The ABA Draws a Brightline for Judges Conducting Independent Factual Research

The American Bar Association’s latest formal opinion prohibits judges from conducting independent research on adjudicative facts unless the information is subject to judicial notice. However, judges are permitted to use the Internet to search for general contextual information and to research legislative facts.

Formal Opinion 478 defines an adjudicative fact as one containing information that has factual consequence in determining the outcome of a case—i.e., the who, what, when, where, why and how. A legislative fact, on the other hand, is broad and does not specifically concern the immediate parties at hand.

The opinion offers several hypothetical situations to differentiate between these two types of information. For example, a judge who is assigned to a district with a history of environmental contamination cases may conduct general background learning on the Internet before a case is assigned, and may rely upon that information so long as there is reason to believe that the source is reliable. Conversely, a judge impermissibly gathers information about adjudicative facts when researching the store hours of a specific restaurant while presiding over a case involving a claim of unpaid overtime. There, the restaurant’s hours of operation have factual consequences in determining whether the plaintiff will prevail on the claim.

The ABA derives its bright-line distinction from Model Rule 2.9(C) in the Model Rule of Judicial Conduct. Under Model Rule 2.9(C), a judge’s investigation of facts is restricted to the evidence presented and to any information that may be judicially noticed. Due process protections found in Fed. R. of Evid. 201(e) guarantees that a party is entitled to be heard either before or after a court takes judicial notice of an adjudicative fact.  However, parties do not enjoy the same protections with research of legislative facts because the broad and recurring nature of this information does not raise the same due process concerns as adjudicative facts.

Overall, Formal Opinion 478 aims to preserve judicial impartiality against improper ex parte communications by limiting the scope of independent fact finding not tested by the adversarial process. The ABA emphasizes Model Rule 2.9(D) and reminds judges of their duty to supervise court staff and officials by taking reasonable steps to prevent improper independent investigations. Meanwhile, the ABA also recognizes the utility of the Internet as an important educational tool for today’s judiciary by encouraging judges to draw upon information contained in reliable Internet sources in the same way that they would use information from judicial seminars and books.

To read the ABA’s full opinion, click here.

Proposed Amendment to the Federal Rules Would Require Disclosure of Third-Party Litigation Funding

On November 7, 2017, the Advisory Committee on Civil Rules established a new subcommittee that will study whether the potential ethical and judicial concerns surrounding third-party litigation funding merit the enactment of amendments to the federal rules that would require disclosure of outside investment in any action filed in federal court. The issue is scheduled for discussion during the committee’s April 10, 2018 meeting in Philadelphia.

The U.S. Chamber Institute for Legal Reform has led the charge for an amendment to the rules of civil procedure that might counteract the potential ethical issues raised by the use of third-party funding arrangements in civil actions. Last summer, Lisa Rickard, president of the Chamber’s Institute for Legal Reform, sent a letter to the Administrative Office of the U.S. Courts to the Federal Rules of Civil Procedure requesting that the rules be amended to require disclosure of all compensation agreements that are “contingent on, and sourced from, any proceeds of the civil action, by settlement, judgment or otherwise.”  Rickard’s letter includes a discussion of the following legal ethics concerns:

 (1) Impermissible sharing of legal fees: Model Rule 5.4(a), which bars almost all forms of sharing legal fees with non-lawyers, conflicts with some models of third-party litigation funding which involve plaintiffs’ counsel repaying the funder’s investment out of attorney’s fees;

(2) client confidentiality: the extent that funding arrangements require disclosure of client information to the funder raises confidentiality issues; and

(3) conflicts of interest: attorneys who have contracted directly with a funding company may have duties to that company that are inconsistent with the duties of loyalty to the client, including conflicts that arise when attorney’s are incentivized to recommend clients to work with favored funders.

The Institute proposed a similar amendment to the rules committee in 2014, but it did not receive much attention. The rise in third-party litigation funding in recent years has apparently enlivened opposition, as evidenced by the fact that 29 organizations joined  Rickard’s  letter that  proposes a disclosure requirement be included in Federal Rule of Civil Procedure 26.

“The industry has grown tremendously,” said Page Faulk, vice president of legal reform initiatives at the Chamber’s institute. “There have been a lot of developments since we originally submitted the petition, and we’re also hearing from other business groups about their concerns.” She added that more judges are also sharing the outlined concerns.

In fact, some courts have begun to address third-party litigation funding issues on their own, with the U.S. District Court for the Northern District of California recently adopting a policy that permits class action defendants to discover whether their opponents are receiving funding from outside investors. And in March, the U.S. House of Representatives passed a bill that would mandate the disclosure of third-party funding in class actions.

Commercial litigation funders, including industry giants Burford Capital and Bentham IMF, have opposed the proposal, arguing the rule would be invasive and unnecessary.

To read more click here.

Florida Amends Bar Rules to Make Pro Bono Work More Accessible for Lawyers

On November 20, 2017, the Florida Supreme Court amended Florida Rule 4-1.2 and adopted Rule 4-6.6 to make it easier for lawyers to volunteer their services to legal aid organizations and pro bono clients.

In its order, the Florida Supreme Court noted that it is not always feasible for a lawyer providing short-term limited legal services through an organization to “systematically screen for conflicts of interest as is generally required before undertaking a representation.” Newly adopted Rule 4-6.6 directly addresses that issue, and states that a lawyer who provides short-term limited legal services to a client “under the auspices of a program sponsored by a nonprofit organization, court, government agency, bar association or an American Bar Association-accredited law school” will not be held to the standard conflicts of interest rules, barring two exceptions.

Specifically, the new rule states that a lawyer providing “short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: (1) is subject to Rules 4-1.7 and 4-1.9 (a) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 4-1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 4-1.7 or Rule 4-1.9(a) with respect to the matter.”

Among the amendments to Rule 4-1.2 are additions to the language of the rule that the Supreme Court wrote will “[exempt] a lawyer who gives advice in a short-term limited legal services program under new Bar Rule 4-6.6 from the requirement that a client’s informed consent to representation limited in objectives or scope must be in writing.” The Court also wrote that the new rules are intended to encourage lawyers to volunteer their services; thereby increasing access to justice “at a time when legal aid funding and staff cannot accommodate all individuals who need legal representation.”

The Florida Supreme Court’s order on the changes went into effect on November 20, 2017. Read the full order here.

Colorado Goes Live with Lawyer Self-Assessment Program

On October 24, 2017, the Colorado Supreme Court launched an online platform aimed at helping Colorado lawyers to practice ethically, avoid disciplinary actions, and reduce stress when dealing with rules of professional conduct. The new Colorado Lawyer Self-Assessment Program is the first online self-assessment program launched by a state for its lawyers, but Illinois will soon follow with its own similar same initiative.

A subcommittee of the Colorado Supreme Court’s Advisory Committee initiated the self-assessment tool, and a group of Colorado lawyers, professionals, and professors assisted in its development. The self-assessment program addresses 10 important areas-including conflicts, confidentiality, and fees-in which lawyers encounter common ethical obstacles when practicing law. Every area contains a list of objectives, requirements, and the best practices to follow. Then, the program asks the lawyer performing the assessment if he or she is following those guidelines and, if the answer is negative, the program provides ethics opinions and articles that explain the risks involved. Lawyers who complete the entire program also receive CLE credit.

Colorado lawyers are responding positively to the self-assessment program and the Colorado Supreme Court’s Advisory Committee expects to improve it considerably based on the assessment reports submitted.

View the Colorado Lawyer Self-Assessment Program here.

USPTO Trying Out Diversion Program for Struggling Practitioners

On November 3, 2017, the United States Patent and Trade Office (USPTO) announced that the agency’s Office of Enrollment and Discipline (OED) will be launching a two-year pilot diversion program for patent and trademark practitioners who commit minor ethical lapses without causing actual client harm. The program is a chance for practitioners to avoid discipline by taking affirmative steps to rectify the underlying issue that caused their misconduct. The motivation behind the program came from a recent study which found high levels of drinking, substance abuse and depression among American lawyers. The USPTO hopes that the diversion program will help put lawyers suffering from addiction or mental health issues on the path to resolve their misconduct and prevent future misconduct.

However, not everyone will qualify for the pilot program. For example, practitioners cannot participate if they have been publicly disciplined in the past three years. In addition, practitioners cannot take part if the misconduct includes (1) misappropriation of funds or dishonesty, deceit, fraud or misrepresentation; (2) substantial prejudice to anyone; (3) serious crime; or (4) anything resembling prior misconduct in the past five years.

The USPTO expects and anticipates that the program will further the mission of protecting the public by strengthening the skills and abilities of USPTO practitioners.

To read the OED Diversion Pilot Program click here.

To read the full USPTO article click here.

To read the study mentioned click here.

Marijuana Businesses Spark Tensions Between State and Federal Law

As expected, a surge of new businesses emerged in response to the state-level legalization of marijuana, which is currently legal in twenty-nine states, including Florida. This not only gave rise to a new form of business, but also allowed attorneys specializing in start-up companies to increase their clientele.

Marijuana, however, is legal only under state law, not federal law.  In fact, the federal U.S. drug policy statute, the Controlled Substances Act, still lists marijuana as a “controlled substance.”  This tension between state and federal law also affects attorneys from an ethical standpoint.  Specifically, Rule 4-1.2 of the Florida Rules of Professional Conduct states that a lawyer cannot counsel or assist a client in conduct that the lawyer knows is criminal.  In essence, an attorney can counsel and assist a client who owns a marijuana business, as state law permits, yet simultaneously violate federal law.  Although The Florida Bar, and other bar associations, have released guidelines to help lawyers navigate through this conflict in their representation, there is still uncertainty as to the scope of such representation.

This tension between state and federal law becomes even more apparent in the area of bankruptcy. Chief Judge Laurel M. Isicoff, of the Bankruptcy Court for the Southern District of Florida, recently denied confirmation of a Chapter 11 plan for reorganization because the debtor’s plan proposed the rental of a commercial property that would obtain funds stemming from a marijuana business.  Although it was an issue of first impression in this jurisdiction, the court looked at other jurisdictions, which have unanimously held that “the cultivation and sale of marijuana is illegal under federal law and therefore the federal law and the federal courts are not available to any person engaged in that business.” Further, the court considered the plan a violation of the good faith requirement because it was “based on an enterprise illegal under [f]ederal law.”  Debtor amended the plan, yet the court still viewed the amendment as reflecting funds from a marijuana business.

The court was direct in its position and stated that “the law is very clear—a bankruptcy plan that proposes to be funded through income generated by the sale of marijuana products cannot be confirmed unless the business generating the income is legal under both state law and federal law.”  As a result, the debtor sought to convert to a Chapter 13, which allows for the discharge of more types of debts than in a Chapter 11; however, the court denied the debtor’s request, holding that the plan, under a Chapter 13, would “require the . . . Trustee to violate federal criminal law to administer the plan payments,” which is also impermissible.

Unfortunately, it appears this tension will exist for some time, as it does not seem likely that the federal government will sanction the legalization of marijuana any time soon.

Read full bankruptcy opinion here.

Insurance Counsel Can’t Advise Client on Misrepresentation

The New York County Bar Association’s Ethics Committee published an opinion advising that an insurance defense lawyer cannot advise the insured whether to inform the insurance carrier about false information or a misrepresentation on the insured’s application. Instead, the Ethics Committee suggests that a lawyer advise the client to seek independent counsel as to whether the client needs to disclose the information to the insurance carrier.

This issue arises because insurance carriers often retain firms as “panel counsel” from which they select counsel to defend insured in lawsuits. The opinion deals with the conundrum that may confront a lawyer, who has been retained as “panel counsel,” and then learns that the insured lied on his application. The opinion describes a lawyer who is confronted with the dilemma of whether to report the client’s lie to the insurance company, who may then deny coverage for the client, or to fail to disclose the misrepresentation at the risk of losing a highly coveted panel counsel position.

The Committee concludes that, in this situation, the lawyer’s client is the insured and therefore the duty to the client is paramount. The lawyer owes a duty of confidentiality to his client under the Rules of Professional Conduct Rule 1.6 (Confidentiality), which restrains the lawyer from revealing an insured’s misrepresentation to the insurance carrier.

However, beyond the duty of confidentiality, the committee notes that the lawyer has a conflict under Rule 1.7 (Current-Client Conflicts), because of his personal, financial interest in his business relationship with the insurance carrier. Thus, the lawyer is not likely to be in a position to advise the client even after full disclosure of the conflict to the client.  Ultimately, the opinion concludes that if the client fails to correct the misrepresentation and thereby insists on pursuing a fraudulent course of action, the lawyer may withdraw.

Find the opinion here.

$9M Sanctions Against Florida Tobacco Lawyers for Frivolous Claims

On October 18, two Florida lawyers were ordered to pay more than $9 million in sanctions for pursuing over a thousand nonviable claims in tobacco litigation. The four-judge panel for the Middle District of Florida found that Norwood Wilner and Charlie Farah undermined the “integrity and trust” of the judicial process on a “breathtaking scale” by pursuing 1,250 meritless lawsuits.

Of those 1,250 cases, 588 were complaints involving dead plaintiffs, 572 involved plaintiffs who never authorized the attorneys to file lawsuits, 15 were unauthorized, 18 involved plaintiffs who weren’t even smokers, 36 were on behalf of plaintiffs who never lived in Florida, and 28 that were previously adjudicated.

The litigation giving rise to the sanctions arose out of the Engle class action. In 1997, a Florida jury ruled against tobacco companies in Florida state court, finding in favor of the Engle class. The Florida Supreme Court, however, decertified the class and gave the plaintiffs one year to file individual lawsuits. Wilner and Farah filed 3,700 of these individual complaints and eventually reached a $100 million settlement with the tobacco companies. The federal court overseeing the settlement appointed the U.S. Attorney as a special master to investigate the lawyers’ conduct.

The 148-page opinion lambasted the attorneys for violating Fed. R. Civ. P. 11, which authorizes sanctions for filing meritless pleadings, 28 U.S.C. § 1927, which imposes sanctions against lawyers who vexatiously drag out proceedings. Moreover, the attorneys’ conduct appears to have violated numerous rules of the The Florida Bar’s Professional Conduct including, but not limited to the rules that require lawyers to communicate with their clients, file meritorious actions, and conduct themselves with candor toward the tribunal. The court has referred the matter to the The Florida Bar and it remains to be seen how The Florida Bar will proceed.

The immense monetary sanction was the result of the court’s calculation of $6,983.42 per frivolous case, reflecting of the cost of the waste of the court’s resources, plus another  $435,129.12, for the special master’s time. The opinion explains that the sanction was imposed to compensate the public for the waste of public resources resulting from the frivolous lawsuits. Moving forward, the size of the sanction is a warning sign to plaintiffs’ lawyers about filing and maintaining meritless cases.

Read the full opinion here.

Update on the Ethical Implications of Ex-Judge Posner’s New Book

After causing an uproar from his former colleagues with his new book, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments, recently-retired Judge Posner has moved forward with his crusade with the announcement that he will be representing pro se litigants.

His announcement comes in the wake of an advisory opinion issued by the Judicial Conference Committee on Codes of Conduct that indicated that the release of the aforementioned materials would “violate the intent, letter, and spirit of the Code of Conduct for United States Judges.” Canon 4D(5) of the Code of Conduct for Judicial Employees states that a “judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.” The committee was adamant that Canon 4D(5), among others, would be violated if the materials were published.

Despite the looming ethical problem, Posner moved forward in representing pro se litigants. In an affidavit to the Fourth Circuit, Posner stated that he has decided to “dedicate [his] post-judicial career to helping pro se litigants.” In the affidavit, Posner requested to represent William C. Bond, a pro se litigant who sued government officials in federal court. Posner has also indicated that he will dedicate his salary, which will continue into his retirement, to fund a pro bono law firm.

The article discussing Posner’s decision to help pro se litigants can be found here, and the article discussing Posner’s pro bono law firm can be found here.

Bloomberg Law Trains Machine to Highlight Legal Points

On September 26, 2017, Bloomberg Law unveiled an AI program called “Points of Law,” a service that allows users to quickly identify and analyze language in a judicial opinion. The program uses a machine learning algorithm that indexes its opinions, making it easier for users to find legal points and precedents that strengthen their own legal arguments. When the feature is turned on, language is highlighted in the text, and citations are linked from the margin. The program is one of a wave of automated legal research and analysis engines that are raising significant ethical questions regarding attorney competence and confidentiality.

As reported by the ABA, attorneys are increasingly turning to AI-generated work product to increase their legal research and drafting efficiency. In fact, attorneys participate in training these machine learning algorithms, as each query entered into the system helps to expand and refine the legal analysis the algorithm returns. But, when delegating work to AI programs, attorneys should be wary of their ethical obligations under the competence rules. Significantly, lawyers must understand how AI programs function in order to fulfill their duty of technological competence.

This means that a lawyer using Bloomberg’s Points of Law service must understand how the program’s indexing works and how it selects which language to highlight. For example, though AI programs continuously “learn,” they may not find every supporting precedent for a client’s case. As such, a lawyer entering a query into programs like Points of Law must ensure the accuracy of the research returned in order to satisfy their duty under the ethical rules. AI programs likely pose concerns regarding lawyers ethical duties of confidentiality. Therefore, lawyers must take the appropriate steps to prevent inadvertent disclosure of confidential information by completely understanding the terms of service of the AI programs they are using, and ensuring there is a confidentiality agreement with the AI vendor.

Find the article discussing the unveiling of Bloomberg’s Points of Law here.

No Implied Authorization: Consent is Key to Discuss Intentions of Deceased Client’s Will in Colorado

The Colorado Bar Association Ethics Committee recently published an opinion finding that will-drafting attorneys cannot volunteer information about a deceased client’s intentions to their beneficiaries without the previous consent of the client or their agent. The opinion was published in response to the frequency with which will drafters receive questions about their client’s intentions from relatives who are disappointed in their bequest.

The opinion noted that a lawyer’s duty of confidentiality extends after a client’s death, as specifically reflected in Colorado Rule of Professional Conduct Rule 1.6(b) which does not  include a client’s death among the listed confidentiality. This notion of confidentiality is also upheld in The American College of Trust and Estate Counsel Commentaries on the Model Rules of Professional Conduct.

The opinion also highlights that an attorney may reveal this information without violating Rule 1.6 if a court orders the disclosure. However, an attorney may not reveal information based upon the rationale that the client impliedly authorized the disclosure.

The committee also noted that there is currently a split of authority concerning whether a will-drafting attorney may ethically disclose information without authorization from the client or personal representative. The ultimate position adopted by the committee states that “simply retaining a lawyer to draft estate documents, without more, is not sufficient to constitute implied consent for the lawyer to voluntarily provide information protected by Rule 1.6.”

Learn about the Colorado Bar’s Ethic Opinion here and here.

Read the American College of Trust and Estate Counsel Commentaries on the Model Rules of Professional Conduct here.

Multiple Attorneys Removed from Cases Due to Conflicts of Interest with Guardian Oversight and Attorney-Hospital Relationships

In two recent opinions, Michigan and South Carolina courts have removed attorneys from multiple cases where investigations revealed that they were abusing their powers as clients’ guardians and conservators. Investigations revealed several ethical violations, including an undisclosed agreement in which a hospital would pay the attorney to petition for guardianship of patients. Both attorneys also abused their power by allowing family members to move into the homes of hospitalized clients without their knowledge or consent. In both opinions, the court noted that the attorney’s actions were clear violations of, among other rules, the conflicts of interest rules under 1.7.

These two cases are among hundreds around the country that prompted a recent report in The New Yorker. The article focused on a rash of cases in Clark County, Nevada, in which several elderly individuals were removed from their homes without notice or legal representation. Rather than representing clients who truly needed their help, attorneys were following a routine of temporary guardianship in pursuit of easy payouts. The ethically violative behavior of these attorneys included requests that courts grant them authority to intervene immediately based on vague descriptions of their ward’s medical conditions, minimal physician reports, and reports that wards were too incapacitated to attend a court hearing.

