Three Strikes! Lawyer Lacking Mindful Boundaries is Suspended for Facebook Message

A Kansas attorney has been suspended for 6 months for his inappropriate Facebook message to the unrepresented biological mother in a termination of parental rights case in which the lawyer represented the biological father. He urged the mother to reconsider her decision to relinquish her rights in a heavy-handed Facebook message that the lawyer conceded  that “[i]n hindsight, it was a communication that was hastily drafted and sent without proper revision.”

The hearing panel characterized the message as “emotional blackmail” and a “bullying  tactic” that directly reflects on the attorney’s fitness to practice law thereby warranting a 60 day suspension.

The Kansas Supreme Court agreed that a suspension is appropriate, but ordered a 6 month suspension.

The court found, “Despite the respondent’s abysmal attitude, absent the prior discipline, the hearing panel may have been inclined to recommend a censure to be published in the Kansas Reports. However, the misconduct in this case occurred just a few short months after the respondent was strongly admonished by the previous hearing panel. The respondent’s misconduct in all three of the attorney disciplinary cases is linked by the respondent’s overreaching approach and failure to recognize reasonable boundaries.” (emphasis added)

The court will consider reinstatement contingent upon the attorney’s ability to demonstrate that he understands the gravity of his conduct and that he has completed an anger management course and any other therapy that is recommended by a physical or mental healthcare professional.

This case provides another troubling reminder that lawyers who fail to pause and consider the repercussions of their actions, especially on social media, often trip on ethical land mines that damage their reputations and their careers.

Keep Your Praise Private

A prominent patent attorney in California forwarded a congratulatory email he received from a judge of the U.S. Court of Appeals for the Federal Circuit to more than seventy individuals, over half of which were clients and prospective clients.  Along with the forwarded email, wherein the then-Chief Judge referred to the attorney as “my friend” and said, “[i]n sum, I was really proud to be your friend today,” the attorney included a message soliciting business.  The attorney urged recipients to keep his law firm in mind when considering the firm for their Federal Circuit needs.

The Federal Circuit responded classifying the attorney’s action as  “conduct unbecoming a member of the bar,” which is prohibited by Rule 46 of the Federal Rules of Appellate Procedure.  In response, the attorney argued the First Amendment protected his conduct.

In an en banc ruling on November 5th, the court contended that the attorney should have exercised better discretion by not disseminating the judge’s email because the email, in conjunction with the attorney’s message, implied “a special relationship with then-Chief Judge Rader and the Federal Circuit.”

The en banc panel held that the attorney was in violation of Federal Rule 46, as well as Rule 8.4(e) of the Model Rules, which states it is professional misconduct for an attorney to “state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.”

The attorney was publically reprimanded, and the panel stated that it plans to bring the matter to the California State Bar’s attention for its consideration a separate potential disciplinary issue involving “the exchange of items of value between [the attorney] and then-Chief Judge Rader.”

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Florida Campaign Solicitation Case heads to SCOTUS

The appeal of a Tampa lawyer, who was reprimanded by the Florida Bar for directly soliciting in-person judicial campaign contributions, will be heard by the nation’s highest court, with potentially wide-ranging implications on judicial elections throughout the country. The lawyer, who was campaigning in 2010 to become a judge in Florida’s 13th Circuit Court, contends that the Florida judicial election rule prohibiting solicitation is unconstitutional.

Specifically, Florida Rule of Professional Conduct 4-8.2 requires that any candidate for judicial office must abide by the governing rules found in the Florida Code of Judicial Conduct when campaigning to be elected. Canon 7C(1) of that code provides, in relevant part, that any candidate who runs “for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds.” While promoting her campaign via a website specifically designed to inform and persuade voters, the lawyer posted a letter personally asking her supporters to contribute funds electronically via PayPal or using traditional postage. Following an investigation, the Florida Bar accepted a referee’s recommendation that she be given a public reprimand, in addition to being ordered to pay a sum of $1,860.30 in recovery cost to the Florida Bar. The Florida Supreme Court upheld the Florida Bar’s decision.

