Illinois State Bar Association issues three new ethics opinions

The Illinois State Bar Association’s Board of Governors approved three new Professional Conduct Advisory Opinions on May 15 during its regularly scheduled Board meeting.

The opinions address the duties of an in-house counsel when confronted with conduct that may be harmful to his or her employer; the prohibition on a lawyer threatening criminal charges to gain an advantage in a civil matter; and the propriety of a firm name of “X and Y” when one of the named lawyers has changed careers and no longer practices law.

Opinion 20-02

Opinion 20-02 relates to the duties of an in-house counsel when confronted with conduct that may be harmful to his or her employer. It discusses Illinois Rule of Professional Conduct 1.13 and the in-house counsel’s reporting obligations. It also covers the in-house counsel’s authority under Illinois Rule of Professional Conduct 1.13 and 1.6 to disclose confidential information outside of the entity in certain circumstances.

Opinion 20-03

Opinion 20-03 addresses prohibition of a lawyer threatening criminal charges to gain an advantage in a civil matter. The opinion concludes by indicating that in a demand letter, a lawyer may accurately set forth the law, including the possibility of civil and criminal liability, as well as including a copy of the applicable statute. However, a lawyer would be prohibited from stating that criminal liability could be avoided by complying with the demand.

Opinion 20-04

Opinion 20-04 addresses the propriety of a firm name when one of the named lawyers has changed careers and no longer practices law. The opinion also discusses the availability of the designation “of counsel” to a lawyer no longer practicing law with the firm, finding that such a designation would be inappropriate.


Thank you to Illinois Lawyer Now for this update, the summaries and the links.

New Jersey Supreme Court reiterates generally accepted notion that even if information is available to the public it is confidential if it is not generally known

As I am sure you know, subject to some exceptions that are not relevant here, lawyers have a duty to keep confidential information secret.  Yet, students and lawyers sometimes have a hard time defining what is considered to be "confidential information."  In particular, sometimes they think that if the information is "public," it is by definition not confidential.

The problem is that it is not that simple.  It depends on what you mean by "public." One thing is to say that the information is "public" because it is widely known to the public; but is a different thing to say that information is "public" because it is contained in a public record that is available to the public.

For this reason, the generally accepted definition of confidential information does not use the adjective "public."  According to this definition, confidential information is information related to the representation that is not generally known.  (A couple of years ago, the ABA issued an ethics opinion clarifying the notion of generally known information.)

Thus, information can be public (in the sense that it is available to the public) but not generally known, in which case, the fact that the information is public does not change the fact that it is still confidential.  

I am writing about this today because a recent decision by the New Jersey Supreme Court, again reiterates that this distinction is important and can result in problems for lawyers, often when the lawyers discuss information about former clients.  

The case is called In the Matter of Calpin, and the facts are similar to many other cases that have raised this issues in recent years.  A client (or former client at the time) wrote a negative review about the lawyer in Yelp! and the lawyer decided to reply by, among other things, disclosing some information about the client.  The information was "public" in the sense that it was available in public records, but is was not generally known and for that reason the court held that the lawyer violated the duty of confidentiality.

You can read more about the case here; and you can read the opinion here.

To my knowledge, only on case (Hunter v Virginia State Bar, 744 S.E.2d 611 (Va. 2013)) has held that the state can not discipline a lawyer who discloses public information that is not generally known.

Illinois State Bar Advisory Opinion on the Types of Legal Services Law School Graduates Awaiting Bar Exam Can Perform Under Supervision of Licensed Lawyer

The Illinois State Bar Association has approved an ethics opinion that says recent law school graduates who have not yet taken the bar exam can perform many of the services normally performed by licensed first-year associates as long as they are being properly supervised by a licensed lawyer.

You can read the full opinion here.

Texas Supreme Court reiterates that former criminal defendants suing their lawyers for negligence must prove actual innocence

Long time readers of this blog may remember that I have posted many stories commenting on the fact that many (probably most) jurisdictions require former criminal defendants to prove actual innocence as a requirement to support malpractice claims against their criminal defense counsel. (Go here and scroll down for stories on this.)  In recent years, a number of jurisdictions have rejected this notion, but it still seems to be the majority approach.

Earlier this year, the Supreme Court of Texas reaffirmed its position on this in a case called Gray v. Skelton, which you can read here.

What makes this case interesting is that it clarifies that merely getting a conviction reversed, or being "exonerated" is not, by itself, enough to show actual innocence.  As the court explains, 

...exoneration . . . requires not only that the underlying criminal conviction be vacated but also proof of innocence. Innocence, however, can be established in more than one way. It can be established in the underlying criminal proceeding when the conviction is vacated on an actual-innocence finding. . . .Or, if the conviction is vacated on other grounds, formerly convicted individuals may prove their innocence in their malpractice suit against their criminal-defense attorneys. 

ABA issues new ethics opinion on the duty not to counsel clients about, or assist in, committing a crime or fraud

At the end of April, the ABA's Standing Committee on Ethics and Professional Responsibility issued a new Formal Opinion (No. 491) titled "Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings." You can read the opinion here.

In my humble opinion, it does not add much that we did not know already but it is always nice to have guidance on important questions.  What it does, perhaps without realizing it, is provide support for an argument with regard to a number of other duties -- more about that below.  Here is the summary of the new opinion:

Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer “knows” is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness to or conscious avoidance of facts. Accordingly, where facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity. Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish “knowledge” under Rule 1.2(d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct, and to advance the client’s legitimate interests. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4. If the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules. This opinion does not address the application of these rules in the representation of a client or prospective client who requests legal services in connection with litigation.

Now, why do I think that this opinion is important for rules not mentioned in the opinion?  Because it addresses the duty of the lawyer to act to "find out more" when the duty is expressed in a rule that takes effect if the lawyer has "knowledge."  Model Rules 1.9(b), 1.10(a), 1.13(b), 4.1 and 8.4(f) are all based on knowledge, for example.  

When I teach the duties related to perjury we discuss the notion of selective ignorance and how much investigation a lawyer has a duty to do before being able to claim they did not "know" something, given that knowledge is a subjective state of mind but can be proven with objective evidence of the circumstances.  This opinion provides some guidance on that issue.

[By the way, before anyone writes to me about this, No, Rule 8.4(g) is not based on knowledge.  8.4(g) is based on a negligence standard. Read it carefully.  So is 3.6.]

UPDATE: 1/18/21:  Louisiana Legal Ethics has a comment on the opinion here.

NY City Bar Association proposes humanitarian exception to rule that bans financial assistance to clients; ABA also considers similar proposal; do they go far enough?

Just over a week ago, the New York City Bar Association proposed an "urgent amendment" to Rule 1.8(e) of the New York Rules of Professional Conduct to provide a “humanitarian exception” while the ABA is also considering a similar proposal.

As you may remember this is the rule that in most jurisdictions bans attorneys from providing financial assistance to clients involved in litigation. It is a rule that has been around forever, but as old as it is, it has also been criticized for not allowing much flexibility.  Some jurisdictions have adopted exceptions for deserving circumstances and in other jurisdictions courts have interpreted the rule to allow humanitarian help, even if the rule does not say that.

So, partly - probably mostly - in response to the health crisis brought about by the Covid-19 pandemic, the New York City Bar Association has made a formal proposal for an amendment to the rule.  You can read the full text of the proposal here.

As the proposal states, the proposed amendment would create a “humanitarian exception” to the current rule, which prohibits lawyers from providing financial assistance to litigation clients. 

This proposal was originally approved back in January 31, 2020 by the NY State Bar Association which then sent its recommendation to the Administrative Board of the Courts for consideration.  The NYCBA is merely now urging the Courts to act quickly to approve the humanitarian exception.

It should be noted that the request makes clear that the need for the humanitarian exception is not limited to the current pandemic.

