) the story, you will find a lot of comments.  Here are just a few:

You can read the complaint itself here.

The Washington Post reports the story here.

Above the Law has a short statement that starts "It’s becoming increasingly likely that Kellyanne Conway isn’t a real person so much as a Professional Responsibility issue-spotter made flesh. Between making up terrorist attacks or shilling Ivanka’s crummy baubles or generally degraded political discourse by treating it like a criminal trial, Kellyanne’s had a busy month of run-ins with the generally accepted principles of legal ethics." 

Jonathan Turley argues the complaint is not justified and lacks credibility.

Attorney Paul Alan Levy criticizes the complaint on First Amendment grounds here.

The ABA Journal reports here.

UPDATE (2/27/17):  Professor Steven Lubet, a Legal Ethics professor at Northwestern, criticizes the complaint here. 

Metadata Fair Game in Texas?

As reported in Legal Ethics in Motion, a recent opinion of a Texas bar panel concludes that there is no duty to inform opposing counsel that that opposing counsel sent a document containing metadata.   Moreover, Texas rules do not prohibit searching for and extracting metadata from documents. Of the nineteen jurisdictions that have issued opinions with specific requirements regarding attorneys’ obligation when transmitting or receiving documents containing metadata, Texas is only the third state to opine that its rules do not require notification to the sender of the document.

For a current survey of the state of the law regarding metadata, check out this page in the ABA's website.  For more on the opinion in Texas, go here.

Illinois State Bar Association issues Opinion on using cloud services to store client information

Back in October, the Illinois State Bar Association (ISBA) issued a Professional Conduct Advisory Opinion stating that a lawyer may use cloud-based services to store client information as long as the lawyer takes reasonable measures to ensure that the client information remains confidential and is protected from breaches.

Carefully choosing an internet cloud space provider is, of course, the first step a lawyer must take in order to comply with the duty.  But, it is important to note that the opinion clearly states that a lawyer does not comply with the obligation to protect the client information by merely selecting (however carefully) a reputable provider.   Thus, the opinion concludes that lawyers must conduct periodic reviews and regularly monitor existing practices to determine if the client information is adequately secured and protected.  This means lawyers can not simply rely on the providers, the lawyers themselves must do something.  And to do something, the lawyers must know what it is they are dealing with.  As I say to my students, lawyers must become personally knowledgeable in computer science of employ someone who is.

States continue to adopt the ABA's suggested language on a duty of competence related to "technology" and this opinion, obviously, follows the trend.  All lawyers are now expected to know about, and understand, the advantages and the risks of using technological advances such as cloud storage.  As reported recently, Florida lawyers are now required to take CLE credits on technology issues.  As technology advances, lawyers are expected to keep up.

You can read the ISBA opinion here.  For information on the current state of the law regarding ethical issues and cloud computing, check out this page in the ABA's website.

Thanks to Ethics in Motion for the update and the link.

Florida adopts duty of technology competence and a requirement regarding technology CLE -- Updated

October 1, 2016. 
Last week the Supreme Court of Florida became the 25th state to adopt the duty of technological competence that the ABA adopted in its recent amendments to the Model Rules.  That's not terribly surprising as the language of the Model Rules usually eventually finds its way into state rules.

However, the Florida Supreme Court did go a bit further.  As explained by the court, the amendment "add[s] language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.

Go here for more information and a copy of the Court's order.   The ABA Journal online also has the story here.

Interestingly, once it is decided that having knowledge about technology is part of the duty of competence, it follows that it will become an element of the standard of care for malpractice cases. 

UPDATE 2/12/17:  The ABA Journal has a story here.

A recently launched company helps consumers find lawyers based on their win rates

Law Sites has a story and a critique of a recently launched company helps consumers find lawyers based on their win rates.  The ABA Journal also has the story here.  Although I believe the company is genuinely trying to provide access to lawyers for people who don't necessarily know how to find a good lawyer, I think this approach is, to put it mildly, dumb.  Maybe with some major changes they can come up with something that will provide better information for consumers, but the initial idea does not make much sense to me.

The first time the idea was discussed, about a year ago, when a different company proposed the same approach, it was received with negative reviews and the company abandoned the idea.

There are many reasons why using "winning records" as a measure of attorney quality.  First, not all legal services can be measured in terms of wins and losses.  Second, the vast, VAST, majority of cases don't go to trial, so any win-loss records based on trial results only measures a minimally small number of litigated cases.  Third, in those cases that settle, both clients can easily feel they got a "win" when their lawyers exceed their expectations as to the terms of the settlement.  An approach to measuring skill based on winning records does not take into account negotiation skills which, needless to say, are important in litigation. A defendant's lawyer who gets a settlement that saves the client a lot of money may be much more skilled than a plaintiff's lawyer who claims to have "won" the settlement. Simply stated "winning" or "losing" if it can be identified as an actual result to begin with, is not a reliable measure of lawyering skill. Providing consumers with such limited and misleading information may actually be counterproductive. 

Ethical Considerations When Switching from Criminal Defense to the Prosecution

Here is a new short article on ethical considerations when switching from criminal defense to the prosecution published by the New York Legal Ethics Reporter.

Ethical Implications of Emergent Technologies

Last week I discussed the comment to Model Rule 1.1 which makes it an element of the duty of competence to understand, and stay current on, issues related to "technology."  As if on cue, yesterday the New York Legal Ethics Reported posted a short article with an update on some of the issues.  So, to help you comply with your duties under MR 1.1, here is the link.  You are welcome!

ABA approves new rule on CLE

Just a few days ago, the ABA House of Delegates adopted a new Model  Rule  for  Minimum Continuing Legal Education (MCLE).  You can find the text of the rule and the report in support of the proposal here.

Idaho Supreme Court abandons actual innocence requirement for legal malpractice actions against former criminal defense attorneys

Just about a year ago I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  A few months later, however, the Washington State Supreme Court reversed the trend by adhering to the majority view and holding that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.

Now comes news that last week the Idaho Supreme Court has abandoned the actual innocence rule in a case called Molen v. Christian.  In part, the court concluded:

We hold that actual innocence is not an element of a criminal malpractice cause of action. Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the fundamental principle that a person is presumed innocent until proven guilty beyond a reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or she incurs as a result of being guilty of a crime. . . .  Additionally, as a practical matter, requiring actual innocence would essentially eliminate a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty. For the foregoing reasons, we hold that actual innocence is not an element of a criminal malpractice cause of action.