Nevada has begun to address this problem by enacting legislation that entitles all wards of the state to legal representation. For the time being, while these measures are not a cure all for the growing misconduct of certain attorneys, this legislation may provide relief for the people who need it most.

Read more on this issue here.

Philadelphia Law Firm Sues Morgan & Morgan Over Misleading Advertisements

Rosenbaum & Associates, a Philadelphia personal injury law firm, recently filed a complaint against Morgan & Morgan, a Florida-based personal injury law firm, in the U.S. District Court for the Eastern District of Pennsylvania. The complaint alleges that Morgan & Morgan falsely advertises that it represents clients in the Philadelphia area.

Among other things, Rosenbaum & Associates alleges that Morgan & Morgan’s ubiquitous advertisements in Philadelphia, which contain statements such as “[w]e’re all here for you,” lead consumers to believe that the firm actively litigates personal injury claims in Pennsylvania. However, the firm employs only one attorney in Philadelphia with “little or no experience in handling personal injury matters,” a fact which likely place the advertisements in violation of Pennsylvania Ethics Rule 7.2.

Rosenbaum & Associates’ false advertising claim is also buttressed by the allegation that Morgan & Morgan’s advertisements explicitly state that the firm is “not a referral service.” Yet, the firm allegedly refers nearly all of its cases to another law firm, and fails to inform consumers that their cases will be referred out—a clear violation of Rule 7.2(k), which prohibits advertising that is “a pretext to refer cases obtained from advertising to other lawyers.”

In addition to its false advertising claim, Rosenbaum & Associates also brings a claim against Morgan & Morgan for unfair competition under Pennsylvania common law. The complaint alleges that Morgan & Morgan outspends every Philadelphia personal injury firm in terms of advertising, and the purpose of its “significant advertising budget is to undermine the competition by overwhelming the consumers in the Philadelphia market with false and misleading information.” Rosenbaum & Associates attributes its declining influx of new clients to Morgan & Morgan’s misleading advertisements.

Read Rosenbaum & Associates’ complaint here.

D.C. Court of Appeals Out-of-State Lawyers Prohibition Challenged

On September 15, the National Association for the Advancement of Multijurisdictional Practice (NAAMJP) filed a writ of certiorari petition appealing a D.C. Circuit Court of Appeals decision affirming local rules that bar out-of-state attorneys from practicing before Washington, D.C.’s federal court if they are not admitted to the bar where their law firm is based. NAAMJP argues that these rules are discriminatory and “deliberately sidestep the rule of law and binding precedent.”

The petition argues that D.C.’s licensing scheme (which allows D.C. licensed attorneys to have a principal office anywhere, but requires attorneys licensed elsewhere to be admitted in the state where they maintain their principal office) amounts to illegal discrimination against out-of-state attorneys. According to the petition, similar local rules exist in 60 percent of federal district courts.

An amicus brief filed with the court points to a 1987 Supreme Court decision, Frazier v. Heebe, in which the Supreme Court held that a New Orleans federal district court bar admission rule was invalid because it “arbitrarily” discriminated against out-of-state attorneys. The brief reasons that the bar admission rules of the D.C. district court arbitrarily discriminate against lawyers from other jurisdictions by requiring them, but not D.C. lawyers, to have a law office in a state where they are admitted to practice.

To read the petition for writ of certiorari, click here.

For an article on the matter, click here.

New York State Bar: Lawyers Offering Professional Services that are Indistinct from Legal Services Remain Subject to Rules of Professional Conduct

The New York State Bar Association (“NYSBA”) Committee on Professional Ethics has issued an advisory opinion stating that all of New York’s Rules of Professional Conduct apply to any non-legal service provided by a New York attorney when those services are indistinct from the attorney’s own legal services.

An attorney, who was also a Certified Public Accountant, inquired as to whether he could offer his accounting services to persons or entities with whom he lacked any prior personal or professional relationship. The services proposed were services that could be offered by either an accountant or a lawyer.

The advisory opinion applied the Rule 5.7(a)(1) factors to determine whether a “substantial congruence” exists between the proposed non-legal and legal services. The factors include:

  • Who the service provider is,
  • The substance of the service to be provided,
  • The proposed recipient of the service, and
  • The manner or means [by] which the lawyer offers the service.

Given that a lawyer or an accountant could offer the proposed non-legal accounting services the Committee concluded that there was a substantial congruence. The advisory opinion concluded that where a substantial congruence exists, all of New York’s Rules of Professional Conduct apply.

To read the full opinion, click here.

United States Supreme Court to Decide Whether Defense Attorney Can Concede Defendant’s Guilt Over Defendant’s Claim of Innocence

The United States Supreme Court has granted certiorari in McCoy v. Louisiana to decide whether a criminal defense attorney is constitutionally permitted to concede his or her client’s guilt over the defendant’s objections to such concession.

In 2008, Robert Leroy McCoy was charged with first-degree murder and faced the death penalty for allegedly murdering his ex-wife’s son, mother, and stepfather. Prior to trial, McCoy maintained his innocence to his private defense attorney, Larry English. In addition, McCoy testified that the three murders, for which he alleged he was framed, were committed by police officers involved in a drug trafficking ring. Despite this, in an attempt to spare him the death penalty, English conceded McCoy’s guilt during trial over McCoy’s verbal in-court protest to the concession. English justified such a concession on his belief that the evidence was so overwhelmingly against his client, and that conceding guilt was “the only way to save his life.” McCoy was ultimately convicted of first-degree murder and sentenced to death.

The case was appealed to the Louisiana Supreme Court, where McCoy’s conviction was unanimously upheld. McCoy’s fourth of sixteen assignments of error alleged that his attorney’s concession of guilt violated the principle that the attorney-client relationship “is one of principal and agent wherein the lawyer’s authority derives from and is limited by the authority of the client” (see ABA Model Rules of Professional Conduct, Rule 1.2 for a codification of such principle). The court, citing extensively to supporting precedent, found no merit in McCoy’s assignment of error, stating that “conceding guilt, in the hope of saving a defendant’s life at the penalty phase, is a reasonable course of action in a case in which evidence of guilt is overwhelming . . . Louisiana courts have consistently upheld the defense strategy of acknowledging guilt, against a charge of ineffective assistance of counsel . . . .”

The Supreme Court will hear oral arguments in 2018.

Read McCoy’s petition for writ of certiorari here.

Read SCOTUSblog’s track of the docket here.

Read the Louisiana Supreme Court opinion here.

Read articles on the matter here and here.

Florida Third DCA Finds No Conflict Where Attorney Sues Former Client

A decision from the Third District Court of Appeals found that two attorneys may continue to oppose each other in litigation even though one once represented the other. The court noted that there was no conflict under Florida Rule of Professional Conduct 4-1.9 because the current litigation involved a completely separate matter, ended years before the current litigation was filed, and the current litigation would not require one of the attorneys to “attack work that he performed for [his former client].”

The opinion gave leave to Miami attorney Andy Hall to pursue a lawsuit against his former client Jeremy Alters. Hall was hired by Gustavo and Alfredo Villoldo to take over Alter’s terrorism litigation against Cuba and Fidel Castro after deficiencies were found in the $1.1 billion judgment Alters won for his clients. Around the same time, Alters hired Hall to represent him in an entirely separate matter – a dispute over fees in a multi-million dollar class action lawsuit against Bank of America.

Despite the fact that Hall was no longer representing Alters in the Bank of America dispute by the time Hall sued Alters on behalf of the Villoldos, Alters moved to recuse Hall, relying on a 1988 Florida Appellate case discussing Florida Rule of Professional Conduct 4-1.9. Alters argued that the 1988 case expanded Rule 4-1.9 to prohibit suing a former client when doing so would violate the principle of client loyalty or create an appearance of impropriety. However, the court denied Alters’ motion, noting  that the 1988 case simply explained why the rule could apply even when a client’s reasonable expectation of confidentiality was not at stake.

Read the full opinion here.

Florida Firm Loses Again in Dispute Over Referral Fee Agreement

In a decision from the U.S. District Court for the District of Maryland, Florida law firm Michael E. Criden P.A. lost for the second time in its long-running effort to recover a share of $10 million in fees that another firm, Joseph Saveri Law Firm Inc., received in an antitrust litigation in California. Judge Richard D. Bennett’s decision held, among other things, that a fee sharing agreement with a lawyer’s former firm is not enforceable against his new firm.

Criden, who had established a fee-sharing arrangement with Saveri’s former firm, argued that Saveri should be bound by the terms of the agreement with that firm. Criden also claimed that Saveri agreed to abide by the fee-sharing arrangement when he left his former firm and founded his new and current firm.

However, the court held that Criden’s claims failed under basic principles of California corporate law and the legal ethics rules of the state of Maryland; specifically, Maryland Rule of Professional Conduct 19-301.5(e), which governs attorney fee-sharing arrangements.

Among other things, the court held that the 12.5 percent referral fee Criden sought to enforce violated the proportionality mandate in rule 19-1.5(e). This rule requires fee-sharing to be proportionate to each lawyer’s services, unless each assumes joint responsibility for the representation. What’s more, the client did not consent in writing to the purported fee-sharing arrangement as required by the rule. The opinion also noted that the rules of California and Florida would likewise prohibit Criden from enforcing the purported referral fee agreement.

Read the full opinion here.

Written Consents Now Required When a Lawyer Subpoenas a Current Client for Another Client’s Lawsuit

According to a formal opinion issued by the New York City bar’s ethics committee, an attorney who must subpoena a current client for another client’s lawsuit typically has a conflict of interest requiring that the attorney secure informed written consent from both clients.

In considering the issue, the committee reasoned that testifying or producing documents in response to a subpoena are inconveniences that entail loss of money and time for the client subpoenaed. Such requests advanced through a coerced discovery may affect a client’s loyalty towards his or her lawyer. As such, subpoenaing a client involves representation of “differing interests” under Rule 1.7(a).

To prevent a violation of Rule 1.7, the committee advised attorneys to implement conflict-checking procedures before preparing and serving subpoenas. If a conflict is discovered, attorneys must obtain informed consents from both parties. The committee further advised attorneys to run a conflict check prior to being retained if it is apparent that current clients will be subject to discovery. If a conflict is preemptively discovered, the attorney must obtain informed consent from both parties, limit the scope of the representation to exclude the attorney from obtaining discovery, or decline the representation altogether.

Read the full opinion here

The Ethical Implications of Judge Posner’s New Controversial Book

A book published by recently-retired Judge Posner that includes copies of bench memoranda, draft opinions, and internal emails has caused some of his former colleagues to cry foul, raising ethical questions along the way.

The pointedly-titled book, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments, details Posner’s views on improving the judicial process. Posner gives special attention to the issue that prompted his retirement – how the court treats pro se litigants. According to Judge Posner, pro se litigants deserve a better shake. To help ensure this, Judge Posner requested to review the 7th Circuit U.S. Court of Appeal’s staff attorney memorandums evaluating pro se litigant cases before these documents were circulated to other 7th Circuit judges. After this request was denied, Judge Posner abruptly resigned.

Chief Judge Diane Wood, the subject of much criticism in the book, wrote in an email to Law360 “[t]he rest of the judges on the court do not share [Posner’s] views. To the contrary, they (and I) hold our Staff Attorney’s office in the highest regard and enjoy working with these talented and committed young lawyers. As for the pro se litigants, who represent more than 60 percent of our docket, both the staff attorneys and the judges work very hard to understand exactly what the person is attempting to say and to see what we can and should do about the case, consistently (of course) with the law.”

After receiving an advanced copy of the book, Chief Judge Wood contacted a Judicial Conference’s conduct committee about the ethics of releasing internal communications. According to an email Judge Wood sent to Judge Posner, the Committee determined that publishing these materials would be an ethics violation. Judge Posner responded by publishing this email in his book as well.

While some believe that Posner’s book is an important dialogue on the treatment of pro se litigants, others are calling it a “baffling, disjointed blow-by-blow” of Posner’s disagreements with Judge Wood.

Read the full article discussing Judge Posner’s book and decide for yourself here.

Facebook “Friends” Aren’t Necessarily Real Friends

Florida’s Third District Court of Appeal has decided that a Facebook friendship doesn’t necessarily signify a close relationship warranting automatic disqualification of a judge. The decision allows Miami-Dade Judge Beatrice Butchko to remain on a case in which she is a Facebook “friend” with a lawyer representing a potential witness and potential party in the pending litigation.

In the decision, the court notes its disagreement with another Florida appeals court. In a 2012 decision, the Fifth District Court of Appeal held that a judge had to disqualify himself because he was Facebook friends with the prosecutor.

In its decision, the Third District Court of Appeal emphasized that “some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense” and that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification. But, the court noted, “[a]n assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

Read the full opinion here.

LA County Bar: Ethical Violations Abound When Blogging Attorney Spills the Beans

In an advisory opinion considering the ethical risks to incautious “catfished” attorneys, the Los Angeles County Bar Association Professional Responsibility and Ethics Committee also weighed in on the potential for ethical violations when an attorney discloses thinly veiled client information on blogs and online discussion boards. The committee concluded that where an attorney reveals enough information that a person familiar with aspects of the case could identify the significance of the details disclosed, they run the risk of violating the duties of competence and confidentiality, and might cause the loss of work product protections.

In the advisory opinion, the committee analyzed a hypothetical scenario in which an attorney posts on a blog associated with his law firm website and on a legal industry on-line discussion board. The contents of these posts reveal that in a matter the attorney is handling, a particular lay witness is “an older gentleman” whose “memory is weak.” In a subsequent post, the attorney reveals that he has retained an expert whose opinion is “very supportive” of the client’s position. The attorney further noted that as a result of the expert witness he now estimates damages in the matter will be “greater than” what he originally calculated.  ­

The attorney believed that the information revealed was innocuous mainly because the attorney did not identify the client or expert witness by name. Nevertheless, the committee explained that the attorney had revealed enough information “so that a person familiar with the aspects of the Client’s litigation would be able to identify the witness and the significance of [the] Attorney’s disclosures.” The attorney’s disclosures could result in client injury and professional discipline under the California Business and Professions Code § 6068(e)(1) and California Rules of Professional Conduct 3-100 and 3-110.

Find the full opinion here.

Nebraska Lawyers Get the Green Light to Accept Bitcoin

In a recent ethics advisory opinion, the Nebraska Supreme Court Advisory Committee declared that attorneys may accept digital currencies such as Bitcoin as payment for legal services, but must immediately convert the currency into U.S. dollars. The opinion is the first by a state ethics body to consider how the ethics rules apply to lawyers accepting this controversial form of currency.

The fluctuating exchange rate of digital currency implicates ethics rules related to the reasonableness of attorney’s fees. The value of Bitcoin, for example, fluctuates as much as ten percent per day. This volatility in value presents the potential for overpayment for legal services.

To combat this risk, the opinion outlines three steps attorney’s must take when accepting payment in digital currencies: (1) notify the client that the payment will be immediately converted to U.S. dollars, (2) make the conversion through a payment processor, and (3) credit the client’s account at the time of payment. The opinion further advises attorney’s to be “careful to see that [digital currency] is not contraband, does not reveal client secrets, and is not used in a money-laundering or tax avoidance scheme; because convertible virtual currencies can be associated with such mischief.”

Read the full opinion here.

The Virginia Bar: Solo Practitioners Suffering Impairments and the Duty to Report

The Virginia State Bar’s ethics committee has advised attorneys that they have an affirmative duty to act when they become aware that a solo practitioner’s impairment has resulted in a failure to provide competent representation. However, attorneys do not have any ethical obligation to act when an impaired solo practitioner is still providing competent representation.

These findings supplement an opinion that addressed the duties of supervisory lawyers in a firm to take preemptive action when an attorney in the firm is suffering from an impairment that may affect his ability to represent clients. This new opinion provides guidance to attorneys who are not in a supervisory position above an attorney who is becoming impaired. The opinions come in the wake of a study by the ABA and the Hazeldon Betty Ford Foundation that found high levels of substance abuse and other mental health concerns among American attorneys.

Under Virginia Rule of Professional Conduct 8.3(a), the duty to report is triggered when an attorney has dependable information that the impaired attorney has violated a rule that calls into question the lawyer’s trustworthiness, honesty, or fitness to practice law. The advisory opinion makes clear that not every rule violation rises to that standard, and a lawyer’s impairment on its own does not necessarily violate professional conduct rules at all.

However, nonsupervisory attorneys do have a duty to report another attorney if they have learned that the attorney is currently materially impaired in their ability to provide adequate representation and is continuing to represent clients in violation of their duty to withdraw or decline representation. Under Rule 1.16(a)(2), attorneys are required to decline or withdraw from representation “if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” A violation of 1.16(a)(2) will usually trigger a reporting duty under Rule 8.3(a) because a material impairment that impedes an attorney’s ability to represent a client raises a substantial question about the attorney’s fitness to practice law.

The committee further advised attorneys who are concerned about another attorney’s possible impairment to contact Lawyers Helping Lawyers for guidance, or to encourage the impaired attorney to do so.

To read the Virginia State Bar’s opinion click here.

To Shred, or Not to Shred: That is the Question – Nebraska Permits Attorneys to Shred Physical Files

The Nebraska Supreme Court’s ethics committee has released an advisory opinion permitting attorneys to destroy physical copies of a client’s closed file so long as it is preserved in electronic form. However, the opinion advises that before a physical file may be digitized and subsequently destroyed, attorneys should consider:

  • the availability and cost of physical and electronic storage space,
  • ease of access to documents,
  • the potential need for original documents in future litigation,
  • preservation of client confidentiality, and
  • any other considerations that are pertinent to the contents of that file.

The advisory opinion was issued in response to a legal services organization’s question regarding whether digitally storing scanned images in lieu of physical storage would satisfy the Nebraska Rules of Professional Conduct, which require attorneys to preserve client files for a period of five years after termination of representation. However, the rules do not indicate whether lawyers are required to preserve those files in physical form. With the release of this opinion, the ethics committee has clarified that with the new advances in technology, it is no longer reasonable OR practical to keep physical or paper copies of every client’s files and thus allowed for the digitizing of files.

Find the full opinion here.

LA County Bar: Attorneys Hooked by Online “Catfish” Risk Ethical Violations

The Los Angeles County Bar Association Professional Responsibility and Ethics Committee recently issued an advisory opinion considering the repercussions for an attorney who communicates sensitive information to an online “catfish” –otherwise known as an individual who assumes a false identity in order to elicit sensitive information or otherwise defraud an unsuspecting person. The committee concluded that although an attorney may believe that his online disclosures are “innocuous,” the “lawyer’s unguarded disclosure of client information might result in violations of the duties of competence and confidentiality and might cause the loss of the lawyer-client privilege and work product protection.”

In the advisory opinion, the committee analyzed a scenario where an attorney communicated with a person online who claimed to be working in a “non-legal industry.” During their conversation, the attorney mentioned pending interviews with witnesses in an ongoing litigation, including information like the location of a witness and the subject of an expert’s expected testimony. The attorney was unaware that the person he was corresponding with was “actually associated with the opposing side of a pending case in which [the] attorney represents [the] client and is ‘catfishing.’”

In a detailed analysis of online “catfishing” and the “interplay of advancing technology and the lawyer’s professional responsibilities,” the committee reasoned that though the “incautious” online activity did not rise to the level of a full waiver of evidentiary privilege, the disclosures were enough to allow a person familiar with the litigation to “identify the witnesses and the significance of [the] attorney’s disclosure.” As such, the committee concluded that the scenario constituted a breach not only of the professional rules related to competence and confidentiality, but also a breach of the California Business and Professions Code 6068(e)(1), a state statute which obligates each attorney to preserve client “secrets.”

Read the full opinion here.

Is Avvo’s Referral Service Ethical? Florida May Add its Voice to the Chorus.

The New York State Bar Association recently joined other states that have found that the use of Avvo’s attorney referral service is impermissible as it violates the professional conduct rules that prohibit sharing fees with nonlawyers or paying a nonlawyer for a referral or recommendation. Avvo presents particular problems for the state bars as Avvo collects different fees depending upon the type of case that is referred to an attorney.