. . . .Even before the current crisis, lawyers representing indigent clients pro bono have sought to provide financial assistance to clients in order to help them with basic necessities such as food, clothing, and access to healthcare.

      Under the current version of the ethics rules, a lawyer or law office could face disciplinary action for engaging in many of the activities described above.  But that should not be the case.  The humanitarian exception before the Courts is consistent with lawyers’ ethical and moral obligations to “seek improvement of the law; and to promote access to the legal system and the administration of justice.”  Especially now, lawyers should not be limited in their ability to provide assistance to clients who are struggling to make ends meet.

The proposal ends by suggesting that, as an alternative, if the Courts require more time to study the humanitarian exception and decide whether to fully amend Rule 1.8(e), the Courts should consider taking immediate short-term action, such as issuing a temporary order adopting the humanitarian exception until such a time as New York is no longer in a state of emergency that would expressly allow lawyers to provide financial assistance to indigent clients they are representing pro bono if the client has been financially impacted by the COVID-19 pandemic.

I understand the public policy behind rules that ban lawyers from providing financial assistance to clients but I agree that a humanitarian exception is a good idea.  In fact, I have argued that the rule should be amended rather than interpreted judicially to say something it does not say.  The proposal in NY takes the correct approach and it should be approved.

For comments on the issue go to The Law for Lawyers Today, Ethical Grounds, and Louisiana Legal Ethics.

Meanwhile, the ABA's Standing Committees on Ethics and Professional Responsibility and on Legal Aid and Indigent Defense have drafted a proposal to have the ABA House of Delegates approve a similar provision for the Model Rules.  The new exception would allow lawyers providing pro-bono services to provide financial assistance to clients under certain circumstances.  You can read the proposal here.

Note that neither proposal would allow a lawyer to provide financial assistance to a client if the legal services are being provided for a fee.  This means that a lawyer representing a client in financial need on a contingency fee would not be allowed to provide financial assistance.  If the client charged a contingency fee is in as much need as the one who is not charged a fee, why not allow the exception to apply?

Utah Supreme Court proposes important regulatory reforms

I often tell my students that by the time they graduate and pass the bar the regulation of the profession might be different than what we cover in the class.  Most recently, I mentioned that in relation to the growing trend of allowing non-lawyers to provide some legal services as "legal technicians."

This year I mentioned it in class in relation to two other topics:  advertising regulation and business organizations (or the rules that prevent lawyers from partnering with non-lawyer).  And, a couple of weeks ago, the Utah Supreme Court took a decisive step forward in the direction of deregulation that may start a trend toward more changes in the near future.

The proposed changes, posted for a 90-day period of public comment, would amend Utah’s Rules of Professional Conduct to allow fee-sharing with non-lawyers and to allow non-lawyers to have ownership or partnership interest in law firms or other authorized legal services providers.  The rules would also amend advertising rules and eliminate Rule 1.5(e) which regulates how lawyers can share fees with lawyers in different firms.

The proposed changes would also establish a two-year pilot of a regulatory sandbox — a regulatory body under the oversight of the Supreme Court, to be called the Office of Legal Services Innovation, whose charge would be to license and oversee new forms of legal providers and services.

This is a significant development that will change the way law is practiced and regulated.  It will be interesting to see what the reaction is during the comment period. 

For a copy of the proposed changes go here.  For a summary of the proposal and comments go to LawSites, and Legal Ethics in Motion.

Ethics Training with Kim Wexler (of Better Call Saul) -- UPDATED

Many of you know the TV show "Better Call Saul," now in its fifth season.  (If you don't go here first, then here.)  The show's website is here.

Kim Wexler is a character in the show, and as part of the promo campaign for the show's new season, there is an ongoing series on YouTube called Ethics Training with Kim Wexler:  

Marketing

Communication

Civility

Self Care

Strategic Alliances

Conflicts of Interest

Marital Privilege

Money

Attorney-Client Privilege
(unfortunately, this one makes the usual mistake of confusing privilege with confidentiality!)

Ethics opinion on working from home (because of the pandemic) -- UPDATED

The Pennsylvania Bar Association has issued an ethics opinion intended to provide guidance now and into the future on working from home and other remote locations.  You can read it here.  It discusses issues and concerns related to confidentiality, competence, supervisory attorneys, and proper use of technology.

Law Sites has a summary here.

UPDATE 4/26/20:  LexBlog has a comment here.

UPDATE 5/2/20:  Legal Ethics in Motion has a comment here.

District court denies (partially) motion to dismiss in case against prosecutors for using fake subpoenas and threats to trick witnesses and victims into cooperating with investigations - UPDATED

Long time readers of this blog know that I have reported on a number of cases documenting the misconduct of prosecutors in New Orleans.  (See here.)

Earlier this month, I heard about a new similar case making its way through the courts.  In this case, the plaintiffs allege that the Orleans Parish DA's office for years have been using fake subpoenas to coerce cooperation from witnesses and victims of crimes.  According to the allegations, prosecutors sent out bogus subpoenas -- bearing threats of fines and imprisonment -- to hundreds of witnesses, even though the subpoenas had not been approved by courts overseeing the ongoing prosecutions. The DA's office was simply cranking out fake subpoenas and hoping recipients would be too intimidated by the threat of jail time to question the veracity of the documents.

Several lawsuits followed, and the District Court of the Eastern District of Louisiana recently decided a motion to dismiss in one of them.  It held that the prosecutors had immunity for some of the alleged conduct, but not for all.  In fact, the court held that the individual defendants are not entitled to absolute immunity for their alleged role in creating or delivering “subpoenas” to victims and witnesses of crimes.

Typically, prosecutors have absolute immunity for their work as litigators, but only qualified immunity for their work as members of the law enforcement team, or as investigators.  It is often not easy to determine when one role ends and the other begins, which is why, as you would expect, there is quite a bit of case law on the subject.  But, in this case, it looks like the court thought that creating and delivering the fake subpoenas was part of the pre-litigation state of the building a case.

Evidently, the plaintiffs will still have to deal with the defense of qualified immunity, but it will be interesting to see how the case develops from now on.

You can read the court's opinion here.   Tech Dirt has a comment on the case here.

UPDATE (2/16/20):  ABove the Law has a comment on the case here.

UPDATE (4/23/20):  the Fifth Circuit Court of appeals affirmed the lower court.  Bloomberg has the story here.

More on the topic of the practice of law during the pandemic - UPDATE x2

The original message and first update appear below. 

TODAY'S UPDATE (4/9/20):   Friend of the blog and Bar Counsel for Vermont, Michael Kennedy continues his shelter in place "CLE From my Garage" series with a very good program on legal ethics issues and the pandemic in his new YouTube channel.  You can watch the program here.  And you can catch all his programs in his channel here.


March 30, 2020

Here are a few articles and comments published in the last few days on the practice of law and the pandemic:

Quandaries and Quagmires: Legal ethics, risk management in pandemic (Minnesota Lawyer)

The Impact Of COVID-19 On Law Firm Practices (Above the Law)

Biglaw Firm Cuts Back Partner Compensation Amid COVID-19 Economic Upheaval (Above the Law)

UPDATE (4/4/20):

Attorney Ethics Considerations in the Age of Coronavirus (LexBlog)

4 Ethical Questions For Operating a Virtual Law Office   (Illinois Law Now)

Illinois Supreme Court Commission on Pretrial Practices Releases Final Report on Criminal Justice System

The Illinois Supreme Court Commission on Pretrial Practices has released its final report concerning pretrial reform in the Illinois criminal justice system.  For more information go here.  You can read the report here.  For the preliminary report and other sources of information go here.

What Are The Differences Between the ABA Model Rules and the Louisiana Rules?

If you ever need to figure out the differences between the ABA Model Rules and the Louisiana Rules, here is a video that explains them.

Two courts uphold public defenders' ability to limit caseload

The Legal Profession blog recently reported two different instances where courts in Wyoming and Massachusetts recognized that public defenders should be allowed to refuse new cases. 