The lawyer’s appeal contends that the First Amendment provides her with the free speech right to solicit citizens for campaign money. The Florida Bar contends that there is a compelling state interest in regulating such elections; for example, allowing candidates to directly solicit funds may affect the appearance of impartiality and public confidence in the judiciary, given the increased emphasis on supporters helping a candidate get elected. “According to the Florida Bar, two other state high courts and two federal circuit courts have upheld rules similar to Florida’s and three other federal circuit courts of appeal have ruled them unconstitutional.”

A Supreme Court ruling in the lawyer’s favor would be a landmark for First Amendment interpretation, and it would significantly alter how judicial elections work in America. Currently, thirty-nine other states elect judges. If the nation’s highest court reverses the Florida ruling, it would necessitate a review of the judicial election process in these states. The case is scheduled for later this term, and it certainly will be one to watch.

Read more here and here.

Increase in Ethics Compliance: ABA Guidance for Supervisory Prosecutors

Under ABA Model Rules of Professional Conduct (Rules), prosecutors have the responsibility not simply of an advocate, but also, of a minister of justice. The ABA in its Formal Opinion 467 provides guidance to prosecutors on how to better meet their special duties under the Rules. The Opinion establishes that Rules 5.1 and 5.3, which address the obligations of lawyers with managerial and supervisory authority, extend to government organizations and apply to prosecutors. It goes on to provide guidelines to help prosecutors ensure that all lawyers and non-lawyers in their offices comply with the rules of professional responsibility.

Among others, the Opinion suggests that prosecutors 1) train all incoming lawyers regardless of their previous experience, 2) stay informed of all developments in pending cases and 3) participate in all major decisions. The Opinion also recommends that incentives be provided in order to make compliance with ethical obligations less demanding. In addition, supervisory prosecutors should publicize ethical compliance reforms and internal policies, and adopt the appropriate disciplinary procedures. Some of these disciplinary procedures may include “targeted remedial education, increased scrutiny of prosecutors who have engaged in misconduct or whose conduct has been criticized by a court, demotion or dismissal, and, when warranted, referral of a matter to an outside disciplinary authority.”

It will be interesting to see what prosecutors’ offices in various states will do with the ABA’s suggestions. With already heavy caseloads, added obligations may have adverse effects on prosecutors’ offices.

For more information, click here. To read the full text of the Opinion, click here.

Avvo Advisor®: A Game-Changer

On October 23, 2014, Avvo Inc., the leading online legal marketplace, launched Avvo Advisor, a service that provides fast, on-demand legal advice by phone for a fixed rate of $39.00 for a 15-minute conversation with an attorney.  This service is available either online at or through a free Avvo Advisor iOS app and covers nine areas of law (and counting), including bankruptcy, criminal, divorce, employment, family, immigration, landlord-tenant, real estate and small business. Avvo Advisor is pushing the envelope by making professional legal assistance more accessible, affordable, and less time-consuming and hassle-ridden. The legal ethical implications of this limited scope service have yet to be fully explored, but it raises issues as to how to implement a viable conflicts check and whether legal services on demand will alter the traditional view of the attorney-client relationship.

As Mark Britton, Avvo’s founder and CEO, remarked, “we want to make access to legal help as routine as getting a medical checkup, and Avvo Advisor is a game-changing step towards that goal.”

Click here and here to read more.

Iowa Judge Suspended for Showing Up Drunk

In a September 2014 decision, the Supreme Court of Iowa suspended a district court judge for 30 days after being found to have arrived at the courthouse exceedingly drunk and unable to take the bench, over two years ago! On May 9, 2012, the Judge arrived at Henry County Courthouse so impaired from hard alcohol consumption that she had to be persuaded by court personnel not to take the bench, and was later hospitalized for three days due to alcohol poisoning from her drinking binge earlier that morning. The Judge, who admitted to a long and problematic history of alcoholism, told Iowa’s Commission on Judicial Qualifications that she had almost zero recollection of that morning, the events surrounding her removal, or her hospitalization. The Commission also heard complaints relating to other instances where the Judge had appeared “disoriented” and “disheveled” while adjudicating in the months leading up to the May 9 incident. The Commission pointed to those other complaints as proof that she had consistently failed to meet the ethical standards to which judges are held.

