Legal scholars to Missouri Court of Appeals: Give Lamar Johnson his day in court

One hundred and six "renowned legal ethics scholars" (including myself) signed an amicus brief to the Missouri Court of Appeals urging the court to determine that St. Louis Circuit Attorney Kimberly M. Gardner acted completely within the “best traditions” of the exercise of appropriate prosecutorial power in seeking a new trial for Lamar Johnson.

The St. Louis Post Dispatch has the story here.

DC Legal Ethics Committee opinion on duties related to impaired lawyers -- UPDATED

The District of Columbia Bar Legal Ethics Committee has issued an opinion on the duties owed to clients and the profession when an impaired lawyer leaves a law firm or government agency, particularly when the lawyer may continue to practice law, regardless of whether clients are, or may be, terminating their relationship with the firm in order to remain clients of the departing lawyer.

You can go here to read the full text of Ethics Opinion 377: Duties When a Lawyer is Impaired.

UPDATE 10/31/19:  Over at The Law for Lawyers Today, Karen Rubin provides a detailed review of the opinion.

Podcast on paralegal ethics

Because paralegals hold vulnerable information in trust, competence in ethical rules is crucial to protecting their firm, clients, and even themselves. But what exactly are paralegal ethics and why do they matter?

Those are some of the questions that are addressed in this recent podcast of the Paralegal Voice, in which the hosts discuss a broad overview of basic ethics definitions and then zero in on best practices for conscientious adherence to ethics rules.

You can listen to the podcast by clicking on the button below, or (if you can't see the controls below) by going here.

Discipline for attempting to violate the rule on sex with clients

Model Rule 8.4, which is the basis of Rule 8.4 in most, if not all states, holds that it is professional misconduct for a lawyer to "violate or attempt to violate" the Rules of Professional Conduct.  Yet, you rarely see cases imposing discipline for an attempted violation of the rules.

This makes Lawyer Disciplinary Board v. Sayre interesting.  In this case, the Virginia Supreme Court imposed discipline on an attorney for a number of offenses and one of them involved an attempt to violate the rule against sex with clients.  The lawyer admitted that he knowingly engaged in inappropriate and sexually suggestive communications with the intent of initiating a sexual relationship with a client. Because his attempt was unsuccessful, the Court ruled the conduct was not a violation of rule 1.8, but it was a violation of rule 8.4.

The Legal Profession blog has a summary here.

Can a law firm file competing amicus briefs in one same case?

A couple of weeks ago, the New York State Bar Association issued an ethics opinion with an answer to this interesting question:  can the same law firm file amicus briefs on both sides of a Supreme Court case?

And the answer is, as it so often is,... "it depends."

The question originated when a law firm asked its lawyers if any of them would be interested in preparing an amicus brief for filing with the Court.  The problem was that some lawyers wanted to argue one side of the issue, while others wanted to argue the opposite side. 

Given the division of opinions, the firm management decided to create two separate teams to work on their respective positions and then to ask the NY State Bar Association Ethics Committee if they could file both briefs.

In it opinion (Opinion 1174), the Committee concludes that the firm can't file either brief if two clients ask the firm to submit amicus briefs on opposing sides of an issue because New York’s Rule 1.7 bars a lawyer from representing clients on both sides of the same litigation. 

However, in this case the interest in filing the briefs did not come from a client request.  Here, the lawyers were to appear pro se.  Thus, as long as the attorneys appeared in their own name, rather than in the firm's name, the Committee found no ethical reason why attorneys may not file amici briefs on opposing sides of a question before the Court.

You can read the opinion here.  The Law For Lawyers Today has a post on the opinion here.

Meanwhile, over at Faughnan on Ethics, Brian Faughnan argues that it is not clear what the answer would be if one lawyer from the firm was filing on behalf of a client and then another lawyer in the same law firm wanted to file an opposing brief pro se.  If it is true that lawyers are "as free as anyone" to file pro se briefs in any cases, it would seem that the answer is that the pro se lawyer would be allowed to file the amicus brief.  Yet, this situation would look too similar to having an attorney from a firm arguing on both sides of the "v." in a litigation matter. 

PLI upcoming program on innovation and the practice of law

In case you have not heard, the Practicing Law Institute is hosting a program next Wednesday you might be interested in.  The concept is simple: they are bringing together ethics lawyers and innovators to discuss how lawyers and others can do innovative things in delivering legal services under the current law and ethics rules. In other words, it is not a discussion on how we should change the law so that we can practice in the future; it is a program on what innovations can be implemented right now.  You can attend in person or through the magic of the internet.  For more details you can go here.