In the Massachusetts case, the attorney in charge informed the First Justice of the Springfield District Court that staff attorneys in the Springfield Public's Defenders' Office could not handle any more duty days in that court. In response, the district court ordered that the public defender continue to accept appointments.  The Supreme Court reversed holding that "to the extent such an order may require . . . staff attorneys to accept more appointments than they can reasonably handle, it risks interfering with their ethical obligations under the Massachusetts Rules of Professional Conduct to act with reasonable diligence and promptness in representing their clients, and thereby threatens to undermine the very right to counsel that the order seeks to protect."

In the Wyoming case, State Public Defender Diane Lozano notified the Circuit Court of the Sixth Judicial District that until further notice, the public defender was not available to take appointments to represent misdemeanor defendants due to an excessive caseload and shortage of attorneys in its Campbell County office. Shortly thereafter, the circuit court entered orders appointing Ms. Lozano, or her representative, to represent misdemeanor defendants in two cases. When the local public defender’s office declined the appointments, the court held Ms. Lozano in contempt. The Supreme Court reversed, holding that "[t]he public defender is in the best position to know its resources, including its attorneys, the skills and experience of its attorneys, and the weight and complexity of each office’s caseload."

Further, the court explained that "Ms. Lozano testified concerning the public defender’s caseload policies and that the Campbell County office was at 168% of the maximum caseload. Counsel for the Wyoming State Bar testified that the public defender’s policies on caseloads “support a way of measuring when an attorney’s caseload gets to the point where the attorney has no ethical choice but to decline representation.”"

Based on that, the court concluded that the public defender has discretion to decline an appointment or appointments and that in exercising that discretion, there is no requirement, statutory or otherwise, that the public defender show an individualized injury in fact or meet the Strickland post-conviction showing of prejudice.

Podcast: How to practice law remotely and efficiently during the COVID-19 crisis

Here is a podcast on "How to practice law remotely and efficiently during the COVID-19 crisis" originally posted by the show Asked and Answered in the Legal Talk Network.  If you can see the play controls below, you can go here.

Lawyers behaving badly during crisis

Yesterday I posted a link to advice on how to behave responsibly during the crisis.  Today I bring you two examples of the opposite.

In two separate opinions, judges chastised lawyers for making unreasonable requests in litigation during the pandemic.

In the fist one, a company that creates life-like images of fantasy subjects such as elves and unicorns asked the court for an emergency hearing in a trademark infringement case.  In what has now come to be known as "the unicorn order," the judge denied the request, stating

Plaintiff recognizes that the community is in the midst of a “coronavirus pandemic.” . . . But Plaintiff argues that it will suffer an “irreparable injury” if this Court does not hold a hearing this week and immediately put a stop to the infringing unicorns and the knock-off elves. . . . 

. . . .  

Thirty minutes ago, this Court learned that Plaintiff filed yet another emergency motion.  They teed it up in front of the designated emergency judge, and thus consumed the attention of the Chief Judge. . . . The filing calls to mind the sage words of Elihu Root: “About half of the practice of a decent lawyer is telling would-be clients that they are damned fools and should stop.” See Hill v. Norfolk and Western Railway Co., 814 F.2d 1192, 1202 (7th Cir. 1987) (quoting 1 Jessup, Elihu Root 133 (1938)). 

The world is facing a real emergency. Plaintiff is not. The motion to reconsider the scheduling order is denied. 

You can read the full order here; and more details here and here.

Similarly, in another case the plaintiff unilaterally scheduled a deposition and defendants filed an emergency motion for a protective order.  The judge denied the order as follows:

The entire world is in the midst of a pandemic. Thousands of people worldwide have contracted the Corona virus and there have been hundreds of virus-caused deaths in the United States. Millions of Americans have been ordered to remain in their homes. Millions more have lost their jobs in the past two weeks. The stock market has taken a brutal beating in the last two to three weeks. Many people are scared. Others are panicked. Everyone is unsure about the future. Cruises have been canceled and all the major airlines have severely curtailed their flights.
We are living in an unprecedented situation.

Nevertheless, the lawyers in this case have been exchanging snippy emails over the past two weeks over the scheduling of a corporate representative deposition. Moreover, defense counsel certified that this routine discovery dust-up is so important that it merits “emergency” status.

No, it doesn’t.

Moving past the incorrect and, frankly, reckless designation of this dispute as an “emergency,” the Undersigned is shocked that counsel could not on their own resolve the issue. Given the health and economic crisis we are in, not postponing the deposition scheduled for next week is patently unreasonable.
If all the issues we are currently facing were to be organized on a ladder of importance, this deposition-scheduling dispute would not even reach the bottom rung of a 10-rung ladder.

For more on that story, go here.

Some thoughts on practicing reasonably during a public health crisis.

Michael Kennedy, Vermont's bar counsel offers some quick and sound advice on practicing law reasonably during a public health crisis.

Does a plaintiff always need an expert in a malpractice case?

Because the practice of law is considered to be a profession, and a profession is defined, among other things by the fact that it requires special knowledge, education and training, courts usually require that plaintiffs in malpractice actions provide an expert witness to support their arguments as to duty and breach to the jury.  But what if there is no jury?  What if the case is going to be a bench trial?  Should a plaintiff be required to have an expert to explain to the judge what the standard of care of the profession is?  Or can we assume that the judge - obviously a lawyer himself or herself - knows the law that applies to the practice of the profession they belong to?

In a recent case in Delaware (Cannon v. Poliquin), the court decide no help from an expert is needed.  Go here for a short summary.

New ABA Formal Opinion on Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts

The ABA Standing Committee on Ethics and Professional Responsibility just released a new formal opinion (Formal Opinion 490) on the ethical obligations of judges in collecting legal financial obligations and other debts.  The summary is as follows:

This opinion addresses the ethical requirement of judges under the Model Code of Judicial Conduct, Rules 1.1 and 2.6, to undertake a meaningful inquiry into a litigant’s ability to pay court fines, fees, restitution, other charges, bail, or civil debt before using incarceration as punishment for failure to pay, as inducement to pay or appear, or as a method of purging a financial obligation whenever state or federal law so provides. Meaningful inquiry is also required by Rules 1.2, 2.2, and 2.5 as a fundamental element of procedural justice necessary to maintain the integrity, impartiality, and fairness of the administration of justice and the public’s faith in it. According to the same Rules, a judge may not set, impose, or collect legal financial obligations under circumstances that give the judge an improper incentive either to multiply legal financial obligations or to fail to inquire into a litigant’s ability to pay. The opinion also discusses innovative guidance on best practices for making ability to pay inquiries, including model bench cards, methods of notice, and techniques for efficiently eliciting relevant financial information from litigants.

You can read the opinion here.

How not to (start the) practice of law -- UPDATED

Original post: March 22, 2020

It has been a while since I posted a story to our running count of "how not to practice law" category, so I here is one.  Unfortunately, this is not the first time I have seen a case with the same or similar facts.

So you say you want to start working as a lawyer in a good firm.  Presumably a great firm, even.  But your resume is not quite up to par.  Here is what not to do:  Lie.  Cheat.  Alter your transcripts.

Yes, folks, once again, we have another winner in our ranks.  This wanna be lawyer altered the law school transcripts 26 times to make it look better. The lawyer falsified the transcript to reflect, among other things, grades that were higher than he had received, high grades in courses that he had never taken, and a cumulative GPA of 3.825, rather than the 3.269 that he had actually achieved.

For that he was charged with multiple violations of rule 8.4, and the Disciplinary Review Board recommended a two year suspension.  The New Jersey Supreme Court, however, lowered the sanction to one year.  Which penalty would you have voted for?

The case is In re Seth Asher Nadler (March 13, 2020).  The Legal Profession blog has more details.


