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.
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In its recent Advisory Opinion 14-02, the State Bar Association of North Dakota Ethics Committee opined that a lawyer licensed in North Dakota who uses medical marijuana in a state that authorizes its use, violates North Dakota Rule of Professional Conduct Rule 8.4(b). The Rule provides that “[i]t is professional misconduct for a lawyer to…commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects[.]” Therefore, “[a] North Dakota lawyer who moves to Minnesota to participate in a medical marijuana treatment program that complies with Minnesota law violates Rule 8.4(b).”
A key determination in the Committee’s opinion is the fact that the federal government has the authority to prohibit marijuana use despite state laws authorizing its use for medical purposes. Therefore, an attorney who purchases, possesses or ingests marijuana in Minnesota where it is legal would nevertheless be in violation of federal law every time. The Committee construes this behavior as a “pattern of repeated offenses” that indicates the attorney’s indifference to legal obligations, and constitutes a violation of Rule 8.4(b).
Consequently, lawyers who live and use medical marijuana in a state authorizing medical marijuana use must be cognizant that they may be violating the Rules of Professional Conduct in a state that prohibits marijuana use.
The Texas Bar Ethics Committee in August 2014 analyzed whether the Texas Disciplinary Rules of Professional Conduct require a law firm to withdraw from representing a client if the law firm hires a new associate who, prior to becoming licensed to practice, was employed as a law clerk for the law firm representing the opposing party and helped provide services for the opposing party with respect to the lawsuit.
The Committee decided that in this situation the law firm would have to withdraw from the case. The Committee stated that even with the client’s consent, the conflict could not be cured because the associate could not reasonably be expected to represent the client at his new firm without the representation being materially affected by his obligations to maintain the required confidentiality owed to his previous employer and client. Furthermore, the Committee stated that due to Rule 1.06, which deals with conflict of interest, the law firm could not continue to represent the client even if they did not allow the associate to work on the case. Specifically, under Rule 1.06(f), “[i]f a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.”
The analysis also focused on Rule 1.06(b)(2) which states that representation of a client is prohibited when the representation would be limited due to the lawyer’s responsibilities to a third person or by the lawyer’s own interest. In this case Rule 1.06(b)(2) would be violated because the representation of the client would be limited in two different aspects. The Committee said that because the associate has a duty to maintain the confidentiality of information acquired from his former employer’s client he would not be able to use all information at his disposal to further the interests of his new employer’s client. In addition, the associate’s interest in avoiding claims for misuse of the confidential information he acquired from his earlier employer would affect his representation of his new employer’s client.
As a result of this Texas Opinion 644, law firms should pay close attention to where their associates held prior law clerk positions and to what extent they provided services to clients, in order to make sure that no conflict of interests arise. That being said, it is likely that a law firm will not need to know every single case an associate worked on prior to being hired at their firm, as long as they have a procedure for their associates to disclose when they have worked with an opposing client at a different firm.
The American Bar Association has just released Formal Opinion 468, which discusses the historical background and intent behind Model Rule of Professional Conduct 1.17. Specifically, this Opinion was written to address whether the seller of a law firm may continue to “practice law” to assist the buyer or buyers of the law firm in the orderly transition of active client matters.
Until 1990 the sale of a law practice was strictly prohibited. This prohibition was based on beliefs that: (1) there was no legally or ethically recognized “goodwill” in a law practice that a lawyer could sell because clients are not merchandise, (2) when an estate or the survivor of a deceased sole practitioner sells a law firm there is an impermissible sharing or division of legal fees, (3) a lawyer cannot make payment to another person for recommending them, and (4) confidential client information would be disclosed as a result of the sale.
Then, in 1990, Model Rule 1.17 was adopted to govern the sale of a law practice. Sponsors of the rule indicate that the rule was designed to accomplish two goals. The first was to ensure that “client matters of sole practitioners are attended when the sole practitioner leaves practice. Second, “the new rule put sole practitioners in a financial position equal to partners of law firms.”
Rule 1.17 requires the selling attorney to cease engaging in the private practice of law, or in the area of practice that has been sold, but does not address whether the selling lawyer may continue to be involved in the practice to assist in the orderly transition of active client matters. The Opinion states, “neither the selling lawyer or law firm nor the purchasing lawyer or law firm may bill clients for time spent on transition activity that does not advance the representation or directly benefit the client.” Further, if the selling lawyer wants to be compensated for transitional matters this should be negotiated and be included in the consideration for the sale.
The Formal Opinion 468 can be found here.
