How not to practice law: steal files from your firm when departing

The ABA Journal is reporting that a St. Louis lawyer was held in contempt, jailed for two days and ordered to pay more than $775,000 to her law firm for expenses incurred in its lawsuit to gain return of electronic files that the attorney was accused of taking before her resignation.  For more details go here.

Tennessee Supreme Court proposes changes to rules which would raise the maximum duration of a suspension and which would make disbarment irrevocable

Currently, the maximum length of a suspension from practice in Tennessee is five years.  The only harsher punishment is disbarment. Disbarment, however, was not permanent. A disbarred lawyer can apply for reinstatement after five years.

This may change in the near future.  The Tennessee Supreme Court recently asked for public comments on a proposal to revise the rules of disciplinary enforcement.  The new rules would make disbarment permanent and irrevocable and would extend the potential length of a suspension from 5 years maximum to 10 years maximum.

You can read the proposed changes here.  Faughnan on Ethics questions whether these changes are necessary.

The whistleblower complaint

If you have not read the whistleblower complaint, you can listen to it by hitting the play button below or go here.

Two short posts on ethics and the use of technology

Over at Ethical Grounds, Michael Kennedy has posted a short comment on duties that a lawyer owes to clients regarding their social media use.  You can read it here.  In it he summarizes opinions from Pennsylvania, Florida, North Carolina, West Virginia and the District of Columbia. 

Meanwhile, at Above the Law, Nicole Black published "Lawyers, Cybersecurity, And Data Breaches: Your Ethical Obligations"  which you can read here.

How not to practice law: engage in all types of misconduct during a deposition

As I am sure you know, there are many cases out there that describe inappropriate conduct during discovery in general, and during depositions in particular, but if you are looking for a new one, here you go. 

Last month, William Gallo, a US Magistrate Judge in the US District Court for the Southern District of California, issued a long opinion in a case called La Jolla Spa MD, Inc v. Avidas Pharmaceuticals, in which he orders the defendant’s lawyer to pay out of her own pocket, almost $30,000 in sanctions for conduct the judge referred to as “atrocious.”  The judge also ordered the lawyer to report the sanctions to her home state bar.

The opinion starts by stating that “[t]he lay perception of a “good” attorney is someone who engages in the obstreperous, scorched-earth tactics seen on television and makes litigation for the opposing side as painful as possible at every turn. However, outside the fictional absurdities of television drama, attorneys in the real world—presumably educated in the law and presumably committed to upholding the honor of the profession–should know and behave much more honorably.”

The opinion then goes into great detail to illustrate six different types of conduct that are common to cases in which courts impose sanctions for misconduct during discovery: (1) instructing a witness not to answer based on impermissible grounds, (2) interrupting the deposition to tell the attorney taking the deposition how to ask their questions, (3) engaging in unnecessary colloquy, (4) interrupting the deposition with unnecessary (and long) objections, (5) using objections to suggest to the witness how to answer questions and (6) engaging in harassing and aggressive behavior toward the witness.

Competence regarding technology, again

I am sure that by now you know that the Model Rules were amended a few years ago to include a comment about the use of "technology" in the practice of law.  Specifically, it says that it is part of the duty of competence to understand how to use, and the risks of using, "technology" in the practice of law.  And, I am sure you have heard of instances of lawyers making mistakes when using technology, such as hitting reply all when sending e-mail, or disclosing confidential information by mistake by sending a word document with visible comments/corrections, or losing stuff because the lawyer did not back up the files etc

I am writing about this today because today's news have another example of a common mistake:  not understanding how to redact a document in a word processing program or as a pdf file.

The ABA Journal is reporting today that U.S. Magistrate Judge Pamela Meade Sargent has ordered Jones Day and another firm to show cause why they shouldn’t be sanctioned after they filed a document that was incorrectly redacted in a criminal case against their pharmaceutical client.

As you may know, if a document is not redacted properly, all you need to do is copy the portion of the document you can't see, and then cut and paste it into a blank document.  If the document was not redacted properly, the originally hidden text will appear in the new document after you paste it.

This is what happened in the case and the error allowed others to get access to protected grand jury information.

You can read the story here.

Update on challenges to mandatory bar association membership around the country

As I have written before, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback.  At one point I think I labeled it the "hot issue" of the year because I kept seeing reports of lawsuits being filed around the country.

A few days ago, a decision from the 8th Circuit may have slowed down the trend a bit (in a case originating in North Dakota), but there are still a bunch of cases pending out there.  At last count, there were challenges filed in Texas, Oklahoma, Oregon, Wisconsin, Louisiana, Washington and Michigan.


Thanks to Mauricio Hernandez for the update and links.

Chief Judge for Eastern District of Tennessee tells AUSAs that ethical duty requires more than Brady, regardless of what the state Supreme Court has ruled -- UPDATED

A few days ago I reported that the Tennessee Supreme Court vacated an ethics opinion and held that the duty to disclose exculpatory evidence is not broader than the duty imposed by Brady v Maryland.  See here.

The Federal District Court chief judge is not happy about it.  Today the Tennessee Bar Association posted this notice:

In a rare public rebuke, the chief judge of the Federal District Court for the Eastern District of Tennessee says Tennessee’s Supreme Court justices have set the ethical bar for prosecutors too low.... The state Supreme Court recently sided with the three U.S. attorneys in the state and the Tennessee District Attorneys General Conference in rejecting a Tennessee Board of Professional Responsibility opinion requiring prosecutors to turn over all evidence helpful to the accused as soon as possible. The prosecutors had argued there was no ethical duty to turn over evidence beyond what the U.S. Supreme Court required in the Brady decision, which allowed prosecutors to withhold evidence in certain situations. Writing for the federal eastern district, Chief Judge Pamela Reeves said prosecutors who appear before that court will be expected to comply with the Board of Professional Responsibility opinion.

UPDATE:  Here is the text of the letter. In it, Chief Judge Pamela Reeves states, in part,

"...attorneys practicing before [the Federal District Court] should aspire to the highest standards of professional conduct, not the minimum standards.  ... We believe higher standards are especially important in cases where a person's freedom and liberty are at risk.

In this regard, the judges in our district have determined that ... Assistant United States Attorneys who appear before us will disclose exculpatory and mitigating material to a criminal defendant in the manner described in the ... ethics opinion, and certainly before any guilty plea."

Thanks to Michael Kennedy for the update.

New California law imposes changes to the program that provides free legal services for poor in some civil cases, including custody matters and housing

Last week, California Governor Gavin Newsom signed into law a bill that imposes some changes to an existing law that provides free legal counsel to be appointed to low-income Californians for any level of legal or physical child custody matters, probate conservatorships and housing-related issues including eviction.

The new law requires the California Judicial Council to develop and provide grants, which could be donations from public or private entities, for programs in selected courts that provide legal counsel to the poor. Child custody cases would receive the highest priority for funding, regardless of whether one side is represented and the other is not.

You can read the bill here.

ABA Committee on Ethics and Professional Responsibility issues new Ethics Opinion on Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure -- UPDATED

The ABA Committee on Ethics and Professional Responsibility has issued a new Ethics Opinion on Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure.  Here is the summary:

Rule 2.11 of the Model Code of Judicial Conduct identifies situations in which judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned including cases implicating some familial and personal relationships, but it is silent with respect to obligations imposed by other relationships. This opinion identifies three categories of relationships between judges and lawyers or parties to assist judges in evaluating ethical obligations those relationships may create under Rule 2.11: (1) acquaintanceships; (2) friendships; and (3) close personal relationships. 

In short, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances. Judges’ disqualification in any of these situations may be waived in accordance and compliance with Rule 2.11(C) of the Model Code.