The Florida Bar’s Board of Governors is scheduled to consider programs like Avvo at a December 2017 meeting as part of an ongoing attempt to revise the attorney referral rules in Florida. The Florida Bar Rules currently prohibit attorneys from sharing fees with for profit referral companies.

Proposed Advisory Opinion 17-2, which has yet to be drafted, will address whether attorneys may participate in private lawyer referral services, including services such as Avvo. The Florida Bar has solicited comments from Florida Bar members, pursuant to Procedures 6(d) and (e) of The Florida Bar Procedures for Ruling on Questions of Ethics Comments may include issues to be considered, a proposed conclusion, or suggestions for additional types of fee arrangements. Comments will be considered at The Florida Bar’s Fall Meeting on October 13, 2017

To read The Florida Bar’s notice click here click here.

To read more about the other state opinions concerning Avvo check out the informative blog posts at The Professional Responsibility Blog and the Legal Ethics Alert Blogs here and here.

All Hands on Deck – Texas Welcomes Out of State Attorneys In Harvey Aftermath

Last week the Texas Supreme Court issued an order that permits licensed attorneys from other states to provide legal services to the victims of Hurricane Harvey through legal aid or pro bono programs. The order was one of a series of emergency orders aimed at alleviating the legal chaos sure to be left in the wake of the storm.

Though customarily, attorneys may only practice law in states where they are officially licensed, the Texas Supreme Court, empowered by Texas Statute 81.061, is permitting out-of-state attorneys to practice law in Texas for the next six months. The order requires that out-of-state attorneys register with the State Bar of Texas and agree to abide by the Texas Disciplinary Rules of Professional Conduct.

The order also allows attorneys displaced by Hurricane Harvey to practice in Texas remotely as if they were located in their home jurisdiction.

To read the emergency order issued by the Supreme Court of Texas click here. 

Breaking News: Florida’s 3rd DCA Decides Facebook Friendship No Cause for Recusal

Today, Florida’s 3rd DCA upheld a trial court judge’s refusal to recuse herself based upon a Facebook friendship with an attorney on one side of a civil case in her courtroom.  The opinion indicates that the 3rd DCA has sided with Florida’s 5th DCA analysis in the “judges on Facebook” conversation and respectfully acknowledges that the 3rd DCA is in conflict with its “sister court,”the 4th DCA.

The opinion provides three reasons for its decision, which is based on the 5th DCA’s finding that a Facebook friend does not necessarily indicate a close relationship. First,many individuals have literally thousands of Facebook friends. Second, individuals may not recall everyone who has ever become a Facebook friend. And, third, Facebook friends may be the result of Facebook’s data mining technology rather than personal interactions.

The opinion pays respect to the 4th DCA and earlier JEAC opinions by noting that social media and technology has evolved and perhaps several years ago, a Facebook friend connoted greater intimacy, but today the 3rd DCA concludes that a Facebook friendship alone is not enough to establish a well-grounded fear that a judge cannot be impartial or is under the influence of a Facebook friend.

To read the opinion click here

New York City Bar: Is A Client’s Confidential Information Secure at the Border?

Attorney’s traveling across the U.S. border may have to account for more than just their luggage. In fact, the New York City Bar recently issued Formal Opinion 2017-5, which offers guidance on dealing with the threat of disclosing confidential client information during a border search of electronic devices.

U.S. Customs and Border Protection (CBP) policy allows U.S. customs agents to review electronic information that is physically stored on a traveler’s device. However, an attorney has an affirmative duty to take “reasonable steps” to avoid disclosing confidential information not authorized by a client.

The New York City Bar’s opinion emphasizes  that under New York’s Rule 1.6(b)(6), attorney’s may not  reveal confidential client information unless it is “reasonably necessary” to obey a “law or court order.” But what determines whether disclosure is reasonably necessary? The opinion states that disclosure of clients’ confidential information is not reasonably necessary if there are “reasonable, lawful alternatives to disclosure.”

For example, an attorney may explain to an inquiring border agent that the device contains client confidential information and request that the materials not be subject to the search. An attorney may also ask to talk to a supervisor and should be prepared to produce state bar identification.  If it becomes necessary for an attorney to disclose clients’ confidential information to the border patrol, then the client must thereafter be informed about the disclosure under New York’s Rule 1.4.

Generally, attorneys should consider the risks of carrying clients’ confidential information while traveling, avoid transporting confidential information when possible, and evaluate what safeguards are reasonable to protect confidential information in the event that it is necessary to carry the information out of the country.

To read the full opinion click here.

Florida Contemplates Fee Sharing with Out of State NonLawyers

A proposed advisory opinion by The Florida Bar’s Professional Ethics Committee addresses fee-splitting with out-of-state lawyers when the out-of-state lawyer practices in a law firm with nonlawyer ownership. In the opinion, the committee states that a Florida Bar member should not be subject to discipline simply because a nonlawyer owner of an out-of-state law firm could receive a portion of the legal fees.

Partnerships with out-of-state lawyers are hardly new, but tensions between Florida’s Rules of Professional Conduct, and the organization and ownership of out-of-state-firms led the Florida Bar to clarify the matter.

Under Florida Rule of Professional Conduct 4-5.4, lawyers are prohibited from partnering or sharing legal fees with a nonlawyer. However, some U.S. jurisdictions—Washington, D.C. and Washington state—permit nonlawyer ownership of law firms.

The Florida Bar proposed advisory opinion follows in the footsteps of ABA Formal Opinion 464, and several other jurisdictions, in deciding that nonlawyer ownership of law firms in jurisdictions where permissible should not cause collaborating Florida lawyers to violate the prohibition against fee sharing set forth in Rule 4-5.4.

The underlying policy of Rule 4-5.4  concerns the improper influence of a nonlawyer may on a  lawyer’s professional judgment. However in the scenario analyzed in the proposed opinion, Florida Bar committee believes that a lawyer’s professional independence is not at risk simply because a nonlawyer owner receives a portion of an out-of-state lawyer’s fees.

Ultimately, the proposed opinion encourages attorneys to work with out-of-state lawyers despite differences in ownership structure, and allows clients to maintain flexibility in choosing counsel from other jurisdictions. 

To read the proposed opinion please click here.  

From the Florida Bar webpage:

Pursuant to Rule 4(c) and (d) of The Florida Bar Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the proposed opinion. The committee will consider any comments received at a meeting to be held in conjunction with The Florida Bar’s Fall Meeting at 9:30 a.m. on Friday, October 13, 2017, at the Tampa Airport Marriott.Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than August 15, 2017.

Is Email Encryption the New Reasonable Standard? The ABA Opines

The ever-present threat to data security  in an increasingly digitized legal profession has redefined the  “reasonable efforts” standard for lawyers who handle client information. Nicole Black over at Above the Law offers a good summary of the recently released American Bar Association (ABA)  Formal Opinion 477, which addresses a need for lawyers to increase the security  of electronic communication by using encryption in certain situations to maintain competence and client confidentiality  She also explores New York State Bar Association (NYSBA) updated  Social Media Ethics Guidelines, which acknowledge and address newer state opinions in the realm of social media.

Click on the link below to access Nicole Black’s article from Above the Law and learn more about the potential impact of ABA Formal Opinion 477 and NYSBA’s Social  Media Ethics Guidelines on the legal community.

New Guidelines: ABA On Email And NYSBA On Social Media

Lawyers Reporting Lawyers…Duty to Report in a Government Agency

Recently, the New York State Bar Association Committee on Professional Ethics opined that a government lawyer with knowledge of another government agency lawyer’s ethical violation that questions the lawyer’s fitness to practice law must report the information to a tribunal authorized to investigate the conduct, unless the information is confidential and the agency does not consent to its disclosure.

“Tribunal” is defined by New York Rule 1.0 as “a court, an arbitrator in arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting a party’s interests in a particular matter.” [Emphasis added.]

If a report to a tribunal or other authority is necessary, the lawyer must determine if the government agency’s ethics office is considered a tribunal or other authority authorized to act upon such violation. If the ethics office is not considered a tribunal or such other authority under these standards, the government lawyer may report initially to the ethics office of the government agency. However, the lawyer may not defer to a decision by the ethics office not to report unless the reporting obligation involves an “arguable question of professional duty” and the decision of the ethics office not to report is a reasonable resolution.

Yet, it’s important to highlight that a mere suspicion of misconduct is not sufficient under Opinion 1120. A lawyer must have knowledge of said misconduct.

To read the opinion click here.

In the Cloud? The Florida Bar Publishes Guidelines for Selecting a Cloud Service Provider

In the Cloud? The Florida Bar Publishes Guidelines for Selecting a Cloud Service Provider

The Florida Bar’s Technology Committee in collaboration with The Florida Bar’s Practice Resource Institute have published both a quick start guide to cloud computing and  more comprehensive due diligence guidelines to assist lawyers in selecting a cloud service provider.

The Florida Bar News reports:

“Two things are happening more than ever right now: Lawyers are using the cloud to store sensitive information; and lawyers are under attack from cyber criminals looking to steal sensitive information,” said Tech Committee Chair Al Saikali, who also chairs the Privacy and Data Security Practice area at Shook, Hardy & Bacon. “It was therefore important to develop a document that teaches lawyers about the cybersecurity and legal issues associated with the storage of cloud service providers.”

To read the article that contains links to the new guidelines click here

Conflicted? Representing Criminal Defendants When Your Partner Becomes The District Attorney

Recently, the New York State Bar Association (N.Y.S.B.A.) Committee on Professional Ethics held that a lawyer may represent clients in a criminal defense case being prosecuted by the district attorney who was once a partner at the lawyer’s firm given that two conditions are met. The first is that the district attorney must have severed all ties with the firm. The second is that a reasonable lawyer would not conclude there is a significant risk that the lawyer’s professional judgment on behalf of the clients will be adversely affected by the former relationship with the district attorney.

New York Rule 1.7(a)(2) governs the inquiring attorney in this matter. It prohibits a lawyer from representing a client if “a reasonable lawyer would conclude that … there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s … personal interests,” unless, under Rule 1.7(b), the conflict is consentable and the lawyer has obtained consent, confirmed in writing.

The district attorney in this inquiry, as a public official, is governed by Rule 1.11(d)(1), which states, “[e]xcept as law may otherwise expressly provide, a lawyer currently serving as a public officer or employee shall not … participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter.”

The committee found that the inquirer must determine whether a reasonable lawyer would conclude that the attorney’s personal relationship with the district attorney would adversely affect the representation of clients in criminal matters for which the district attorney’s office is responsible. The committee reasoned that if the inquirer knows that the district attorney participated personally and substantially in a case while in private practice, the inquirer may explore the provisions of applicable law and may have an obligation to report such information to the tribunal.

To read the entire opinion, click here.


Florida Proposes Adding Rule Regarding Short-Term Limited Legal Service Programs

Recently, the Florida Bar Board of Governors submitted a petition to the Florida Supreme Court to amend several Rules Regulating the Florida Bar. The proposal includes the addition of new Rule 4-6.6: Short-Term Limited Legal Services Programs.

Proposed Rule 4-6.6 loosens the application of the rules on conflict of interest in the context of short-term, limited legal representation. The Comment to the proposed rule acknowledges that in settings such as legal-advice hotlines, advice-only clinics, or pro-se counseling programs, although a client-lawyer relationship is formed, it is not realistic for a lawyer to thoroughly screen for conflicts of interest generally required before assuming representation. Typically, these services are restricted to a single meeting between the client and lawyer where the lawyer may give limited advice to a person or help to fill out legal forms.

The Florida Bar reasons that the addition of this rule would encourage more lawyers to engage in these limited representations, thereby increasing access to justice.

The rule—if passed—would apply to lawyers who represent clients through legal advice programs sponsored by nonprofit organizations, government agencies, court, bar associations, or ABA-accredited law schools.

Please click here to read the full text of the proposed amendments.

Show Me The Money: Lawyers May Withdraw If Not Paid Fees

The American Bar Association released Formal Opinion 476, which addresses whether a lawyer can withdraw from a civil case because a client failed to pay the lawyer’s fees, without jeopardizing the duty of confidentiality and balancing this with information that the Court would need to consider granting a lawyer’s motion to withdraw. Withdrawal from a case in any instance invokes ABA Model Rule 1.6—Confidentiality of Information—however, lawyers may choose to withdraw from a case under Rule 1.16(b): Declining or Terminating Representation.

Failure to pay a lawyer’s fees is one reason a lawyer may withdraw from a civil litigation matter under 1.16(b)(5). A lawyer cannot go too in-depth and disclose confidential client information in motions for withdrawal, but previous opinions and Comment 16 to Rule 1.6 permit a lawyer to advise the court that “professional considerations” require withdrawing from the case.

Trial court judges also have to be aware of this balancing act between confidentiality and withdrawal because of unpaid fees. Judges have wide discretion in ruling on such motions. Along with considering the lawyer’s reasons, judges must consider the Court’s calendar and how the withdrawal will impact the parties to the case. Withdrawal motions are less problematic in earlier stages of litigation when these factors (along with the reasons the lawyer provides) are considered; when the case is further along and the trial is approaching, it falls more to the judge’s discretion.

In order to avoid breaching confidentiality when withdrawing over unpaid fees, a lawyer could vaguely reference “professional considerations” with no client information and persuade the court that more is not necessary. Or, if needed the lawyer may submit information deemed reasonably necessary by the court to minimize disclosure if it is appropriate. Lawyers and judges must cooperate in order to protect client confidentiality in motions for withdrawal.

Bar Admission Rule Challenge Joins String of Defeats

In its latest attempt to lessen barriers to multijurisdictional practice, the National Association for the Advancement of Multijurisdiction Practice (“NAAMJP”) challenged specific bar admission conditions for the United States District Court for the District of Columbia, delineated in the identical text of Local Civil Rule 83.8 and Local Criminal Rule 57.21, violate statutory and constitutional legal standards. The rule states that “[a]dmission to and continuing membership in the Bar of this Court are limited to: . . . attorneys who are active members in good standing of the Bar of any state in which they maintain their principal law office . . . ” (See D.D.C. Local Civ. R. 83.8(a); D.D.C. Local Crim. R. 57.21(a)).

Finding no merit in the NAAMJP’s argument, the United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of the complaint in its opinion. While the court admitted that there “may be good policy reasons” to eliminate the rule, the association “failed to identify any substantive right—whether constitutional, statutory, or derived from national federal rules” that it violated.

In fact, the court noted the “sincerity of NAAMJP’s convictions or its eagerness to reduce barriers to legal practice in the various state and federal courts across the country,” but emphasized the need for a concrete legal basis to overturn the rule. The court, therefore, joined “the chorus of judicial opinions rejecting these futile challenges.”

Read the entire decision and its implications here.

Privileged PR? Not This Time, Says California Court

In the first decision of its kind in the state, a California appellate court may have opened the door to extending attorney-client privilege to a litigant’s public relations team.

On March 15, in Behunin v. Superior Court Los Angeles County, a three-judge panel took the position that a public relations firm hired to advise on strategy or to influence media coverage of a litigant could be protected under attorney-client privilege, in the same manner as a third-party expert or other litigation consultants. The court emphasized, however, that extending the privilege is contingent upon the litigant’s ability to prove that the information shared with the public relations firm was “reasonably necessary” from a legal standpoint.

In the case, the court held that a businessman involved in litigation with Charles R. Schwab over the fallout of an unsuccessful real estate venture could not use attorney-client privilege to protect the information shared between his attorney and a public relations firm hired to create a website in support of his case. Significantly, the panel reasoned that “without some explanation of how the communications assisted the attorney in developing a plan for resolving the litigation, [the Plaintiff] would not be able to show such communications were reasonably necessary to accomplish [the Public Relations firm’s] purpose in representing Behunin.”

Read the full opinion here.

Public Defenders and Part-time Judges: Duties under the Misconduct Rule

Recently, the New York State Bar Association (N.Y.S.B.A.) Committee on Professional Ethics held that a public defender may not represent a client in the court where another public defender is a part-time judge because to do so would violate the public defender’s duties under Rule 8.4(f)—Misconduct.

Rule 8.4(f) prohibits a lawyer from causing a judge to violate his or her own ethical obligations under the Rules of Judicial Conduct not to “permit his or her partners or associates to practice law in the court in which he or she is a judge.”

In the inquiry before the N.Y.S.B.A., the attorney was a member of a public defender office and lived in an area where City Court judges serve on a part-time basis. These part-time judges are also permitted to practice law. Another member of the public defender office was a part-time judge in the City Court.

In reaching its opinion, the Committee reasoned that if the associated part-time City Court judge does not take steps to prevent other lawyers who are part of the same public defender’s office from practicing before the City Court, then the other public defenders—on their own initiative—must decline to make appearances or withdraw altogether.

To read the entire opinion, click here.

Illinois: Don’t Be Quick To Dispose Client Closed Files

According to a recent opinion from the Illinois Bar Association’s Ethics Committee, an attorney can usually dispose of closed client files after seven years without trying to locate the clients and give them advance notice. However, there may be specific situations where it is necessary or prudent to retain a file, or portions of a file, for longer than seven years.  

In the opinion, a law firm was incurring substantial storage costs for closed client files. The firm’s standard engagement letter provided that the firm would return client papers and property upon request, but that the firm reserved the right to destroy or dispose of materials within a reasonable time after the end of the engagement. However, locating and contacting former clients to seek consent for destruction, or to provide advance notice of destruction, would be impossible and costly in some situations.

By drawing on guidance from other jurisdictions, the Committee concluded that firms can generally dispose of closed client files after seven years without prior notice. The committee reasoned that the 10-year retention period proposed by the law firm was “clearly reasonable,” and “a general ‘default’ retention period of seven years for the ordinarily closed file materials of an Illinois law firm also appears reasonable.” Moreover, retaining closed client files for seven years is “consistent” with two Illinois Supreme Court’s lawyer record-keeping requirements and advantageous in the event of a lawyer liability claim. Lastly, the committee stated that it is unnecessary to send a former client notice of the proposed disposal of routine closed materials since attempting to locate former clients will often time be futile, time-consuming, and expensive.

Read the opinion here.

A Co-Counsel Must Receive Notice When Shared Fee Is Received

The American Bar Association’s Standing Committee on Ethics and Professionalism issued Formal Opinion 475, which discusses the issue of safeguarding attorneys’ fees that are subject to splitting with co-counsel. According to Model Rule 1.5(e), a lawyer may divide a reasonable fee with another lawyer as long as the lawyers are not in the same firm, the client provided consent to the arrangement, and the fees ar proportionate to each lawyer’s performed services or each of the lawyers assumed joint responsibility in writing.

As per Model Rule 1.15(a), a lawyer needs to separate held property of third persons from the lawyer’s own property. The Committee determined that when one lawyer receives fees on behalf of multiple lawyers providing services in a matter, the additional lawyers count as third persons under the Rule. Therefore, the lawyer needs to keep the funds divided in a separate account—typically a trust account—within the state that the lawyer’s office is located. Additionally, the lawyer needs to keep complete records of the separate account and preserve it for five years after the representation is terminated.

Finally, the lawyer must promptly notify the other lawyers involved in receiving the funds and promptly deliver the funds that the other lawyers are entitled to receive. If there is any dispute about fee division, Model Rule 1.15(e) requires that the lawyer receiving the funds must keep them separate from the lawyer’s property until the resolution of the dispute.

Click here to read the opinion in its entirety.

Required to Report a Client’s Drug Addiction? Illinois Says Not Necessarily…

A recent Illinois ethics opinion, advised that although a lawyer is obligated to reveal confidential information about a client if is deemed reasonably necessary to prevent certain death or substantial bodily harm, a client’s addiction to heroin or opioid drugs will not trigger that obligation, absent more specific factual details that indicate the risk is not simply remote and uncertain.

This opinion responded to an attorney’s inquiry about a client, who appeared severely impaired during court hearings and had been unable to stop consuming heroin in violation of bond conditions. Illinois Rule 1.6 departs from ABA Model Rule 1.6 and requires mandatory reporting of life-threatening, dangerous information (rather than discretionary reporting).