New lawyers are facing significant hurdles to developing strong professional competency as economic conditions and client demand for experienced practitioners have usurped these developmental opportunities from recent graduates. This trend has had the effect of cannibalizing the legal profession by robbing young lawyers of the very work that teaches them how to be compliant of the competency requirements as laid out in ABA Rules of Professional Responsibility Rule 1.1.
California has decided to do something about it. The State Bar of California’s Board of Trustees has “charged the Task Force on Admissions Regulation Reform (the “Task Force”) with “[e]xamin[ing] whether the State Bar of California should develop a regulatory requirement for a pre-admission competency training program, and if so, proposing such a program” for submission to the Supreme Court.” After studying this issue for a year, the Task Force on Admissions Regulation Reform released a report on June 24, 2013.
The Task Force found that this problem stemmed from the gap between law school curriculum and the actual practice of law, coming from the fact that law schools focus on doctrinal teaching, which teaches students how to think like a lawyer, rather than classes teaching students how to act like a lawyer. At present, the Task Force is working on a final draft of its recommendation which “would require pre-admission competency training, a 50-hour pro-bono or low-bono requirement and enhanced post-admission practical skills training, with an additional 10 hours of mandatory continuing legal education for new lawyers.”
The pre-admission competency training could be achieved through practice-based experiential course work of fifteen hours or a bar-approved externship or clerkship, during or after finishing law school. The course work would include “oral presentation and advocacy; counseling; law practice management and using technology in law practice; collaboration and project management; and practical writing.”
The pre-admission competency training is an innovative idea. The requirement of competency which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” as laid out in the ABA Rules of Professional Responsibility Rule 1.1 is a fundamental rule that is now being undermined. State bars should take the initiative as California did to attempt to eliminate this deterrent to competency.
To read the Task Force’s report, click here.
In its September Advisory Opinion, the Pennsylvania Bar’s Ethics Committee reiterated the guidance provided in several previous ethics opinions in the developing area of social media and gave a broad overview of the main ethical issues attorneys face when both using social media and advising clients who use social media.
The Committee concluded that:
- Attorneys may advise clients about the content of their social networking websites, including the removal or addition of information.
- Attorneys may connect with clients and former clients.
- Attorneys may not contact a represented person through social networking websites.
- Although attorneys may contact an unrepresented person through social networking websites, they may not use a pre-textual basis for viewing otherwise private information on social networking websites.
- Attorneys may use information on social networking websites in a dispute.
- Attorneys may accept client reviews but must monitor those reviews for accuracy.
- Attorneys may generally comment or respond to reviews or endorsements, and may solicit such endorsements.
- Attorneys may generally endorse other attorneys on social networking websites.
- Attorneys may review a juror’s Internet presence.
- Attorneys may connect with judges on social networking websites provided the purpose is not to influence the judge in carrying out his or her official duties.
Despite prohibiting attorneys from contacting represented persons through social media, in accordance with the New York State Bar Association Committee on Professional Ethics’ Opinion 843, the Pennsylvania Committee advised that it would nevertheless be permissible for attorneys to access the public portions of represented persons’ social networking websites.
This growing leniency of what attorneys may do and may advise their clients to do using social media, emphasizes the importance of competent representation by gaining at least a basic level of knowledge and understanding of how social media websites work; an obligation that is becoming an almost crucial element of the practice of law in this new digital age.
The Tennessee Supreme Court suspended an attorney from practice for 30 days for sending an email to a bankruptcy judge, calling the judge a “bully and clown”. On September 3, 2014, the court decided that although the sending of the e-mail did not violate Tennessee Rule of Professional Conduct 8.2(a)(1), the e-mail constituted an improper ex parte communication with the judge in violation of Rule 3.5(b) and conduct intended to disrupt a tribunal in violation of Rule 3.5(e).
The court found that Rule 8.2 was not violated because it was not designed to protect judges from criticism, but rather to protect against unfairly undermining public confidence in the administration of justice. Because this e-mail was not communicated to a third party, it did not violate the rule.
Even though the e-mail was sent nine months after the bankruptcy judge denied the attorney’s fee application, it was sent “during the proceeding,” under Rule 3.5(b), because the attorney could still appeal the district court’s ruling at the time. Thus, the court concluded that Rule 3.5(b) extends through any appellate process until final disposition.
Additionally, the e-mail violated Rule 3.5(e) because: (1) the time for appealing the denial of the fee application had not yet expired, and thus a proceeding was still pending for purposes of the rule; and (2) the e-mail demanded a written apology and had a “threatening tone”, thus representing the conduct that Rule 3.5(e) proscribes.
To be safe, lawyers should refrain from sending possibly offensive or threatening communications to judges.
The full opinion can be found here.