The end result seems to be based on common sense, but it does not quite provide a way to deal with the tough cases since it seems to amount to saying that "it depends" and that it will be the judge who decides how much it depends.  The opinion also does not address an issue that had been in the news not too long ago regarding "facebook friendships."  For more on that go here.

You can read the opinion (No. 488) here.

UPDATE 10/24/2019:  Legal Ethics in Motion has posted a short comment on the opinion here.

Court of Appeals for the Eighth Circuit rules that State Bar Association of North Dakota's Mandatory Membership Fees Do Not Violate First Amendment

As you may remember I have been following the news about attacks in several states to the notion of a "unified bar."  Lawsuits have been filed in Texas, Oklahoma, Oregon and North Dakota.  (For some of my recent posts and links on this go here, here, and here).

Today's news is that on August 30, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit found that the North Dakota bar's procedures for collecting mandatory membership fees do not violate the First Amendment.  The case is called Fleck v. Wetch.

Comment on regulatory changes in California

Yesterday I reported on the recently approved report of a task force in Utah on proposed changes to the professional regulatory scheme, including allowing non lawyers to provide some legal services and eliminating the ban on sharing fees with non lawyers.  As I mentioned then, California has been working on similar proposals for some time now, and it was recently reported that there many more negative comments than positive ones filed already.

Today I am here with a link to a short article on the California proposals, that expresses some level of skepticism but concludes that "[c]hange is coming, whether we like it or not. If we are not part of the solution, we are part of the problem. Sticking our heads in the sand is not going to be the solution."

You can read the article here.

Utah approves significant changes to the notion of the practice of law and its regulatory scheme

Long time readers of this blog know I have been following the different task forces around the country considering sweeping changes to the way the practice of law is regulated and practiced.  The more common denominators in that discussion are proposed changes to allow non-lawyers to provide certain types of legal services and changes to Rules that ban lawyers from sharing fees with non-lawyers.  (I recently reported on California's proposal (here and here) and later posted on the report that California's task force has received a mixed bag of comments (some negative, some positive) on its proposals, for example.

But,while California and Arizona are busy trying to work through their proposals, Utah has surprised everyone by acting much faster.

So, today I am reporting that the Utah Supreme Court has unanimously approved pursuing the recommendations of a task-force report on legal reform, including allowing non-lawyers to share fees in legal operations.

You can read the task force's report here (or here).

The report proposes the creation of a new structure for the regulation of legal services that would allow lawyers to seek investors from outside the profession including non-lawyer investment in and ownership of law firms.  The report stated that this goal should be achieved in two ways: (1) substantially loosening regulatory restrictions on the corporate practice of law, lawyer advertising, solicitation, and fee arrangements, including referrals and fee sharing and; (2) simultaneously establishing a new regulatory body, under the supervision of the state's Supreme Court, to advance and implement a risk-based, empirically-grounded regulatory process for legal service entities.

If approved, this proposal would be a tremendous change for the notion of professional regulation and it is likely to be influential around the country.

However, even though the Court approved the proposal unanimously, proposals like this one are never without opponents.  In fact, the ABA itself has been very slow to adopt changes to allow the practice of law by non-lawyers and the sharing of fees with non-lawyers.

The Utah report comes on the heels of recommendations by a State Bar of California task force to make sweeping changes in the lawyer regulatory structure in that state. These moves and others signal increasing recognition by bar officials in the U.S. that addressing the justice gap will require significant changes in the regulation of legal services.

For more information and comments go to:

ABA Journal

2 Civility

Law Sites, here and here

Lawyer Ethics Alerts Blog

Faughnan on Ethics

Tennessee vacates ethics opinion, now holds that duty to disclose exculpatory evidence is not broader than the duty imposed by Brady v Maryland.

Long time readers of this blog might remember that I have posted a few times about the split among jurisdictions on whether Rule 3.8 imposes a duty on prosecutors to disclose exculpatory evidence that is broader than the duty imposed by the constitutional doctrine adopted by the Supreme Court in Brady v Maryland.  (See here, and here.)

For example, California, Washington DC and New York have found that the ethical duty to disclose exculpatory evidence is broader than the duty established by Brady v. Maryland (see here and here).   Wisconsin, Ohio and Colorado, on the other hand, have held that both duties are the same.

Last year, the Tennessee Supreme Court's Board of Professional Responsibility issued an opinion holding that the duty under the Rule of Professional Conduct is broader.  You can read its ethics opinion on the issue here.  You can read a comment on it, here.

Soon after the opinion was published, however, the Tennessee District Attorney's General Conference petitioned the state supreme court to vacate the ethics opinion, and the Court responded by doing so last week.

The Court held that Tennessee ethics opinion doesn’t impose a higher duty on state prosecutors to disclose evidence favorable to criminal defendants than the U.S. Supreme Court has said is necessary to provide due process because two inconsistent sets of rules would create conflict and confusion.

You can read the opinion here, or here.

New report on the profile of the profession

The 2019 ABA Profile of the Legal Profession was published recently.  It contains data on lawyer demographics, wages, legal education, pro bono, lawyers use of technology, lawyer discipline, lawyer well being, and more.  You can read, print or download a copy here.

Bloomberg Law: California reportedly "inundated" with negative comments regarding proposed new rules on who can practice law, while getting support at a public hearing for those that allow sharing fees with non lawyers

A few days ago I wrote that the California Bar’s Task Force on Access Through Innovation of Legal Services submitted its recommendations for a period of public comment.

Today, I read that, according to a report in Bloomberg Law, "[t]he State Bar of California has been inundated with more than 400 comments in response to a series of sweeping proposed rule changes that include allowing nonlawyers to share in law firm profits and provide legal advice."  More than 100 comments were filed to the bar in the first 24 hours after the group issued notice that the comment period had begun.

Again, according to the story, the individual rule change that has received the most comments is the one that would authorize nonlawyers, with appropriate regulations in place, to provide certain types of legal advice and services. The new approach, suggested in order to provide access to legal services in areas of “critical need,” including evictions, and domestic violence and immigration cases, would provide an exemption to the rules banning unauthorized practice of law. As of Aug. 5, the state bar had received 12 comments in support of the proposal, but more than ten times that number against it.

Meanwhile, Bloomberg also reports in a separate story that "[t]he proposals . . . to allow nonlawyers to share in law firm profits and provide legal advice received vigorous backing from notable law professors and several other speakers at a public hearing Aug. 10."

The comment period runs through September 23.

Utah holds criminal defendant does not have to show actual innocence to support malpractice claim against lawyer

As you probably know, jurisdiction are divided on the issue of whether a convicted criminal defendant should be required to show actual innocence as a requirement to support a malpractice claim against his or her former criminal defense lawyer.

I recently wrote that Mississippi and Kentucky adopted an exoneration requirement, while Iowa and Idaho rejected it.  (For more stories on the issue, go here and scroll down.)

Today I am writing about this because I just read that the Utah Supreme Court has affirmed and clarified its holding that a criminal defendant can sue counsel for malpractice without proving actual innocence in a case called Paxman v King, available here.

The Legal Profession Blog has more details here.

Alaska asks for comments on whether to adopt Model Rule 8.4(g)

The Alaska Bar Association recently announced that it is considering adopting a rule equivalent to Model Rule 8.4(g), although the rule would be codified as Rule 8.4(f).  The Bar Association will be taking comments on whether to adopt the new rule until August 15. Comments may be sent by email to page@alaskabar.org, or by mail to the Alaska Bar Association at 840 K Street, #100, Anchorage, Alaska 99501, or by calling Bar Counsel At (907) 272-7469.

As you probably remember, Model Rule 8.4(g) has generated a very robust debate, and has proven to be controversial.  The controversy arises out of the fact that, at least as originally adopted by the ABA, the rule in part imposes a threat of discipline for otherwise protected speech outside the practice of law based on a standard of negligence. 

