More than 200 million people around the world have professional profiles on LinkedIn, and many attorneys and law firms have joined the social networking site. However, LinkedIn is yet another example of technology advancing at a rapid pace that is sometimes out of sync with the attorney advertising rules.
For example, LinkedIn provides the option for an individual to list areas of specialization or expertise by choosing categories that LinkedIn provides. This option has raised questions for Florida attorneys as is appears to conflict with the attorney advertising rules. In fact, according to the initial response to one attorney’s inquiry, the advertising committee explained that “[a] lawyer can only state or imply that the lawyer is ‘certified,’ a “specialist,’ or an ‘expert’ if the lawyer is certified by the Florida Bar.” Therefore, most of the LinkedIn’s descriptive options should not be added to a Florida attorney’s profile.
LinkedIn was also a focus at the October 29, 2013 of the Standing Committee on Advertising (SCA) as it considered a law firm’s inquiry about listing the firm’s specialties. The SCA advised that a law firm may not list areas of practice under the “specialties” header because a law firm cannot be certified. The SCA acknowledged that the LinkedIn page used by law firms does not offer the firm any flexibility as to the choice of LinkedIn terminology and agreed to contact LinkedIn regarding its system’s clash with the Florida attorney advertising rules.
Click here to read more about the current state of SCA’s approach to LinkedIn.
On December 1, The State of Washington will officially implement its legalization of marijuana. In response, the King County Bar Association (KCBA) Board of Trustees has recommended a new Rule of Professional Conduct and a new comment to Oregon’s existing misconduct rule to address two major areas of concern that members of the bar face: 1) advising clients about state laws that are in conflict with federal laws and 2) lawyers’ personal use of marijuana. Marijuana remains illegal under federal law, but the Justice Department, under the Obama administration, has not been aggressive in enforcement.
Under KCBA’s proposed Rule 8.6, a lawyer would not violate the Rules of Professional Conduct by engaging in conduct that is either a) permitted or b) within affirmative defense to prosecution under state criminal law, solely because that conduct may violate federal law. In other words, this means that a lawyer may consume marijuana recreationally even though it remains illegal under federal law. The proposal notes that use of marijuana may cause a lawyer to violate other state laws, such as driving while impaired and/or other professional conduct rules, such as competence and diligence. The draft comments to rule 8.6 also specify that Oregon’s marijuana law is the only intended exemption regarding an attorney’s obligation to adhere to federal legislation.
The KCBA was founded in 1886 and currently represents over 14,000 attorneys, judges, law professors and law students in King County. It will be interesting to follow the KCBA and the Oregon Bar to learn how the legalization of marijuana ultimately impacts a lawyer’s rights and obligations.
Where Ethics and Due Process Diverge: Lawyer’s Unethical Conduct as a Juror Not Enough to Overturn Conviction but Enough for California Bar Sanctions
In an unpublished decision, the 9th U.S. Court of Appeals affirmed the U.S. District Court for the Southern District of California’s decision denying Donald McNeely’s habeas corpus petition. Among the defendant’s basis for his request, was the impropriety of a biased juror who failed to reveal he was an attorney during voir dire and subsequently blogged about the jury deliberations during and after the trial.
Juror, Frank Wilson, when asked what his occupation was during voir dire, claimed he was a “project manager” for the technology company with which he was employed. The majority of his work at the company was non-legal, but, according to McNeely’s lawyer, the juror did some legal work for the company when necessary and was winding up his own private practice at the time. The Court of Appeals found that while Wilson’s statements during voir dire were “incomplete” they were nevertheless “technically correct” and not indicative of bias. As to the blog posts, the court held that blogging before the conclusion of deliberations was improper, but it was not unreasonable to conclude that Wilson was not biased.
While Wilson’s actions may not have warranted a granting of McNeely’s habeas corpus petition, they were enough for the California Bar to place him on a two year probation, suspend his license for 45 days, and order him to take the MPRE within one year.
In Indiana, Rule 8.2(a) prohibits the making of statements that “the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.” Recently, in the case of In re Dixon, the Indiana Supreme Court decided that the extent to which the attorney discloses accurate facts to support such a statement is relevant to the determination of whether the attorney acted in reckless disregard as to its truth or falsity. The Court held that such statements should be analyzed under an objective test that compels the courts to consider whether the attorney lacks any objectively reasonable basis for making the statement at issue, considering its nature and the context in which the statement was made. Additionally, the court held that the extent to which the attorney discloses accurate facts to support the statement is relevant to the determination of whether the attorney acted in reckless disregard as to its truth or falsity.
In this case, an attorney filed a Motion for Change of Judge and in support of his motion, made statements that criticized the judge’s impartiality. For example, the attorney characterized the judge’s connection to the case as one that “…calls into profound question her ability to navigate the waters of defendants’ legal defenses” and noted that one of the judge’s ruling exemplified the fact that,“… she did not feel duty bound to apply the [appropriate] rule because she was biased…”
The Indiana Supreme Court decided that the lawyer did not, in fact, violate Professional Conduct Rule 8.2(a). The court’s primary justification was that the lawyer was engaged in “good faith professional advocacy in a legal proceeding requiring critical assessment of a judge” and, therefore, Rule 8.2(a)’s limits must be interpreted to be the least restrictive. The court provided several additional reasons. First, it cited to Comment  of Rule 8.2, which stipulates, “[e]xpressing honest and candid opinions on such matters contributes to improving the administration of justice.” Second, the court explained that there was no rule violation because the attorney’s statements related to his allegation of personal bias or prejudice as required by Criminal Procedure Rule 12(B). Third, the court stated that the attorney’s statements were not sanctionable because they had to be considered in the entire context in which they were made, including the supporting facts that the attorney provided.