Following its investigation and report, the Commission charged the Judge with violating two rules—Rule 51:1.2 and Rule 52:2.5(A)—of the Iowa Code of Judicial Conduct. The Commission first found that where the Judge arrived at the courthouse extremely intoxicated, she “raised doubt about her integrity, and eroded confidence in the judiciary.” This violated Rule 51:1.2, which is aimed at promoting confidence in the judiciary and stipulates that a judge “shall act at all times in a manner that promotes public confidence…and shall avoid impropriety and the appearance of impropriety.”  The Commission then found it especially troubling that the Judge could not remember much of what occurred, indicative of the severe level of intoxication she was under when arriving at the courthouse. This, according to the Commission, demonstrated that the Judge violated Rule 51:2.5(A), which requires a judge to “perform judicial and administrative duties competently and diligently.”

The Commission recommended that the Judge be suspended from the bench for a three-month period given the seriousness of her actions and her consistent failure to abstain from drinking on the job. However, the court decided to suspend the Judge for one month without pay because she expressed willingness to seek help and had no previous disciplinary history. The court appreciated that the Judge was open and honest in admitting to the two charges, and made efforts to address her alcoholism by attending rehabilitation and counseling while agreeing to the stipulations of a two-year monitoring period. Since the incident, the Judge “committed herself to a significant program of recovery,” in the hopes of successfully returning to the bench, presumably with a much better idea of the conduct appropriate for a judge who wants to inspire and preserve confidence in the judiciary.

Read the Full Opinion Here

Virtual Law Offices Permitted Under N.Y. Advertising Rules

According to the New York state bar’s ethics committee, attorney advertising ethics rules allow some nonresident attorneys who are licensed in New York to provide legal services to New Yorkers through a “purely virtual” office. In responding to the inquiry made by a transactional attorney wishing to establish a “virtual law office” in New York, where the attorney is licensed but does not live, the committee stated that the attorney must include the address of his principal office “which may be the Internet address of [the] virtual law office.”

As stated in the inquiry, the attorney working from a “virtual law office” would interact with clients electronically through a secure Internet portal, and use a relative residing in New York to answer calls made to the attorney’s New York number, forward mail to the attorney, and accept service of process on the attorney’s behalf. The attorney would advertise through electronic communications, such as a website, and inform prospective clients about the attorney’s “virtual office.”

Under Rule 7.1(h) of the New York Rules of Professional Conduct, which governs advertising, advertisements must contain the attorney’s principal law office address. The committee had previously concluded that Rule 7.1(h) “[provided] an independent basis for requiring a physical office.” Moreover, the New York Court of Appeals is currently considering a constitutional challenge to a statute that requires nonresident attorneys to maintain an office in the state in order to practice there.

However, the committee now decided that Rule 7.1(h) does not require an attorney who does only transactional work to have a physical office. The committee made it clear that the opinion “does not pass upon every potential form of virtual law practice,” and does not include litigation attorneys. The committee noted that Rule 7.1(h) states what an attorney’s advertising must contain, but does not expressly require attorneys to maintain a physical office, nor sets the standards for what would constitute such an office. The committee did not opine on how the court will resolve “the statutory issues regarding virtual law office” in the pending case, but made it clear that “neither Rule 7.1(h) nor any other advertising rule imposes or defines the contours of an attorney’s office or style of practice.”

The committee’s decision follows a trend of relaxing the physical office requirement. Other ethics panels, such as North Carolina and Pennsylvania, have allowed attorneys to operate a virtual law office under Rule 7.1(h), and a 2013 amendment eradicated the office requirement in New Jersey.

For more information, click here.