Since its adoption by the ABA in 2016, nine or ten jurisdictions have rejected adopting the Model Rule while only two have adopted it, and one of those (Maine) adopted it after making several important amendments.  See here.

I have written a lot about the rule and the controversy behind it.  You can click here to see my posts since it was proposed in reverse order, meaning that they will be listed with the most recent one on top.  Scroll down, and read from the bottom up if you want to read them in chronological order.

Illinois, where I live, has had an anti discrimination rule since 2010 or so (IRPC 8.4(f)), and I believe it is better than Model Rule 8.4(g) because it bases the evaluation of the conduct on a finding of violation of the law, rather than on a subjective evaluation by the disciplinary agency.  You can read the text of Illinois rule 8.4(f) here.

For a chart prepared by the ABA identifying the status of Model Rule 8.4(g) among all jurisdictions go here.

Ohio imposes discipline on lawyer for criticizing judges without reasonable factual basis

I have discussed in the past whether it would be constitutional to discipline attorneys for expressing their views when criticizing judges.  (See here, and here for example.) Clearly, there is a distinction between speech that may be a threat to someone's reputation (which may be protected by the First Amendment) and speech that actually expresses a threat of physical harm (which would not be).  (See here.) But even when the speech is merely a threat to someone's reputation, it may give rise to civil liability for defamation, and in such a case, should it also justify discipline?

For example, in one case that explores the fine line between the authority of the state to regulate attorney speech and an individual attorney's right to express his or her opinion about judges, the United States Court of Appeals for the Sixth Circuit ruled that the Kentucky State Bar violated and attorney's rights when it sent the attorney a warning letter after he criticized the state Legislative Ethics Commission.  See here.

In contrast, in other cases, courts have justified disciplinary action against lawyers for expressions about judges.  See here and here for example.

Model Rule 8.2(a) states, in part, that a lawyer "shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge..."  This standard resembles the standard used in defamation cases involving public figures because judges are public officials.  It would be unconstitutional for the state to impose discipline based on a lower standard.

Another important element of the standard, however, is that there is a distinction between statements of fact and statements of opinion.  A defamation action is not justified if the statement upon which it is based is merely an opinion.  A defamatory statement must be, by definition, false, and only a factual statement can be true or false.

For this reason, it is interesting to see how courts handle cases in which lawyers express their opinions about judges, while the state argues that the statement is based on a factual assertion.

I am writing about this today because I just read a short comment over at The Law For Lawyers Today  about a new case in Ohio in which an attorney was disciplined for expressing his opinion about certain judges.

In answering a complaint, the lawyer wrote that the appellate judges who had decided against his client had “contrived” their rationale “to justify a decision . . . premised apparently upon outside influences,” and had ruled in favor of him “for apparently undisclosed and non-legal reasons.”  In a different document, the lawyer also alleged that The lawyer alleged that “it is impossible to believe that the judicial decision” against his client in the appellate court “is not the result of undue influence and corruption,” and called it “a conspiracy to pervert justice.”

If the lawyer's statement had ended when he said the judges opinion was contrived, there would be no justification for discipline.  We say that often when criticizing opinions we think are wrongly decided, and it is an opinion.

The problem is in the rest of the statement which suggests a fact, ie, that the judges decided the case due to outside influences and for "non-legal reasons."  That is a statement of fact.  Either it is true or it isn't.  Thus, since this statement could give rise to a defamation action, it may give rise to a disciplinary inquiry.

Now the next question, however, is whether the state can meet the Constitutional standard of showing that the speaker issued the statement with knowledge of falsity or reckless disregard for the truth.

Here is where the case gets interesting.  In applying that standard, the board of professional conduct concluded that the lawyer here had no reasonable factual basis for his allegations.  Note how this is a lower standard than the one the board was supposed to apply.  Reasonableness is not recklessness, and it certainly is not knowledge.  I don't understand how an analysis based on reasonableness meets the constitutional standard.

Having said that, the ultimate decision was justified because of the lawyer’s own testimony admitting that he “did not actually know why the judges ruled as they did” and that he had not conducted “any investigation” before making his allegations.  The court could have said that this was evidence of recklessness.   Instead it suggested it was evidence of unreasonableness, which is not the same thing and which creates an unnecessary confusion about the proper analysis.

The case is called Disciplinary Counsel v. Oviatt, 155 Ohio St.3d 586 (2018) and you can read it here.

In Court Without a Lawyer: The Consequences of Trump’s ‘Remain in Mexico’ Plan

The New York Times has published an article on how a new Trump administration immigration initiative is forcing many asylum seekers to navigate the court system without representation.  The article is called In Court Without a Lawyer: The Consequences of Trump’s ‘Remain in Mexico’ Plan  and you can read it here.

California task force issues report and recommendations on the future of the practice of law

If you are a reader of this blog you know that the legal profession in the United States has been involved in a long standing debate on whether to change a number of important approaches to the practice of law, most importantly on the notion of unauthorized practice of law, sharing fees with non lawyers, allowing non lawyers to provide certain types of legal services and alternative business structures.

Along these lines, about a year ago, the California Bar’s Board of Trustees formed the Task Force on Access Through Innovation of Legal Services to identify possible regulatory changes for enhancing the delivery of, and access to, legal services.

As I recently reported, a few weeks ago the task force submitted its recommendations for a period of public comment. The recommendations were described as “tentative,” and it is expected they may be revised based on the comments received. A report setting forth the final recommendations is expected to be submitted to the Board of Trustees no later than December 31, 2019.

I have not had a chance to read the recommendations, but according to a report I have read, the recommendations provide a general framework for lawyer regulation reform rather than specific amended language for the ethics rules. However, they do address two of the most debated issues in recent years: restrictions on the unauthorized practice of law by non lawyers and restrictions against fee-sharing reflected in Rule of Professional Conduct 5.4.

For the full text of the task force's report (250 pages) go here.  For a short summary and comment on the recommendations and similar efforts in other states go here.  According to this report, the more important highlights of the recommendations include:

- A recommendation to create exceptions to restrictions on the unauthorized practice of law to allow individuals who are not lawyers to offer certain types of legal services to consumers, subject to state regulation and to allow state-certified/regulated/approved entities to use technology-driven legal services to engage in authorized law practice activities subject to state ethical standards governing both the provider and technology.

- Recommendations intended to remove financial barriers to collaboration between lawyers and other non-lawyer professionals through the modification of rules like Model Rule 5.4.

My Shingle has a short comment on the proposals from the perspective of solo practitioners and small firms.  It explains some of the concerns related to the proposals but in the end concludes that  "[t]hese critiques aside, I strongly disagree that the California initiative will harm solo and small firm lawyers and our clients. To the contrary, the proposed reforms create enormous opportunities for us to develop new services that make our legal services more relevant and convenient to our clients’ lives."

Attorney gets reprimand for not trying to stop client's attempts to be evasive during deposition

Conventional wisdom states that lawyers should advise their clients (or other witnesses) to answer deposition questions "narrowly."  Yet, lawyers must be careful not to allow the witness to be too uncooperative.   In other words, lawyers have a duty to tell their clients to behave properly and to answer the questions.

Recently, the ABA Journal reported on a recent decision in Delaware which illustrates the point.  According to the story, the Delaware Supreme Court "called out" a Sullivan & Cromwell partner by name and said he apparently made no attempt to stop his client’s “flagrantly evasive, non-responsive and flippant answers.” According to the Court's opinion, a lawyer who represents a client who engages in deposition misbehavior “cannot simply be a spectator and do nothing."

This is a good decision with which I totally agree.  Lawyers need to know that the litigation process is not a game, and that the judicial system depends on lawyers playing by the rules.

When I was starting out as a lawyer many years ago, I took a deposition of an engineer in a products liability case.  All I was asked to do was to get the witness to describe the product's manufacturing process on the record.  I started the deposition by asking the witness what his name was.  As I recall, our dialogue went something like this:

Me:  "Can you tell us your name?"