The opinion acknowledged that this kind of drug addiction is serious and poses a danger to the client’s safety and wellbeing, but could not conclude that the mere knowledge of such an addiction triggers the mandatory obligation. Though the risk need not be immediate, Comment [6] to Illinois Rule 1.6 states that there must at least be a present and substantial threat that the person will suffer such harm at a later date if the lawyer takes no action to eliminate the threat.

Here, the opinion states that even though this client’s drug addiction presents a future risk, “such danger is sufficiently remote in time and uncertain of occurrence as to render us unable to say that it presents the present and foreseeable threat … as would be required to call the Rule into play.” Therefore, under the circumstances, disclosure was not required.

The opinion made clear that this analysis is “intensely fact-sensitive” and that there could be a factual scenario where a drug addiction requires mandatory reporting—such as a client with a history of attempted suicide or self-inflicted bodily harm. Furthermore, the opinion offered an alternative to Rule 1.6, suggesting that Rule 1.14, which discusses clients with diminished capacity, allows for an attorney to take protective actions such as consulting with necessary entities or appointing a guardian, if necessary, without violating confidentiality. These are all avenues that an attorney should consider if confronted with a similar situation.

Zealous Advocacy Gone Too Far: Louisiana Attorney is Disbarred for Repeated “Shocking Disregard” of Obligations

In a recent per curium opinion, the Louisiana Supreme Court found an attorney to have permanently forfeited his ability to practice law in the state due to “a panoply of serious professional violations.” The Court stated, among other things, that the attorney “filed unsupported and duplicative pleadings, using offensive and abusive language, and has made baseless challenges to the authority, competency, and integrity of the federal court.”

This opinion finalizes a saga of repeated challenges stemming from a federal class action suit brought by the lawyer on behalf of victims of Hurricane Katrina. The lawyer’s behavior was a byproduct of his displeasure of a change in the court’s administration of Hurricane Katrina cases, and its assignment of a committee to coordinate the proceedings. With the record being “replete with [the attorney]’s vile and racially-derogatory communications made to members of the judiciary and bar,” the Louisiana Supreme Court found the attorney to lack the “moral fitness to practice law” in the state.

As a result, the Court adopted the state’s disciplinary board’s recommendation to permanently disbar the lawyer. This melee between the lawyer and the courts is an illustration of when zealous advocacy goes awry, fostering a complete disregard of the cornerstones of professionalism.

To read the full opinion, click here.

The American Bar Association (ABA) Offers Access to “Cybersecurity” Insurance

This addition comes after the increasing number of firms that have fallen victim to hackers. The purchase and retention of cybersecurity insurance would assist lawyers in following 2012 changes to Model Rule 1.1 Competence found in the Rule’s comments.

The ABA amended comment 8 to Model Rule 1.1 to state, “lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology (emphasis added).”

Since 2012, approximately 38 states have made similar changes to their rules. Nonetheless, even without an official rule change, there is a growing national consensus that lawyers must understand benefits and risks associated with technology in order to remain competent.

The new cybersecurity insurance offered by the ABA covers expenses needed to deal with network extortion, income loss, and forensics associated with cyber breach; liability protection if a third party is affected; defense costs; and expenses for fines and/or penalties. The ABA also announced that firms can add services to prevent network incidents and mitigate damage via identifying risks and providing fraud consultation, credit monitoring, and identity restoration services.

Read the full article, click here.

Office-Sharing Lawyers Found to Be in Same Firm

The Missouri Court of Appeals recently ruled that two attorneys who share office space may be members of the same firm and therefore not bound by the ethics rules on fee-sharing among unaffiliated lawyers.

In the underlying dispute, an attorney who rented office space from another lawyer agreed to split fees into cases they referred to each other. After moving out of the office, the attorney claimed that the fee-sharing agreement was invalid because it did not meet the requirements of Missouri Rule of Professional Conduct 4-1.5.

Rule 4-1.5(e) imposes requirements for fee division among lawyers who are not members of the same firm. As noted by the trial court, agreements that do not comply with the rule are unenforceable in Missouri. But the requirements of the rule do not apply when attorneys are in the same firm. Significantly, the comment to Rule 1.0(c) defines that two or more lawyers who present themselves to the public in any way suggesting they are a firm or conduct themselves as if they were a firm should be regarded as a firm under the Rules.

The court raised the following factors as evidence to support the finding that the attorneys held themselves out as being part of the same firm:

  • The attorneys shared space in a building with a single sign out front that read “Starke Law Offices”;
  • Clients entered through a door marked “Law Offices” that listed the attorneys with no indication they were unaffiliated;
  • The same phone number appeared on the sign and door;
  • Visitors calling the phone number were greeted the same way;
  • All visitors used the same reception area and were greeted by the same staff;
  • The attorney’s used the same forms;
  • One of the attorneys and his paralegal told referred clients he remained available if they had an issue with the lawyer he shared space with.

To read the full opinion, click here.

Work-Product Protection in Full Force

The U.S. Court of Appeals for the Third Circuit held that evidence of a client thinking about using a lawyer’s advice to cover up a money-laundering scheme was not enough to defeat work- product protection.

As a result, a grand jury should have never seen a privileged email that the appellant received from his lawyer, but later forwarded to his accountant.

The appellate panel agreed with the district court that the appellant waived his attorney-client protection by forwarding the email to his accountant. However, the three-judge panel disagreed that the crime-fraud exception to the work-product privilege applied in this case.

Every state’s jurisprudence has some version of the crime-fraud exception, which allows the disclosure of certain communications that would otherwise be confidential. This exception to the work-product privilege is meant to prevent abuses of the privilege.

A party must satisfy two requirements when invoking the crime-fraud exception:

  • That the lawyer or client was committing or intending to commit an act of fraud
  • That the attorney work product was used in furtherance of that alleged crime or fraud

In this case, the “evidence is strong, but it is not sufficient by itself to pierce work-product protection.” The appellate panel reasoned that the second requirement can only be satisfied by a showing that the defendant actually engaged in an overt act to further the crime.

Merely thinking about a bad act is not enough to strip work-product protection, no matter how much evidence there is that the lawyer or client was intending to commit an act of fraud.

However, when a client uses work product to further a fraud, “the [client-lawyer] relationship has broken down, and the lawyer’s services have been misused.”

To read the full opinion, click here.

A Company Insider May Serve as its Trial Counsel

Recently, a Tennessee federal magistrate judge held that a company would be able to use its inside counsel as its trial counsel, even though he had strong ties to the case.

In America’s Collectibles Network. Inc. v. Sterling Commerce (Am.) Inc., Judge Guyton urged that the company’s opponent did not argue the “lawyer as witness” rule correctly. Tennessee Rule of Professional Conduct 3.7 (mirroring ABA Model Rule 3.7) allows for the disqualification of a trial counsel if that person is a necessary witness. Judge Guyton explained that this rule would only preclude the inside counsel here from serving as trial counsel if his testimony was relevant, material, and unobtainable elsewhere—making him a necessary witness in the case.

The opponent’s arguments for the insider’s disqualification included that: 1) he was designated as the company’s corporate representative for depositions, 2) he had been intimately involved with the company since its inception, and 3) he played a key role in implementing the contract underlying the parties’ dispute.

Despite these strong ties, Judge Guyton pointed out that the opposing party did not indicate that it intended to rely on the insider’s testimony, nor did it pinpoint any specific testimony the insider would be the necessary witness for on either side.

While the judge mentioned that he personally thought using the insider as the trial counsel was “ill-advised,” he stated that unless the insider’s questioning during trial devolved into testimony, the insider was eligible to serve as trial counsel under rule 3.7.

To read the opinion in full, click here.

DC Bar: Lawyers Must Consider Ethics When Dissolving Law Firms

Closing the doors on a law firm includes much more than just locking the door behind you. “Dissolution” means the process of terminating the law firm’s existence as a legal entity. The District of Columbia Bar recently issued an opinion that discusses the multiple rules of professional conduct come into play when considering the ethics involved in dissolving a law firm.

After the members of the firm decide to dissolve the firm, the next step is to promptly notify the firm’s clients. Timing is important because, after dissolution, the law firm no longer represents its clients. Notice of the dissolution should also be sent to opposing counsel and the tribunal.

During the dissolution period, lawyers must continue to diligently represent and communicate with clients while facilitating the client’s choice of counsel going forward and where appropriate, properly disposing of client files, funds, and any property.

Under Rule 1.16(d), if a particular lawyer and his client will be terminating their relationship then the lawyer is required to “take timely steps to the extent reasonably practicable to protect the client’s interests” which include surrendering property and papers to the client, allowing time for the client to find other counsel and other considerations.

To read the full opinion, click here.

When Must a Lawyer Plotting a Lateral Move Obtain a Client’s Informed Consent?

1. Conflict of Interest and Informed Consent

To avoid a conflict of interest, a lawyer needs to be informed client consent to engage in substantive job negotiations with a law firm that is adverse to the client. Likewise, hiring firms must avoid serious job talks with opposing counsel unless its own client consents. See North Carolina State Bar Ethics Comm., Formal Op. 20163, 1/27/17.

North Carolina Rule of Professional Conduct 1.7 forbids a lawyer from representing a client if the lawyer’s own interests may materially limit the client’s representation unless the lawyer reasonably believes he or she can provide competent and diligent representation and the client gives informed consent, confirmed in writing. N.C. Rules of Prof’l Conduct, Rule 1.7(b)(2) (2003). This type of conflict may arise when a lawyer has discussions about possible employment with a client’s opponent or a law firm representing the opponent. N.C. Rules of Prof’l Conduct, Rule 1.7, cmt. 10.

2. Substantive Discussion or Negotiation

While the exact point at which a lawyer’s own interest may materially limit his representation of a client may vary, the ethics committee advised substantive discussions and negotiations materially limit the lawyer’s representation of a client. Similarly, The Restatement (Third) of the Law Governing Lawyers advises that once the discussion of employment has become concrete and the interest is mutual, the lawyer must promptly inform the client. Restatement (Third) of the Law Governing Lawyers: A Lawyer’s Personal Interest Affecting the Representation of a Client, § 125, cmt. d. (2000).

The ethics committee relied on the ABA definition of “substantive discussion”, which “entails a communication between the job-seeking lawyer and the hiring law firm about the job-seeking lawyer’s skills, experience, and the ability to bring clients to the firm; and the terms of association.” ABA Formal Ethics Op. 96-400 (1996). To find a “substantive discussion,” the ethics committee opined that there must be a discussion or negotiation that is substantive. See North Carolina State Bar Ethics Comm., Formal Op. 20163, 1/27/17.

The committee further provided examples as to what constitutes a “discussion” and what is “substantive.” “Sending a resume blind to a potential employer is not a ‘discussion.” Id. “Speaking generally with a colleague at a social event about employment opportunities is not ‘substantive.’” Id.

To read the full opinion, click here.

It’s Like Leaving the File on a “Bench in the Public Square”: Unsecured Storage Results in Waiver of Attorney-Client Privilege

Recently, a Virginia federal magistrate judge held that a party waived its attorney-client privilege when it posted unsecured, confidential information to a file-sharing website. Citing public policy reasons, the court ruled that uploading a file that was not password protected and available to anyone on the Internet to view is akin to leaving the file on a “bench in the public square.”

The dispute arose between an insurance company and it is insured when an employee of the insurance company placed the entire case file on Box, Inc., a popular file storage website.  The judge referenced the rapidly evolving technology used in sharing information and directed that a company that chooses to use a new technology is responsible for ensuring that its employees understand how the technology works, and whether the technology allows unwanted access by others to its confidential information.

To read the full opinion, click here.

New Jersey: Prosecutors Cannot Publicly Display Seized Contraband

In February, the New Jersey Advisory Committee on Professional Ethics opined that a prosecutor is prohibited from making “extrajudicial statements featuring displays of seized drugs, weapons, or other contraband.” Such statements violate New Jersey Rules of Professional Conduct 3.6 (Trial Publicity) and 3.8 (Special Responsibilities of a Prosecutor).

The issue on tap: whether exhibiting seized contraband from a criminal investigation to the public was appropriate. The inquirer explained that displaying the seized drugs “would further public awareness” of the ongoing opioid drug epidemic and assist law enforcement in combating the epidemic. He further argued that the 2004 Rules amendments supersede New Jersey Supreme Court precedent. Specifically, that Rule 3.8(f) supersedes Rule 3.6 on this particular issue.

 Rule 3.8(f) allows statements that “have a substantial likelihood of heightening public condemnation of the accused when such statements are necessary to inform the public of the nature and extent of the prosecutor’s action and would serve a legitimate law enforcement purpose.”

The Ethics Committee disagreed with the inquirer. The prosecutor’s argument was overbroad, the Ethics Committee opined, and noted that the 2004 amendments dealt with a different scenario than opioid drug trafficking. The Committee cautioned that “[t]here would be very little left of the prohibition against prejudicial extrajudicial statements if mere heightened public awareness of criminal activity was sufficient to justify extrajudicial statements by prosecutors.” While other jurisdictions adopted language to Rule 3.6 that allowed lawyers to state “at the time of seizure, a description of the physical evidence seized, other than a confession, admission, or statement”, New Jersey purposely did not retain this language when it adopted Rule 3.6 in 1984.

While acknowledging the danger of the opioid crisis in New Jersey, the Committee was very clear in stating that “[e]xtrajudicial statements featuring displays of seized drugs, weapons, or other contraband, however, do not accord with New Jersey’s Rules of Professional Conduct.

To read the full ethics opinion, click here.

Young Lawyers Beware!

The Indiana Supreme Court recently suspended a young lawyer for at least two years for breaching 19 ethics rules.

In a per Curiam opinion, the justices reprimanded Coleman, for engaging in “systemic malfeasance” that reflected “exceedingly poorly on his fitness to practice law.”

Coleman’s violations included, but were not limited to, the following:

  • Falsely associating with Jonnie Cochran’s firm to gain clients;
  • Falsely inflating his resume;
  • Providing incompetent representation in child molestation case;
  • Negotiating an unauthorized plea deal;
  • Refusing to relinquish case file to replacement counsel;
  • Charging an unreasonable fee;
  • Entering into a “new fee agreement” under false pretenses; and
  • Concealing a relationship with witness/deponent.

The court noted that this case involved a single client and the lawyer had no prior disciplinary record, which weighed in Coleman’s favor. Therefore, the justices concluded that Coleman “should be suspended from the practice of law in [Indiana] for at least two years without automatic reinstatement.”

Professionalism and ethics are the cornerstones of the profession. Established lawyers know this, but young lawyers must come to understand that it is imperative that you maintain professional and ethical standards throughout your legal career. Otherwise, it could cost you the opportunity to practice.

Fortunately for Coleman, he may petition the Court for reinstatement to the practice of law so long as he completes his suspension, fulfills his duties of his suspension, and cures the causes of his suspension.

For the full opinion, click here.

The District of Columbia Bar Issues Social Media Guidelines

The District of Columbia Bar is the most recent state bar to issue social media guidelines.

Acknowledging the ubiquitous nature of social media, the D.C. Bar joins the growing chorus of state advisory opinions that suggest that competence requires an understanding of social media.

The D.C. Bar opted to discuss social media in two separate opinions, one opinion focused on marketing and the other opinion dealing with the use of social media in the practice of the law.

The D.C. opinions echo other state guidance in applying the traditional professional conduct standards to the use of social media. In other words, attorneys should employ social media to enhance effective representation without crossing the lines into pretexting or other impermissible conduct. D.C. also adds insight into the impact may have in a regulatory or transactional practice. In the marketing arena, an attorney must adhere to the attorney advertising rules and diligently monitor her social media presence for accuracy and compliance with the rules.

To read the D.C. Opinions, click here and here.

California Releases Final Advisory Opinion on Lawyer Blogs

Recently, the California Standing Committee on Professional Responsibility and Conduct finalized its opinion that analyzes whether attorney-authored blogs should be governed by the advertising regulations. The Committee concluded that blogs should be governed as attorney advertising if the blog directly or indirectly expresses the attorney’s availability for professional employment. Thus, a blog that is a part of an attorney’s professional website or a firm’s professional website is governed by the advertising guidelines.

However, the opinion distinguishes “stand-alone” blogs, which it defines as “a blog that exists independently of any website an attorney maintains or uses for professional marketing purposes.” An attorney may maintain a stand-alone blog that discusses legal topics “within or outside the authoring attorney’s area of practice.” The blog will not be subject to the advertising rules unless the blog “directly or implicitly expresses the attorney’s availability for professional employment.”

Interestingly, a stand-alone blog that discusses non-legal topics (e.g. travel and cooking) is not subject to the advertising rules, even if the blog provides a link to the lawyer’s professional website. “However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.”

To access the final opinion, click here.

OK for Lawyer to Refuse Case Against His Own Church? Maybe.

The New York State Bar Association recently wrote that a lawyer is under no obligation to accept every client—but the ethics committee stopped short of deciding if a particular refusal amounted to discrimination.

The lawyer at issue had been approached about representing a person who wished to sue a church for childhood sexual misconduct. The lawyer is the same religion as the institution against which the claim was to be made, and for that reason, the lawyer was unwilling to represent the claimant.

Hoping his decision would not violate New York’s anti-discrimination ethics rule, the lawyer submitted an inquiry to the Committee on Professional Ethics to decide the matter.

In its opinion, the committee detailed the long-standing principle of law that “a lawyer is under no obligation to act as advisor or advocate for every person who may wish to become a client.” It cited several cases that show the right to deny employment has been affirmed ad nauseam.  However, the committee acknowledged that this right is still subject to federal, state, and local anti-discrimination statutes. Rule 8.4(g) of the ABA Rules of Professional Conduct, for example, limits the lawyer’s freedom to decline representation, “stating that a lawyer or law firm ‘shall not . . .  unlawfully discriminate in the practice of law . . . on the basis of age, race, creed, color, national origin, sex, disability, marital status or sexual orientation. . . .’”

Accordingly, does a refusal to represent someone who seeks to sue a church of your religion violate this rule? The committee wrote it lacked jurisdiction to say, instead of writing that it would not opine on whether the refusal at hand constituted “unlawful discrimination.”

Perhaps a body with jurisdiction may resolve this question one day. In the meantime, lawyers should be aware that their reasons for denying a case could still be scrutinized, and maybe even deemed discriminatory.

To read the full opinion, click here.

Facebook Jurors: Candor Required!

Facebook Juror Research

Attorney Petev Tenev’s client, Dr. Henry Acosta, was sued by a former business partner in a dispute over the dissolution of a dental practice. Dr. Acosta’s wife later obtained a list of the jurors and researched them on Facebook. She learned that one of the jurors was Facebook friends with a hygienist that worked for the plaintiffs. As a result, she asked Tenev to move to strike the juror.

However, Tenev failed to make the court aware of this connection until the trial date. Per the opinion, the trial judge “asked Tenev how she came to learn this information, and a lengthy discussion ensued during which Tenev gave three different answers,” none of which “involved any contact with the juror.” Tenev v. Thurston, 2016 BL 70906, Fla. Dist. Ct. App. 2d Dist., No. 2D14-4566, 1, 3/9/16.

The trial judge and the parties considered several options, including striking the juror and proceeding with trial. Nevertheless, the Plaintiff moved for mistrial, arguing “there was no way he could receive a fair trial given that Tenev [and Dr. Acosta’s wife] had attempted to make improper contact with the juror.” Id at 2.

The trial judge sided with the Plaintiff. The court granted a mistrial and noted that Tenev acted in “bad faith” by responding to the court’s questions in a dishonest manner. Id. Furthermore, the trial judge ordered Tenev to pay $74,000 to cover attorneys’ fees and costs the Plaintiff incurred in preparation for trial.

Appeal: Duty of Candor Toward the Tribunal and Misconduct

Judge Daniel H. Sleet of the Florida Second District Court of Appeal reversed the trial court’s order in its entirety. Judge Sleet held “[t]here is no prohibition in Florida law against an attorney researching jurors before, during, and throughout a trial so long as the research does not lead to contact with a juror.” Id at 4. Moreover, “the trial court’s findings lack the high degree of specificity required to support the imposition of sanctions.” Id at 3.  