How not to practice law: mock President Trump in a brief

The lawyers for a group of mayors in Puerto Rico have been ordered to refile an amicus brief because of what a federal judge considered indecorous conduct.  And what was the conduct, you ask?   Putting quotation marks around the word honorable when referring to President Trump (ie, as in the "Honorable" President Trump.)  The judge also held that “A court of law is no place to mock, ridicule, or politically attack the president.”  No other sanctions were imposed on the lawyers, though.  The case is called Club Gallistico de Puerto Rico Inc. v. U.S. , D.P.R., No. 19-cv-1481, 10/15/19.

The Court's order reads, in full:

The Court hereby STRIKES the Brief of Amicus Curiae in Support of Plaintiffs filed by
amicus party Asociación de Alcaldes (Docket No. 43). Rule 12(f) of the Federal Rules of Civil Procedure allows considerable discretion to a district court in striking “any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f); see also Alvarado-Morales v. Digital Equip. Corp., 843 F.2d 613, 618 (1st Cir. 1988). To insert ironic quotation marks in a brief’s heading when referring to the President of the United States’ official title (“Hon.”) constitutes an indecorous action by the Asociación. A court of law is no place to mock, ridicule or politically attack the President. The Asociación de Alcaldes shall file a corrected version of its brief by Friday,  October 18, 2019 at 12:00 p.m. 

A quick comment on Indiana's anti-discrimination rule

A blog reader from Indiana wrote to me to tell me that Indiana adopted a version of the proposed Model Rule 8.4(g) before it was adopted by the ABA.  It says that it is misconduct to “engage in conduct, in a professional capacity, manifesting, by words or conduct, bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors. Legitimate advocacy respecting the foregoing factors does not violate this subsection. A trial judge’s finding that preemptory challenges were exercised on a discriminatory basis does not alone establish a violation of this Rule.”

I was not aware of this rule in Indiana and now that I see it, I have a few comments.  First, it explicitly says it regulates speech, which leads me to wonder if it would survive a constitutional attack. In contrast, the Model Rule tries (unsuccessfully, in my view, but at least it tries) to limit its reach to conduct in order to avoid regulating speech.  Second, it limits the rule’s application to conduct “in a professional capacity” but it doesn’t define what it means by “professional capacity.”   Third, the rule does not recognize an exception to allow lawyers to exercise discretion when choosing clients like the Model Rule does.

New Mexico becomes third state to adopt Model Rule 8.4(g)

Long time readers of this blog know that I have been following the developments on Model Rule 8.4(g) way back since it was proposed in 2016.  Go here and scroll down to see my posts, in reverse chronological order.

As you probably remember, Model Rule 8.4(g) has generated a very robust debate, and has proven to be controversial because, at least as originally adopted by the ABA, some argue the rule imposes a threat of discipline for 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.  The state that adopted it most recently (Maine) adopted it after making several important amendments.  See here.  Reportedly, Missouri, and Colorado have also amended their rules to reflect some aspect of the Model Rule, but I have not seen the extent of these amendments.

I am writing about this today because I just read a short announcement in Bloomberg Law stating that New Mexico has formally adopted Model Rule 8.4(g).

Wisconsin Appellate Court disqualifies judge because of a "Facebook friendship"

At the end of last year, I reported that the Florida Supreme Court issued an opinion holding that sometimes, the relationship between a judge and a litigant or lawyer might be a basis for disqualification of the judge but that there is no reason that Facebook “friendships” should be singled out and subjected to a per se rule of disqualification.

More recently, I reported that the ABA Committee on Ethics and Professional Responsibility issued a new Ethics Opinion on whether judges’ social or close personal relationships with lawyers or parties should be considered grounds for disqualification, in which the Committee did not discuss the issue of "Facebook friendships."  See here and here.

I am writing about this today because I just read that the Wisconsin Appellate Court has issued an opinion disqualifying a judge because of an undisclosed "Facebook friendship."

Although the court decided not to create a bright-line rule regarding the use of social media by Wisconsin judges, it ultimately concluded that a judge’s undisclosed social media connection with a party in the case created an appearance of impropriety, and thus, was enough to disqualify the judge.