This means that three of the last four jurisdictions to consider the issue have rejected the majority approach, which makes me wonder if what is the majority has now shifted.  I have not done a state by state survey recently, so I don't know for sure.  However, I have not read anyone make that claim yet, so I assume the majority approach is still to require a showing of actual innocence.  If someone has information about the actual count of how many states follow each approach, please let me know. 

Illinois Supreme Court adopts 'proactive management-based regulation'

Yesterday, the Illinois Supreme Court announced rule amendments that make Illinois the first state to adopt so-called “proactive management based regulation” (PMBR), a system designed to prevent ethical missteps by requiring lawyers without malpractice insurance to review their operations. For the text of the changes, see Amended Rule 756(e).  The Illinois State Bar Association website has more detailed information about the program here.

Forthcoming law review article on the need to re think norms, duties and the notion of value in legal services

Readers of the blog might be interested in this forthcoming law review article: Restraining Lawyers: From 'Cases' to 'Tasks' by Morris Ratner from the University of California Hastings College of the Law, which will be published by the Fordham Law Review. Here is the abstract:

Developments in the domains of procedure and private contract highlight a continuing shift in authority away from lawyers and towards courts and clients accomplished by a conceptual downshift from “cases” to “tasks.” The 2015 amendments to the Federal Rules of Civil Procedure limit attorney and party discretion by further empowering the trial court judge to dissect, assess the value of, and sequence case activity, including discovery. At the same time, in the private sphere, sophisticated clients aided by advances in project and information management are controlling legal spend by unbundling cases into tasks. From that position, they can source projects to low-cost providers. Clients are also increasingly demanding litigation budgets and seeking value-based pricing, both of which work best if there is heightened communication between lawyer and client regarding the means to be pursued to achieve litigation aims. These regulatory and market restraints on lawyers and lawyer-driven adversarialism, while pointing in a similar direction, differ fundamentally in terms of their reach, efficacy, and fairness. Despite their differences, these developments in tandem have the potential to inspire the creation of new norms and duties calling on litigators to think more deeply and inclusively about the value of litigation tasks from the perspective of court and client.

ABA Center for Innovation is now accepting applications for its fellowship program

The ABA Center for Innovation, about which I wrote not too long ago here, is accepting applications for its inaugural fellowship program.  As reported in the ABA Journal:  "Open to both newly minted lawyers and mid-career professionals outside the law, the program seeks applications and proposals to create or develop projects to improve the legal industry. Those who wish to apply should have an idea that bridges the access-to-justice gap in the U.S.; utilizes technology to deal with a vital legal need; designs or builds a more effective way of delivering legal services; provides the public with easier access to legal information; reduces the backlog of cases in various courts throughout the country; creates tools that allow lawyers to better represent their clients; or helps pro se litigants represent themselves more effectively. The deadline for applicants is Jan. 31."

"Innovation," as you may recall, was my pick for the hot topic of the year last year -- a claim I spoke about at the International Legal Ethics Conference in New York last summer.  But, as I discussed during that presentation, the concept is too broad and often used to mean different things.  For my posts on all topics somehow related to the issues raised by the concept of innovation, you can go here and scroll down.

Pennsylvania rejects ABA Rule 8.4(g) approach to regulation of discriminatory conduct and proposes new rule similar to the one in Illinois

Just a few minutes ago I posted an item on the much discussed newly adopted ABA Model Rule 8.4(g), and then I found this new bit of news:  Last month the Pennsylvania Disciplinary Board proposed an amendment to the state's Rule 8.4 to address the issue of discriminatory conduct.  Interestingly, however, the proposal actually rejects the ABA Model Rule and proposes instead the approach currently in place in Illinois.  The proposal would amend the current rule to make it misconduct to "violate a federal, state or local statute or ordinance that prohibits discrimination based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status by conduct that reflects adversely on the lawyer's fitness as a lawyer."  This is the same language that has been in Illinois Rule 8.4(j) since 2010.

Obviously, the Illinois approach is much narrower than the new ABA Rule, but it avoids the potential problem of imposing discipline for engaging in constitutionally protected speech. Under the ABA rule, the disciplinary agency itself makes the determination of whether the lawyer committed discriminatory conduct. Under the Pennsylvania proposal, that conduct must violate an applicable law, and if there is a forum to make the determination of whether the lawyer committed a violation, that process must take place first. 

Texas Attorney General thinks new anti-discrimination Model Rule is unconstitutional

The ABA recently approved an amendment to Model Rule 8.4 to make it misconduct to use discriminatory or biased speech.  Back in January I wrote a long comment on the original proposal, which was changed before it was approved.  The approved version addressed some of the issues I had originally objected to, but I still have reservations about the approved language because it seems to punish protected speech.  You can read my most recent comments on it here,  here and here. 

Now comes news that the Texas attorney general has expressed the view that the rule is unconstitutional.  The rule has not yet been adopted in Texas.  The ABA Journal has more on the story here.

Recent article on the criminal justice system

For those of you interested in issues related to the criminal justice system, you may want to check out a new article by David Patton (NYU Law School) which will be published by the Cornell Law Review.  In addition to discussing policy and constitutional law, the author argues that there are serious ethical problems with the current system of federal judges administering the system of federal public defense.  Here is the full abstract:

Independence is a foundational requirement for any good system of public criminal defense. The Constitution guarantees anyone charged with a crime the right to a defense attorney regardless of ability to pay, and that attorney has the ethical obligation to provide a zealous defense, free from any conflicting outside influence. And yet the system of federal public defense is funded, managed, and supervised by the very judges in front of whom defenders must vigorously defend their clients. The arrangement creates serious constitutional, ethical, and policy problems. This Article proposes a solution: an independent federal defense agency. The agency proposed, the Center for Federal Public Defense (CFPD), would administer federal defenders’ offices, manage the system of appointed private attorneys, and seek funding from Congress for indigent defense services. The Article places the discussion of the proposed organization in the context of other independent agencies that do not fit neatly into a single branch of government, sometimes described as “boundary organizations.”  In many ways, federal public defense is ideally suited for placement outside of the formal branches of government. Many congressionally created independent organizations are structurally problematic because of separation-of-powers concerns that arise from the agencies’ enforcement or rulemaking authority. Federal public defense attorneys, however, neither make rules nor enforce them. And because of the nature of their work, they legitimately require insulation from direct government control — including from the Judiciary. In a criminal justice system that relies on its adversarial nature to function properly, it would be inconceivable to have judges decide who is hired in a prosecutor’s office, how much they should be paid, or how and whether prosecutors should investigate individual cases. It would be equally problematic to have the Judiciary act as the voice of the Department of Justice in Congress when explaining resource needs and seeking appropriations. And yet the Judiciary currently does all of those things with respect to the defense function. It should not, and the fix is straightforward: the creation of an independent defender organization.