In spite of this, Judge Sleet held “the [trial] court arguably ma[de] a sufficiently detailed finding upon which to sanction Tenev for being dishonest before the court.” Id.

Under Florida Bar Rule 4-3.3(a), “[a] lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal.” See R. Regulating Fla. Bar 4-3.3(a)(1). Similarly, under Florida Bar Rule 4-8.4(c), “[a] lawyer shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” See id at 4-8.4(c).

With respect to potential ethical violations, Judge Sleet reasoned “the aggressive inquiry by the trial court as to the legal basis for her motion to strike the juror was met with inarticulate, evasive, and dishonest answers;” therefore, “she violated her oath as an attorney to be honest before a tribunal.” Tenev, 2016 BL 70906, No. 2D14-4566 at 3.

With respect to the “bad faith” sanctions, Judge Sleet reasoned the following.

“Tenev’s dishonesty was not a litigation tactic undertaken solely for bad faith purposes. Tenev initially set out to notify the court of a potentially biased juror before trial commenced. Such was her duty as an officer of the court, and she clearly was not attempting to unduly delay or protract litigation or to seek an unfair advantage against Thurston.”


To read the full opinion, click here.

California: Class Litigants Must Disclose Outside Funding

In January, the Northern District of California issued a standing order that took a small step towards addressing concerns about third-party litigation financing. The litigation finance industry has been increasingly growing as outside investors provide funding to plaintiffs bringing lawsuits. The U.S. Chamber of Commerce has called third-party litigation financing a “major threat” to the integrity of the civil justice system, especially because investors have been masked since the concept’s inception.

The Federal Rules of Civil Procedure is silent on whether litigants must disclose funding agreements made with third parties. As a result, defendants who suspect that outside investors are funding opposing plaintiffs’ lawsuits have been unsuccessful in unmasking investor identities through discovery rules or other avenues. Many argue that the practice brings forth blatant ethics concerns.

The Chamber of Commerce urged the Northern District of California to adopt a broad disclosure rule that would require all civil parties to reveal any funding arrangements with outside investors, but the court didn’t go quite as far.

In its standing order, the court’s rules committee proposed a change to its Local Rule 3-15. Local Rule 3-15 provides specific examples of “interested” non-parties that litigants must disclose. The rules committee proposed an addition to the rule that would include the broad category of “litigation funders” in the list of examples.

Subsequently, the court adopted a narrower disclosure requirement. In its standing order, the court wrote that third-party litigation funders and investors would need to be disclosed, but only in class action cases.

Opponents of litigation funding call the standing order just a small victory because there is not a great deal of litigation funding of class actions. But it’s a start.

The standing order can be found here.

Illinois: Attorneys & Clients in the Cloud

Recently, the Illinois State Bar Association (ISBA) issued a Professional Conduct Advisory Opinion stating that lawyers may use cloud-based services to store client information.

However, the ISBA warned that the use of cloud-based services raises ethical implications of “…competence, confidentiality and the proper supervision of non-lawyers.”

The ISBA quoted Nevada Formal Opinion 33 (2006), which analogized the duty to protect client information on a cloud-based service to the duty to protect client information on a physical server. The Nevada Opinion concluded, “[t]he question in either case is whether the attorney acted reasonabl[y] and competently to protect the confidential information.”

To help lawyers select a cloud-based service provider, the ISBA outlined 7 non-exhaustive practices lawyers could engage in (summarized):

  1. Reviewing industry standards and appropriate safeguards;
  2. Investigating whether the provider has implemented reasonable security precautions;
  3. Investigating the provider’s reputation and history;
  4. Inquiring as to whether the provider has experienced any breaches of security;
  5. Requiring an agreement;
  6. Requiring that all data is appropriately backed up;
  7. Requiring provisions for the reasonable retrieval of information.

Further, the ISBA warned that the duties implicated by using cloud-based services do not end with choosing a reputable provider. This is in part due to the fact that the Illinois Supreme Court recently amend Comment 8 to Rule 1.1 of the Illinois Rules of Professional Conduct. The Comment now reflects Comment 8 to Rule 1.1 of the Model Rules of Professional Conduct and says “…lawyers must keep abreast of changes in law and its practice, including the benefits and risks associated with relevant technology…” (Emphasis added).

This led the ISBA to echo Arizona Ethics Op. 09-04 (2009) and Washington State Bar Association Advisory Op. 2215 (2012) (among others) and conclude that lawyers using cloud-based services must, “…conduct periodic reviews and regularly monitor existing practices to determine if the client information is adequately secured and protected.”

Read the full opinion here.

Florida Lawyer May Waive Clients Reimbursement of Costs in Limited Circumstances

A recent opinion from the Florida Bar Professional Ethics Committee allows lawyers to waive repayment of litigation expenses from non-indigent clients when the case is settled under limited circumstances. The Committee found that “where there has been no agreement for the inquirer to be unconditionally responsible for the costs at the outset of the representation, the cost “forgiveness” occurs after settlement, and the inquirer will receive no fees for the representation.”

Florida Model Rule 1.8(e) allows lawyers to front litigation costs of non-indigent clients only if they later recover those expenses by charging a contingent fee based on the outcome of the litigation. When working with indigent clients, Rule 1.8(e) allows lawyers to front expenses without later seeking or receiving repayment.

This opinion now creates flexibility for Florida lawyers to forgo repayment in non-indigent cases. The Committee’s opinion was prompted by an inquiry from a lawyer who represented a client in a negligence case. The parties reached a settlement; however, the settlement proceeds barely covered the litigation costs that the lawyer had fronted. The lawyer inquired about forgiving the costs owed so that the client would receive some of the settlement proceeds.

The Committee opined that Rule 4-1.8(e)’s prohibition did not preclude forgiving the costs because the Rule addresses agreements entered into at the beginning of the representation as to the client being responsible for the costs. The Committee explained, “the exception allowing a lawyer to advance costs of litigation and make those advanced costs “contingent on the outcome of the matter” would permit the inquirer to reduce the amount of the costs the inquirer seeks to be reimbursed from the recovery, as the recovery is insufficient to cover all medical bills and litigation costs.”

Read the opinion in its entirety here.

South Carolina Lawyer’s ‘Niceties’ Do Not Establish ‘Prospective Client’ Relationships

A federal judge in South Carolina, when ruling on a motion to disqualify counsel, held that a lawyer communicating “[c]ustomary niceties” such as “I hope we get the opportunity to work together” does not form an attorney-client relationship within the meaning of South Carolina’s ethics rules. Specifically, the judge reasoned that the language of the state’s rules regarding duties to prospective clients sets a “stricter standard” than that of ABA Model Rule 1.18, such that “only a subset of individuals who discuss the possibility of forming a client-lawyer relationship” may “claim status as prospective clients.”

South Carolina Ethics Rule 1.18 states: “[a] person with whom a lawyer discusses the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client only when there is a reasonable expectation that the lawyer is likely to form the relationship.” The court reasoned that the “reasonable expectation” language of the South Carolina rule places a higher burden on a party intending to show that an attorney-client relationship was formed. As such, simply consulting with an attorney about the possibility of retaining him/her as a lawyer is not enough to constitute an attorney-client relationship.

For the full opinion, click here.

Metadata Fair Game in Texas?

In a recent opinion, the Texas bar panel adopted the minority view on metadata, which states that there is not an obligation to inform opposing counsel that he has sent a document containing metadata. Moreover, Texas rules do not prohibit searching for and  in extracting metadata from documents. Of the nineteen jurisdictions that have issued opinions with specific requirements regarding attorneys’ obligation when transmitting or receiving documents containing metadata, Texas is the third state to opine that its rules do not require notification to the sender of the document.

ABA Model Rule 4.4(b), provides that a lawyer “shall promptly notify the sender” after the receipt of “inadvertently sent” information about an electronic document; however, Texas has not adopted this part of the rule.  In fact, the Texas panel stated, “The absence of specific provisions in the state’s existing rules precluded it from following the lead of other committees that have found a duty to notify.”

Additionally, the Texas opinion indicates that the ethics rules “do not prohibit a lawyer from searching for, extracting, or using metadata” embedded in documents sent from opposing counsel. Currently, ten other state’s opinions forbid searching for or extracting metadata from the documents. On the other hand, two states allow lawyers to review readily accessible metadata, but note that lawyers may not use sophisticated forensic software to extract metadata from what is referred to as a “scrubbed” document. See e.g., Washington Informal Ethics Op. 2216; Oregon Formal Ethics Op. 2011-187 (2011, revised 2015).

The Texas opinion acknowledge other state opinions and notes that . lawyers may be subject to metadata restrictions if they are subject to the rules of other jurisdictions. Moreover, the Texas opinion cautions that the Texas Disciplinary Rules of Professional Conduct require a lawyer to “avoid misleading or fraudulent use of information the lawyer may obtain from the metadata.”

The Texas opinion highlights the importance of taking reasonable measures to protect client confidentiality in the realm of metadata. Texas notes that “reasonable measures” to the prevent the disclosure of confidential information in metadata depends upon the circumstances of the case and includes a review of   the sensitivity of the metadata revealed, the identity of the intended recipient, and other appropriate considerations.

For the full report, click here.

Trusting Your Colleagues with Fees: ABA Opines on Lawyers Splitting Fees

The ABA Standing Committee of Ethics and Professional Responsibility recently opined that when one lawyer receives a fee that is to be shared with a lawyer (or lawyers) at another firm (or firms), the fee for the other lawyer(s) should be placed in trust in accordance with Model Rule 1.15.

Rule 1.5(e) allows a division of fees among lawyers in different law firms if the division fairly represents the services provided by each lawyer, the client agrees to the agreement, the agreement is confirmed in writing, and the total fee is reasonable. When multiple lawyers have entered into a Rule 1.5 agreement, the lawyers who do not receive the initial payment are considered to be a “third persons” under Rule 1.15.

Rule 1.15(a) states that a lawyer “shall hold property of . . . third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.”

Thus, the receiving lawyer must deposit the funds that belong to the other participating lawyer(s) into a trust account. The receiving lawyer must also inform the other lawyer(s) of the receipt of the funds, and promptly deliver to the other lawyer(s) their portion of the fee.

To read the full ABA opinion, click here.


Disclosure of Investigatory Documents to the SEC Does Not Waive Privilege

A company’s sharing of documents with the Securities and Exchange Commission (“SEC”) does not necessarily waive the company’s work product protection in a subsequent class action.  In In re Symbol Techs.,Inc. Sec. Litig., Magistrate Judge A. Kathleen Tomlinson of the U.S. District Court for the Eastern District of New York ruled that documents generated by outside counsel during a company’s internal investigation of accounting irregularities were protected and not subject to production to the plaintiffs in a securities class action suit.

Prior to the class action before the Court, Symbol Technologies Inc. (“Symbol”) had been subject to an SEC investigations as well as previous class action litigation based upon fraudulent accounting practices. Symbol had cooperated with the government and signed a confidentiality agreement under which it produced certain documents. The investigations ultimately resulted in a Consent Order.

In the present class action case, a discovery dispute arose concerning documents related to an internal investigation that Symbol launched after discovering a revenue overstatement subsequent to Symbol’s signing of the Consent Order with the government. Symbol had produced documents to the government regarding the revenue overstatement investigation so as to comply with terms of the Consent Order.

The plaintiff demanded production of the documents that were generated or collected while investigating the accounting issues underlying the revenue error. The plaintiff relied on two theories as to why the documents at issue were discoverable: “(1) the internal investigatory documents at issue do not fall within the ambit of the work-product privilege; and (2) even if the documents were entitled to work product protection, Symbol waived any such protection by permitting disclosure to the government as well as the Independent Examiner.”

The Magistrate Judge disagreed. The Court held that under the particular circumstances, given Symbol’s history of class action litigation, the material was reasonably prepared in anticipation litigation despite that it was also prepared for the business purpose of discovering and correcting the revenue error in its reporting. Therefore, the investigatory documents remained subject to the work product privilege.

The Court also found that Symbol did not waive the privilege by disclosure to the government because Symbol’s confidentiality agreement with the government stated that Symbol “not intend to waive the protection of the attorney work product doctrine, attorney-client privilege, or any other privilege applicable as to third parties” and the government agreed to “maintain the confidentiality of the Confidential Materials . . . and will not disclose them to any third party, except to the extent that the [SEC] or the USAO determine this disclosure is otherwise required by law or would be in furtherance of the SEC’s or USAO’s discharge of their respective duties and responsibilities.”

 Finally, the Court concluded that the revenue error document disclosure to the government and an independent examiner did not constitute a disclosure to an adversarial party because the disclosure was pursuant to the Consent Order, which rendered all parties as having a common interest.

 The case provides meaningful insight into the nuances of the work product privilege. To read the case click here.


Out of the Frying Pan Into the Fire? Attorney’s Voluntary Discipline Petition Denied Based Due to Inapplicability of Cited Legal Ethics Rule

The Georgia Supreme Court rejected an immigration attorney’s voluntary discipline petition because the attorney misapplied the ethics rules. The attorney self reported an ethics violation that consisted of signing a client’s name and filing his asylum application without explaining the application to the client in the client’s native language. The application requires an attested signature by the client in the presence of the lawyer. The client, a non-English speaking Guatamalan boy, was detained in Texas and subject to removal proceedings. His mother retained the attorney and subsequently completed and filed the asylum application on the boy’s behalf. Ultimately, another attorney represented the client who obtained asylum relief.

Nonetheless, attorney filed a petition for voluntary discipline thereby self-reporting a violation of Georgia Rule of Professional Conduct 1.2(d), which prohibits counseling or assisting a client in criminal or fraudulent conduct. Moreover, he requested the court impose a “review panel reprimand,” Georgia’s lowest public disciplinary action.

However, the Georgia Supreme Court rejected his petition finding that his actions were without consultation of his client and therefore he could not have “assisted” his the client in fraudulent conduct. “Instead . . .[attorney] engaged in criminal or fraudulent behavior on behalf of his client without ever discussing the matter with his client.” Although the attorney’s petition was dismissed the court noted in a footnote that the attorney’s conduct appears to support violations of Rules 1.2(a) and 8.4(a)(4), which require lawyers to consult with clients regarding the scope of the representation, and refrain from conduct involving “dishonesty, fraud, deceit or misrepresentation,” respectively.

It is unclear whether any further action will initiated by the Georgia State Bar or the attorney—Bottom line: Before you contemplate a “confession,” ensure that you understand the nature of your “crime.” To read the entire opinion, click here.

Alaska Bar Association: Use of “Web Bugs” is Unethical

Alaska Bar Association recently advised that the use “web bugs” to track e-mail communications with opposing counsel violates The Alaska Code of Professional Conduct. Opinion 2016-1, describes “web bugs” as Internet surveillance tools that may inform e-mail senders of the following information:

  • whether and when the e-mail and/or attachments were opened;
  • how long recipients reviewed the e-mail and/or attachments;
  • how many times the e-mail and/or attachments were opened;
  • whether and when the e-mail and/or attachments were forwarded; and
  • the rough geographical location of the recipient.

The Opinion explains that web bugs may allow the sending lawyer to determine the undisclosed location of the opposing party or to gain insight into which sections of a settlement draft are most important to the opposing side based upon how much time is spent on various pages of a document.

Concurring with New York State Bar Association’s Opinion, the Alaska Opinion concludes that “web bugs” “impermissibly and unethically interfere with the lawyer-client relationship and the preservation of confidences and secrets,” required by Rule 1.6- Confidentiality. Thus, the Opinion advises that the use of web bugs is unethical, dishonest, and a violation of Alaska Rules of Professional Conduct Misconduct Rules 8.4(a) and 8.4 (c). Moreover, the opinion states that “even the disclosed use of a tracking device when communicating with opposing counsel” is impermissible.

To read the full opinion, click here.

Up in the ‘Clouds’: Illinois Finds Duty of Competence Applies to Selection of Provider

This fall, the Illinois State Bar Association Committee on Professional Ethics reached two conclusions regarding use of cloud-based services. In Opin. 16-06, the Committee opined that:

(1) a lawyer may use cloud-based services to store confidential client information, so long as the attorney uses reasonable care to make sure that client confidentiality and client information is protected; and

(2) a lawyer is responsible for complying with her duties of competence in selecting a cloud-based services provider, assessing cloud-based services practices, and monitoring compliance with the lawyer’s professional obligations.

 This opinion expands Illinois’s prior opinion where a lawyer may work with a private vendor to monitor the law firm’s computer server, so long as the lawyer takes reasonable steps to ensure the vendor protects client’s confidential information. See, ISBA Op. 10-01 (2009).

Rule 1.1 Competence provides that lawyers must provide competent representation to their clients. Illinois recently amended this rule to include that lawyers who use cloud-based services must have a sufficient understanding of the technology to properly consider the risks of disclosure of confidential information. See Illinois Rule 1.1 Comment 8. Lawyers must also make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, confidential information. See Rule 1.6(e) Confidentiality. Because lawyers hire third-party providers for cloud-based services, lawyers will be subject to the professional rules regarding employing and supervising subordinates. See Rule 5.3 Comment 3.

Due to technology constantly changing, Illinois does not provide any specific requirements for lawyers when choosing a provider. However, Illinois does provide some tips for lawyers when inquiring about a cloud-based services provider, which are:

  • Review cloud computing industry standards and what protections should be put in place when using a cloud-based service;
  • Investigate whether the provider has employed reasonable security measures to protect client data from unintentional disclosures;
  • Investigate the provider’s reputation and history;
  • Look into whether the provider has experiences any security breaches in the past;
  • Demand an agreement to reasonably safeguard that the provider will abide by the lawyer’s duties of confidentiality and will immediately notify the lawyer of any breaches of information;
  • Require that all data is backed up and under the lawyer’s control; and
  • To require reasonable recovery of information if the agreement with the provider is terminated, or if the provider goes out of business.

Several other states have allowed lawyers to use cloud-based services to help with storing client information. See e.g., Alabama Ethics Op. 2010-2; Iowa Ethics Op. 11-01; Tennessee Formal Ethics Op. 2015-F-159; see generally “Cloud Ethics Opinions Around the U.S.”, American Bar Association, Legal Technology Resource Center.

To read the full opinion, click here.


An Epidemic of Law Firm Bullies? Survey Reveals Disturbing Results

Big law industry experts Patrick McKenna and David Parnell polled 124 law firm leaders at the nation’s top 100 law firms regarding bullying in the legal field. The results were shocking: 93 percent of those polled reported “bullying” at their firms. Other offenses included lack of respect, not being a team player, having a “me-first” agenda, and poor management habits such as getting in on time.

Who are these bullies? What are firm leaders doing to address the issue? Firm leaders cite these offenders to be the high-earners, with three-quarters making average or above average profits per partner. It is no surprise, however, to see that for this reason only approximately forty-percent of managing partners surveyed admitted they were reluctant to reprimand these individuals. Moreover, 22 percent stated the discomfort prevented them from taking any action at all. Firm leaders assert that inaction derives from the discomfort aspect of confronting a fellow coworker regarding the issue.

Nevertheless, numerous law firm leaders are taking action to prevent further bullying at their firms. The survey showed that 59 percent had cut a partner’s compensation because of bad behavior and 52 percent asked partners to leave because of poor conduct.

The question is: What can firms do to prevent bullying in the workplace? According to McKenna and Parnell, firms lack suitable procedures for disciplining partners who act out of line. Firms should review their procedures and add clear and strict guidelines on how to handle these problems. Perhaps firms should offer incentives for those who adhere to firm’s cultural values and promote a safe and welcoming atmosphere for all. Nonetheless, addressing firm bullying on the spot can not only avoid further anxiety and hostile environments in the workplace, but it can also open clear communication lines for all the parties involved.

For the more information, click here.

Attorneys Entitled to Fees Despite Allegations of Rate Increases and Estimate Overruns

In August, the Connecticut Superior Court held that a law firm accused of failing to notify its litigation clients of rate increases and estimate overruns may still recover its legal fees. The law firm represented two clients who wanted their brother removed as executor of their father’s estate. During the course of the representation, the firm increased its hourly billing rate. After the clients complained about the difference in the rates from the initial retainer agreement, the clients and the firm reached an agreement to adjust the hourly billing rates.