The court held that the use of social media is not, by itself, enough to disqualify a judge, but on this particular instance, the judge's acceptance of the friendship request amounted to an ex parte communication and “created a great risk of actual bias resulting in the appearance of partiality.”

The case is called In re Paternity of BJM, and you can read the opinion here.

Rudy Giuliani and the practice of law, part 2

About 3 weeks ago I posted a comment on issues raised by some of Rudy Giuliani's recent comments and actions.  In it I suggested that there are problems with the argument that his testimony is protected by the attorney-client privilege.  Yet, I did not address the issues regarding confidentiality.  So, to complete that picture, here is an article published in LawFare discussing the issue.

Challenges facing inhouse counsel

In the most recent Thinking Like a Lawyer podcast, hosts Joe Patrice and Elie Mystal, two popular contributors to Above the Law discuss a number of issues that face inhouse counsel, including a recent comprehensive survey of corporate legal departments which reveals confusion over privacy requirements and complaints over outside counsel costs.   (Note that the discussion begins with a completely different issue but eventually gets to the issues related to inhouse counsel at the 9:40 minutes mark.).  You can listen to it by clicking on the "play button" (triangle) below, or by going here.

Ethical issues related to leaving a firm

A few days ago I posted a link on "how not to practice law" about a case involving a lawyer accused of stealing files from a firm when departing from it (here).  A few days later, Ethical Grounds posted a short follow up discussing issues related to the ethics of departing from a firm.  Take a look at it here.

How not to practice law: have your client's wife pay the client's bill by giving you a lap dance and having sex with you

Need I say more?  The Legal Profession Blog has a summary here.  The complaint is here.

Arizona task force proposes change to rules to allow firms to have non lawyer co-owners -- UPDATED x2

Long time readers of this blog will remember that there has been a lot of debate in recent years about whether it is a good idea to continue to prevent law firms from generating capital by allowing non-lawyer investors.

I am writing about this today because I just read that the Arizona Task Force on the Delivery of Legal Services has recommended that the state’s supreme court end the restrictions on non-lawyer co-ownership of law firms.  The task force's (very long) report is here.

And, Arizona is not alone.  As reported in an article in Bloomberg Law, the "Arizona panel’s actions are part of a growing movement of state and national bar groups currently acting to loosen or repeal law firm ownership and related regulations."

Not everyone is happy with the trend, though.  As the article continues, "Big Law leaders have expressed concern about the trend, which could allow the Big Four—EY, Deloitte, KPMG, and PwC—and other alternative legal service providers to take a more direct competitive stance against U.S. law firms, especially if several larger states adopt such changes."

Likewise, one member of the Arizona task force (the chief judge of one of the divisions of the Arizona Court of Appeals) argued that allowing non lawyers to share ownership of law firms would pose “a serious threat to the long-term health of the justice system" and "would not benefit the public"

To become final, the proposal has to be approved by the Arizona Judicial Council, the policy-making body that oversees the state’s justice system, after which the public will have a chance to comment on it.  Finally, the proposal would have to be adopted by the seven-member Arizona Supreme Court.  If approved, the changes are not likely to be effective before January of 2021.

UPDATE 10-16-19:  Law Sites has an article on this topic here.

UPDATE 11/9/19:  The Institute for the Advancement of the American Legal System has a comment on the proposals here.

Supreme Court of Oklahoma imposes a bizarre sanction: barring an attorney from representing, or even meeting with, females

A few days ago, the Oklahoma Supreme Court issued a short opinion in which it imposes the most bizarre sanction I have ever seen in a disciplinary case.  It generated a great exchange in the Professional Responsibility professors' list serv and many of the points I am going to make below are taken from that discussion.  The case is called State ex rel. Okla. Bar Ass’n and the opinion is available here.

But before we get to all that, let's review the facts of the case.  The lawyer in question, one Richard Stout, was charged with three counts of misconduct. In one, it was alleged (and later proven) that he represented a woman in her divorce case. While the representation was ongoing, he sent her sexually suggestive text messages but because she wanted her divorce completed as quickly as possible she didn’t fire him.  In another, it was alleged (and also later proven) that he had sex with a client who said she did it because she was “in a desperate situation” financially.  Finally, in the third one, it was alleged - and proven - that, about a year later, Stout made unwanted sexual advances and sent sexually suggestive messages to another female client who ultimately terminated the representation.