You can download the full article here.

ABA Committee on Ethics and Professional Responsibility issues new opinion on safeguarding fees to be split with lawyers outside the firm

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Opinion (No.475) to explain the duties of a lawyer who receives earned fees that must be shared with a lawyer from another law firm.  According to the opinion, the lawyer who receives the money must take steps to appropriately safeguard the funds by placing them in an account separate from his or her own property.  The attorney must then promptly notify the other lawyer, promptly forward the agreed portion to the other lawyer, and provide an accounting if the other lawyer requests it.  The opinion is available here for a limited time.

Not all jurisdictions agree with the approach but it makes sense to me.  The alternative is to have the lawyer transfer the money to the lawyer's general account and then pay the outside lawyer with funds from there.  Either way, the money will be commingling with either clients' money or lawyer's funds for a period of time.

IPethics & INsights has a nice comment on the opinion and its applicability to IP practice here. The Lawyer Ethics Alert Blog also has a comment on the opinion here.

Comment on jury nullification

Above the Law has published an interesting take on the issue of jury nullification.  You can read it here.

New Mexico public defender held in contempt for refusing to take cases arguing high caseloads impede proper representation

New Mexico’s chief public defender has been found in contempt of court and fined $5,000 for refusing to provide lawyers to represent criminal defendants in five cases because of his office’s high caseloads.  The ABA Journal has the story here.  Simple Justice has a good comment about it here.

Short comment on the different approaches to ghostwriting

A few years ago, the issue of whether it was proper for an attorney to "ghostwrite" documents for pro se litigants was hotly debated.  Some jurisdictions took the position that it was ok, other required lawyers to disclose their role.  See here and here for example. 

I had not see much on the issue since then until a few days ago, when I saw a short comment in Lawyerist summarizing the state of the law.  You can read it here.

Pennsylvania adopts new rule related to counseling clients in marijuana business

The Legal Profession blog is reporting that the Pennsylvania Supreme Court has adopted an amendment to its rules to add a new subsection (e) to Rule 1.2, which states: "A lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client's proposed course of conduct." The rule adopted differs slightly from the proposed rule change published back in May. That original proposal allowed lawyers to counsel clients on conduct expressly permitted by the law of the state where it takes place or has its predominant effect. The adopted rule addresses only conduct permitted under Pennsylvania law.

As you may remember, several other states addressed the issue this year.  Ohio first banned lawyers from counseling clients, but later adopted a rule to allow it (see here and here).  Colorado amended the comment to its rules to address the issue.  See here and here.  For a general comment on the issue, go here.

California proposes change to rule regarding sex with clients

Model Rule 1.8(j) was adopted a number of years ago to regulate possible sexual relationships with clients.  It states that "a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced."   

The topic is now back in the news because a few days ago it was reported that California is considering adopting the Model Rule's approach to the question (as part of an overhaul of the state’s disciplinary rules).  The current rule in California bars lawyers from coercing sex with a client or demanding sex in exchange for legal representation.  For more details and links go to NPR, or the ABA Journal.  For a comment on the proposal go to Simple Justice.

The topic was also proved difficulty in Texas when it considered changes to the rules back in 2010.

My article on Avvo is now available

During the spring and summer I wrote an article on ethical issues related to joining Avvo Legal Services.  I started writing the article soon after Avvo announced the new service, and finished it before the recent ethics opinions from Ohio, South Carolina, and Pennsylvania.  Georgetown agreed to publish the original article, but because it took them a long time to get around to it I had the chance to update the draft a little bit based on the recent opinions.  Now the article is finally available.  You can go to the Georgetown website and read it or download it here. 

Utah Supreme Court dismisses professional responsibility concerns over case in which plaintiff and defendant were the same person

I recently read in the Legal Profession blog a summary of a recent decision out of the Utah Supreme Court with the oddest fact pattern I have seen all year, which provides an interesting discussion of issues related to the two courses I teach: Torts and Professional Responsbility.  The case is Bagley v. Bagley and you can read the full opinion here.

Here are the facts of the case: One day back in 2011, Ms. Barbara Bagley, the common law wife of Bradley Vom Baur, lost control of the car in which they were traveling. Mr. Vom Baur was thrown from the vehicle and sustained severe injuries due to which he died ten days later.  Eventually, in her dual capacities as sole heir and personal representative of the estate of Bradley Vom Baur, Ms. Bagley sued herself in an attempt to compel her insurance company to indemnify her.  Ms. Bagley was, therefore, the plaintiff and the named defendant in the lawsuit at the same time. 

Plaintiff Bagley brought her first cause of action pursuant to Utah’s wrongful death statute, alleging that Defendant Bagley (herself) negligently caused Mr. Vom Baur’s death, thereby depriving his sole heir (ie, Plaintiff Bagley herself) of Mr. Vom Baur’s love, companionship, society, comfort, care, protections, financial support, pleasure, and affection.

Plaintiff Bagley brought her second cause of action as the personal representative of Bradley Vom Baur‘s estate pursuant to Utah’s survival action statute, alleging that Defendant Bagley negligently caused Mr. Vom Baur to experience pain and suffering prior to his death, which entitles Mr. Vom Baur’s estate to damages such as funeral expenses and medical bills.

The trial court granted a motion to dismiss, but the court of appeals reversed. 

On these facts and based on the Court’s interpretation of the plain language of the two statutes, the Supreme Court affirmed the court of appeals and held that the “wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent’s death or injury.”

In the case before the Supreme Court Ms. Bagley as plaintiff and Ms. Bagley as defendant was (were?) represented by a different law firms, but the Utah Defense Lawyers Association filed an amicus curiae brief arguing that the case would have negative consequences on the practice of law and that it presented impermissible conflict of interest.  Among other things, the Association argued that the case “distorts the attorney-client relationship by creating a concurrent conflict of interest because “defense counsel’s representation of the client as the defendant is directly adverse to defense counsel’s representation of that same person who is also the plaintiff.”  It also argued that the conflict would affect an attorney’s ability to communicate with his or her client, because, among other things, the client knows that anything she reveals will be used against her.  Finally, the Association also raised concerns about jury confusion and the ability of an attorney to cross-examine his own client.