UPDATE March 24, 2020:  Above the Law has a comment on the case here.

Recent discipline case based on conflicts of interest

I often tell my students that disqualification is a more common consequence to conflicts issues than discipline.  Yet, every now and then we see a discipline case based on conflicts.  And here is a recent one that got some attention among Professional Responsibility blogs.  The case, In the Matter of Foster (3/16/20) involved both concurrent and successive conflicts of interest.

The Legal Profession Blog has more details here; California Legal Ethics also has a story.

Florida opinion on replying to negative online reviews

A few weeks ago I wrote about an opinion from North Carolina on whether attorneys could (or should) reply to negative online reviews.  See here.

Today, I am writing to let you know that the Florida Bar’s Professional Ethics Committee (PEC) recently agreed to publish formal Ethics Advisory Opinion 20-1, which provides guidance to lawyers in responding to negative online reviews for comment by Florida Bar members. 

Lawyer Ethics Alert Blog has a comment on the opinion here. 

Ethical Grounds has a comment on the issue in general here.  The conclusion is simple:  “You will have many opportunities in life to keep your mouth shut: You should take advantage of every one of them.”

Technology competence news: civil liability for incompetence involving technology; the need for technology competence during the coronavirus crisis

Long time readers of this blog know I have posted many stories related to the notion of competence related to the use of "technology" in the practice of law.  Go here and scroll down for many stories on the subject.  And, as you probably know also, many jurisdictions have adopted the notion of knowledge or understanding of technology as an element of the duty of competence under rule 1.1.

I am writing about this today because I recently saw two stories of interest related to technology and the practice of law.

The first one relates to the fact that the measures taken to address the health crisis created by the spread of the COVID-19 coronavirus has forced many lawyers to practice remotely. For many, this is a new experience that has forced them to learn how to use new technology.  The story is called Coronavirus Could Be Tipping Point For Tech Competence In Law and you can read it here. 

The second story discusses a related issue.  Once we recognize that the duty of competence includes competence in using technology we open the door to possible civil liability for a violation of that duty.  The Law For Lawyers Today recently discussed a decision that recognized a cause of action along those lines here.  In the case, the plaintiff alleged that the law firm failed to adequately protect his personal data from hackers.

Civility and courtesy in times of crisis

Statement by the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee:

In light of the unprecedented risks associated with the novel Coronavirus, we urge all lawyers to liberally exercise every professional courtesy and/or discretional authority vested in them to avoid placing parties, counsel, witnesses, judges or court personnel under undue or avoidable stresses, or health risk.

Accordingly, we remind lawyers that the Guidelines for Civility in Litigation (LASC Local Rules, Appendix 3A) require that lawyers grant reasonable requests for extensions and other accommodations.

Given the current circumstances, attorneys should be prepared to agree to reasonable extensions and continuances as may be necessary or advisable to avoid in-person meetings, hearings or deposition obligations. Consistent with California Rule of Professional Conduct 1.2(a), lawyers should also consult with their clients to seek authorization to extend such extensions or to stipulate to continuances in instances where the clients’ authorization or consent may be required.

While we expect further guidance from the court system will be forthcoming, lawyers must do their best to help mitigate stress and health risk to litigants, counsel and court personnel. Any sharp practices that increase risk or which seek to take advantage of the current health crisis must be avoided in every instance.

Most proposals for big changes in California delayed by the Board of Trustees of the California Bar

A few days ago, the Board of Trustees of the California Bar delayed deciding (until May) on most of the proposals put forth by a legal tech dominated taskforce, including one which would have allowed non-lawyers and corporations to provide legal services directly to the public.  Two modest proposals which include a change to the rule on competence and a change to the rule prohibiting fee sharing with non-lawyers (allowing non-profits to share fees not just court-ordered fees) will be forwarded to the Standing Committee on Professional Responsibility and Attorney Competence.

Another proposal that survived relates to a program similar to the Legal Technicians in other jurisdictions which allow non-lawyers to provide certain types of legal services.  On this topic, the Board of Trustees set up a separate working group charged with providing its recommendations by December 2020.

Florida proposal to allow paralegals to provide limited legal services

Readers of this blog will remember the current discussion within a number of jurisdictions on whether to allow trained non-lawyers to provide limited types of legal services.  See here, and here for example, I am writing today with an update on the discussion in Florida.

Last year, the Florida Supreme Court Commission on Access to Civil Justice’s approved a proposal to create an “Advanced Florida Registered Paralegal” designation as part of the Florida Registered Paralegal Program.

According to the proposal, Advanced Registered Paralegals would be required to have additional education and work experience than is required to become a Florida Registered Paralegal in order to engage in the limited practice of law under a lawyer’s supervision in family law, landlord tenant law, guardianship law, wills, advance directives, and debt collection defense.

The proposed rule revisions also set forth a licensing and disciplinary process and states that the Advanced Registered Paralegals must be supervised by a lawyer who “maintains a direct relationship with the client and maintains control of all client matters.”

The proposal was sent to the Florida Bar’s Board of Governors for review and Bar President John Stewart announced at the Board’s January 31, 2020 meeting that he had referred the proposed program to the Florida Bar’s Rules Committee to consider objections that were made by the Bar’s Family Law, Real Property, Probate and Trust Law, Elder, and Public Interest Law sections.

Michael Flynn waives privilege

Lawfare is reporting that Donald Trump’s former national security adviser Michael Flynn has waived attorney-client privilege, allowing prosecutors to interview his former attorneys at Covington & Burling LLP. Flynn withdrew his guilty plea on Jan. 14, 2020, claiming that he received ineffective assistance from his lawyers at Covington. The U.S. Attorney’s Office stated that Flynn’s claims would require information from those attorneys.  You can read the filings here.

Discipline System Changes Proposed In Ohio

The Ohio Supreme Court is asking for public comments on proposed amendments to address the process for investigating and prosecuting allegations of professional misconduct by Ohio judges and attorneys.  The report includes a variety of recommendations to the Court aimed at improving and promoting trust in the disciplinary system.  Proposals include:

- Expanding the role and responsibilities of local bar counsel in certified grievance committee investigations and prosecutions

- Streamlining and improving the process for investigating, prosecuting, and adjudicating grievances against Supreme Court justices

- Creating procedures to address lawyer and judicial fitness questions that arise during a disciplinary investigation

- Expediting disciplinary cases, through measures such as service by electronical mail and the use of disciplinary orders in lieu of full opinions in certain cases

- Increasing the time limit for filing a claim for reimbursement with the Lawyers’ Fund for Client

- Increasing the maximum reimbursement amount to $100,000.

Comments should be submitted in writing by letter or via email by March 26 to ruleamendments@sc.ohio.gov or to John VanNorman, Chief Legal Counsel, Ohio Supreme Court 65 S. Front St., Seventh Floor, Columbus, OH 43215-3431.

Florida Supreme Court to hear oral arguments in case on whether company that provides help through an app is engaging in the practice of law

Almost a year ago, I wrote about a couple of complaints filed in Florida that I argued could challenge the very notion of professional regulation.  In one of them a law firm argued that a technology company was practicing law, while in the other the company challenged the notion of the regulation of the profession under antitrust laws. 

You can read my original post here, which begins with this background information:  "TIKD is a company that promises consumers to take care of their traffic tickets (with a money back guarantee).  The consumer pays a fee to the company and the company takes care of everything, including hiring a lawyer to represent the consumer.   Based on this business model, a law firm in Florida filed a complaint with the Florida Bar alleging that TIKD was practicing law without a license.  . . . . Meanwhile, TIKD went on the offensive and filed a federal lawsuit against the Florida Bar, the law firm, and others alleging, among other things, antitrust violations and that the Florida Bar and the law firm are engaged in a “concerted effort” to put TIKD out of business."

This second lawsuit (the anti-trust lawsuit) was dismissed, but the Florida Supreme Court will hear oral arguments today to consider whether TIKD's business model constitutes practicing law.