Witness:  "Yes."

It went downhill from there; but after a while, his own lawyer realized the witness' games were causing everyone to waste their time.  The lawyer was not happy with his own witness and turned to the witness and told him to just answer the questions. 

According to the Supreme Court in Delaware, lawyers have a duty to do this.

California task force has prepared report on whether to allow new forms of delivery of legal services

A task force on "access through innovation of legal services" appointed by the State Bar of California has prepared a report which includes proposals that according to some "could lead to sweeping changes to the delivery of legal services, including allowing private businesses to deliver legal services, without regard to whether the businesses have lawyer ownership or management, provided they are appropriately regulated."

In the report, which will be posted officially in the next few days to open a period of time for public commentary, the Task Force will make a number of controversial recommendations, including allowing non-lawyer legal technicians to provide legal advice and allowing non-lawyers to have an ownership interest in law firms.

The California Bar press release announcing the proposals is here.  The minutes of the Task Force's meeting on the proposals are here.

For more information and a good comment on the proposals, check out this article in Above the Law: here.

The underlying force for these proposals is a concern that something needs to be done to provide more and more affordable access to legal services to people in need.  As you probably know, there are many studies that show that many (perhaps most) people with legal needs don't have access to affordable representation.  Opening the door for some regulated provision of legal services by non-lawyers might help close the gap.  Yet, some argue this is not a good idea.  And so, the debate continues.

These are not new ideas nor is it a new debate.  As your probably know already too, some jurisdictions do recognize "legal technicians" who are trained and regulated to provide limited legal services.

The ABA Journal has more information here.  Lawyer Ethics Alert Blog has more here.

UPDATE 8/2/19:  for a short update go here.

Texas Bar Ethics Committee Opinion on a lawyer's duty to safeguard client funds for the benefit of a third party -- UPDATED

Back in September 2018, the Texas Bar Ethics Committee issued a short ethics opinion trying to explain the proper analysis attorneys should follow to determine if they owe a duty to a third party who claims to have an interest in client money in the lawyer's trust account.

More specifically, the opinion addresses these two questions:  "when does a third party have an interest in client funds sufficient to trigger a lawyer’s duty to disburse or safeguard those funds for the third party’s benefit?" and "[d]oes termination of the attorney-client relationship affect a lawyer’s duty to safeguard or disburse client funds in which a third party claims an interest?"

You can read the opinion online here or download it in pdf here.

UPDATE (7/1/19):  Ethical Grounds has posted a comment on the opinion here.

ABA new ethics opinion on splitting fees with client's prior counsel

The ABA Standing Committee on Professional Responsibility just released a new ethics opinion on splitting fees with a client's prior attorney.  You can read (and download) the full opinion here. The summary reads as follows:

In a contingent fee matter, when a counsel (successor counsel) from one firm replaces a counsel (predecessor counsel) from another firm as counsel for the client, Rules 1.5(b) and (c) require that the successor counsel notify the client, in writing, that a portion of any contingent fee earned may be paid to the predecessor counsel. The successor counsel may not be able to state at the beginning of the representation the specific amount or percentage of a recovery, if any, that may be owed to the predecessor counsel unless the amount or percentage has been agreed by the client and both predecessor and successor counsels. The successor counsel is not bound by the requirements of Rule 1.5(e), either at the time of engagement or upon a recovery, because Rule 1.5(e) addresses situations where two lawyers are working on a case together, not situations where one lawyer is replacing another. Upon a monetary recovery, the successor counsel may only disburse a portion of the overall attorney’s fee to the predecessor counsel with client consent or pursuant to an order of a tribunal of competent jurisdiction. If there is a dispute as to the amount due to the predecessor counsel under Rule 1.15(e) the disputed amount may have to remain in a client trust account until the matter is resolved. If successor counsel negotiates with predecessor counsel on the client’s behalf, successor counsel must explain to the client the potential conflict of interest in the dual roles pursuant to Rule 1.7, where successor counsel has a personal interest in the amount predecessor counsel may receive or in the timing of the release of funds held pursuant to Rule 1.15(e).

Attorney Compensation Survey

Martindale-Avvo has published its 2019 compensation survey available here.  I am not sure it has any surprises, but there are a few interesting graphs.  Among them, the one that caught my eye was the gender gap (page 6).  The comment that accompanies the graph states:  "A gender-compensation gap exists among solo practitioners and attorneys employed at small firms, with female attorneys reporting receiving 36% less income in 2018 than their male counterparts. Some of this disparity may be attributed to the number of years spent practicing law, with female attorneys reporting substantially fewer average years (16.3) in practice than their male counterparts (22.7). A higher proportion of female attorneys also represent consumers, where reported income in 2018 was less than that of attorneys primarily representing businesses."

Also, with all the talk about alternative billing in recent years, some might be surprised to learn that more than three-quarters of respondents use an hourly rate structure to bill clients.  Flat fees is the second most popular billing method (see page 12).

Maine adopts (a different version of) ABA Model Rule 8.4(g) -- UPDATED

UPDATED (6-17-19)

In my original post on this, I stated something along the lines of "Maine adopted the Model Rule" and several readers yelled "Objection" because Maine's adopted version of the rule is different than the Model Rule.  

And they are correct.  Objection granted! So here is an updated post:

As you probably know, in 2016 the ABA adopted an amendment to Model Rule 8.4 to add a new section regulating conduct deemed to constitute discrimination or harassment.  See MR 8.4(g).

The new rule has proved controversial, and since its adoption by the ABA, only one state (Vermont) has incorporated it into its own rules. At least four states (Arizona and Tennessee among them) have affirmatively rejected it, and one or two more (Nevada and Pennsylvania) have abandoned efforts to adopt it.  (To read a little about why the rule is controversial go here, here, here, and here.)

Well, the landscape just changed a little because Maine recently adopted some aspects of the Model Rule.  In a prior post I stated the Maine had adopted the Model rule, but the rule adopted in Maine differs from the ABA Model Rule, so maybe it is more accurate to say that Maine adopted an amended version of the Model Rule.

The first difference between the Model Rule and the Rule adopted in Maine is that the state’s rule omits marital status and socioeconomic status as types of discrimination.  I don't know why it eliminates the reference to marital status.  I assume the elimination of socioeconomic status has to deal with arguments that this category is too vague.

Second, the Maine rule actually defines the concepts of discrimination and harassment as they apply to the rule.

Third, although the Maine rule adopted the Model Rule's language of "related to the practice of law" to define when the rule applies, extending it from the more limiting "when representing a client", the adopted rule in Maine does not extend the notion of "the practice of law" as much as the Model Rule does.  Unlike the Model Rule which extends the notion of "related to the practice of law" to include conduct in social activities, the new rule in Maine limits the notion of the practice of law to exactly that, ie, conduct within the practice of law.  This change is in response to a common criticism of the Model Rule -- the fact that it expands the application of the rule to conduct outside the practice of law.

Finally, there is one aspect of the new rule that I find confusing.  The Model Rule considers misconduct when a lawyer engages in conduct that the lawyer "should know" is discrimination or harassment.  This means the standard upon which it is based is negligence.  The Maine rule adopts this same language but in the definition of discrimination refers to conduct that the lawyer "reasonably should know manifests an intention" to engage in the conduct (as described in the rule).  Also, in the "Guidance" section below the rule, which is not part of the rule itself, it says that "the extent of enforcement or initiation of formal disciplinary proceedings will depend on "the level of intentionality" and seriousness of the conduct.  So, even though the language sounds like negligence, is the Maine rule based on intent?

You can read the text of the new rule as adopted in Maine here.

The ABA Journal has more on the story here.