The Court admitted that the arguments “are not without merit” but dismissed them holding that the situation did not create a concurrent conflict because plaintiffs and defendant were acting “in different legal roles.”  (See footnote 37 of the opinion)

You can read the full opinion here.

District of Columbia Bar new opinions on social media use

The Legal Ethics Committee of the District of Columbia Bar has just issued two opinions on social media use.  Ethics Opinion 370 is available here.  Ethics Opinion 371 is available here.  The Legal Profession blog has a summary here.

Opinion 370, does not seem to add anything new.  It concludes that "a lawyer who chooses to maintain a presence on social media, for personal or professional reasons, must take affirmative steps to remain competent regarding the technology being used and to ensure compliance with the applicable Rules of Professional Conduct."

Opinion 371, on the other hand, provides more information and analysis in an attempt to provide  guidance about "advice and conduct by lawyers related to social media in the provision of legal services, including whether certain advice and conduct are required, permitted, or prohibited by the Rules."

One of my recent articles is now available online

My essay Through the Looking Glass in Indiana: Mandatory Reporting Child Abuse and the Duty of Confidentiality was recently published by Notre Dame and it is now available here.

Review of the state of the law on advanced conflicts waivers

IPethics & INsights has published two articles reviewing the current state of the law on advanced waivers.  Go here for part 1 and here for part 2.   Here is part of the introduction:

Some law firms try to avoid or limit their exposure to [conflicts of interests] by contracting with their clients to waive conflicts even before the facts giving rise to such conflicts are known either to the client or the law firm. Indeed, in large law firms that typically employ hundreds of lawyers in multiple offices around the globe, it is commonplace for their standard engagement agreements to include language in which the client agrees as part of the representation to waive in advance future conflicts of interest.

But are such “advanced waivers” ethical? It is one of the most vexing questions that has dogged law firms, regulators, and ethics counsel for years.

. . . . For lawyers who want a clear, definitive, black and white answer to the question of the legality and enforceability of advanced conflict waivers, unfortunately there is none. Ethics opinions and court rulings have created a patchwork of opinions. This lack of uniform treatment of advanced conflict waiver leads to unpredictability . . .  that most lawyers would rather avoid.

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I am happy to report that my humble blog is one of the finalists in the 2016 Best Legal Blog Contest.  But it now needs your help!   Please vote for it by going here.  Tell your friends!

To check other nominated blogs (in many different categories) and the vote totals go here.

Comment on the new ABA rule on CLE panels

In 2008, the American Bar Association adopted as a goal to work to "eliminate bias and enhance diversity” by promoting full and equal participation in the association, our profession, and the justice system by all persons by eliminating bias in the legal profession and the Justice System.

As part of that effort, the ABA in turn adopted a new mandatory rule for all ABA-sponsored continuing legal education programs to regulate the composition of panels of speakers.  Is this a good idea?  Professor Ronald Rotunda (Chapman) offers his view on the issue in his latest column at Verdict.

The Sixth Amendment Center analyzes the “Indiana Model” for providing right to counsel services

The Sixth Amendment Center has published two articles analyzing in detail Indiana's system for providing attorneys to indigent defendants.  It concludes the system does not work.  You can read the articles, and the report they are based on, here and here.

Podcast on the ABA Report on the Future of Legal Services

Last August I reported on the ABA Report on the Future of Legal Services and concluded that I was not impressed.  You can read my detailed reasons, and check out links to more information and comments here.

Today, the Legal Talk Network has posted a podcast discussing the report.  You can listen to it by pressing on the play button below.  If you can't see the button below, you can go here.

Here is the description of the program:

Many lawyers are familiar with the varied services and resources that the American Bar Association provides to their members around the country. In this episode of The Digital Edge, hosts Sharon Nelson and Jim Calloway talk with Vandenack Williams LLC. founder Mary Vandenack about the American Bar Association Future of Legal Services commission, the data found in that study, and how those findings can help lawyers improve and prepare for the future of law. Mary Vandenack served on the American Bar Association Commission on the Future of Legal Services and currently serves as co-chair on the Futures Taskforce and co-chair of the Economics and Technology Committee of the ABA Section of Real Property, Trust, & Estate Law.

Judge assigned to wrongful death case against Hilary Clinton steps aside and asks for case to be reassigned after allegations of forum shopping

Back in August I reported that the parents of two Americans killed in Benghazi, Libya, filed a lawsuit Hillary Clinton for wrongful death, alleging the 2012 attack "was directly and proximately caused" by the then-secretary of state's mishandling of government secrets.  I my post (here) I suggested the allegations in the complaint would be very difficult to prove and that there was a chance the case would be considered a frivolous lawsuit, in which case it should be dismissed and the lawyer should be sanctioned.

Now, a new report published in Politico (here) provides an interesting update on the story.  The judge who had been assigned the case decided to set aside and send the case back for reassignment.  It turns out the attorney who filed the case wanted that specific judge (a long time Clinton critic) and apparently tried to manipulate the system in order to get him.  According to the story, Clinton's lawyers filed a motion arguing, among other things that the plaintiffs' lawyer has a history of "judge shopping" and the judge gave up the case.

This new development adds to my concern over the plaintiffs' lawyer.  Did he first file a frivolous lawsuit and then try to manipulate the system in order to shop for the judge he wanted?   Will there be a hearing to discuss these questions?  Will the new judge impose sanctions?  Stay tuned...

California Appeals Court upholds disqualification of entire DA's office -- UPDATE

Back in March of 2015, I reported that a state judge in California removed an entire DA's office from a high-profile murder prosecution because prosecutorial misconduct had tainted the entire office’s handling of the case. The judge reassigned the case to the California attorney general, who appealed the ruling.  Go here for a New York Times article with more information on the original story.  The state legislature eventually adopted a statute to manage prosecutorial misconduct.  See here.

More than a year later, the California appeals court heard the oral arguments over whether the Orange County judge was right to remove the entire district attorney’s office.  The ABA Journal has more information here.