Over the course of the matter, the firm provided fee estimates of future work as the clients fell behind on their invoice payments. The attorney-client relationship concluded when the clients terminated the firm’s representation with an overdue balance of over $184,000. When the firm commenced an action to collect their legal fees, the clients argued that the firm’s fees were unreasonable because the actual fees exceeded the fee estimates. Additionally, the clients argued that the firm should not be allowed to recover its fees because the firm violated Rule 1.5 of the Rules of Professional Conduct.

Ultimately, the court found that the estimates that the firm provided were not contractual agreements to limit the fees. The fees charged were reasonable under the relevant circumstances. Additionally, the court concluded that the firm did not violate Rule 1.5 because the version of the rule that the clients were relying on came into effect over three years after the firm’s representation of the clients ceased. Moreover, after the clients learned of the increase in fees, they reached an agreement with the firm thereby waiving their right to allege a violation of the rules. The court noted that even if there was a violation of Rule 1.5, it does not “create a presumption that a legal duty has been breached or that the attorney is precluded from collecting otherwise payable fees and disbursements.”

For more information, read the Opinion here.


No Love for Lawyer Who Reported Ethics Violation for Personal Benefit

An attorney who agreed to a fee-sharing agreement with his former firm tried to void the arrangement by claiming that there was a conflict of interest between his former firm and defendant, the Board of Education of the City of Buffalo. The alleged conflict revolved around a member of the firm who also sat on the Board of Education.

The Supreme Court of the State of New York, Appellate Division, Fourth Department heard the case and refused to void the contract.

The Court reasoned that the attorney could not make the argument that the agreement should be voided on ethical grounds when the attorney “…freely agreed to be bound by and received the benefit of the same agreement . . . ” and given “there is no indication that the client was in any way deceived or misled.”

The court’s reasoning signals a repudiation of an attempt by a lawyer to use the Rules of Professional Conduct for his own pecuniary benefit. This case also reflects a judicial hesitantancy to issue a ruling that encourages members of the legal profession to interact in an underhanded manner with each other.

To read the full opinion, click here.


Virginia: Conflict of Interest & Importance of Public Confidence Precludes Law Firm From Lobbying General Assembly

The Virginia State Bar recently opined that lawyer-legislator status creates a conflict of interest such that not only is the lawyer precluded from lobbying the legislative body of which he is a member, but so too are all the other members of the consulting firm of which he is a member and law firm that owns the consulting firm. The opinion involves a query concerning the repercussions for a law firm that owns a consulting firm. The Virginia State Bar concluded that the conflict of interest created by the lawyer-legislator in the consulting firm implicates the lawyers in the law firm as well. Opinion 1884 states:

“Lawyers in the law firm that own the consulting firm also may not represent clients before the public body. This prohibition does not depend on whether the member of the public body complies with the applicable Conflict of Interests Act; his colleagues are forbidden by Rule 8.4 from appearing before his public body even if he recuses himself as required by statute.”

The opinion emphasizes that “[l]awyers are held to a higher standard of conduct than mere compliance with legal requirements, and may not act in a way that ‘diminishes public confidence in and respect for the integrity of the legal profession, as well as the administration of government.’ LEO 1718. Accordingly, Rule 8.4(d) prohibits the lawyer/lobbyist from representing a client before the public body on which his lawyer/colleague sits, regardless of whether that colleague participates in the matter.”

The Virginia State Bar relied upon its previous opinion that held that law firms that employ legislators cannot lobby before the State Assembly. In Opinion 1718, the State Bar wrote: “The sense of the committee is that public confidence in the legal profession is not inspired, nor is an appearance of impropriety avoided, if a law firm represents clients before a governing body on which one of its lawyers is a member even if he/she abstains from participation and voting.”

As a matter of fact, the State Bar wrote, “The Committee concludes that there is no reason to distinguish between lawyers associated in a law firm and lawyers associated in a lobbying/consulting firm, as the public confidence concerns depend on the fact that the General Assembly member and the lobbyist are associated in the same firm, not on the nature of that firm’s business. See Rule 1.11(a) and 8.4(d).”

The opinion notes that the Virginia Rules of Professional Conduct do not apply to non-lawyers. However, the opinion referenced Rule 5.3 and warned that a lawyer supervising a non-lawyer could still be responsible for ensuring that the non-lawyer is complying with that lawyer’s ethical duties. Referencing Rule 8.4(a), the opinion also reminded lawyers that even if a lawyer does not have authority over non-lawyers, that lawyer is not allowed to circumvent the rules simply because that lawyer did not personally engage in the conduct.

Read the full opinion here.

Third Ethics Panel Dings Avvo’s Matching for Legal Services

Avvo Legal Services is offering a matching program to connect potential clients with lawyers. The program provides lawyers with the opportunity to offer legal services directly to consumers after a fixed price consultation. Moreover, at the Avvo Legal Services “law store” consumers may purchase fixed-fee legal services such as review of a will for $99 or a family green card application for $2,995. (To read Avvo’s Advisor web page, click here.) Ultimately, the lawyer pays Avvo, which is described by Avvo as follows:

For each paid service you complete, Avvo will charge you a marketing fee as a separate transaction.

For example, a lawyer who successfully completes 3 $149 document review services in the month of February will see 2 separate transactions on their bank statement in March: a deposit of $447 ($149/service x 3 services) and a withdrawal of $120 ($40 marketing fee/service x 3 services).

Since its launch in February 2016, three ethics advisory opinions—South Carolina, Ohio, and now Pennsylvania—have disapproved (without specifically identifying Avvo) Avvo’s type of matching program.  The most recent opinion was issued by Pennsylvania and notes that under Pennsylvania Rule of Professional Conduct 5.4(a) on “Professional Independence of a Lawyer,” a “lawyer or law firm shall not share legal fees with a nonlawyer.” The Pennsylvania opinion concluded that  the “marketing fee” may be a disguised fee sharing arrangement with a nonlawyer and, thus, would violate RPC 5.4(a). See Pa. Bar Ass’n Comm. on Legal Ethics & Prof’l Responsibility, Formal Op. 2016-200, (September 2016).

The Pennsylvania opinion also rejected the idea that the “marketing fee” could be authorized under RPC 7.2(c)(1), which provides a lawyer may pay “the reasonable cost of advertisements,” on grounds that the arrangement “do[es] not correspond to any traditional model of compensation for advertising.”.

Furthermore, the committee concluded that such a program would improperly delegate “to a non-lawyer several critical decisions and functions that fall within the exclusive domain of the practice of law,” such as “the decision whether the professional services the client requested of the lawyer have been satisfactorily completed.” It also noted issues regarding limited scope representation under Rule 1.2 (c), breach of confidentiality under Rule 1.6(a), and assisted unauthorized practice of law under Rule 5.5(a).

To read the full opinion, click here.

New York City Bar: Prosecutors’ Duty to Disclose Held Broader Than Brady Standard

According to a recent opinion from the New York City Bar’s Ethics Committee, a prosecutor’s ethical obligation to disclose evidence favorable to a defendant is broader than the constitutional minimums imposed by the Supreme Court in Brady v. Maryland.

Under the holding in Brady, prosecutors are only required to provide  the defense with exculpatory evidence that is “material either to guilt or to punishment.” The materiality standard in Brady has been the subject of great criticism, prompting a divide on the issue of whether the lawyer conduct rule governing prosecutors’ disclosure contradicts federal constitutional standards.

New York City Bar’s Ethics Committee concluded that New York Rule of Professional Conduct 3.8(b) requires a prosecutor to turn over to the defense any exculpatory evidence regardless of whether the prosecutor believes it is “material.” Opinion 2016-3 reaffirms the position taken by the ABA in 2009, which advised that the ethical obligations imposed by Rule 3.8 are more demanding than the standard in Brady, because Rule 3.8 requires disclosure of any evidence or information favorable to the defense regardless of the prosecutor’s assessment of the impact on a trial’s outcome. The New York opinion also notes that under Rule 3.8 favorable information must be provided to the defense “as soon as reasonably practicable,”regardless of the timing requirements of other substantive law.

The New York City opinion can be read here.

“Attorney’s Eyes Only”

Court orders imposing “attorney’s eyes only” discovery restrictions do not disrupt the attorney-client relationship or contradict an attorney’s ethical duty to keep clients informed, according to the District Court for the Southern District of Florida.

The issue before the court arose in a trademark infringement action, in which the plaintiff contended that an “attorney’s eyes only” order, requiring an attorney to withhold discovery material from a client, contradicts an attorney’s duty to keep his clients informed and creates “an unnecessary level of secrecy.” However, the court reinforced attorneys’ “professional obligation to obey a court order imposing ‘eyes only’ limitation,” in holding that such a protective order does not conflict with Florida Rule of Professional Conduct 4-1.4, which requires an attorney to communicate with his client so that the client is reasonably informed about his case.

In reaching its holding, the court reviewed the language of Rule 4-1.4 and concluded the rule does not impose an absolute obligation on the attorney to disclose every matter to a client. Magistrate Judge Jonathan Goodman found Rule 4-1.4 to be applicable only to reasonable disclosures and noted the use of reasonable several times within the rule .

Moreover, the court highlighted that the comments to Rule 4-1.4 specifically recognize the permissibility of protective order in litigation, which would include an “attorney’s eyes only” provision. (Rule 4-1.4’s comment refers to Rule 4-3.4(c), which requires attorneys not to “knowingly disobey an obligation under the rules of a tribunal.”)

The opinion recognizes that protective orders with an “Attorney’s Eyes Only” provision “agreements are widely accepted in Florida” and notes that several jurisdictions are in accord.

To read the full opinion, click here.







Feuding Directors Can Access Privileged Communications Under Delaware Law

A company’s directors have the right under Delaware law to access all corporate attorney-client communications originated during their terms as directors—even if their interests in the current suit are adverse to the company itself.

The communications at issue in Del Giudice v. Harlan were emails exchanged between members of the board of directors and the company’s counsel. The plaintiffs, who were current directors of the company, expected these emails to assist them in challenging certain distributions paid under the operating agreement. However, the decision, made by a federal magistrate judge in Manhattan, has even broader implications. The order hints that where a discord arises among directors in a company regarding management or control, none of them should expect any of their communications with corporate counsel to be kept confidential in accordance with the privilege.

The defendants argued that the plaintiffs should not be able to gain access to the privileged emails because the plaintiffs’ interests in the suit were adverse to the company and they only sued to enforce their individual interests.

However, Delaware case law does not make distinctions when addressing a director’s right to legal advice provided to the corporation during the director’s term. Therefore, it does not matter that the plaintiffs were serving their own interests when bringing a suit versus serving the interests of the company.

The defendants rejected this argument, urging the court to follow New York law instead of Delaware because New York differs materially and might have generated a different outcome. The judge disagreed and concluded that Delaware law controls due to a choice of law provision in the operating agreement.

To read the full opinion, click here.

Mississippi Court of Appeals: A Bar Complaint Does not Toll the Statute of Limitations on a Legal Malpractice Claim

The Mississippi Court of Appeals recent decision in Archer v. Creefound holds that a client’s state bar complaint against a lawyer does not toll the statute of limitations on that client’s legal malpractice claim. Regardless of the bar proceedings, the beginning of the life of a legal malpractice claim is when the client learns of his or her lawyer’s negligence or malpractice.

The case arose from the following facts. In 2010, Mary Archer hired an attorney, Mitchell Creel, to represent her brother in post-conviction proceedings. She eventually fired him and filed a bar complaint about a breach of contract. The bar complaint was dismissed in 2012. She then filed a legal malpractice lawsuit.

In Mississippi, there is a three-year statute of limitations on legal malpractice claims, and the clock begins to run on the first day the client is aware of his or her lawyer’s negligence.

Nonetheless, Archer argued that a client must wait to sue until after an administrative remedy, such as the bar complaint, is exhausted. Her reasoning was that a lawsuit is untimely when it is filed during the pendency of bar proceedings.

However, both the Mississippi trial court and the Mississippi appellate court disagreed with Archer finding that the clock on the statute of limitations runs independently of a bar complaint. Thus, in Archer’s case, the statute of limitations began running when Archer fired her lawyer, based upon allegations of bar violations and malpractice, rather than after the bar complaint was dismissed.

To read the full opinion of Archer v. Creel, click here.

Avvo’s Directory Akin to the Yellow Pages: Embedded Attorney Advertising Does Not Render a Profile Listing to be Commercial Speech

On September 12, the U.S. District Court for the Northern District of Illinois ruled in Vrdolyak v. Avvo, Inc. that Avvo’s publishing of online profiles of Illinois attorneys, which may contain advertisements for competing attorneys on the same page,  does not violate an individual attorney’s publicity rights. (Vrdolyak v. Avvo, Inc., 2016 BL 297789, N.D. Ill., No. 16 C 2833, 9/12/16).   Avvo Inc., maintains a website that publishes biographical information about every U.S. lawyer without seeking consent of the lawyers. A lawyer has the opportunity to claim his Avvo profile and customize his Avvo information. On an attorney’s profile page there may also be attorney advertisements for other attorneys.  Avvo provides information about lawyers for consumers in need of legal representation.

Avvo’s chief legal officer, Josh King, explained that the decision is the first to dismiss a complaint that sought to hold Avvo liable under a state law that prohibits using an individual’s identity for commercial purposes without that person’s consent. Avvo has previously been sued for claims including defamation, unfair trade practice, and inaccuracy of information just to name a few. Nevertheless, Avvo has prevailed in these cases.

The plaintiff, in this Illinois class action case, asserted that the publication of his biographical profile along with advertisements about competing attorneys that were published on the same page is impermissible and  constitutes “commercial speech, which does not receive full First Amendment protection.” Vrdolyak at 1. However, the court disagreed and found that the fact that another attorney’s advertisement was embedded on an attorney’s profile page did not render the entire page an advertisement.

Instead, the court found that Avvo’s listing of attorneys’ information is akin to a yellow pages directory, and therefore is protected by the First Amendment. Id. at 4.  For the full opinion, click here.

Equity Stake Isn’t a Prerequisite for ‘Partner’ Label

May a law firm refer to its lawyers, as partners, when those lawyers do not have voting authority on corporate governance matters or equity shares in the firm? The North Carolina State Bar recently answered this question in the affirmative.

The North Carolina State Bar Association issued Formal Ethics Opinion 9 advising that professional corporations are allowed to designate lawyers in their firm as “partner,” “income partner,” and “non-equity partner,” even if those lawyers do not own any interest in the firm and have no authority to vote on corporate governance matters. However, a lawyer who is designated as a partner must have been promoted based on legitimate criteria. Additionally, the Ethics Committee noted that any firm lawyer who has been promoted to “partner” will be held to all professional responsibilities that accompany that role, such as the supervisory responsibilities required by Rule of Professional Conduct 5.1.

In analyzing the meaning of the designation partner, the opinion looks to Black’s Law Dictionary, which defines a “partner” as “one of two or more persons who jointly own and carry on a business for profit.” However, the opinion notes that the legal profession often uses the concept of “partner” more expansively, such as defining shareholders in a professional corporation as “partners”. The North Carolina State Bar concurred on the broader definition of “partners” by concluding that lawyers tend to qualify as “partners” once they reach a certain level of experience, status, or authority within the firm.

The opinion cautions that referring to a lawyer as a “partner,” “income partner,” or “non-equity partner” cannot be utilized for deceptive purposes. The opinion cites North Carolina Rule of Professional Conduct 7.1(a)(1), stating that a communication is false or misleading if it “contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

To avoid violations of 7.1(a)(1), the opinion advises that a law firm can designate a lawyer as a partner without meeting the technical definition of that term, only if the firm has promoted the lawyer by “legitimate criteria” and in accordance with some type of formal action, management vote, or according to the firm’s governing documents. The Committee did not set a standard for legitimate criteria because it acknowledged that law firms have distinct standards for promotion. However, the opinion does provide guidance on what constitutes valid criteria, such as experience, integrity, industry, intelligence, communication, legal knowledge, motivation, judgment, efficiency, and involvement.

To read the full North Carolina opinion, click here.

No Longer Up in Smoke? Ohio Lawyers May Now Advise Clients on the Marijuana Business

An amendment to an Ohio Rule of Professional Conduct 1.2 (Scope of Representation) permits lawyers to assist clients who are involved in the state-authorized medical marijuana business. The amendment was adopted in response to the Supreme Court of Ohio’s advisory opinion finding that counseling clients to engage in conduct that violates federal law—even if state law authorizes the conduct— and therefore also violates Ohio’s Rules of Professional Conduct. The Court suggested an amendment to the rule as a possible solution.

The amendment modifies Ohio Rule of Professional Conduct 1.2 by adding a subsection that specifically allows a lawyer to counsel a client regarding activities expressly permitted by the state’s medical marijuana law, on the condition that the lawyer also advises the client about a related federal law. The amendment does not address the Ohio Supreme Court’s concern that a lawyer who uses medical marijuana or participates in an Ohio regulated marijuana business commits a “technical” violation of federal law that may impact his trustworthiness, honesty or fitness to practice law. The opinion reserves that assessment to be applied on a case by case basis.

Twenty-four states have legalized medical marijuana, and most of those states have issued ethics opinions saying that legal guidance relating to the industry does not violate ethics rules so long as the client is informed about the illegality under federal law.

To read the Ohio Supreme Court advisory opinion, click here

To read the Ohio Supreme Court proposed amendment, click here

The Client Comes First: Lawyers Must Report Co-Counsel’s Potential Malpractice

The sanctity of the attorney-client relationship relies in large part on establishing and preserving a bedrock of trust between the parties. A recently released opinion by The New York State Bar reinforces this principle by concluding that a lawyer to must disclose to his client any potential malpractice of a co-counsel

This obligation arises when a lawyer “reasonably believes” that a co-counsel has committed a “significant error or omission.” The example used in the opinion is that of a lawyer who has learned that his co-counsel did not conduct discovery even though certain documents may have been critical to effective representation in the case.

The opinion recognizes that while a lawyer may desire to maintain a good relationship with co-counsel, the right of the client to be fully informed pursuant to New York Rule of Professional Conduct 1.4 (Communication) is paramount. However, the opinion notes that there is a potential that some lawyers could abuse this new duty to unfairly criticize co-counsel. The opinion addresses this fear and states that a lawyer cannot “wrongfully or improperly disparage the other lawyer in an endeavor to supplant him.”

To read the full opinion, click here.

New York: No Obligation for a Lawyer to Report a Judicial Misconduct

The New York State Bar Association’s (NYSBA) Committee on Professional Ethics recently opined that lawyers do not have a duty under the Rules of Professional Conduct (“RPC”)to report judicial misconduct; however, a lawyer may report a  judge for a violation of the Rules of Judicial Conduct (“RJC”). The opinion also cautions lawyers to be mindful of their duty of client confidentiality and to obtain client consent if necessary.

In reaching its conclusion the NYSBA Committee reviewed not only the currently reporting rule, but also the legislative history pertaining to the enactment of New York’s current Code of Professional Conduct.

RPC 8.3 discusses both a New York lawyer’s duty to report and to cooperate. RPC 8.3 reads:

“(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.

(b) A lawyer who possesses knowledge or evidence concerning another lawyer or a judge shall not fail to respond to a lawful demand for information from a tribunal or other authority empowered to investigate or act upon such conduct.”

Notably, RPC 8.3(a) dictates a New York lawyer’s duty to report, while RPC 8.3(b) dictates a New York lawyer’s duty to cooperate. Importantly, RPC 8.3(a) does not include judges while RPC 8.3(b) does encompass judicial conduct.

The NYSBA’s Committee of Professional Ethics juxtaposed RPC 8.3 with its predecessor (Disciplinary Rule 1-103 of the former New York Code of Professional Conduct) and proposed amendments to RPC 8.3 that included the duty to report violations of the RJC. The Committee concluded that despite other states’ reporting requirements that include judges, the Committee would be overreaching if it mandated such a duty. The committee’s conclusion is based on the fact that the proposal to include judicial misconduct in the reporting requirements of RPC 8.3 was ultimately rejected by the courts upon adoption of the rules

Read the Opinion here.