As illustrated in this case, this test attempts to balance the public interest in candid discussions about a judges’ qualifications against competing interests in maintaining public confidence in the administration of justice.
The decision can be read in full here.
According to the recent New York City Bar Association Committee on Professional Ethics Formal Opinion 2013-2, an attorney who knows that a client or a witness has provided false information in a court proceeding must take reasonable “remedial measures” in accordance with Rule 3.3. Such remedial measures include disclosing the false evidence in a formal submission to the formerly presiding tribunal or to opposing counsel. Disclosure is required only if the false evidence is “material” and the attorney has actual knowledge of the falsity, as required by Rule 1.0(k).
The Committee rejected the idea that the obligation to disclose lasts forever. The purpose of New York Rule of Professional Conduct 3.3 is to prevent false evidence from misleading the trier of fact. As a result, a “reasonable remedial measure” is only one that has a reasonable prospect of accomplishing this purpose. Therefore, the Committee determined, if it is impossible to disclose the false information to the presiding tribunal or a tribunal that reviews the presiding tribunal’s decisions, there is no longer a duty to disclose.
While the duty to disclose is not a “never-ending” one, this opinion certainly reveals the significance of making a client aware of the risks involved in providing false evidence and of an attorney’s responsibility to remediate such risks when taken.
Florida’s First District Court of Appeals recently held that a trial court did not depart from the essential requirements of law or Florida Rule of Professional Conduct 4-1.7(b) by disqualifying a law firm due to an “unreasonable” conflict of interest.
Florida Rule of Professional Conduct 4-7.1(b) governs whether a lawyer or law firm may represent a client despite the existence of a concurrent conflict involving another client. Under this rule, the clients who are affected by the dual representation may give informed consent to allow the representation to continue despite the conflict. However, the court in Anheuser-Busch Cos. v. Staples concluded that the conflict in this particular case could not be waived because (1) it was unreasonable for the firm to believe that it would be able to provide competent and diligent representation to each affected client; and (2) because the representation of one client involved the assertion of a position adverse to another client.
The lawsuit in Anheuser-Busch initially stemmed from injuries that Christopher Staples sustained while working in a brewery owned by Anheuser-Busch. Staples’s employer provided him with workers’ compensation for these injuries, but Staples subsequently filed suit for negligence and premises liability against Anheuser-Busch to seek damages for his injuries. Fernandez Trial Lawyers, P.A. (“the Firm”) appeared on behalf of Anheuser-Busch. The Firm also filed a Notice of Lien pursuant to Fl. Stat. § 440.39(3)(a) in the tort action on behalf of Staples’s employer, which asserted that the employer paid workers’ compensation benefits to Staples and was entitled to reimbursement from any recovery Staples might receive from Anheuser-Busch.
Ultimately, the court found that representing both Anheuser-Busch and Staples’s employer would result in an unreasonable conflict of interest. For example, as a representative of Anheuser-Busch, the firm would have to minimize the business’ liability and mitigate the damages to reach the best interests of its client. However, in representing the employer, and pursuant to the Notice of Lien, the firm would represent its client’s best interests by maximizing Anheuser-Busch’s liability and damages.
The Supreme Court of New York, Appellate Division, affirmed the Supreme Court’s denial of J.C. Penney’s motion to disqualify plaintiffs’ counsel, Jones Day, due to a conflict of interest. The court held that an unsigned advanced conflict waiver from 2008 was enforceable through performance. Prior to representing the retail giant, Jones Day presented J.C. Penney with a detailed letter to be signed indicating that the firm would only represent J.C. Penney so long as the firm could still represent other large national retailers in disputes directly adverse to J.C. Penney, though not in substantially related matters. The engagement letter functioned as an advanced waiver of any conflict of interest issues with future clients.
Despite the fact that J.C. Penney never returned a signed copy of the waiver, the Court allowed the representation to move forward based on J.C. Penney’s continued use of Jones Day. Thereafter, Jones Day was handling J.C. Penney in Asia’s trademark portfolio when other litigation ensued over J.C. Penney’s Martha Stewart line in the United States against competitor Macy’s. Jones Day undertook representation of Macy’s in the action. J.C. Penney then filed a motion to disqualify Jones Day from representing Macy’s due to the conflict of interest arising from the parties’ directly adverse interests
Accordingly, the Supreme Court denied the motion, which the Appellate Division subsequently affirmed, stating that J.C. Penney’s continued acquiescence to the firm’s representation constituted an acceptance of the advanced waiver of conflicts through performance and precluded the firm from being conflicted out of the litigation.
Interestingly, the court decided this case under New York’s former ethics rules known as the Code of Professional Conduct. The court made this decision because the Code was the body of rules that were in place in New York when the March 2008 retainer agreement was created. New York did not adopt the Model Rules of Professional Conduct until December 2008. Though both the current Rules of Professional Conduct and the former Code provide for advanced waiver of conflicts, the Code stated that such waivers “need not be in writing if informed consent can be found under the circumstances.” Because of J.C. Penney’s sophistication, the Court readily found such informed consent under the circumstances. However, it is unclear whether the Court would issue the same ruling if the Rules of Professional Conduct were applied.