UPDATE (12/3/16):   In what the ABA Journal is calling a "blistering" and "sharply worded" ruling, the Court has upheld the order disqualifying the entire DA's office.  The opinion can be found here.

Pennsylvania Opinion finds participating in program like Avvo Legal Services to be unethical

For the third time in four months, a state bar ethics committee has warned attorneys that participating in an Avvo like client referral program would be unethical.  Similar to opinions in Ohio and South Carolina, and to rules revisions in Florida, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility issued Formal Op. 2016-200 holding that attorneys risk violating several ethics rules if they participate in a program like Avvo Legal Services.

I have not been able to find a copy of the opinion yet, but an article in the BNA/ABA Lawyers’ Manual on Professional Conduct reports that it finds a number of problems with the way the program is set up an implemented. For example, it finds that what Avvo claims is a marketing or advertising fee does “not correspond to any traditional model of compensation for advertising,” that the program improperly “delegates to a non-lawyer several critical decisions and functions that fall within the exclusive domain of the practice of law,” that it interferes with attorneys’ duty to exercise independent professional judgment, that it hampers a lawyer's ability to comply with Rule 1.16(d), which requires lawyers to refund any fees that have not been earned at the end of a representation, that the management of the fees constitutes commingling and a violation of the duty to safeguard client property and that it threatens the confidentiality of information related to the representation.

This comes as no surprise to me, or to longtime readers of this blog.  I have argued both here and in an upcoming article, that under the current regulatory system, Avvo Legal Services puts lawyers in positions to violate a number of rules and that Avvo's arguments to the contrary are not convincing.  See here, here and here for example.

However, saying that participating in Avvo Legal Services would violate the rules is not the end of the issue.  The question then becomes whether the rules should be changed to accommodate what Avvo wants to do. Interestingly, I don't think this is what Avvo has been arguing in response to the opinions around the country.  Instead of saying that the rules should be changed, Avvo typically argues that the rules don't apply or should not be followed.

Others, on the other hand, have been making more thoughtful arguments.  For example, solo attorney-blogger Carolyn Elefant has published an interesting post in My Shingle in which she argues why the rules should be changed to allow services like Avvo Legal Services to operate the way they want to.  Among other things, she argues that rules should not require lawyers to use trust accounts at all, which I imagine will be controversial.

Also, Professor Milan Markovic (Texas A&M) criticizes the approach of some of the opinions on Avvo as mechanistic.  You can read his comment here.

Virginia clarifies duty of candor regarding possible perjury

The Legal Profession Blog is reporting that the Supreme Court of Virginia has approved amendments to Rules 1.6 and 3.3. The amendments clarify a lawyer’s obligations when a client discloses his or her intent to commit perjury in advance of trial, and whether the lawyer can withdraw from the representation before the client’s intended perjury occurs.  You can read the amendments here.

California: Prosecutors who withhold evidence can be charged with a felony

Long time readers of this blog know I often complain about the fact that courts do not seem to take prosecutorial misconduct too seriously.  Go here, here, and here, for a few examples; and you can go to the prosecutors tag and scroll down for lots of stories, and links on the topic.

Well, today, I am posting good news, for a change. Almost exactly one year ago, I posted (here) that California had adopted a new law to bolster a judge's ability to disqualify a prosecutor or an entire prosecuting attorney's office and to make it mandatory for judges to report violations to the state bar. 

Now, California has gone even further by making it a felony crime to withhold exculpatory evidence. Violators of the law could be sentenced to up to three years in prison.  The ABA Journal has more details here.

Five Myths About USPTO Ethics Investigations and Disciplinary Complaints

IPethics & INsights  has published a short and informative post called Five Myths About USPTO Ethics Investigations and Disciplinary Complaints.  You can read it here.  The five myths are:

1. The OED Only Cares About Practice Before the USPTO

2. If I Am Not A Registered Patent Practitioner The OED Does Not Care About My Conduct

3. The USPTO Prefers to Let the State Bars Investigate Ethics Violations

4. Discipline by the USPTO Will Not Impact State or Federal Bar Licenses

5. The OED Will Only Conduct an Ethics Investigation When Someone Files A Complaint

NYC Bar Ethics Committee issues opinion holding that prosecutors’ duty to disclose is broader than the duty imposed by Brady v Maryland

As you probably know, there are differences of opinion as to whether the duty to disclose information imposed on prosecutors by ABA Model Rule 3.8 is broader than the duty imposed by the constitutional standards in Brady v. Maryland.  The ABA Standing Committee on Professional Responsibility held that it does in Formal Opinion 09-454, but a few jurisdictions have held otherwise.  I have written about this in the past here.  (And for all my posts on prosecutors' duty to disclose evidence go here.)

Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia.  Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana and Wisconsin.

Now comes news that the New York City bar's ethics committee has issued an opinion holding that a prosecutor's ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland.  See N.Y.C. Bar Ass'n Comm. on Prof'l Ethics, Op. 2016-3, 7/22/15.

Thanks to the ABA/BNA Lawyers' Manual on Professional Conduct for all the links. 

UPDATE 10-29-16:  Legal Ethics in Motion has a comment here.

Ohio Supreme Court adopts amendment to allow lawyers to advise clients in legal marijuana business

Just about a month ago, I reported that the Ohio board that oversees attorney conduct decided that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.  A few days later, I updated the story when it was reported that the Ohio Supreme Court would consider a draft amendment to the Ohio Rules of Professional Conduct to address the issue.

The Court not only prepared the draft, it just formally adopted the amendment. The amendment modifies Prof. Cond. R. 1.2(d)(2) by adding a new subsection, which reads:  “A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub.H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise the client regarding related federal law.”

Thanks to the Legal Profession blog for the update.

Ohio Supreme Court issues divided opinion on whether disciplinary counsel can bring charges against an attorney after another disciplinary agency had already decided not to do so -- UPDATED

Ohio has two parallel disciplinary mechanisms:  the certified grievance committees of local bar associations and the state disciplinary counsel.  If the local disciplinary counsel decides not to prosecute a case, can disciplinary counsel prosecute anyway? 

Last week, the Ohio Supreme Court addressed that question for the first time in a case called In Disciplinary Counsel v. Kramer.  The Court split 4 to 3 and held that the state's disciplinary counsel can pursue a case against a lawyer even though another agency had already decided not to do so.  