Based on these facts, the court found that Stout’s actions violated several rules of professional conduct, including the prohibition on representing a client when there’s a conflict of interest, the prohibition against having sexual relations with a client (which has exceptions but none of which were applicable in this case), and a rule of the Oklahoma Rules Governing Disciplinary Proceedings which subjects an attorney to discipline for any acts by that attorney that are contrary to prescribed standards of conduct, and "which would reasonably be found to bring discredit upon the legal profession."

However, the court also found that the lawyer expressed “sincere and deep remorse toward his clients,” voluntarily consented to therapy, and offered to not take on female clients in the future.

Based on these "mitigating" circumstances, the court decided to impose only a three-month suspension.

At this point we could stop and discuss whether that sanction is too lenient; but there are more interesting things to talk about.

Here is where it gets interesting.  After stating the three month suspension, the court added that the lawyer had to abide by the following conditions: (1) Mr. Stout shall not accept female clients and will not meet alone with a female at any time associated with his practice of law; (2) he will remain in treatment as recommended by his counselor; (3) he will remain in contact with Lawyers Helping Lawyers; and (4) he will maintain site blocking protection on his electronic devices.

Let's start with number 4...  So the court is telling the lawyer he can't access certain websites [I assume related to pornography].  I have two questions:  how is the state going to monitor, or enforce that?  But more importantly, isn't that a violation of the lawyer's first amendment rights?  Can the state control the content of a lawyer's books, or magazine subscriptions as a condition to practice law?

Then let's talk about what the law professors were talking about today: condition number 1.  The court is telling the lawyer that he can not be alone with females in relation to the practice of law. 

This sanction raises many questions.  For example, is the lawyer now going to be required to post notices in appropriate places (entrance to his office, his website, etc) warning, or at least informing, that females must be accompanied when contacting him in person?  Can the lawyer hire female staff or associates (because there is always a chance he might find himself alone with them in the office)?  How is he going to conduct business with female lawyers?

Then there is the question of whether the sanction becomes state mandated discrimination on the basis of gender.  And if it is, would the Oklahoma Bar ever consider prohibiting a lawyer from accepting African-American clients in response to a lawyers misconduct involving racist conduct?  And if the answer to that is no, how does the court justify saying it is okay to mandate discrimination on the basis of gender but it is not okay to mandate discrimination on the basis of race?

Now this question has several layers.  First, it is a generally accepted proposition that lawyers can discriminate when choosing clients.  Even the recently adopted Model Rule 8.4(g) recognizes this.  However, at the same time, it is possible that lawyers may be subject to penalties for violating state or federal anti discrimination laws.  For example, Illinois Rule 8.4 recognizes this, and makes it misconduct to violate these laws.  In other words, in Illinois is it not misconduct to discriminate unless the discrimination is found to be a violation of the law.  Thus, in many states, lawyers can choose to represent only people of one gender if they want.  There are law firms out there that do so.

There are firms who represent only men in divorces cases. (See here, for example.)  What is different in this case is that the lawyers in those firms have chosen to represent only men; in the Stout case, the court is forcing the lawyer to do so. As a penalty.  Because he presumably can't handle it.  And that, to me, makes a difference.

I don't like that this opinion, when published, will set a precedent that allows a court to micro manage the practice of a disciplined attorney.  Can the court now tell lawyers that they can't get involved in certain types of cases, or represent certain types of clients?

And what if a woman wants Stout to represent her?  Why does the court prevent her from choosing her lawyer?  To protect her?

If this man is so out of control that he can't even be trusted to be in a room alone with a female in a professional setting, is he really fit to practice law at all?

If the lawyer is competent to practice law, he should be competent to represent the clients who want to hire him.  If he is incompetent to represent women, he should be considered incompetent to represent anyone.  He should have been suspended indefinitely until he was able to show he could be trusted to practice again.

Michigan becomes 37th state to adopt notion that competence includes knowledge and understanding of "technology"

Last month Michigan adopted the standard of "technology competence" illustrated in the ABA's Model Rule Comment [8] to Rule 1.1.  The Michigan amendment will take effect on January 1, 2020. Now there are 37 states that have adopted some version of the notion that to be competent, lawyers must know and understand modern "technology."

The amendment in Michigan is more detailed, and in my opinion, better than the comment in the Model Rules.  You can get more information here.