New complaint filed in Indiana raises the issue of whether a lawyer has a duty to disclose confidential information related to sexual abuse of children

A couple of years ago, I published an article on an advisory opinion of the Legal Ethics Committee of the Indiana State Bar Association on whether a lawyer has a duty to disclose information regarding sexual abuse of a minor under Indiana law.  The opinion concluded that, absent client consent, in most circumstances an attorney has a duty NOT to report confidential information about child abuse.

As I argued in my article, because Indiana has a mandatory disclosure statute, this conclusion is wrong. You can read my article here.

I am writing about this today because I just heard about a case that is making its way through the Indiana disciplinary process which raises the issue.  And, given the fact that the opinion is still out there, I am worried about the possibility of the case making it to the courts and setting a bad precedent.

The complaint filed against the lawyer (available here) clearly sets out the facts of the case.  In a nutshell, here is what happened: the father of a 15 year old girl discovered that a teacher at her school had been propositioning his daughter and sending her “dick pics.”  Rather than going to pay a visit to the teacher armed with a baseball bat, which would have been my first reaction, or going to the police, which is what he should have done, the father went to talk to the “Head of Schools” (which I assume is either the equivalent of a principal or a school superintendent, but I could be wrong).  The Head of Schools, in turn, hired the lawyer in question to represent the school.

You can read the complaint for the rest of the facts, so let’s fast forward to what’s important.  Neither the lawyer nor the Head of Schools disclosed the teacher’s conduct to the authorities until the associate Head of Schools said it had to be done -- who said so the moment he heard about the problem for the first time.  Meanwhile, the lawyer tried to cover up the incident by offering settlement agreements and requesting pledges of confidentiality. 

The problem here is that Indiana has a mandatory child abuse disclosure statute that imposes a duty to disclose on everyone, including lawyers.

Everyone means everyone, and only the Associate Head of Schools acted accordingly.  Even after the authorities became involved, the lawyer continued to mislead the investigators preventing access to information and evidence.  Some time after the incident came to light and the police intervened, the Head of Schools committed suicide.  The lawyer is now fighting for his license and may have to face charges of possessing child pornography.

Here is my concern: the opinion of the Indiana State Bar would condone the lawyer's conduct in this case.  Yet, the opinion is wrong because the statute is mandatory and, therefore, the lawyer had a duty to disclose according to the law, which would not have constituted a violation of the rules of conduct because the rules explicitly recognize that a lawyer can disclose confidential information when required to do so by law.

I hope the disciplinary authorities and, if it gets there, the courts, get it right.

The Legal Profession Blog has more information on the case here.

Trump administration ends legal services for unaccompanied immigrant children

In apparent violation of a long-standing federal court settlement, the Trump administration government has stopped paying for legal services and English-language courses at jails for immigrant children around the country, saying budget cuts make it necessary. 

Courthouse News has more on the story here, as does Jurist (here) and Above the Law, which called the decision, the administration's latest act of pure villainy.

New report on lawyers' wellness

In 2017, the ABA National Task Force on Lawyer Well-Being published a report on attorney well-being which described the wellness deficiencies that exist within the legal profession and called for critical self-examination and evaluation by the members of the profession.  Since then, many bar associations have sought to identify the signs of mental health problems, to identify resources for lawyers who need treatment, and to strengthen judicial and lawyer assistance programs.  However, according to a new report of the Virginia Bar Association, little has been done to identify the reasons that explain why lawyers experience wellness problems at a disproportionate rate when compared to the public as a whole.

To explore that question, the Virginia State Bar created a task force that set out to identify specific aspects or characteristics of the practice of law that might serve as a risk to a lawyer’s well-being.

The task force's report is now available here.  The report is relatively long - 80 pages - but you should take a look at its summary, which appears in the form of a very interesting and useful chart on pages 2-11.

The chart lists a long list of "occupational risks" involved in lawyering, and for each offers a list of potential effects on the individuals, as well as practice pointers for individuals and organizations to help minimize those effects.

The list of occupational risks is listed in the table of contents which I have copied below.

District of Columbia Bar is soliciting comments to possible amendments to the Rules of Professional Conduct -- UPDATED

As reported in the Legal Profession blog, the D.C. Bar Rules of Professional Conduct Review Committee is soliciting public comment from Bar members and others on its final draft report and recommendations to amend certain D.C. Rules of Professional Conduct. Comments are due by close of business on April 5, 2019.

Before submission to the Bar’s Board of Governors, the Committee requests comment on the proposed amendments summarized below. The Board, in turn, may then recommend changes to the District of Columbia Court of Appeals, which promulgates the D.C. Rules.

1. Technology and Confidentiality

As of last year, 36 states had adopted the Model Rules' comment that adds understanding "technology" as an element of competence.

Following this trend, the DC Bar proposal includes a proposed amendment to Comment [5] to Rule 1.1 to specify the continuing responsibility of lawyers to stay abreast of changes in technology as a matter of competence. Also, there is a proposal to amend Rule 1.6 and its comments to address a lawyer’s duty to exercise reasonable care to prevent unauthorized access to electronic information and the reasonableness of security measures to be taken by a lawyer when using and storing electronic communications. Finally, there is a proposal to amend Rule 4.4 and its comments to clarify a lawyer’s obligations after receiving inadvertently sent information or metadata.

In my opinion, these are not controversial and should be adopted.

2. Nondiscrimination and Anti-harassment

The most controversial proposal is to amend Rule 9.1, which prohibits discrimination by lawyers in conditions of employment based on a list of enumerated classes, to substantially align it with ABA Model Rule 8.4(g) addressing discrimination and harassment in conduct related to the practice of law.

I have written about this topic before and have expressed my doubts about the constitutionality of the Model Rule.  My original thoughts way back when it was proposed are here.  Although some of the problems I discuss there were addressed in the Model Rule that was eventually adopted, I think it remains problematic, and I still prefer the more limited approach currently in use in Illinois' Rule 8.4(j).

Up to now, only one state (Vermont) has adopted the Model Rule.  Tennessee and Arizona have rejected it (see here and here); Nevada abandoned an attempt to adopt it (see here and here); Pennsylvania rejected it (here), then considered it again, and now it is not clear what the status is...

I suspect this proposal will generate a vigorous debate.

3. In Re Kline

The third proposal that I find interesting is to amend Comment [1] to Rule 3.8 to make it consistent with the District of Columbia Court of Appeals holding in In re Kline, 113 A.3d 202 (D.C. 2015).

I wrote about this case here.  In it, the Court held that the District of Columbia's version of Rule 3.8 on "special responsibilities of prosecutors"  is broader than the duty imposed by the constitutional standards in Brady v. Maryland. 

This appears to be the prevalent interpretation of the Model Rule in other states, but it is not the only interpretation.  Wisconsin, for example, has interpreted that the duty under the rule is not broader than that imposed by constitutional standards.  (See my post on this here.)

4.  Post-Conviction Exculpatory Information: Special Responsibilities of a Prosecutor

Another interesting proposal that may generate some debate seeks to amend Rule 3.8 and Comments to make them more closely aligned with ABA Model Rules 3.8(g) and (h), but with some significant differences. In May 2015, the District of Columbia Court of Appeals asked the Bar to reconsider paragraphs (g) and (h) of ABA Model Rule 3.8, which impose duties on prosecutors to disclose certain post-conviction exculpatory information, and to determine whether the District of Columbia should adopt similar provisions.

5. And finally, ...Outsourcing

The proposal is to amend the Comments to Rules 1.1 and 5.3 to address a lawyer’s duties when outsourcing legal work or when using “outside” or contract lawyers. The proposed changes include language requiring the lawyer to inform the client about the identity of the other lawyers who will participate in the representation and the contemplated division of responsibility among them, as well as amendments to better address situations where the client, not the lawyer, is directing the outsourcing.

For Information and to Submit Comments

More information about this call for public comment, including the Committee’s final draft report and recommendations, can be found here.