In Kramer, a prosecutor was investigated by the Cleveland Metro Bar Association (CMBA) because of discrepancies in his time sheets.  The CMBA determined that, because Kramer had resigned, no further disciplinary action was warranted.  However, before the CMBA formally sent a letter dismissing the matter, Ohio disciplinary counsel received an anonymous complaint based on the same misconduct.  Kramer argued that the CMBA dismissal should be final, and that its decision should be given full faith and credit, but the Supreme Court closely split on whether the rules governing Ohio attorneys allowed the disciplinary counsel to pursue charges against Kramer under those circumstances.

The Legal Profession Blog has a good summary of the decision here.

Thanks to Patrick B. Cavanaugh, of Kitch Drutchas Wagner Valitutti & Sherbrook for sending me information on the case.

UPDATE 9-18-16: Mike Frisch of the Legal Profession blog has a comment on the case here.  His conclusion:  "I agree with the majority on policy grounds. If the Ohio rules of discipline accord quasi-double jeopardy status to grievance panel dismissals, the rules defeat the purpose of bar discipline - protection of the public from unethical lawyers."

Comment on whether attorneys should be forced to provide pro bono services

Last July, Professor Ron Rotunda wrote a column in Verdict arguing that the government should not force lawyers to perform pro bono services.  In response, Joseph A. Sullivan, Special Counsel and Director of Pro Bono Services at Pepper Hamilton, LLP, wrote a rebuttal.  Prof. Rotunda now has published his response.  You can read it here.

Zeekbeek: a new way to find a lawyer online

There is a new way to find a lawyer online in Michigan (and soon in other midwest states).  Using data from the State Bar of Michigan, Zeekbeek.com is an online marketplace where consumers can connect with lawyers. Unlike Avvo, LegalZoom and Rocket Lawyer, Zeekbeek works with the state bar association to create a searchable database of lawyers. Michigan was the first state to have an operational agreement with Zeekbeek, but Indiana, Ohio and Illinois recently signed on with Zeekbeek also.

Can an attorney disclose very old confidential information because of its historical value? -- UPDATED

September 10, 2016

If you used the textbook by Prof. Stephen Gillers in your Professional Responsibility course (as a student or professor), you may remember the hypothetical question involving a firm that finds among its old files certain client files involving John Wilkes Booth.  Could the firm turn those files over to the Smithsonian or another institution?  Should the interests of history create an exception to a lawyer’s duty of confidentiality?

It is an interesting question on whether we should recognize yet another exception to the duty of confidentiality to which we did not have a definitive answer...  Until now.  Earlier this year, the Maine Professional Ethics Committee issued an opinion on this very question.

Here is the question, as explained in the opinion,  

Bar Counsel has inquired whether, and under what circumstances, a law firm may consider donating old, inactive legal files that may have historical significance to a library or educational institution. As a matter of background, the attorney holds a variety of client files, many of which were generated by a single family, dealing with a public undertaking of significant historical interest in the attorney’s area. The files range back as early as the mid- to late 1800s, and run through the early to mid-1900s. The single family referenced above has indicated their consent, but for many of the other files, both the clients as well as the attorneys who were involved in the legal work generating the files are long since deceased, and it may be difficult to find a representative of either the attorneys or the families. Given the passage of time, and the historical import of the files, may the firm turn over these client files to a library or educational institution?

And here is the conclusion:

In short, absent a reasonably reliable indication of informed consent or some other exception to the requirements of Rule 1.6 or a meaningful ability to determine that the materials held by the attorney were not client “confidences” or “secrets,” the attorney may not divulge the confidential materials in that attorney’s possession despite the passage of time and the potential historical significance of the materials.

You can read the full opinion here.


Thanks to the Legal Profession blog for the information.

UPDATE 9-16-16:   Faughnan on Ethics has a comment on the story here.

California Governor vetoes bill that would have imposed mandatory pro bono for newly admitted lawyers

Citing the fact that many law graduates are facing high debt, California Gov. Jerry Brown has vetoed a bill that would have required recently admitted lawyers to complete at least 50 hours of supervised pro bono work within their first year in practice.  The Governor stated that “Law students in California are now contending with skyrocketing costs—often more than $200,000 for tuition and room and board —and many struggle to find employment once they are admitted to the bar.  In this context, I believe it would be unfair to burden students with the requirements set forth in this bill.”  Opponents of the proposal had argued that the duty to perform mandatory pro bono work should not be imposed on brand new lawyers because they are the least able to handle the imposition of working for free.

Over at Above the Law, Jeff Bennon sees the issue differently.  Commenting on the Governor's basis to veto the bill, he says that "[it] is, of course, ridiculous, because if you can withstand 100-plus weeks of legal education, adding five more 10-hour days is not going to push anyone over the edge."  But then he adds that the Governor "was right to veto the bill though, because it was stupid, not because it would burden students."  He argues the proposal is "stupid" because the supervising lawyers do not want to supervise newly admitted lawyers for the mandatory 50 hours and that the newly admitted lawyers would not get much out of the experience either.  In other words, the proposal does not really benefit anyone.  You can read his comment here.

Florida Bar appears to be going forward with proposal to amend the Rules of Professional Conduct in spite of finding that the proposal is most likely unconstitutional

Back in 2015, in a case called Searcy v Florida Bar, a Federal District Court Judge enjoined the Florida Bar from enforcing a rule prohibiting truthful claims of expertise. The Bar had argued that potential clients would be misled into assuming that lawyers who advertise that they “specialize in" or that they have “expertise” in a certain area of the law are board certified.  However, the Court found no evidence to support this argument and held that, because the rule essentially banned attorneys from making true statements that describe their areas of practice, it concluded the rule was unconstitutional under the First Amendment.  Accordingly, the court enjoined the bar from prohibiting the plaintiffs from making truthful statements on websites, blogs or social media about their specialty and expertise.  Go here for more information.

Notwithstanding this decision, the Florida Bar has expressed its view in a proposed amendment to the state's Rules of Professional Conduct and will ask the Florida Supreme Court to approve it.  You can read the proposed new language and get more information here.

As I have argued many times over the years, I think states' attempts to ban lawyers from saying they "specialize" in a certain area of the law are ridiculous.  I made my case against this view back in 2011 in reaction to a case from Indiana (here) and then again to the news about the case in Louisiana (here) and was happy to see a court reaching what I believe to be the correct result here. 

For that reason, I think the decision in Searcy was correct and that this new attempt by the Florida Bar to regulate speech should be defeated.