Article by lawyers for whistleblowers on whether Rudy Giuliani can claim the protection of the attorney client privilege

A few days ago I posted a short comment on Rudy Giuliani and the practice of law.  In it, I questioned whether he understands the notion of the attorney-client privilege. 

Now, here is a new article by several lawyers who represent whistleblowers on how they (the authors) have used the crime-fraud exception to the privilege in the past to deny the use of the privilege and on why they think that Giuliani will not be able to claim the privilege successfully.

Oregon State Bar approves proposals to create program of non lawyer legal professionals and another to create a path to the bar exam that does not require going to law school

Long time readers of this blog will remember that over the past few years there has been a debate on whether jurisdictions should allow non-lawyers to provide certain types of legal services in order to provide better access to representation.  I have posted many comments, links to articles and podcasts, most recently here.

For all that discussion on the topic, however, only two jurisdictions (Washington and Utah) have actually created programs to do something about it by recognizing and regulating "legal technicians" (or LLLTs for "limited license legal techinicians"). 

That is about to change.  Last week I read that the Oregon State Bar’s Board of Governors has voted to approve a recommendation to create a paraprofessional licensing program and a proposal to enable individuals to become licensed lawyers without attending law school, by completing a four-year tutelage program.

The paraprofessional licensing proposal seems to be similar to the LLLT programs in Washington and Utah.  The other proposal, referred to as a Writing for the Bar Program, would allow individuals to sit for the bar exam and be licensed to practice without having to attend law school.  Its goal is to reduce law school debt and to enable more people — and a greater diversity of people — to enter the practice of law.  Instead of going to law school, the program would require applicants to work under a tutor, at least 32 hours a week, in a law office, legal department or court for four years. The tutor would be required to provide instruction on certain specified subjects.

Both proposals require further actions to develop more-detailed plans and regulations for implementing them and, both programs will require approval by the Oregon Supreme Court before becoming final.

Law Sites has more details and links to the proposals.

How not to practice law: tell the disciplinary agency it would be an honor to be disbarred -- UPDATED

So you want to get disbarred?  Ask and you shall receive.  According to a story in Above the Law, here is the text of an email message sent by a practicing lawyer to the D.C. Office of Disciplinary Counsel asking to be disbarred rather than respond to or participate in any of the four disciplinary matters that had been brought against him:

Please don’t kill trees, waste taxpayer resources and ODC personnel on me. ODC has no credibility or legitimacy to me. Or the drivel you generate. You are simply dishonest lawyers who do nothing to regulate dishonest lawyers. And racists to boot. Rather than wasting time, money, and paper on your sophistries, please disbar me. Disbarment by ODC would be an honor. To date, aside from competing in the triathlon world championships, my greatest honors are my PhD from UCLA and my law degree from Boalt. But a disbarment letter from ODC will be framed and go up right alongside those diplomas. Please do me the honor of disbarring me. I will be so very very proud.

The D.C. Court of Appeals Board on Professional Responsibility obliged and recommended that the attorney be “disbarred without an analysis of the merits of his case.”

The ABA Journal has a post, with some links, on the case here.

UPDATE (10/3/19):  Michael Kennedy of Ethical Grounds commented on the case here.

Rudy Giuliani and the practice of law

Unless you have been living under a rock for the past few weeks, you know that Rudy Giuliani who is often labeled to be "a personal counsel to Donald Trump" has been in the news a lot lately and that his appearances on TV have generated a lot of commentary, and jokes.  From the Professional Responsibility perspective, here are a few interesting questions Giuliani's practice has generated:  

Is Giuliani practicing law to begin with?

There has been much discussion on whether Giuliani is acting as a lawyer or as a public relations spokesperson.  It is difficult to say because we don't know what is the content of the communications with Trump or Trump's team and what tasks he has been asked to perform specifically.  But I think it can be said that he is doing both. I don't think that making personal appearances and operating as a spokesperson for a client means one is not practicing law at the same time.  I am willing to give him the benefit of the doubt on this one.  Yet, I am not so sure when it comes to taking a trip to Ukraine to meddle in an investigation, which he admitted to with those words!


Is Giuliani violating the rule regarding competence?  Is he incompetent as a lawyer?

Uf!  That's a tough one.  It is pretty clear he has committed some serious mistakes, during appearances on TV by contradicting himself, admitting to misconduct etc.  So, on the one hand, he had made mistakes, but whether those mistakes rise to the level of misconduct because of incompetence, I guess would depend on the quantity, frequency and severity of the mistakes.  I have not been keeping count, so I can't really offer an informed opinion.  I would be interested to hear if anyone has been keeping a record and what they have to say.