Written comments should be submitted by email to ethics@dcbar.org or by mail to: Rules Review Committee, c/o Hope C. Todd, D.C. Bar, 901 4th Street NW, Washington DC, 20001, no later than April 5, 2019. For hard copies of the report, please contact Duane Tolson at 202-780-2777.


UPDATE 6-2-19:  Michael Ambrogi, of Law Sites, a website in which he comments on issues of technology and the law, has published a comment on the proposed changes here.

New Mexico to consider allowing non lawyers to provide some legal services - UPDATED

Long time readers of this blog will remember that in recent years a few states have adopted programs to allow non lawyers to provide limited legal services.  The first was Washington, whose program made the term LLLTs (for limited licence legal technicians) the big debate at the time.  (If you click on the labels Washington and Utah on the right, you can scroll down and find lots of posts on this subject).

Now comes news that the New Mexico Supreme Court recently formed the group – comprised of lawyers, educators and advocates – to look into implementing an LLLT program in the state in order to create changes to court rules and programs that would improve the availability of legal services in the state.   Courthouse News Service has the story.

Update 5/30/10:   Illinois Lawyer Now has a story and links here.

Another challenge to the notion of a "unified bar" -- this one in Oklahoma -- UPDATED

A few days ago I posted a story about a challenge to the constitutionality of the unified bar system in Texas.  See here.

Today's news is that a similar lawsuit has been filed in Oklahoma.

The lawsuit, in a case called Schell v. Williams, filed on March 26, alleges that Oklahoma's requirement that attorneys join the state bar association to practice in the state is unconstitutional because by forcing attorneys to join the Oklahoma Bar Association, the state violates their First Amendment rights to free speech and association

As I discussed in my previous posts on this, this is not a new argument but it is not a frivolous argument.  The question really goes to the core of whether such a requirement is necessary to regulate the legal profession or improve the quality of legal services.  As of right now, there are similar challenges pending in, at least, Texas and North Dakota and the results in these cases will have national implications.

UPDATE 4/5/19:   As I have said elsewhere, the question of whether mandatory membership in a bar association violates the First Amendment is not a new issue, so it is interesting that it is making such a strong comeback. In addition to the cases I reported recently, I was recently reminded by a reader of the blog that there are two separate lawsuits filed on similar grounds in Oregon as well as ongoing longstanding litigation against the Washington State Bar.

In Oregon, at least one of the lawsuits contends that the fact the state bar published a statement condemning White Nationalism and, what it called the "normalization of violence" was "blatantly political" and unconstitutional.

UPDATE 5/28/19:  Another lawsuit claiming requiring lawyers to be members of the state bar association violates the First Amendment has been filed.  The case is called Jarchow v State Bar of Wisconsin (Case No. 3:19-CV-00266) was filed, you guessed it, in Wisconsin on May 21. 

Should an attorney be disciplined for engaging in animal cruelty

We all know that lawyers can be disciplined for conduct outside of the practice of law; and we all know that criminal conduct outside the practice of law will likely result in discipline.  But whether lawyers can or should be subject to discipline for non-criminal, yet somehow "bad" conduct, is not always clear. 

Typically, rules or cases limit discipline for non criminal/non professional conduct to conduct that in some way shows the lawyer should not be trusted to do what lawyers typically do. 

Which brings me to today's post.  A few days ago, several outlets reported that the Florida Bar has opened an investigation into the conduct of a lawyer who "shooed" a raccoon off his boat after finding the animal had stowed away on board. Given that the boat was 20 miles from the coast and that I am not sure raccoons can swim that well, the presumption is that the raccoon did not survive. 

Oh, and if this happened on a boat 20 miles out to sea, how did we come to know about it?  Well, the lawyer thought it would be a good idea to post a video of the incident on social media in which you can hear someone (presumably the lawyer) using profanity and then laughing at the poor raccoon yelling "so long sucker" when it fell in the water.

If there is a crime here, then the first paragraph of this post applies and that will be that.  Yet, for the sake of argument, let's assume that there is no crime.  Let's say there's simply ...whatever you want to call what the video shows (cruelty, stupidity, profanity, obnoxiousness... ??).  Is this the type of conduct for which a lawyer should be disciplined?  It may say something about the person, but does it say something about the lawyer as a lawyer?  Should there be a difference?

How do these facts compare to cases in which lawyers have acted foolishly or abusively in public while intoxicated? ... or taken money from trusts when serving as trustees but not as lawyers?...  or expressed obnoxious, even racist ideas, ... or engaged in other conduct outside the practice of law?

You can read more about this particular story here, and here.

Washington State Bar Association rejects proposal to require lawyers to carry malpractice insurance

Not long after the State Bar of California’s board decided against requiring lawyers to carry malpractice insurance, the Washington State Bar Association’s board has rejected a similar recommendation.  Oregon and Idaho remain the only two states with a malpractice requirement for attorneys.

The task force that studied the issue in Washington had concluded that the lack of an insurance requirement “poses a distinct risk to clients.”  Yet, the Board voted down the proposal.

One of the reasons behind the decision was the concern that a malpractice insurance requirement would hurt access to justice because lawyers would be required to raise their fees to cover the cost of insurance. 

Above the Law has more on the story here.

Lawyers duties and technology

As you know the Model Rules, and now at least 36 states, consider that understanding and keeping up with developments in "technology" is part of a lawyer's duty of competence.

Yet, only two states require that lawyers' CLE programs include hours devoted to issues related to technology and the practice of law.  Two recent articles touch on these subjects:

Law Technology Today has a recent article on why every state should require technology CLEs.  You can read it here.

Also, Above the Law has a comment on a recent Ethics Opinion in Louisiana which the author of the comment argues misses the point on tech competence.  First, he argues that the opinion wrongly presumes that using technology in law practice is optional and that a lawyer must be competent in technology only if the lawyer chooses to use technology.  Second, he argues that the opinion also presumes that a lawyer's competence only relates to the lawyers’ direct use of technology on behalf of a client. As he argues, and I agree, "that misses a critical component of the duty of technology competence — understanding the client’s use of technology. A lawyer cannot competently represent a client if the lawyer does not understand the client’s technology usage and systems and how they may relate to the matter at hand." 

I agree on both points, and I would add that a lawyer needs to be competent in the use of technology also because lawyers need to understand other lawyers' use of technology. 

Illinois regulators' annual report

The Attorney Registration and Disciplinary Commission (ARDC), the administrative agency that regulates licensed Illinois lawyers, has filed its year 2018 Annual Report with the Supreme Court of Illinois. You can read the full report here or a summary here.

The summary has some interesting findings.  For example:

Of the complaints filed with the ARDC, the majority involve claims of neglect.  The second most common claim:  failure on the part of the lawyer to communicate with the client.

10% of the complaints were filed by lawyers reporting on the conduct of other lawyers under rule 8.3.  Of these, 44% resulted in disciplinary complaints.

Illinois Lawyers Now has a comment here.

Tennessee Supreme Court imposes sanctions for improper contingency fee

A few days ago I saw a report on a case out of the Tennessee Supreme Court on a topic that you don't see that often:  an unreasonable contingency fee agreement.  The practice of using contingency fees is, of course, common; and the practice of structuring the contingency itself as a percentage of the recovery is standard.  In most cases, the percentage is about 33%.  That is also pretty standard.  And that is why I don't think we see many cases on this topic.  Everybody pretty much does the same thing because the market regulates itself.

Yet, here we have a new case with a twist on the practice of using contingency fees.

The lawyer in the case entered into a contingent fee agreement with his client, which provided that if the client refused to accept a settlement offer that the lawyer advised was reasonable and should be taken, the client would be required to pay the lawyer the contingency fee “on the basis of that offer” unless waived by the lawyer.