Judge declares mistrial in civil case because defendant's counsel made inappropriate comment in front of the jury

Over the years, I have commented on many cases where courts reverse criminal convictions due to inappropriate comments by overzealous prosecutors; but I don't remember having read about a similar result in a civil case.  For that reason, here is an interesting story out of the ABA Journal Online about a Florida judge who declared a mistrial in a tobacco case and ordered the defendant's lawyer to show cause why he shouldn’t have to pay sanctions for the cost of a retrial.  According to the story, in questioning an expert witness, the lawyer affirmed that a jury in a different case had found how many cigarettes a person had to smoke daily in order to become addicted.  The judge reacted to this for more than one reason, the most important being that the statement was not true. 

In addition to causing the mistrial and, perhaps costing the lawyer the bill for the retrial, if the statement was false, the lawyer could be found to have violated, at least, rules 4.1 and 8.4.

California opinion reaffirms traditional view on the extent of the duty of confidentiality

Back in July, 2015 I reported that the State Bar of California Standing Committee on Professional Responsibility had issued an "interim" opinion on confidentiality and was seeking comments on it before making it official.  The opinion addresses the question of whether an attorney has a duty to keep confidential information that is publicly available.

As I reported back then, the general principle has always been that there is a difference between information that is publicly available and information that is "generally known." If the information is generally known, then you can say there is nothing to protect - because the information is known already. But not all publicly available information is generally known. These principles had always been generally accepted and understood until the Virginia Supreme Court decided Hunter v Virginia in 2013, a heavily criticized outlier case in which the court surprisingly held otherwise.

On that point, California's interim ethics opinion reaffirmed the old principle concluding that "[a] lawyer may not disclose his client’s secrets, which include not only confidential information communicated by the client to the lawyer, but also publicly available information that the lawyer obtained during or related to the professional relationship which the client has requested to be kept secret or the disclosure of which might be embarrassing or detrimental to the client."

More than a year later, the interim opinion has been officially published as Formal Opinion 2016-195 and it is available here.

Professor Lisa Needham has posted a good short comment on the opinion.  [As a bonus, in the process she also criticizes Avvo's chief legal ethics officer, something I have done a number of times too.]

Short comment on new study regarding access to legal representation

Lawyerist has posted a short note on a new study that concludes that in nearly 70% of all civil cases only one of the parties is represented by an attorney. 

Should a law firm be allowed to bill a client for work performed by an unpaid intern? -- UPDATED

Suppose a law firm hires a student as a law clerk and the student does some work for one of the lawyers.  The lawyer would be allowed to bill the client for the "cost" of the law clerk's time, right?  But what is the client paying for?  Is it an amount that reflects a portion of the firm's overhead costs or is the client paying the firm for the value of the time of one of its employees (the law clerk)?  Is there a difference?

Now, what if the firm is not paying the law clerk at all.  It would seem odd that the firm could claim the client has to pay certain value for "overhead" when in reality there is no overhead.  On the other hand, since the law clerk is not a lawyer, can the firm charge the client for the value of the time of the law clerk?

My guess is these questions have probably been addressed by ethics opinions, but I have not done the research.

What I can tell you is that there is a new opinion (available here) out of the New York State Bar Association that holds that a "law firm may bill a client for work performed by a student-intern despite the fact that the law firm does not pay the intern, because the intern receives academic credit for the work, as long as (i) the internship program complies with applicable law, (ii) the educational institution does not object to the client charges, and (iii) the charge is not excessive."

Not everyone agrees this is the correct decision.  See this article in Above the Law for a negative review of the opinion.

UPDATE (8-26-16): The ABA Journal online is reporting that various law student groups and some labor groups have signed a letter to the New York Law Journal calling the ethics decision “fundamentally flawed” and asking the ethics committee to reconsider.

UPDATE (9/6/16):  Legal Ethics in Motion has an update here.  It states, in part: "In response to the opinion, several organizations wrote an open letter, printed in the New York Law Journal, criticizing the decision as “fundamentally flawed.” . . .  In the letter, the signatories ask the ethics committee to reconsider its decision because the opinion “fails to consider the circumstances of most unpaid legal internships and the important moral questions they raise.”  The letter also challenges the assumption that unpaid internships at private firms comply with the applicable labor laws. The organizations contend that when a law firm charges for an intern’s free labor, they implicitly derive a substantial and economic benefit that cannot be offset by the academic credit that the interns receive, and they therefore may be entitled to pay."

The argument in favor of mandatory pro-bono

Verdict has just published a column making a case for mandatory pro-bono.  You can read it here.

Harvard Law School professor Laurence Tribe is heavily criticized for tweet that shows he may not understand confidentiality or privilege

I am late to post on this story about something that happened last week and which has received a lot of attention already, so I will keep it short.   Last week, Professor Laurence Tribe, Harvard's well known constitutional law professor, tweeted this message:  "I have notes of when Trump phoned me for legal advice in 1996. I'm now figuring out whether our talk was privileged."

With those "less than 140 characters" Tribe opened the door to an online discussion that resulted in general condemnation of his knowledge of the law and his motives.  I am sure he did not expect that, but he definitely walked right into it.

I will let others explain the many problems with Tribe's comment which include confusing the principles of confidentiality and privilege, and possibly not understanding the duty of confidentiality.

Here are links to some of the comments I have seen on the issue:

Michael Krauss, of George Mason Law School

Scott Greenfield, criminal defense blogger, who then posted a follow up here.

Professor Steve Lubet, at the Faculty Lounge

The ABA Journal online

The Legal Ethics Forum

As usual, by the way, it is worth to read the readers' comments under all these stories.

Ohio board holds attorneys can't advise clients on marijuana business -- UPDATE: Ohio Supreme Court reacts by asking for an amendment to the rules

The last ABA national conference on professional liability featured a panel on ethical issues related to representing clients involved in the legalized marijuana business.  As reported by the ABA/BNA Lawyers’ Manual on Professional Conduct Conference Report, "[t]he panelists and other authorities ... said the uncertainties facing cannabis industry lawyers stem from the absence of clear guidance, in the ethics rules or case law, on several questions regarding the propriety of representing marijuana businesses in states that have decriminalized the drug for recreational or medicinal purposes."  For this reason, there is a risk for lawyers of facing professional discipline for providing legal services to marijuana businesses.

Now comes news that the Ohio board that oversees attorney conduct decided last week that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.