California Interim Opinion Provides Guidelines For Attorney Bloggers

Lawyers who maintain non-legal blogs may preemptively celebrate that their recipe and music blogs would not be considered “communications” subject to California’s attorney advertising rule 1-400 even if they link to their professional law firm pages according to The State Bar of California’s second Proposed Formal Opinion Interim. Still, the generous opinion draws limits, as “extensive” or “detailed” information that identifies the blogger as an attorney and announces his availability for professional hire will trigger the rules, as such information is a communication in itself.

Unsurprisingly, a blog that is built into the lawyer’s or law firm’s professional website is as much subject to the advertising rules as is the firm’s website. However, an attorney’s individual blog, even if it discusses legal topics is not a communication for purposes of the advertising rules unless it implies that the attorney is available for legal employment. This implicit hint can be as subtle as describing the legal services or detailing case results.

Overall, this second proposal focuses on the importance of First Amendment protection to avoid chilling speech on legal commentary, even though the California Bar committee acknowledges that these blogs are motivated at least in part by business development concerns. By interpreting blogs as non-commercial speech where appropriate, the opinion hopes to serve as guidance rather than a strict conversation-chiller.

Read the new opinion here.

Texas Bar Ethics Committee Approves “Competitive Keyword Advertising”

Competitive keyword advertising in the legal services industry refers to the use of a competing lawyer’s name or firm name as a hidden “meta tag” or “keyword” to boost the visibility of online advertisements purchased from search engine companies (e.g., Google, Yahoo!, Bing). Typically, it is a less well-known lawyer who takes advantage of a more established lawyer’s brand name. The practice reduces barriers to entry in the legal industry, especially by helping new entrants challenge incumbent players. Eric Goldman & Angel Reyes III, Regulation of Lawyers’ Use of Competitive Keyword Advertising, 2016 U. Ill. L. Rev. 103, 107 (2016).

Notwithstanding the fact that the practice tends to give potential legal clients increased access to information on a greater diversity of legal service options, incumbent firms have challenged competitive keyword advertising on grounds that it violates the Rules of Professional Conduct. One such challenge was brought by Jim S. Adler, a personal injury attorney known for the size of his mass-market advertising budget who brands himself as “The Texas Hammer.” See Jim Adler & Associates, Attorney Jim Adler, Jim Adler Law Firm, September 9, 2016,

In a Request for an Ethics Opinion to the Texas State Bar Professional Ethics Committee, Mr. Adler asked the Texas State Bar Professional Ethics Committee whether competitive keyword advertising violates three Texas Disciplinary Rules of Professional Conduct: (i) Rule 7.01(d), which prohibits lawyers from holding themselves out as being associated with lawyers with whom they are not associated; (ii) Rule 7.02(a), which bars misleading communications about a lawyer’s qualifications or services; and (iii) Rule 8.04(a)(3), which prohibits conduct involving dishonesty, fraud, deceit or misrepresentation. See Request for an Ethics Opinion.

In a ground-breaking opinion, the Texas Bar Ethics Committee responded with approval for “competitive keyword advertising.” See Tex. State Bar Prof’l Ethics Comm., Op. 661, 7/16. It marked the first time an ethics panel has endorsed the practice. The panel described the practice as a “search-engine optimization” (“SEO”) technique that legal professionals can use to ensure their brand “appears on the first page of the search results obtained when a potential client uses a search engine to seek a lawyer.” Id.

To read Mr. Adler’s Request for an Ethics opinion, click here. To read the full opinion, click here.

Widening the Scope of the Administration of Justice: IAC Waivers in Plea Bargains

On June 10, 2016, the New York State Bar Association issued Opinion 1098, which prohibits prosecutors from ethically requiring that defendants waive ineffective assistance of counsel (“IAC”) claims as a condition in plea bargains. The New York State Bar Association’s ethics committee highlighted different issues surrounding IAC waivers of plea bargains—many of which affect not only criminal defendants, but also prosecutors, defense counsel, and the courts.

New York’s Rules of Professional Conduct Rule 8.4(d), identical to the American Bar Association’s Rule 8.4(d) denotes professional misconduct as when a lawyer “engage[s] in conduct that is prejudicial to the administration of justice.” New York maintains that a violation of 8.4(d) can occur even in good faith: “[I]f the conduct in question is likely to cause substantial individual or systemic harm to the administration of justice, regardless of the motivation of the party, we have interpreted Rule 8.4(d) to apply.”

The ethics committee affirms that prosecutors violate 8.4(d) by requiring IAC waivers because doing so creates an obvious conflict of interest for defense lawyers. More significantly, however, defense attorneys may fear that raising this conflict of interest issue may result in losing a valuable plea deal for their clients. Thus, defense lawyers are forced to decide between ignoring ethical obligations and working in the best interest of their clients.

Moreover, IAC waiver conditions in plea deals unduly burden the courts. If a defense lawyer asserts a conflict of interest that is not waivable, the lawyer must move to withdraw. The court then has to expend resources to determine whether the conflict of interest exists, conduct a balancing test, and possibly provide substitute counsel. The court could also decline the motion to withdraw; in that case, the defense lawyer must proceed despite an identified, personal conflict of interest. However, if defense counsel identifies a conflict of interest, but contends that it is waivable, the court must then investigate whether the defendant made a “knowing, intelligent, and voluntary” waiver.

Finally, IAC waivers undermine criminal defendants’ Sixth Amendment rights and chances for malpractice litigation. Plea deals preclude defendants from seeking civil recourse for lawyer malfeasance. As a result, criminal defendants have few avenues for malpractice litigation, and even if they do manage to show malpractice, nonpecuniary damages are not available.

This opinion reflects a growing trend because other states have associated the requirement of IAC waivers in plea deals with harming the administration of justice. Florida, Ohio, and Arizona established that IAC waivers are a per se violation of Rule 8.4(d). Nevertheless, New York allows a case-by-case evaluation regarding IAC waivers in plea deals: “[A] defendant who has been advised by an independent lawyer may waive an identified instance of ineffectiveness.” This emerging trend seems to reflect a wider reach to protect the “administration of justice.”

For the full opinion, click here.


Good Old Fashioned Rivalry: NY Bar Allows Attorneys to Represent Direct Competitors of Former Clients

A lawyer may represent a new client who is a direct competitor of a former client in an unrelated action against a third party, even where it would be in the former client’s best interest for the new client to lose the suit.

This representation would be in accordance with the New York State Bar Association’s recent opinion stating that economic adversity between two corporations does not necessarily mean there is a “material adversity” that would violate Rule 1.9 governing duties to former clients.

The rule currently states that a “lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”

The rivalry between the two companies itself is not enough to be “materially adverse.” Therefore, mere competition between the companies is not a current client conflict or a former client conflict under the rules. This holds true for companies in the same industry and same geographic area that provide services to the same customer base.

However, the opinion also went one step further. It concluded that even if the former client is threatening to sue the new client in the matter, representation of the new client is still proper—so long as the previous and current matter aren’t substantially related.

Click here to read the opinion.

Misconduct Sanctions Subject to Appeal

Misconduct sanctions “can seriously impair an attorney’s professional standing, reputation, and earning possibilities, such an order can’t be brushed off as easily as a gnat. It is not just a slap on the wrist, or an angry remark by a judge in the course of a trial or other hearing,” Judge Posner explained in his recent ruling in Martinez v. City of Chicago.

Judge Posner’s opinion holds that nonmonetary sanction orders are subject to appeal. His ruling aligns with eight other courts that have decided the issue. The opinion distinguishes a mere angry remark by a judge, which would not be grounds for appeal, from an unfounded misconduct sanctions order that is akin to defamation.

The case involved a lawsuit against the City of Chicago and others for malicious prosecution and other torts. The plaintiff’s lawyers requested files from the Cook County State’s Attorney’s Office. The State Attorney’s Office claimed that the requested files no longer existed.

The district court ordered the State Attorney’s  Office to provide the plaintiff’s lawyers with access to 181 boxes of documents stored in a warehouse so that the plaintiff’s lawyers could attempt to locate the requested files .The plaintiff’s lawyers quickly found the relevant documents., The court ordered sanctions against the state attorneys for obstructing discovery.

To read the full opinion, click here.

New York Firms May Bill for Work of Unpaid Interns

A recent opinion issued by the Committee on Professional Ethics of the New York State Bar Association ruled that law firms may bill clients for the work of unpaid interns. Specifically, law firms are free to bill for work executed by unpaid interns, who receive academic credit in lieu of pay, so long as:

  • The internship program complies with applicable law,
  • The intern’s school does not object to the firm charging for the work, and
  • The charge is neither excessive nor illegal.

In response to the opinion, several organizations wrote an open letter, printed in the New York Law Journal, criticizing the decision as “fundamentally flawed.” Among the letter’s signatories are the CUNY Law School, the CUNY Labor Coalition, the NYU Black Allied Law Students Association, the NYU Latino Law Students Association, and the National Employment Law Project. In the letter, the signatories ask the ethics committee to reconsider its decision because the opinion “fails to consider the circumstances of most unpaid legal internships and the important moral questions they raise.”

The letter also challenges the assumption that unpaid internships at private firms comply with the applicable labor laws. The organizations contend that when a law firm charges for an intern’s free labor, they implicitly derive a substantial and economic benefit that cannot be offset by the academic credit that the interns receive, and they therefore may be entitled to pay.

To read Ethics Opinion 1090, click here. To read the letter, click here.

Hey “Darling,” There’s No More “Honey” In The Courtroom

The American Bar Association (ABA) House of Delegates passed Resolution 109, which states that it is a violation of professional responsibility to discriminate or harass in conduct related to the practice of law.

So, the use of “honey,” “darling,” and other remarks and gestures is now considered professional misconduct.

Although the discussion focused mainly on harassment and discrimination of women, the Resolution amends Model Rule 8.4 so that it now prohibits conduct that an attorney knows or should reasonably know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

Proponents of the Resolution assert that without an overt prohibition on this type of conduct, the use of demeaning and misogynistic terms and actions to undermine opposing counsel and others will continue without repercussion.

However, whether this Resolution and amendment to Model Rule 8.4 will have the desired effect remains to be seen as it is within the province of each state bar to determine whether to adopt the amendment and if adopted, how to enforce it.

California Ethics Opinion Says ‘Keep Quiet’: Lawyers Cannot Reveal Client Secrets, Even if Publically Available

Does a secret stay a secret when it is posted on the Internet for anyone to find out about? According to common sense about confidentiality, it might seem obvious that sharing something online would utterly break any secrecy.

However, the State Bar of California disagrees and says such client secrets should still be protected. According to a recently finalized opinion, “[a] lawyer may not disclose his client’s secrets, which include not only confidential information communicated between the client and the lawyer, but also publicly available information that the lawyer obtained during the professional relationship which the client has requested to be kept secret or the disclosure of which is likely to be embarrassing or detrimental to the client.”

Even after the attorney-client relationship ends, a lawyer still cannot disclose potentially embarrassing or detrimental information—despite the fact that the information could be easily discovered on the Internet or in court files, the opinion said.

The new guideline may seem confusing in light of ABA Model Rule 1.9, which provides that information ceases to be a client secret when it is “generally known.” But a footnote in the opinion explains that “generally known” and “publicly available” are different ideas: generally known information is that which most people already know, whereas publicly available information is accessible by the public through searching different online or court sources.

The California state bar explains its guidelines through several hypotheticals about a lawyer who defended a hedge fund manager against fraud claims. For example, in one hypothetical the hedge fund manager blogged about confidential information, and the opinion states that the lawyer had a duty to protect that information as a client secret; therefore forwarding the blog to friends would violate that duty. These hypotheticals illustrate that client information does not lose its confidential nature merely because it is publicly available.

The opinion emphasizes a lawyer’s core duty to keep quiet about clients’ sensitive information, even if some members of the public could share and discuss the same information freely.

To read the full opinion, click here.

Ohio Advises on the Use of Flat Fee Agreements in Criminal Cases

In its recent Ethics Opinion 2016-1, the Supreme Court of Ohio’s Board of Professional Conduct addressed the issue of whether an attorney retained in a criminal matter can enter into a flat fee agreement requiring a client to pay a fixed amount in advance of representation.

Interpreting Ohio Rule of Professional Conduct 1.5, the board advised that fixed fee agreements are permissible; however, if the representation is not completed for any reason, the attorney is obligated to return any unearned portion of the fee regardless of whether the fee was designated “nonrefundable” or “earned upon receipt.” Moreover, a flat fee must be deposited in the attorney’s trust account unless it is designated “nonrefundable” or “earned upon receipt.” The board further advised that when a fee is designated as “nonrefundable” or “earned upon receipt,” it does not need to be deposited in the trust account; however, the client must be advised in writing that he or she may be entitled to a refund pursuant to Rule 1.16(e) if the attorney withdraws from the case before the representation is completed.

To read more about the Opinion, click here.

A Lawyer in Motion—A Conflicts Puzzle Solved

The Utah Bar recently considered the following conflicts inquiry. Lawyer A represented a wife in a divorce proceeding and then moved to a new law firm #2. New law firm #2 had previously represented the husband in the same divorce; the husband consented to the wife’s attorney’s continued representation of her for the purpose of mediation and settlement negotiation. The wife’s attorney did not have access to the husband’s file.

Later, the wife’s attorney moved to a third, separate law firm #3. The wife approached her attorney at law firm #3 to seek representation for post-decree enforcement proceedings against the former husband. So, could the attorney continue to represent the wife while at law firm #3?

According to the Utah State Bar’s Ethics Advisory Opinion Committee, the wife’s attorney could continue to represent her at the third firm. In a February 2016 opinion, the Committee explained that a lawyer may represent a spouse in post-divorce matters at a firm, which the lawyer recently joined, even if the lawyer’s former firm previously represented the other spouse in the divorce case. So long as the wife’s lawyer has no actual knowledge of the husband’s information, no ethical violation occurs.

Utah’s Rule of Professional Conduct 1.9(a) states that a “lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.” Applying this rule and its exceptions to the situation stated above, the Committee explained that while the spouses were considered adverse parties, the conflict had been cured. The Committee explained the actions that cured the conflict included the written consent from the husband and the attorney’s sequestration from the husband’s information at the second firm.

Read the recent advisory opinion here.

An Attorney’s Duty of Confidentiality: Responding to a Subpoena for Client Files

On February 16, 2016, the ABA issued Formal Opinion 473, which revisits Formal Opinion 94-385 that was issued in 1994. In 1994, Model Rule 1.6(b), provided only two instances when a lawyer could disclose confidential information in response to a subpoena—to protect against certain crimes and to establish certain claims or defenses on behalf of the lawyer.


Today, Model Rule 1.6(b) lists seven exceptions that permit, but do not require, an attorney to disclose client information, one of which is in compliance with a court order. Although Formal Opinion 94-385 acknowledged an attorney’s obligation to take measures to protect the confidentiality of a client, Formal Opinion 473 addresses concerns that have arisen over the past 21 years and provides guidance regarding the disclosure of client information pursuant to a court order.


For example, the opinion suggests that after receiving the initial demand, an attorney should first consult with his client to discuss possible courses of action. During this consultation the attorney should advise on the potential claims that may be asserted against disclosure, as well as the possible consequences disclosure may have for the client. If the lawyer and client disagree about how to respond to the demand, the lawyer may withdraw in compliance with Model Rule 1.16, but must protect the client’s interest until the client obtains another attorney.


If the client is unavailable for consultation, or if the client consents to disclosure, an attorney must nonetheless “assert all reasonable claims against disclosure and seek to limit the subpoena.” If the attorney is unable to locate his client, further appeal is not ethically required because it places an undue burden on the lawyer. Regardless, if the attorney is ultimately ordered to produce a client’s documents, the attorney must reveal confidential information only to the extent that is reasonably necessary.



To read Formal Opinion 473, click here.

Attorneys v. Clients: Clients Ordered to Pay $350K for Online Defamation

As the old adage goes, “It takes 20 years to build a reputation and 5 minutes to ruin it.”  Disgruntled clients are increasingly posting defamatory reviews on widely available public online attorney review websites. Some attorneys have begun fighting to protect their online reputations by filing defamation suits against their former clients.

On January 6, Florida’s Fourth District Court of Appeal held that the First Amendment does not protect demonstratively false allegations that a former client wrote about her attorney and posted online. The court determined that the comments posted on Avvo and other attorney review websites were factually inaccurate statements rather than statements of opinion. The comments included claims that the attorney misrepresented her fees and falsified a contract to support the increase in fees.  The court ordered the client and her husband to pay $350,000.00 in punitive damages for defamation

The court’s decision has been hailed as a potential turning point in the online battle among some attorneys and their clients that is damaging to attorneys’ reputations. However, it is important to note that a similar ‘client vs. lawyer’ defamation case in another state may not result in a similar award; Florida statutes allow targets of per se defamation to recover punitive damages even when the plaintiff cannot demonstrate a quantifiable loss. By contrast, there are higher evidentiary burdens in other jurisdictions that require punitive damages to be based on the amount of actual damages. Without a calculable loss, this burden would create a barrier to achieving a similar result.

To read the trial court’s opinion, click here.

Rhode Island Approves Attorney’s “Winning” Advertisement

A lawyer whose last name rhymed with win may use an advertisement that proclaims “Win with [insert attorney’s rhyming last name].” Rhode Island Supreme Court’s Ethics Advisory Panel (“The Panel”) Opinion 2015-03 held that the slogan is not misleading, and a reasonable person would not be hoodwinked into believing the lawyer will always succeed; however, it should be noted that the inquiring attorney indicated the advertisement would include the disclaimer “Prior results do not guarantee similar outcome.” Moreover, the attorney plans to include similar language in his retainer agreement where a client will initial that statement.

The Panel framed the issue as “whether there is a substantial likelihood that the proposed rhyming slogan…would lead a reasonable person to form an unjustified expectation about the results that the inquiring attorney would achieve.” The Panel found that the slogan would not be misleading and based its decision on Rhode Island’s Rule 7.1: Communications Concerning A Lawyer’s Services and the 2007 amendments to the rule.

In 2007, Rule 7.1 was amended, and new comments explaining misleading statements added the qualifiers “substantial likelihood” and “reasonable person” to Comments [2] and [3] of the rule.

Comment [2] states:

A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.

Comment [3] states:

An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case . . .

The Panel explained that in today’s world, advertising is found everywhere—billboards, print, television, radio, and the Internet. Thus, “reasonableness” is the standard used to determine whether an advertisement is misleading. The Panel found the attorney’s advertisement that cleverly rhymes his last name with “win” to be reasonable in light of his disclaimers and the public’s constant exposure to all manner of advertising in today’s digital world.

For more information on the advisory opinion click here.

California Lawyers Receive Clarification on the Limits of Negotiation ‘Puffery’

The State Bar of California Standing Committee on Professional Responsibility and Conduct released an opinion this month concluding that while engaged in negotiations on behalf of a client, an attorney’s puffery and posturing are generally permissible, but false statements of fact or implicit representations are prohibited. The opinion is consistent with the 2006 ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion on the same topic.

The committee interpreted sections of the Rules of Professional Conduct of the State Bar of California and the Business and Professions Code as they applied to a hypothetical scenario involving negotiations in an automotive personal injury suit. It analyzed six statements made by two attorneys from the scenario; of the six, one was found to be clearly permissible puffery. The lawyer made an inaccurate representation regarding his client’s “bottom line,” but the committee explained that such statements are not considered “verifiable statements of fact” because parties should expect that the opposition will not reveal its true goals or willingness to compromise during negotiations. Four other statements made of the attorneys’ own volition were considered impermissible conduct on the part of the lawyers, and the sixth statement—which was the result of a client’s instruction—was analyzed in further detail.

In the sixth statement, the plaintiff instructed the attorney to conceal a material fact (new employment). Because the employment would affect the client’s ability to collect lost future earnings, the failure to disclose this fact would be an implicit misrepresentation that the client had not yet found a job. The committee continued and explained that the attorney should first counsel the client against the misrepresentation and/or suppression, and if the attorney is unsuccessful, they must then withdraw from representation.