As you would expect given the end result of the case, the defendant made an offer, the lawyer advised the client to take it, but the client refused.  The lawyer then withdrew from representation and asked for a lien against his client’s eventual recovery in her personal injury case for fees and expenses based on the original agreement.

The court agreed with the hearing panel that the contingent fee agreement was unreasonable and violated the Rules of Professional Conduct because the Rules only allow a contingency fee on the outcome of the matter. The Court also agreed with the hearing panel that the contingency fee agreement violated the Rules of Professional Conduct because it gave the lawyer a proprietary interest in any settlement offer arising in the case.  Thus, the Court affirmed the judgments of the trial court and the hearing panel imposing a public censure.

As it is often the case, whether public censure, one of the lightest possible sanctions out there, was the correct measure of discipline is debatable.  But I supposed reasonable people can disagree on that and it is the subject of a different conversation.

The case is Moore v. Board of Professional Responsibility and you can read the opinion here.

Faughnan on Ethics has a comment on the case here.  As he clearly explains, "[a]t its core, this case explains the limits on the ability of a plaintiff’s attorney to try to guard against what happens if their client rejects the attorney’s advice on whether to accept a settlement offer. There do, in fact, have to be limits on the ability to hedge against that because the ethics rules establish explicitly that the decision whether to settle a civil case or not is the client’s decision. RPC 1.2(a)."

Texas Attorney General sides with lawyers challenging mandatory bar membership

As you may remember I have been following the news about attacks in several states to the notion of a "unified bar."  See here and here, for example.  Lawsuits have been filed in Texas, Oklahoma, Oregon and North Dakota. 

In one way or another, all the lawsuits are claiming that the states' requirement that attorneys join the state bar association is an unconstitutional violation of attorneys' First Amendment rights to free speech and association.  More specifically, they argue that lawyers shouldn’t be forced to subsidize the state bar’s activities through mandatory membership dues if they don't agree with those activities for ideological or political reasons. 

For example, in the lawsuit in Texas, the plaintiffs are alleging they do not want to be forced to subsidize the state bar's diversity initiatives, access to justice programs and programs that help prevent deportations, and that promote legislative drafting and advocacy.

The most recent development on this topic is that Texas Attorney General Ken Paxton has filed an amicus brief that sides with the plaintiffs in the case in Texas.  He is the only AG to have taken this step so far in all the states where lawsuits have been filed.

Like I said in one of my previous posts, this is becoming the biggest topic in Professional Responsibility this year and the results of these lawsuits could have tremendous repercussions on how the profession continues to be regulated as well as on the viability of state programs that promote access to legal services.

New ABA Formal Opinion on duties of prosecutors when negotiating plea bargain deals

Last week, the ABA Standing Committee on Ethics and Professional Responsibility issued a new formal opinion on duties of prosecutors.  See Opinion 486, available here. 

As you probably know, prosecutors have a special role in the judicial system because they do not only litigate on behalf of the state, they are also considered "ministers of justice."  This puts them in what appears to be somewhat of a contradictory position in that they have to, at the same time, prosecute the defendant while protecting the defendant's rights. 

According to the chair of the Committee, hundreds of times weekly, prosecutors negotiate plea deals with misdemeanor defendants who lack counsel and may agree to unfair dispositions, which creates a disproportionate risk of harm for the poor and minorities, who are disproportionately represented among the defendant population. 

For this reason, the new opinion reminds prosecutors of their duties to ensure that the accused has a reasonable opportunity to obtain counsel, that decisions to resolve a case through plea bargaining are grounded in the prosecutor’s independent assessment of the case, and that prosecutors reveal known collateral consequences, which may include deportation and the loss of eligibility for a wide range of public services, including food assistance and public housing. 

The ABA Journal has more on the story.

Racially charged closing argument leads to reversal of a first degree murder conviction

I have written a number of stories in the past about cases in which appeals' courts reverse convictions simply based on what prosecutors say in their closing arguments.  In other words, cases in which improper arguments result in reversals of convictions.

Just a few days ago, I read another example.  In this case, a prosecutor's racially-charged rebuttal closing argument led to a reversal of a first degree murder conviction by the North Carolina Court of Appeals.  You can read a summary of the case here.

Advice for when you realize you made a huge mistake and will likely get sued...

I often tell my torts students that forgetting to file a claim before the statute of limitations runs is possible the dumbest mistake they can make.  "Buy, and more importantly, learn to use a calendar!",  I tell them.

So what happens if the do make that dumb mistake? What happens next?   Here is some good advice.

More of a lawyer reacting to TV or Movie lawyers and cases

A couple of days ago I posted a video of a lawyer commenting on courtroom scenes from movies and TV shows.  Because I watched that video on YouTube, the next time I visited YouTube, it recommended other similar videos and I came across a channel called "Think Like a Lawyer" by "Legal Eagle" in which a lawyer comments on many different things, and which has a bunch of videos of him giving very detailed commentary on movies and TV shows, including My Cousin Vinny, Better Call Saul, A Few Good Men, The Bee Movie, Liar Liar, The Rainmaker and more.  He also has a lot of videos on advice for law students.  I watched some of those and I agree with a lot what he has to say, but not all ... but that is the subject of a different conversation.

You could spend a lot of time watching videos on this channel, so save the link for when you have some free time....

Michigan might be the next state to adopt a duty to keep up with "technology" as part of the duty of competence

As of last year, 36 states had adopted the Model Rules' comment that adds understanding "technology" as an element of competence. Texas was the most recent jurisdiction to do so and Washington DC recently announced it is considering it.

Today, Jurist is reporting that the Michigan Supreme Court has announced a proposed amendment which might make Michigan the next state to adopt a duty to keep up with "technology" as part of the duty of competence.  Go here for the story.

Former prosecutor comments on courtroom scenes from TV and the movies

I recently found this video in which a former prosecutor comments on courtroom scenes from TV shows and movies. She comments on a lot of different aspects of litigation, from substantive issues, rules of evidence, conduct of lawyers in the courtroom and the role of the judge.  The clip is a bit long, but I enjoyed watching it.  You can watch it below or by going here.  She discusses clips from, among others, A Few Good Men, Legally Blonde, To Kill a Mockingbird, Philadelphia, A Civil Action, Class Action, Roman Israel, esq, and from TV shows like Suits, The Good Wife, and The Practice.

There are, of course, a lot of other scenes from movies that could have been included, but there is only so much time...  One I recommend you take a look is the scene of the plaintiff's deposition in the movie Class Action.

Maine court expresses frustration with prosecution's cavalier attitude toward duties related to discovery and misunderstanding of duty of candor

This week, I will spend a few class hours discussing the duties of prosecutors and issues related to prosecutorial misconduct.

As I coincindence, over at the Legal Profession Blog, Mike Frisch is reporting about a recent case in Maine which illustrates some of the issues.

In this case, a defendant charged with driving on expired tags made a standard request for any dash cam video of the incident, but the prosecutor never responded nor sought to ascertain whether such video existed.

At trial, the prosecutor only used the officer involved in the case as a witness.  When the officer testified that there was in fact a dash cam video, the court became interested to know why the prosecutor had not bothered to produce it, and "[t]he court’s patience was obviously tried by the State’s continued  insistence that the video showing the alleged crime being committed had no  “evidentiary value.”"

In its order, the lower court rebuked the State for its approach to its discovery obligations and granted the defendant's motion to  suppress.

On appeal, among other things, the State argued that the court abused its discretion in selecting a sanction that effectively ended the  prosecution.  Yet the appeals court did not buy it. The court recognized that various obligations on prosecutors create challenges and that mistakes happen but affirmed that "[g]iven the substantial responsibility placed on the prosecutors to  provide timely discovery,... it is all the more important that the obligation be treated seriously. The court here expressed its frustration with  the State’s cavalier attitude toward discovery in several ways...  The court further noted the State’s persistent and inexplicable failure to recognize the relevance of the video."