Is Giuliani threatening frivolous actions?

Earlier today Pro. Jonathan Turley posted, in part, that Giuliani suggested he was considering suing members of Congress over their impeachment efforts.  In response, Turley states:

Such a lawsuit would be frivolous and it is unsettling that Giuliani would put any credence into such fringe advice.

Calling the impeachment effort as “worse than McCarthy,” Giuliani revealed that he had sought legal advice on the issue: “I had a couple of talks with civil rights lawyers and a constitutional lawyer today and here’s what they’re recommending: that we should bring a lawsuit on behalf of the president and several of the people in the administration, maybe even myself as a lawyer, against the members of Congress individually for violating constitutional rights, violating civil rights.” 

In a long parade of uniquely bad ideas, this would be the final climax. First, the allegation of self-dealing in the Ukrainian call would be a valid basis for an article of impeachment. It would still have to be proven and there are defenses for any such trial that I have previously discussed. This would be viewed by a court as a facially legitimate inquiry. Second, courts do not second guess the House on such efforts. While there continues to be a debate over what might be reviewable in an impeachment proceeding, it is exceptionally unlikely that a court would seriously question this effort. 

The claim is that the impeachment interferes with a president’s inherent authority over foreign relations under Article II. That is facially frivolous.

Can Giuliani rely on attorney-client privilege to avoid Congressional testimony?

Giuliani has suggested that he is protected by attorney-client privilege in the impeachment inquiry by Democrats in the U.S. House of Representatives.  There are a number of problems with this suggestion.

First of all, Giuliani can't be "protected" by the privilege.  The privilege protects information, not an individual, and the privilege belongs to the client who is the one who has the right to claim it.  Second, the privilege only covers communications between the attorney and the client which were shared for the purpose of obtaining legal advice, and if Giuliani is not practicing law (see above) or if the communications were related to tasks other than legal services, the privilege does not apply.  Third, the information provided to an attorney by people outside the attorney-client relationship (such as foreign leaders) may not be protected.

Often Giuliani sounds like he thinks that anything told to him is protected merely because he has a law degree.  If that's what he thinks, he does not understand the law (which may point to incompetence (see above)).

Fourth, it is not clear what information Congress has requested of Giuliani and, therefore, whether it is protected by the privilege.  It is possible, for example, that the information can be considered not privileged because of the crime-fraud exception.

For more on whether Giuliani claims of privilege are valid, go to the ABA Journal, and Above the Law.

Comments on California proposals on the future of the practice of law

As you probably know, I have been posting updates on changes proposed (and some already adopted) in California.  First, there was the adoption of new rules, and most recently on a task force's report and recommendations on the future of the practice of law (see here, here, here, and here.) 

Now, here is a link to a short post at MyShingle with comments on the California proposals.  The two comments I find more interesting are these:

-MyShingle does not oppose permitting nonlawyers to provide legal advice without running afoul of UPL.  MyShingle recommends that any regulations governing licensing for legal technicians or advisors not be overly complicated or onerous.  

-As a broad matter, MyShingle does not oppose outside ownership. In this regard, MyShingle recommends that the Task Force gain a greater understanding of the various business models for outside ownership and formulate rules regarding use of client data even in anonymized format and even, in some circumstances, with client consent.  But as the Task Force works towards rules that would allow outside ownership on an entity-level, MyShingle strongly supports relaxing rules to allow lawyers to joint-venture and partner with non-lawyers on a project, product or service basis to develop innovative packaged services. In addition, MyShingle urges the Task Force to eliminate regulations that prohibit payment or sharing of referral fees to non-lawyers and to state clearly that lawyer-matching platforms are a payment mechanism and not fee-sharing arrangements with non-lawyers.

More on the issue of facebook friendships with judges

About three weeks ago I posted a comment on the ABA Committee on Ethics and Professional Responsibility's recent Ethics Opinion on Judges’ Social or Close Personal Relationships with Lawyers or Parties as Grounds for Disqualification or Disclosure, and pointed out that the opinion did not address an issue that had been in the news not too long ago regarding "facebook friendships."

Thankfully, Karen Rubin of The Law For Lawyers Today, did a bit more research on the issue than I and posted this short comment.  In it, she links several state ethics opinions on social media friendships.  Go read it!

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.