Bloomberg law has more details on the story here.

Georgia Supreme Court holds that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation

In a recent case summarized in the Legal Profession blog, the Georgia Supreme Court held that a malpractice suit implies waiver of the attorney-client privilege with respect to third-party attorneys involved in the representation.  Go here for more details and links.

Illinois Supreme Court Commission on Professionalism launches free online CLE program on lawyer wellness

I have written about the notion of "wellness" before, including about a report on the negative effects of the practice of law and the fact that Vermont has adopted a comment [9] to its rule on competence which states that maintaining mental, emotional, and physical well-being necessary for practice is important aspect of competence.

Today I want to let you know that the Illinois Supreme Court Commission on Professionalism has created a free online CLE program on lawyer well-being that you can access by going here.

According to the website, attorneys who complete the CLE are eligible to receive 0.5 hours of mental health and substance abuse CLE credit in Illinois. During the 30-minute interactive eLearning attorneys will (1) understand the extent of the well-being crisis in the legal profession, (2) identify potential symptoms of stress, and (3) learn strategies to help maintain their well-being.

North Carolina ethics opinion on whether lawyers can reply to negative online reviews -- UPDATED

Original post 3/1/20

The North Carolina State Bar has issued a proposed ethics opinion on whether it is ethical for attorneys to reply to negative online reviews of their services.  Any interested person or group may submit a written comment – including comments in support of or against the proposed opinion – or request to be heard concerning a proposed opinion. The Ethics Committee welcomes and encourages the submission of comments, and all comments are considered by the committee at the next quarterly meeting. Any comment or request should be directed to the Ethics Committee c/o Lanice Heidbrink at lheidbrink@ncbar.gov no later than March 30, 2020.

The opinion does not really add much to what other similar opinions have concluded in other jurisdictions.  Essentially, it concludes that attorneys can reply to negative reviews but that they need to be careful not to disclose confidential information in the process.  As Brian Faughnan states in his blog, "Given the broad scope of confidentiality under the ethics rules, this outcome offers little room for lawyers to offer much of a response."

In his comment to the opinion, Faughnan also questions whether a lawyer can disclose confidential information in a response to a review prior to filing a lawsuit against the reviewer arguing based on the exception to the rule that allows disclosure in support of a claim by the lawyer against the client.  He concludes, and I agree, that this would still be a violation of the rules.

I am not familiar with the specific rule in North Carolina, but for a disclosure to be valid as an exception to the rule under Model Rule 1.6, the disclosure has to be only "to the extent reasonably necessary" to achieve the goal of the exception to the rule.  And a public disclosure is not necessary to support a lawsuit, let alone a lawsuit that is yet to be filed.

You can read the opinion here.   You can read Brian Faughnan's comment here.


UPDATE (3/8/2020)

Lawyer Ethics Alerts Blog has a comment here.

Legal Ethics Lawyer has a comment here.

Character and fitness question

Assume that an adult man was convicted of 3 counts of attempting to have sex with girls under the age of 15.  Now, almost 20 years later, the man graduated from law school and passed the bar.  Should he be admitted to practice?

Ohio has decided that the answer is not now, not ever.  There are more details to the story, which you read here.

Illinois launches pilot pro bono program to help State Appellate Defenders Office

The Illinois Supreme Court has launched a pro bono pilot program to reduce the backlog of criminal appeals in the state. During the six-month pilot, which was announced on Feb. 11, volunteer pro bono attorneys will substitute as counsel for lawyers in the Office of the State Appellate Defender (OSAD) in certain criminal appeals.

Illinois Lawyer Now and 2 Civility have the story.

ABA Journal article on malpractice claims against former criminal defense lawyers

As you probably know, jurisdictions are divided on whether a convicted criminal defendant has to argue and prove actual innocence as a requirement to maintain a legal malpractice action against his or her former lawyer.  In the past few years, I have reported that Utah, Iowa, (also here), Indiana, Idaho, and Kansas (here and here) have abandoned the requirement of showing actual innocence.

I am writing about this today because I just saw that the most recent issue of the ABA Journal has a short article on the debate on this issue.

You can access the article here.  Legal Ethics in Motion has a comment here.

ABA adopts resolution urging states to reconsider certain aspects of the regulation of the profession after it is amended to eliminate reference to the possibility of non-lawyers participating as owners in law firms -- UPDATED

A few days ago I reported on the opposition to a proposal by the the ABA’s Center for Innovation and four standing committees seeking to promote the provision of legal services by non-lawyers and on the response by the proponents of the proposal.  Go here for that post and for links to the proposal and the letter explaining the position of those who opposed it.

I am writing today to report that two days ago, the ABA House of Delegates approved the resolution by a voice vote at the ABA Midyear Meeting after the resolution was amended to state that "nothing in this Resolution should be construed as altering any of the ABA Model Rules of Professional Conduct, including Rule 5.4, as they relate to non-lawyer ownership of law firms, the unauthorized practice of law, or any other subject."  (The report that supported the resolution was also substantially revised, most notably to eliminate any reference to Rule 5.4 and to the delivery of legal services by anyone other than a lawyer.)

The main opposition to the proposal originates in the fact that although the resolution claims to be an attempt to deal with a real lack of accessibility to affordable legal services for many people in the U.S., there is no evidence that the only "innovations" the resolution seems to support would work to enhance access to services or that it would lead to lower their costs.   These types of initiatives might lead to the creation of multi-professional operations, in which accounting and financial firms will offer a "one shop experience" including legal services to clients who can afford services; but may not do much, if anything, to create more access to those who can't afford legal services.

Some have also expressed that the big proponents for “access to justice” are entities with interests in the tech fields who are interested in commoditizing legal work so the tech companies can make money at the expense of the lawyers.  This was one of the reasons why back in 2012, a Commission of the American Bar Association considered but later abandoned a proposal to allow non-lawyers to own shares in law firms.

Interestingly, California, Arizona, and Utah are currently considering changes to their versions of Model Rule 5.4 to perhaps allow non-lawyers to participate as owners in law firms.

Law Sites has a comment on the effect of the amendments to the proposal here (including the fact that the revision seems to suggest that certain legal needs should be met only by lawyers, and that the reference to Rule 5.4 can be seen as a roadblock to many of the innovations currently being considered in Utah, Arizona and California) and a comment on the proposal as a whole, here.

Faughnan On Ethics also has a comment here, which includes an update on the efforts in Utah, California and Arizona.

UPDATE 2/23/20:  2Civility has a comment here.

Arizona joins other jurisdictions in recognizing limited legal technicians to provide some legal services

The Innovation for Justice Program at the University of Arizona James E. Rogers College of Law, in partnership with the Arizona Supreme Court and Emerge! Center Against Domestic Abuse has announced a new program for survivors of domestic violence in Arizona.

From fall 2020 to fall 2021, the pilot program will evaluate civil legal assistance provided by Licensed Legal Advocates. Licensed Legal Advocates are a new tier of legal professionals who are not licensed attorneys but who will be equipped to provide legal advice to domestic violence survivors with respect to critical domestic-violence-related legal issues, such as the need for a protective order, divorce, child custody, consumer protection or housing assistance.

Prior to the creation of this pilot, only licensed attorneys could provide legal advice to domestic violence survivors. The pilot will be authorized by an Arizona Supreme Court administrative order, so that the LLAs can provide legal advice within unauthorized practice of law regulations.

Lawyer Ethics Alert Blogs has more information and links here. 

Illinois considers regulation for private lawyer/client "matchmaking" services

The Illinois Attorney Registration and Disciplinary Commission (ARDC) has adopted a proposal to amend a number of rules related to the practice of law to better regulate the practices of what it calls "intermediary connecting services," which is another way of saying services that (for a fee) provide customers with ways to find a lawyer for the customers needs.  In other words, services like LegalZoom, Rocket Lawyer and others like them.