Also, the court explained the prosecution's confusion about its duty of candor concluding that "[i]n arguing that the video was not “exculpatory,” and therefore not  discoverable, the State confuses its obligation pursuant to Rule 16(c) with its  obligation pursuant to Brady v. Maryland, 373 U.S. 83 (1963):

The due process  concepts articulated in Brady require the State to disclose to the defendant  evidence that is “favorable to the accused, either because it is exculpatory, or because it is impeaching . . . .” . . . Rule 16(c), in  contrast, requires the disclosure of items, including video recordings, that are  “material and relevant to the preparation of the defense.” . . .   

In conclusion,

What the State seems to miss in the matter before us, however, is  that there is a fine line between inadvertence and practices that the court  described here as “slipshod.” Carelessness in this critical area of constitutional  rights is not acceptable and is not an excuse. Moreover, the State’s continued  insistence that the defendant “suffered no harm” as a result of the State’s failure  to turn over the video of the crime makes it painfully evident that the State still  does not understand the nature of its obligations. 

          . . . .

The State’s continued insistence that the video of the defendant driving by the trooper was not material or relevant defies common sense and provides full support for the court’s determination that a serious sanction was warranted. The suppression of the evidence, while almost certainly fatal to the State’s prosecution, fell well within the discretion of the court. [and, according to the court, the lower court "plainly used the sanction to educate the State that its casual approach to fulfilling its discovery obligation was unacceptable.

The case us called State of Maine v Reed-Hansen, and you can read the opinion here.

How to define "the practice of law"

If you are interested in professional responsibility matters, you know that courts and scholars have struggled over the years to define exactly what constitutes "the practice of law."  (Here is an old example.  An ABA commission at one point abandoned an attempt to come up with a model definition, in fact.

Whether it is to deal with issues related to unauthorized practice of law, multijurisdictional practice, practice by non lawyers, sharing of fees with non lawyers and so on, having a standard definition would be helpful.  But the attempts at defining what is practicing law usually end up being over or under inclusive, thus making it difficult to definitively say that, for example, the work of an accountant doing tax code advising for a client is or is not practicing law.

I am writing about this today because I just saw a recent post at MyShingle.com asking "What would be the effect of simply exempting matters smaller than $10k from the definition of the practice of law?"

The author's argument is that we could define the practice of law this way:  "Any matter that involves courts, contracts, wills, advice on rights or obligations that has a value of less than $10,000 is not the practice of law.  Admission to the bar is not required to represent clients in this category of matters."

As she says, this seems arbitrary, but, on the other hand, it is also practical. Why?  Because "[o]ne of the reasons that parties are often unrepresented in certain matters is because lawyers turn down cases that don’t make sense from a financial perspective."

So if people need help with work that requires advise on legal matters that most lawyers don't want to help with, why not let others who want to help do it?

You can read the article here.

As you know, a couple of jurisdictions already have programs that allow non lawyers to participate in the legal process by helping claimants, and participants in divorces, etc.    My most recent post on this subject, with links to older ones, is here.

ABA Ethics Opinion on whether it is a violation of the Code of Judicial Conduct for a judge to refuse to perform same sex marriages -- UPDATED

Earlier today, the ABA Standing Committee on Ethics and Professional Responsibility released its latest Formal Opinion (No. 485) which addresses whether it is a violation of the Code of Judicial Conduct for a judge to refuse to perform same sex marriages.  You can download or read the full opinion here.

The opinion's digest reads as follows:

A judge for whom performing marriages is a mandatory obligation of judicial office may not decline to perform marriages of same-sex couples. A judge for whom performing marriages is a discretionary judicial function may not decline to perform marriages of same-sex couples if the judge agrees to perform opposite-sex marriages. A judge’s refusal to perform same-sex marriages while performing opposite-sex marriages calls into question the judge’s integrity and impartiality and reflects bias and prejudice in violation of Rules 1.1, 2.2, 2.3(A), and 2.3(B) of the Model Code of Judicial Conduct. In a jurisdiction in which a judge is not obligated to perform marriages but has the discretion to do so, a judge may refuse to perform marriages for members of the public. A judge who declines to perform marriages for members of the public may still perform marriages for family and friends. If a judge chooses to perform marriages for family and friends, however, the judge may not decline to perform same-sex marriages for family and friends.

UPDATE 4/19/19:  The ABA Journal has a short article on the opinion in its April 2019 issue.  You can read the article here.

Devin Nunes files second lawsuit

A few days ago I posted about Devin Nunes' lawsuit against Twitter and others and asked whether it violated the rules against frivolous litigation.

Now comes news that Nunes has filed a second lawsuit and now the question is whether it violates the rules against filing claims for an "improper motive."  Tech Dirt has made an argument that it does.  You can read it here.

Yet another attack to the concept of the unified bar: Wisconsin lawyers file suit alleging bar's use of mandatory dues violates their constitutional rights

In what is quickly becoming the hot issue in Professional Responsibility this year, here is yet another news item regarding an attach on the concept of a unified bar.  For my recent posts on this subject, and links to older posts go here.

As reported by Courthouse News, two Wisconsin lawyers have filed a federal civil rights suit against the state’s bar association claiming mandatory membership to the bar association constitutes compelled speech in violation of the lawyers’ First and Fourteenth Amendment rights because of the dues lawyers have to pay -- or, more precisely, because they don't agree with the way the bar association uses the money paid in dues.

The case is called Jarchow v. State Bar of Wisconsin, and you can read the complaint here.  Among other things, the plaintiffs complain that the Wisconsin Bar Association publishes magazines with articles "on matters of intense public controversy" including advocacy for criminal justice reform, juvenile justice reform, elder law reform and advocacy for restoring funding to provide legal representation to the poor.  They also specifically claim they object to the bar’s advocacy on criminal justice issues, felon voting rights, unemployment insurance fraud, free exercise of religion and immigration law.

How not to practice law: threaten others and tell them to kill themselves

I have not posted any entries in the ongoing "how not to practice law" series in a while, so here you go:

As reported (here) by Prof. Jonathan Turley:

A prominent real estate lawyer who once described himself in a column as “jungle street skills and a passion for justice” has been suspended for bizarre and abusive conduct. Adam Leitman Bailey told a tenant that he should commit suicide as a worthless human being and even declared “now you’re my bitch.”  The problem is that the tenant recorded the call.  

In a decision by the New York Appellate Division, Bailey was given a four-month suspension and told to get counseling.

Article on Maine's system for providing counsel to indigent criminal defendants

The Sixth Amendment Center has published a short article criticizing the system used in Maine to provide counsel to indigent defendants.  According to the article, Maine is the only state in the country that provides all indigent defense services through private attorneys which makes it difficult to predict and contain costs and to supervise private attorneys to ensure they can and do provide effective representation. The article concludes that Maine struggles with both, as the Maine Commission on Indigent Legal Services is expected to oversee the representation by and cost of nearly 600 attorneys, handling more than 30,000 cases each year in 47 courthouses presided over by approximately 90 justices, judges, and magistrates, with a staff of just three people. 

You can read the full article here.

What if a client asks lawyer to destroy the client's file or some of its contents?

Over at Ethical Grounds (the unofficial blog of Vermont's bar counsel), Michael Kennedy discusses a recent NY opinion on whether an attorney has to destroy the client's file upon request.

As Michael explains, ordinarily, upon the termination of a representation, Rule 1.16(d) requires a lawyer to surrender to the client all papers and property to which the client is entitled, which, of course, includes the client's file.  But, the lawyer is also entitled to keep a copy of the file, which, in fact, the lawyer may be required to do according to the lawyer’s malpractice.

The interesting question then becomes, what to do if a client directs a lawyer not to keep to a copy of a the file?

You can read the comment here.