So, on the positive side, this decision does provide clear guidance for lawyers in Ohio.  But, obviously, on the negative side, it is not what lawyers representing clients in this particular business would want to hear.

I have not read the opinion itself, though, so I can't provide an opinion on it.  I just read the news in the Chicago Daily Law Bulletin, which did not link to the opinion itself.

UPDATE (8-18-16):  Soon after the advisory opinion was published the Ohio Supreme Court ordered its staff to prepare a draft amendment to alter its professional conduct rules for lawyers in order to clarify the legal services they can offer to clients connected to Ohio's upcoming medical marijuana business.  The Columbus Dispatch has more on the story here.

Thanks to Lloyd Snyder (Cleveland-Marshall College of Law) for the update.

UPDATE (8-19-16): The Law for Lawyers Today has an update on the story here.

UPDATE (9-16-16): Faughnan on Ethics has a comment on the story here.

UPDATE (9-20-16):  The Ohio Supreme Court has adopted an amendment to Ohio Rule 1.2 to allow representation of clients in the legal marijuana business.  Go here for more.

Court of Appeals for the 9th Circuit holds Fedral Government can't prosecute people who comply with state marijuana laws

A few days ago I reported that the Ohio board that oversees attorney conduct decided last week that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.  A few days later I posted a link to a comment on the issues regarding providing legal advice to clients in the legal marijuana business.

In a related story that affects the argument upon which the Ohio opinion is based, the ABA Journal is reporting today that the Court of Appeals for the 9th Circuit has held taht the U.S. Justice Department can’t spend money to prosecute people who are strictly complying with state medical marijuana laws, finding that such spending is banned by Congressional appropriations rider.  The case is United States v. McIntosh.

ABA announces plan to create Center for Innovation

A few days ago I reviewed the final report of the ABA Commission on the Future of Legal Services (see here) and pointed out that one of its recommendations was for the ABA to create a Center for Innovation. 

So, not wasting any time, on Monday, the ABA announced the creation of the Center, whose purpose will be "to foster innovative and ground-breaking approaches to bridging the access to justice gap as well as to improve the delivery of legal services."  The Center will also serve as a resource center for ABA members, keep track of the ABA’s innovative efforts and provide fellowships for attorneys to collaborate with professionals in the technological, entrepreneurial and design industries.  It will be located at the ABA’s headquarters in Chicago. The first major project for the Center will be to assist with a court-annexed online dispute resolution pilot project in New York.

The ABA Journal online has more information here.

Another comment on the newly adopted amendment to Model Rule 8.4

A few days ago I wrote about my concern that the newly adopted amendment to Model Rule 8.4 can be used to impose sanctions for what is otherwise protected speech under the Constitution.  You can read my comment here.

Today I saw a column in the Wasington Post by Professor Eugene Volokh (UCLA) in which he expands on the same theme.  You can read the full column here, but here are some of the key points:

"... say that some lawyers put on a Continuing Legal Education event that included a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side said something that was critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar . . ."

. . . .

"Or say that you’re at a lawyer social activity, such as a local bar dinner, and say that you get into a discussion with people around the table about such matters — Islam, evangelical Christianity, black-on-black crime, illegal immigration, differences between the sexes, same-sex marriage, restrictions on the use of bathrooms, the alleged misdeeds of the 1 percent, the cultural causes of poverty in many households, and so on. One of the people is offended and files a bar complaint.

Again, you’ve engaged in “verbal . . . conduct” that the bar may see as “manifest[ing] bias or prejudice” and thus as “harmful.” This was at a “social activit[y] in connection with the practice of law.” The state bar, if it adopts this rule, might thus discipline you for your “harassment.” And, of course, the speech restrictions are overtly viewpoint-based: If you express pro-equality viewpoints, you’re fine; if you express the contrary viewpoints, you’re risking disciplinary action.

. . . .

Many people pointed out possible problems with this proposed rule — yet the ABA adopted it with only minor changes that do nothing to limit the rule’s effect on speech. My inference is that the ABA wants to do exactly what the text calls for: limit lawyers’ expression of viewpoints that it disapproves of. . . .  [S]tate courts and state bars should resist the pressure to adopt [the new rule]."

Thanks to the Legal Ethics Forum for the link.

Legal Zoom founder comments on the report of the ABA Commission on the Future of Legal Services -- UPDATED

A few days ago I posted my review of the final report of the ABA Commission on the Future of the Legal Services.  In case you missed it, you can read it here.  As I stated then, I am not impressed.  And I am pretty sure that all the comments I have seen (some of which are linked to in my post) generally agree the report is weak and disappointing.

Today, I saw an interview by the host of the blog Law Sites with one of the founders of Legal Zoom in which both of them criticize the report for the same reasons I did.  You can read the interview here.

UPDATE (8-23-16):   The same website that published the interview with Legal Zoom's founder, now has a column by the co-chairs of the Commission in which they respond to the criticism.  You can read it here.  They reply to some direct criticism of the report and defend its conclusions and recommendations, but it is not clear to me they explain why the language of the recommendations is tentative.  Why, instead of recommending states to "consider" something, not recommend that they "adopt" a particular view or approach.  I don't have a problem with the recommendations; I guess I just expected that they would be more definitive or concrete. 

UPDATE (8-24-16):  Another member of the Commission has posted a reply to some of the criticism here.

Comment on the law of lawyering for clients in the marijuana business

A few days ago I reported that the Ohio board that oversees attorney conduct decided last week that attorneys aren’t allowed to help someone establish a legal medical marijuana-related business in the state because using, growing and selling marijuana remains a federal crime.

Today, Above the Law published a good short comment on the state of the law on this issue around the country.  You can read the article here.

US Patent & Trademark Office Director issues important decision

IPethics & INsights is reporting that on August 5, 2016, the USPTO Director issued a Final Order reversing an administrative law judge’s initial decision, which had suspended a practitioner for 18 months. The Final Order is significant for two reasons.  First, it appears to be the first time ever (at least since the USPTO set up a formal attorney disciplinary system and adopted rules of ethics) that an attorney has actually won a disciplinary case before the Patent Office.

Second, the decision is important for every attorney who is subject to the disciplinary jurisdiction of both the USPTO and any state bar because the USPTO Director has now made it crystal clear that the USPTO’s reciprocal disciplinary process is mandatory, not discretionary.

For more information and commentary go to IPethics & INsights.