Some of these services have been operating in Illinois for some time, but without specific oversight by the ARDC.  The proposed changes would create specific requirements to provide oversight.  In its introduction, the proposal explains that with it, the ARDC’s proposal seeks to:

(1) Amend Rule of Professional Conduct 7.2. Proposed amendments to Rule 7.2 would guide Illinois lawyers in their participation and payments to intermediary connecting services. Lawyers would be permitted to participate only in those services that maintain an active registration with the ARDC, provided that certain conditions are met, including that the fees of the service and the lawyer are not contingent on the outcome of matter, the lawyer makes certain disclosures to the client, and the lawyer does not permit the intermediary connecting service to interfere with the lawyer-client relationship or with the lawyer’s professional judgment.

(2) Amend Supreme Court Rule 730. Proposed amendments to Rule 730 would create a registration and regulatory framework to protect the legal profession and the public. Intermediary connecting services would have to satisfy certain eligibility requirements in registering with the ARDC. In light of the longstanding concern of for-profit nonlawyer interference with or control over lawyers, registered intermediary connecting services would have to adhere to certain minimum ethical and business standards. These would include not interfering with or controlling a lawyer’s representation or judgment, not charging or collecting a fee that is calculated or expressed as a percentage of the lawyer’s anticipated or actual legal fees, and not holding or placing restrictions on a lawyer’s legal fee.

(3) Add Supreme Court Rule 220. This new rule would extend the attorney-client privilege and Rule of Professional Conduct 1.6(a) protection to communications between potential clients and a broad swath of lawyer-client connecting services for the purposes of seeking legal representation or legal services.

You can read the full proposal here.  for more information go here and here.

The ARDC invites you to provide comments on its proposal by email to information@iardc.org.

ABA Amends Proposal on Access to Justice and Regulation of the Profession in Reaction to Opposition

Last week I reported on the opposition to a proposal by the the ABA’s Center for Innovation and four standing committees seeking to advance the discussion of proposals that would open the provision of legal services to non-lawyers. Go here for that post, which includes the text of a letter expressing opposition to the proposal.

Today I am writing again about this because Bloomberg Law is reporting that the resolution has been amended a second time "in order to gain support from state bar leaders aligned against the proposal." 

According to the report, the proposal was criticized as a "wink, a nod, and a green light” for the ABA to back the proposed reforms that would allow nonlawyers more latitude in co-owning legal operations which is opposed by lawyers concerned about preserving the independence of the legal profession, and in particular about protecting the profession from "side effects" of allowing the so-called "Big Four" accounting firms and other alternative legal service providers more regulatory latitude to compete directly with law firms. Bar rules currently disallow such companies from opening their own legal operations, or from joining forces with existing law firms.

New opinion on when an attorney can speak directly to in house counsel when the entity for which in house counsel works is represented by another lawyer

According to Model Rule 4.2, and its state equivalents, with a few exceptions, an attorney can’t communicate directly with someone the lawyer knows to be represented by counsel.  But how do these rules apply to in-house counsel?  Can a lawyer communicate with in-house counsel when the lawyer knows the entity for which in-house counsel works is represented by another lawyer?

Last month, the Virginia Supreme Court addressed these and other questions in its Legal Ethics Opinion 1890 (available here).  The Law for Lawyers Today has a comment here.

Local efforts to address issues related to access to legal services

Yesterday I wrote about the debate at a national level on proposals to change certain aspects of the regulation of the profession.  Today I have news about developments at a local level.

First, there is a Washington D.C. Bar committee press release announcing a review regarding the potential relaxing of that jurisdiction’s non-lawyer law firm ownership rules, including potential fee sharing/splitting.  The January 23, 2020 D.C. Bar press release announcing the review is available here.  For more details go here.

Second, the New Mexico Supreme Court recently endorsed proposals to expand civil legal services in the state, particularly to lower- and middle-income residents and those living in rural areas.  The proposals were based on recommendations from the New Mexico Supreme Court-established Ad Hoc Licensed Legal Technicians Workgroup, which recently released an Innovation to Address the Access to Justice Gap report. For details and links go here.

Debate on regulation of the profession intensifies as we near ABA mid-year meeting

Last November I reported that the ABA’s Center for Innovation and four standing committees adopted a resolution seeking to advance the discussion of proposals that would open the provision of legal services to non-lawyers and that the draft would be brought up for discussion at the ABA House of Delegates' meeting in February. You can download the resolution and the report here.

As I reported back then, the report is essentially based on the proposition that “traditional solutions” (such as increased funding for civil legal aid, more pro bono work, and the creation of the equivalent of a public defenders system for civil cases) have not come close to fixing the problem of lack of adequate access to affordable legal services and that the existing regulatory structure for the legal profession acts as a barrier to innovative alternatives like allowing involvement of other professionals, both within and outside of law firms.

Given this, the report suggests that states should concentrate efforts in three broad areas of regulatory reform: (1) authorizing and regulating new categories of legal services providers, including non-lawyers; (2) modifying the rules that ban lawyers from partnering and sharing fees with non-lawyers; and, (3) developing more permissive approaches to the notion of unauthorized practice of law to allow lawyers more freedom to practice across state borders.

These ideas have not gone unchallenged, though.  Just a few days ago, for example, I commented on a short column in which the author, although not opposing the resolution, argues there are other options to consider (see here).  And then there are those who actually do oppose the resolution, or at least some of its suggestions or premises.

In a published statement directed at the members of the ABA House of Delegates by individual members of the delegations from New York, New Jersey, Illinios, Iowa, Pennsylvania, and Nevada, for example, the authors argue as follows:

We ask you to join us in opposing Resolution 115.

Resolution 115 and its underlying report call for states to consider sweeping changes to fundamental principles of legal independence and ethics.  This proposal by the ABA’s “Center for Innovation” would allow non-lawyers to provide legal services and would encourage the repeal of professional conduct regulations that prohibit lawyers from partnering and sharing fees with those who are not lawyers.

On its face, Resolution 115 could appear to be a salutary effort to promote consideration of “regulatory innovations” that are aimed at improving access to justice.  However, the only such innovation covered by the report is the authorization of new forms of legal services providers to be achieved by revising Model Rule 5.4 (entitled “Professional Independence of a Lawyer”) and unauthorized practice laws in order to allow nonlawyers to practice law and to allow nonlawyer ownership of law firms.  The report is misleading as it fails to disclose that this House for at least three decades has opposed any such eradication of the prohibition on nonlawyer ownership of law firms because doing so would be inconsistent with our profession’s core values.  Moreover, nowhere does the report identify any evidence that the adoption of nonlawyer ownership in other jurisdictions has done anything to ameliorate access to justice concerns.

Back in 1999, this House roundly rejected a proposed multi-disciplinary practice regime under which lawyers would have been permitted to form business relations with nonlawyers or entities owned by nonlawyers for the purpose of practicing law.  The House chose to preserve the independence of our profession by opposing this change.

Again in 2011, the ABA’s Ethics 20/20 Commission released a discussion draft which sought comment on a limited form of nonlawyer ownership of law firms.  In response, the Illinois and New Jersey bars passed resolutions opposing this measure.  New York formed a Task Force that studied the nonlawyer ownership issue extensively and issued a comprehensive report on the subject. ... This detailed report is nowhere mentioned in the report that was submitted in support of Resolution 115.  Included in the Task Force report was a survey of New York lawyers who (across all walks of the profession) overwhelmingly opposed nonlawyer ownership.  While the New York Task Force’s work was ongoing, the ABA Ethics 20/20 Commission withdrew its nonlawyer ownership proposal, concluding that there was not a sufficient basis for recommending any change in the ABA’s policy against nonlawyer ownership.

Although the report in support of Resolution 115 cites a 2016 report by the ABA’s Commission on the Future of Legal Services, which supported gathering evidence on alternative law firm structures, that quotation is seriously misleading as it was never adopted by this House as ABA policy.  In fact (and not mentioned in the 115 Report), the Commission’s proposed resolution was expressly amended by this House, which resolved to add language to the resolution making clear that nothing in the resolution abrogated ABA policy against nonlawyer ownership of law firms or other core values of our profession.

Thus, this House’s steadfast opposition to nonlawyer ownership and its commitment to our profession’s core value of protecting the independence of lawyer judgments has been repeatedly recognized by this body, but is consistently ignored by the report.

The report gives the back of the hand to the principal concern that is raised by nonlawyer ownership – i.e., interference with lawyers’ independent professional judgments.  This approach is at odds with the resolution passed by this House in 2016 in response to the prior initiative proposed by the Commission on the Future of Legal Services.  As indicated above, that resolution specifically re-affirmed the need to protect this core value of our profession.  Nor does the report address what could happen if nonlawyers who control these sorts of alternative entities place their own business goals or personal interests ahead of the interests of clients.  Being a member of our noble profession is unique in that we often must put our clients’ interests ahead of our own.  Our highest priority ought to be advancing the profession’s duty to preserve uncompromised loyalty to our clients’ interests.  Outside ownership of legal providers would present a minefield for the profession by creating a dangerous tension between maintaining legal ethics and satisfying outside interests that are often motivated purely by profit.  A similar concern is raised by allowing nonlawyers who are not trained in legal ethics to provide legal services.  The report fails to grapple with this risk of eroding our profession’s critical values.

Noticeably absent from the report is any evidence that the embrace of nonlawyer ownership in the U.K. and Australia (or in the District of Columbia which has had a relaxed version of Rule 5.4 for many years) has had any impact whatsoever on the access to justice crisis.  Indeed, the typical alternative business structure in the U.K. competes with the same types of law firms that had been servicing the fee-paying public long before the U.K. recognized nonlawyer ownership, as opposed to providing services to the indigent.  Notably, a recent study concluded that the use of alternative business structures in the U.K. and Australia had been accompanied by no measurable improvement of those countries’ access to justice needs.  Robinson, Nick, When Lawyers Don't Get All the Profits: Non-Lawyer Ownership, Access, and Professionalism, 29 Georgetown Journal of Legal Ethics, 1, 1 (2016).  We should expect some concrete proof that this proposed change would actually help address the country’s access to justice needs before encouraging something that could jeopardize lawyer independence.

The report states that there has been “no evidence of public harm” in the few countries that have adopted nonlawyer ownership.  But that  misses the point.  The burden is on the proponents of this fundamental change to demonstrate the benefit that their proposal would achieve, something they have failed to do.  Moreover, the report does not cite any study that has scrutinized the question of potential public harm comprehensively.  Nor does the report confront the critical issue of how disciplinary authorities can police persons and entities that do not even hold a law license and thus have no duty to abide by ethical codes.

The report puts the cart before the horse by encouraging states to consider embracing these alternative structures and only then to collect data on the impact that their adoption will have.  The report cites recent recommendations made in a few states to ease restrictions on nonlawyer ownership.  However, those recommendations only came out last year and no experience is yet available as to whether such contemplated changes will prove to be beneficial or harmful.

To be sure, we are not opposed to innovation and particularly in ways that can address our country’s access to justice crisis.  However, innovation should not come at the expense of our profession’s core values.

Our Rules of Professional Conduct reflect these core values of our profession and they are designed to protect the public whom we are all privileged and licensed to serve.  As attorneys, we are sworn to serve as key members of a legal system on whom our society relies for justice and fairness.  Lawyers must complete a rigorous program of education just to be permitted to sit for a bar examination.  Our bar admission system is designed to test knowledge and competency, determine character and fitness to practice law, and assess adherence to a prescribed set of rules of professional conduct throughout an attorney’s tenure.  This licensing system not only serves to protect the public from untrained and unscrupulous would-be practitioners, but also far surpasses what is required for a typical business.  Fundamental change to our profession should not compromise our core values and enable profit-seeking by entrepreneurs who are unencumbered by our rules of ethical responsibility.

Since then, members of the Association of Professional Responsibility Lawyers (of which I am a member myself) have also had a chance to debate the resolution.  Some expressed skepticism about the resolution because it is not clear that there is evidence that the suggested reforms would actually increase access to justice for the disadvantaged or the middle class, while others seem to say that  until those opposing the types of reforms suggested in the resolution come up with a better alternative, we should be open to try something new.  And then there are those who don't seem to give the ABA a lot of credibility because, according to their position, regardless of the occasional lip service to this or that novel idea, the ABA has traditionally been a leading sponsor of the status quo.

Finally, there is the argument that the proposal is unfocused, or confusing, because while claiming to be about "access to justice," several items on the agenda do not seem to have much to do with access to justice.  Those making this argument ask, for example "how does allowing non-lawyers to become partners with lawyers translate into more access to legal services for the poor?"

On that last question, by the way, I can totally see how allowing non-lawyer investors may or may not have any effect whatsoever on the access to legal services because it all depends on how the firms use the newly acquired capital.  For that reason, the key question is how can new regulations be shaped so the changes do result in achieving the desired result.  That is what needs to be addressed.

For this reason, I am skeptical of some of the proposals, but I also agree with those who say that the effort to stifle all debate, study and discussion is not a good idea.

Short comment on the ongoing debate regarding the future of the profession, access to representation and regulation

As I am sure you know, there is a strong ongoing debate related to possible changes to the regulation of the profession due to a growing concern about the "justice gap" in this country, a phrase used to describe the fact that so many people don't have adequate access to legal representation.

Among the many topics discussed at different levels of the profession (state regulatory agencies, the ABA, academic circles, etc) are the suggestion that we should expand the use of programs that allow non-lawyers to provide some legal services, and the suggestion that we should eliminate the rules than ban lawyers from partnering with non-lawyers to provide legal services.  The ABA will discuss a resolution on the subject at its upcoming February meeting.  (I will have more on that later this week.)

I am writing today to draw your attention to a column by Dennis Rendleman, the Ethics Counsel for the ABA, in which he argues that "there are other ways" to improve the provision of legal services that we should consider.  The column is short and very thoughtful.  You can read it here. 

Podcast: Legal Ethics and Artificial Intelligence

Here is the most recent "Digital Detectives" podcast in which the hosts discuss the landscape of AI in the legal space and what is being done to ensure the ethical and accountable use of AI technologies in the profession.  You can listen to it by clicking on the play button below or by going here. 

New York's statute creating a commission on prosecutorial misconduct declared unconstitutional

Long time readers of this blog know that I have posted many articles and comments on prosecutorial misconduct over the years, and some may remember a case in which a Circuit Court judge referred to prosecutorial misconduct as an "epidemic" in this country.

To deal with the issue, in 2019, New York adopted a statute to create an independent commission to investigate prosecutorial misconduct in the state. To prevent an attack based on the concept of separation of powers, rather than being appointed by the legislature alone, the commission would include members chosen by the executive and the judiciary who would be able to review prosecutors’ activities, publicly censure them, and make recommendations to the governor should actions warrant a prosecutor’s removal.

Not all prosecutors were on board with the proposal and an association of district attorneys sued to prevent the implementation of the commission. They argued that the commission would interfere with the rights and core functions of their offices and give unconstitutional authority to the judiciary.

I am writing about this today because last week, the trial court granted the prosecutors' motion for summary judgment, declared the statute (Article 15-a of the Judiciary Law) unconstitutional and permanently enjoined the State from implementing the provisions of the statute including the formation of the State Commission of Prosecutorial Conduct.

You can read the opinion here.

Tennessee adopts revision to the rules of disciplinary enforcement making disbarment permanent

As you probably know, in the vast majority of jurisdictions disbarment is not permanent which means that disbarred lawyers can request for reinstatement after a period of time.

Well, that's not the case any more in Tennessee.

On January 23, the Tennessee Supreme Court adopted a series of revisions to the rules of disciplinary enforcement in Tennessee and one of them eliminates the possibility of reinstatement after disbarment.

Most of the comments received after the revision to the rule was proposed opposed the proposal, but the Court did not offer an explanation as to why the Court thought the revision was necessary nor as to why it disagreed with the majority of the comments.

For a critique of the Court's decision go here.  The text of the Court's order and of the revised rules is available here.

Recent news about the debate on qualified immunity: the Institute for Justice joins the fight

As you know, the doctrine of qualified immunity recognizes a defense for certain government officials from liability for injuries caused by their conduct.  It applies, for example, to prosecutors when they engage in investigative or administrative tasks, which is often limited to conduct before an indictment.  And, of course, it applies to many other government officials when engaging in their official capacities.

The doctrine exists to provide protection to those officials so they can perform their duties without fear that their decisions will be later questioned or second-guessed by courts, a position that is justified by the principle of separation of powers.

The doctrine, however, is not particularly old and it is not universally accepted.  The Cato Institute has referred to it as "an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s" and as "a court‐​confected doctrine that provides rights‐​violating police and other government officials with an unlawful shield against accountability for their misconduct."

To do something about this, the Cato institute launched a strategic campaign to challenge the doctrine on March 1, 2018, the centerpiece of which has been a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright. In addition, the Institute has organized a massive cross‐​ideological alliance of public interest groups opposed to qualified immunity.  This "alliance" includes the ACLU, the NAACP Legal Defense Fund, the Alliance Defending Freedom and the Second Amendment Foundation.

I am writing about this today because yet another group has officially announced it will join the campaign.  About two weeks ago (on Feb 15), The Wall Street Journal published an op‐​ed by Institute for Justice Senior Attorney Robert McNamara, in which he describes IJ’s decision to join the battle against qualified immunity.  You can read it here if you have a subscription.

For more on the CATO Institute's position on this issue go here.

Is it OK to deposit "lawyer money" into client trust account to prevent account from being closed for inactivity?

On October 29, 2019, the New York State Bar Association Committee on Professional Ethics issued an advisory opinion, Opinion 1176, which addresses whether a lawyer may “make a nominal deposit of the lawyer’s own funds to avoid having the lawyer’s trust or escrow account closed for inactivity or failure to maintain a minimum balance.” 

Given that most states allow lawyers to use their own money to pay for trust account fees and transactions (see Model Rule 1.15(b)), not surprisingly, the answer to the question is that it is acceptable for a lawyer to use firm money to keep the trust account alive.  You can read the opinion here.

Podcast on legal issues related to the regulation of the profession

In the most recent "Lawyer 2 Lawyer" podcast, podcast Professors Deborah L. Rhode and Scott Cummings talk about issues affecting the practice of the profession today.  You can listen to the program by clicking on the play button below or, if you can't see it, by going here.

Did one of Trump's lawyers lie to the Senate, and if so can he be disciplined for it?

Did Trump’s lawyer Pat Cipollone lied to the Senate when he stated that Republicans weren’t allowed to participate in House depositions?  And if he did, can he be disciplined for it?  Here is a short discussion on these questions.

Florida Bar seeks comments on program to regulate online service providers

Lawyer Ethics Alerts Blog is reporting that on December 12, 2019, The Florida Bar filed a petition with the Florida Supreme Court requesting the court to approve the creation a voluntary registration program for online legal services providers. 

The proposed program was approved by the Florida Bar’s Board of Governors in September 2019 and would permit online legal service providers to market themselves as “Registered with The Florida Bar” if they agree to comply with various regulations, including submitting to the jurisdiction of Florida for the resolution of consumer complaints.

The proposed program would specifically require the registered online providers to provide the Bar with copies of all consumer complaints and state how they were resolved, and agree that “registration and revocation of the registration. . . is solely at the discretion of The Florida Bar.”

The proposed program would also require that registered online providers use only forms that are approved by the Florida Supreme Court, or have been reviewed and approved by Florida Bar attorney. 

The deadline for comments is January 13, 2020 and any comments must be filed directly with the clerk of the Florida Supreme Court, and a copy served on the executive director of The Florida Bar.

I understand there is an interest in providing a way for people to have access to legal services but I am confused about this one.  It sounds like the service providers are able to provide their services currently without regulation, and I guess this initiative is an attempt to create some regulation over the currently unregulated market of online legal services.

What I don't understand is why those who are currently operating free of regulation would prefer to submit themselves to regulation.  If they can provide services now, what's their incentive to join the program? 

Of course, maybe I am wrong in my assumption and the current situation is different.  Maybe, currently the providers are not allowed to provide services in Florida and joining the program would be the only way for them to be able to do so.  That would be an incentive to join.  If that is the case, the program makes sense. 

Virginia ethics opinion on communicating with a person who is represented by counsel

On January 9, 2020, the Supreme Court of Virginia approved a new formal ethics opinion to clarify the scope of Rule 4.2, which regulates the ability of lawyers to communicate directly with people who are represented by counsel.   You can read the full opinion here, but here are some of the highlights.

-- The rule applies only if the communication is about the subject of the representation in the same matter.

-- The rule applies only if the lawyer knows that the person is represented by counsel.

-- Represented persons may communicate directly with each other regarding the subject of the representation, but the lawyer may not use the client to circumvent Rule 4.2.

-- A lawyer may not use an investigator or third party to communicate directly with a represented person.

-- Ex parte communications are permitted with employees of a represented organization unless the employee is in the “control group” or is the “alter ego” of the represented organization.

-- The rule does not apply to communications with former employees of a represented organization.

-- The fact that an organization has in house or general counsel does not prohibit another lawyer from communicating directly with constituents of the organization, and the fact that an organization has outside counsel in a particular matter does not prohibit another lawyer from communicating directly with in-house counsel for the organization.

-- Plaintiff’s counsel generally may communicate directly with an insurance company’s employee/adjuster after the insurance company has assigned the case to defense counsel.

Need a new year's resolution? Check out these five ways to stay out of ethics trouble in 2020

Over at The Law For Lawyers Today, Karen Rubin has some good advice for all lawyers.  Her post Five ways to stay out of ethics trouble in 2020 can be found here. 

Should a public defender be protected by a state torts immunity act?

Just a few days ago, the New Jersey Supreme Court heard oral arguments in a case that should be called Chaparro Nieves v. Office of the Public Defender (but is being mistakenly identified as Nieves v. Office of the Public Defender)** in which the Court has been asked to decide whether the Office of the Public Defender should be covered by the state's Torts Claims Act.

In this case, the plaintiff had been incarcerated for twelve years on serious charges, including first-degree aggravated sexual assault, when the charges against him were dismissed on his petition for post-conviction relief.  At some point thereafter, he filed a legal malpractice complaint against the public defender's office and an individual lawyer.  The trial judge denied defendants' motion for summary judgment as to the legal malpractice claim but the Appellate Division reversed, holding, among other things, that it is clear that the office of the public defender is a public entity and public defenders are public employees that come within the Tort Claims Act’s immunities and defenses.  You can read that opinion here.

The case is now before the Supreme Court where Professor George W. Conk, of the Louis Stein Center for Law & Ethics at Fordham University School of Law, argued on behalf of the New Jersey State Bar Association urging the Court to affirm the Appellate Division’s decision to apply the TCA to the legal malpractice claims.  The Bar Association's statement concludes that "[c]ompetent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs. Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill served."

You can read the full statement of the Bar Association here.


** I say the case "should be called" that because I have seen it referred to everywhere as just Nieves v.  Office of the Public Defender, which shows ignorance about the use of two last names in the Latin American tradition.  The plaintiff's name is Antonio Chaparro, not Antonio Nieves.  But that is just a pet peeve of mine and I will leave it at that.