New Social Media Opinions: West Virginia and Colorado

Recently, two more states, West Virginia and Colorado, joined the legal ethics conversation regarding social media, issuing opinions that are generally consistent with most other states’ social media opinions.

In September 2015, the Lawyer Disciplinary Board of West Virginia issued new social media and social networking guidelines titled “Social Media and Attorneys.” Specifically, the Board addressed the following topics: attorney competency, taking down posts, avoiding contact with represented persons, contacting unrepresented persons, monitoring third-party reviews and endorsements, protecting confidentiality, honesty in endorsing other lawyers, researching jurors, friending judges, and avoiding inadvertent lawyer-client relationships. The Board concluded in part that attorneys may not make statements on social media that the attorney knows or reasonably knows will be disseminated publicly and will have “a substantial likelihood of materially prejudicing an adjudicative proceeding,” subject to certain exceptions listed in the rule on trial publicity. Additionally, the Board opined that attorneys may accept client reviews but must monitor the reviews for accuracy. Regarding advising clients on their social media presence, the Board concluded that attorneys may advice their clients to change the privacy settings of their social media pages, but attorneys may not instruct their clients to “destroy, alter, or conceal any relevant content on their social media pages.” Instead, attorneys must take the appropriate steps to preserve the information in the event that it is discoverable or relevant to the clients’ cases.

Also in September 2015, the Colorado Bar Association Ethics Committee issued its opinion titled “Use of Social Media for Investigative Purposes.” The Committee concluded that investigation of public profiles and posts is always permitted. Limits apply, however, when permission is requested to view restricted or private content. The opinion addresses ethical issues that arise when lawyers, either directly or indirectly, use social media to obtain information regarding witnesses, jurors, opposing parties, opposing counsel, and judges.

Both West Virginia and Colorado came to the following conclusions, among others: Regarding attorneys reviewing jurors’ Internet presence, attorneys may review public sections of a juror’s social networking presence, but may not attempt to access private sections of a juror’s social media page or use the assistance of a third party to do so. Moreover, attorneys may not seek to communicate ex parte with a judge through social media concerning a matter or issue pending before the judge. The Colorado opinion further states that attorneys may not request permission to view restricted portions of a judge’s social media profile while the judge is presiding over a case in which the lawyer is involved as counsel or as a party.

In a nutshell, both opinions conclude that lawyers must comply with the ethics rules when using social media just as when using other forms of communication.

To read the full West Virginia opinion, click here. To read the full Colorado opinion, click here.

Is Your LinkedIn Profile Attorney Advertising?

Does an attorney’s LinkedIn profile necessarily constitute attorney advertising?

In analyzing whether a LinkedIn profile is advertising, The Association of the Bar of the City of New York Committee on Professional Ethics Formal Opinion 2015-7 (“Opinion”) applied the New York Rules of Professional Conduct’s definition of an advertisement, which is “any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm’s services, the primary purpose of which is for the retention of the lawyer or law firm.”

The Committee concluded that if the primary purpose of an attorney’s LinkedIn profile is not to attract new clients, it is not advertising. So, how does an attorney define primary purpose? The Opinion explains that if the following criteria are met then a LinkedIn profile is advertising:

  1. It is communication made by or on behalf of the lawyer;
  2. The primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain;
  3. The LinkedIn content relates to the legal services offered by the lawyer;
  4. The LinkedIn content is intended to be viewed by potential new clients; and
  5. The LinkedIn content does not fall within any recognized exception to the definition of attorney advertising

The Opinion’s elaboration on each of the criteria may be found here.

So what do you do if your LinkedIn profile is considered an advertisement?

The Committee noted that a LinkedIn profile that constitutes advertising must comply with all of New York’s attorney advertising rules, including, but not limited to, the inclusion of the label “Attorney Advertising” legibly placed on the profile along with the name, principal law office address, and telephone number of the attorney. Additionally, the advertisement must not be deceptive or misleading.

The Committee also cautioned attorneys to personally “pre-approve” their advertisements, and reminded them that LinkedIn is considered to be a “computer-accessed communication” and thus must be retained for at least one year in accordance with New York’s attorney advertising rules.

The Opinion is novel in that it is the first ethics advisory opinion to conclude that all attorney LinkedIn webpages (or other social media profiles) are not necessarily advertisements. It will be interesting to see whether other bar associations and state bars follow New York City’s lead.

What’s In A Name? Lending Name to Out of State Attorney Results in Suspension

An Order was recently entered by the Supreme Court of New Jersey, suspending an attorney from the practice of law for a period of three months as a direct consequence of his allowing the use of his name and law license by a California attorney seeking to practice in New Jersey.


The attorney acknowledged to the Office of Attorney Ethics that his partnership with the California firm was a ‘legal fiction’ created in order to allow a California attorney to open and operate a law firm in New Jersey.


As a result of this violation, he was found guilty of violating Rules of Professional Conduct 1.15(d) (failure to keep appropriate financial records and controls), 7.1(a)(1) and 7.5(d) (name of firm contained New Jersey attorney’s name, despite the fact that he had no role in any of the firm’s business), 8.4(c) (allowing the firm to use New Jersey attorney’s signature stamp on correspondence with clients and opposing counsel, thereby intentionally misrepresenting his affiliation with the firm), and 5.3(a) (failing to make reasonable efforts to ensure that the conduct of non-lawyer staff complied with the professional obligations of the lawyer, which resulted in the misappropriation of client funds).


In reaching its decision to affirm the suspension, the Supreme Court considered a number of mitigating factors including the fact that the attorney was a “relatively young and inexperienced attorney who was likely easily controlled” by the California attorney, the attorney did not make misrepresentations to a judge, and he had no history of discipline. In addition to the suspension, the Supreme Court further required the attorney to reimburse the Disciplinary Oversight Committee for administrative costs and actual expenses incurred in the prosecution of the matter.


To read more, click here.

South Carolina Attorneys May Tout Certification as Privacy Professional

Can attorneys use a Privacy Professional as their designation in a signature block? Are attorneys implicating ethics rules, such as advertising, by doing so? The South Carolina Bar recently issued an Ethics Advisory Opinion stating that a lawyer who is a Certified Information Privacy Professional/US (“CIPP/US”) may use that designation in her e-mail signature block and other communications.

A hypothetical was posed to the Ethics Advisory Committee by a member of the South Carolina Bar: In the hypothetical, an attorney, working for an entity that collects and processes private data, obtained a CIPP certification by passing an exam that was “designed to be challenging” and that “required study and preparation.” The attorney was curious as to whether she may use the designation “CIPP/US” in her e-mail signature block. The use of the designation was found to be permissible because “the designation truthfully reflects a recognized professional certification available to both lawyers and non-lawyers[s], is objectively verifiable, and is not misleading.” The committee reasoned that use of the designation does not violate Rules 7.1, 7.2, or 7.4. of the South Carolina Rules of Professional Conduct.

Rule 7.1 provides that a lawyer “shall not make false, misleading, or deceptive communications about the lawyer or the lawyer’s services.” As the committee explained, use of the designation is “neither false nor misleading” because the “designation is given by a recognized association” and “granted by the association based on objectively verifiable criteria.”

Rule 7.2(a) “allows advertising through written, recorded or electronic communication, including public media.” Here, the committee explained that use of the designation is information because it “alerts a person that Lawyer has taken and passed examinations in privacy protection topics.”

Finally, Although Rule 7.4(b) prohibits the use of “any form of the words ‘certified,’ ‘specialist,’ ‘expert,’ or ‘authority’ when describing areas of limited or concentrated practice,” use of the designation is permissible. Referencing S.C. Bar Ethics Adv. Op. 93-97, the committee reasoned that an “attorney who was licensed as both an attorney and a Certified Professional Accountant” could use both professional designations, despite Rule 7.4(b).

For more information on this recent advisory opinion click here.

Crowdfunding for Legal Fees?

What is crowdfunding? It is the use of an Internet site to share information about a project in order to solicit money from the public. Individuals who contribute are not given a financial stake in the project.

So, may an attorney post information about anticipated litigation and ask for funds as a way to be paid his fees as long as contributors do not gain any influence in how the case is handled or a stake in the outcome?

The Philadelphia Bar Association Professional Guidance Committee recently released Opinion 2015-6, which addresses an attorney’s use of crowdfunding to obtain legal fees from third parties on behalf of a client who cannot afford to pay for legal services. The Committee approved the general concept of crowdfunding, but with certain restrictions on its use.

The Committee opined that an attorney should obtain the client’s informed consent and be mindful of his duty of loyalty to the client. The Committee cautioned that an attorney’s online descriptions must avoid any implication that contributors are granted a right to direct or control litigation. Additionally, the Committee stressed the importance of ensuring that contributors do not feel that they have been misled in any way. Not only might a misleading description be a violation of the advertising rules and the obligation not to mislead third parties, but also, it might impede on the ability of future litigants to use crowdfunding to raise the fees necessary to assert their legal rights.

Finally, the Committee provided guidance on provisions that should be included in the fee agreement to avoid contracting for excessive or impermissible nonrefundable fees. (In other words, the attorney could potentially receive fees from crowdfunding that might be deemed excessive depending upon the nature of the case and the attorney’s participation in the case.) First, the agreement should include terms describing the lawyer’s obligation to remain on the case until its conclusion or until a point at which the retention of the contributions would not constitute an excessive fee. Second, the agreement should require that the funds raised be retained in a trust account until they are earned in accordance with the fee agreement.

Crowdfunding is another product of technology and the Internet that may assist in providing the public with greater access to legal services, but lawyers must beware of ethical landmines by understanding the technology at play within the context of the legal ethics rules.

Attorneys Beware: Mailing a Subpoena that Warns of Noncompliance Sanctions May Constitute an Ethical Violation

May attorneys include language threatening sanctions for noncompliance when they send a subpoena duces tecum by mail? The Supreme Court of New Jersey’s Advisory Committee on Professional Ethics released an opinion this month clarifying that subpoenas sent by mail should not include language threatening sanctions for noncompliance, because the threats, at a minimum, are inaccurate and misleading.

The committee explains in the opinion that under the applicable rules of civil procedure, subpoenas must be served personally in order to create the personal jurisdiction required over the recipient for a court to deem that party in contempt for failure to comply with the subpoena.  In practice, many subpoenas are mailed when parties and witnesses reach an agreement to effect service by mail.  However, the committee was clear that this agreement does not provide the court with any contempt power over the recipient. Thus, the threat of sanctions is misleading cases because it misstates the immediate consequences for noncompliance.

The opinion provides that going forward, a New Jersey attorney who intentionally includes threatening language in these documents may be in violation of the local Rule of Professional Conduct 8.4(c), which governs conduct involving misrepresentation.

For more information, read the opinion here.

Taking Accountability Over Accounts: Familial Relationship Is No Excuse

The Supreme Court of Ohio recently released an opinion the sanctions to be imposed on two attorneys for their violations of several rules of professional conduct, including Professional Conduct Rules 1.5(a) (excessive fees), 1.15(a) (holding client funds in interest-bearing account with a clear fiduciary title), 1.15(a)(2) (maintenance of complete records of accounts with client funds), and 1.15(a)(5) (monthly reconciliations of accounts with client funds).

In this case, the attorneys—along with their client—were signatories on a special account set up by the firm as the client’s primary vehicle for managing her money. A third attorney, the father of the two signatory-attorneys, was primarily responsible for preparing accountings on the special account. The account did not bear interest, was not designated as a fiduciary account, and was not reconciled on a monthly basis. The attorneys also failed to maintain complete and accurate records on the account. The issue that received most of the court’s attention, however, was the charging of excessive legal fees. The client was essentially charged separate attorney fees, some of which were paid through the special account, for nonlegal services and was charged twice for several services. Additionally, unbeknownst to the two attorneys appearing in this case, some of the attorney fees were paid directly to their father.

The attorneys argued that their father was the “mastermind” behind the excessive fees and that they were “restrained from acting in the best interests of their client, at least in part, because of the familial relationship.” The Ohio Supreme Court declined to accept such a “family relations” excuse and declared that neither case law nor professional conduct rules offer an exception for situations where an attorney is complicit in a relative’s conduct. Ultimately, the court emphasized the responsibility that attorneys have to act in the best interests of their clients, even when that would require preventing the actions of relatives. The court concluded that because both attorneys had a fiduciary responsibility to oversee the special account and because their “collective silence…by their failure to oversee the special account was vital to their father’s success in overcharging,” both were ultimately responsible for the charging of excessive fees. The court therefore ordered both attorneys to pay restitution.

Representing the Child and her Guardian: Conflict of Interest?

On August 19, 2015, the New York State Bar Association issued a formal ethics opinion, which advises that an attorney who represents a child in Federal Immigration Court may also be competent to simultaneously represent the proposed guardian of the child in State Family Court proceedings. The opinion conducts a traditional conflicts of interest analysis to conclude that the representation is permissible as long as both parties provide informed written consent and the attorney reasonably believes he or she can competently and diligently represent both clients at the same time. While the opinion employs a traditional analysis, it also notes the unique issues that may arise when representing a minor in an immigration proceeding.

The opinion addresses conflicts of interest that may occur when a lawyer represents a child who is attempting to qualify for a deportation exception called the “Special Immigrant Juvenile Status” (SIJS). SIJS permits minors who have been abused, neglected, or abandoned by their parents in their country of origin and who are declared dependent on a juvenile court to obtain permanent legal status in the United States.

The procedure for obtaining SIJS in Federal Immigration Court proceedings includes the appointment of a guardian through Family Court. Although the proposed guardian and child often have a common goal, the child and guardian may have differing interests posing a potential conflict of interest for a lawyer representing both parties.  For example, the child may not want a guardian or may prefer another adult to be appointed as her guardian.

To obtain the child’s consent to the simultaneous representation, the lawyer must fully disclose the material risks and reasonably available alternatives. Then, the lawyer must believe that the child has the capacity to understand the conflict and make a reasoned decision to consent, and the consent must be voluntary. The opinion noted that there are opinions finding that a minor may not have capacity to consent and that there is no specific age at which a child may have such capacity; however, generally a verbal child who is twelve years or older will be capable to make a reasoned decision in this situation.

Click here to read the full text of the opinion.

If It’s Not “Real Time,” Is It Solicitation? Florida to Reconsider Rule on Prohibited Solicitation

In light of the Florida Bar’s recent decision to permit attorney advertising by texting, the Florida Bar Board of Governors will review amendments to Florida’s solicitation rule at its meeting on December 4, 2015.

The proposed amendments focus on the definition of “real time” contact to clarify that a lawyer may not solicit “in person.” The proposed amendment not only adds the “in person” language, but also further defines “solicit” to include: “by electronic means that include real-time communication face-to-face such as video telephone or video conference.” Thus, the language expands “in person” by prohibiting attorneys from contacting prospective clients through means such as Skype, Face Time, or Google Hangouts.

The proposed amendment  incorporates the recent  texting decision by removing both telegraph and facsimile from the language as well as the phrase, “includes any written form of communication, including any electronic mail communication, directed to a specific recipient . . . ,” from 4-7.18(a)’s definition for “solicitation.”

Some view the changes as a signal that the Florida Bar is attempting to adopt advertising amendments that embrace the digital age…

Read the proposed amendments to Rule 4-7.18(a) here.

Storing Client Data in the Cloud is Ethical, With Safeguards

On September 11, 2015, the Tennessee Supreme Court Board of Professional Responsibility confirmed in Formal Opinion 2015-F-159 that a lawyer may ethically allow client confidential information to be stored in “the cloud.” In doing so, the lawyer must take reasonable care to ensure that client materials remain safe and confidential.

“The cloud” is a remote location controlled by a third party that provides storage or other computing services. Rather than having information stored on a server or personal computer, access to cloud computing technology allows lawyers to transmit, process, and manage their client’s data from a remote location. One benefit of cloud computing technology is that the cloud service provider takes on the responsibility for new technology and software updates.

Because technology is constantly changing, lawyers must stay abreast of these changes and ensure that they continue to comply with the rules of professional conduct. It must be noted that this opinion does not mandate any specific practices that a lawyer must follow when using cloud computing technology. Rather, the opinion provides guidance to lawyers on how to exercise judgment when using cloud technology in order to remain compliant with the rules of professional conduct. For example, when using cloud computing technology a lawyer must abide by several Rules: Rule 1.1, which requires a lawyer to act competently; Rule 1.6, which requires a lawyer to take practical measures to protect the confidentiality and security of the client information stored in the cloud technology; and Rule 1.9, which states that a lawyer has a duty to former clients to not reveal any client information relating to the representation except as the Rules permit or require with respect to the client.

This recent opinion follows several other states that have provided commentary on cloud technology and what lawyers in those jurisdictions should consider. The opinion provides commentary on the subject by different states, including Florida, Kentucky, and Alaska.

Although cloud-based services are available for use by lawyers, reasonable care must be exercised when storing client information in the cloud to ensure that it is stored safely. If the client’s information is at risk, this cloud could rain on the lawyer’s head!

To read our other posts on cloud computing click here.

South Carolina: Linking Google AdWords to Opposing Party and Counsel Violates Legal Ethics Rules

A South Carolina attorney—who used Google AdWords to link his law firm’s advertisement to the names of an opposing party timeshare company and three attorneys associated with the timeshare company—was prosecuted by the South Carolina Bar for violations of South Carolina’s advertising rules and the Lawyer’s Oath contained in South Carolina Appellate Court Rule 402(k).

The attorney’s use of Google AdWords created a situation such that when an individual searched the Internet for the opposing counsel or the opposing party, there was a likelihood that the attorney’s law firm website would appear in the search results. The South Carolina Lawyer’s Oath pledges fairness, integrity, and civility in all written communications to opposing parties and their counsel.

The matter was settled when the attorney agreed to a public reprimand, the completion of a legal ethics course and payment of costs incurred in the investigation and prosecution of the matter. The South Carolina Supreme Court approved the settlement.

To read the public reprimand and opinion accepting the agreement, click here.

Federal Court: Florida Limitations on Advertising Specialization Are Unconstitutional

On September 30, 2015, a Florida federal court held that the Florida advertising rule that prohibits an attorney from truthfully stating that he or she specializes in a specific field of law is a violation of the First Amendment and therefore unconstitutional. The rules currently require that a lawyer may only claim a specialization or expertise when the lawyer has been certified under the Florida Certification Plan, or by an organization whose specialty certification program has been accredited by the American Bar Association or the Florida Bar; or the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan. The opinion explains that, “the state cannot prevent a person from advertising a lawful specialty, even if the state’s own definition of the specialty is different.”

The issue is one of several in the Searcy, Denny law firm’s suit against the Florida Bar. The claim partially derives from the fact that not every field of law has a board certification. Therefore, according to the Florida rule, an attorney who specializes in mass torts or unsafe products cases is not permitted to truthfully state that he specializes in these fields, because there is no board certification available.

Florida has some of the most detailed advertising rules in the country; however, the rule at issue is a common one.  It will be interesting to see whether other states amend their rules in accordance with the Florida opinion.

For more information on the recent decision, click here. To read the opinion click here.

Defining the Practice of Law: North Dakota Admonishes Minnesota Attorney for UPL

Does the title “staff attorney” define the practice of law? The Supreme Court of North Dakota believes so. In a recent opinion, the Supreme Court of North Dakota admonished a Minnesota attorney for, engaging in the unauthorized practice of law, in violation of N.D.R. Prof. Conduct 5.5(d) The attorney—who is barred in Minnesota—was working for a Minneapolis based law firm that also has an office located in Bismarck, North Dakota. The attorney relocated to North Dakota to function as a lobbyist and also to assist with the drafting of real estate title opinions.

In a press release, the law firm announced that they had hired five new staff attorneys and included the attorney among the five. Additionally, the attorney identified himself as a “staff attorney” when applying for admission to the North Dakota State Bar.

Relying on the 1998 Ohio case of In re Application of Stage, 692 N.E.2d 993 (Ohio 1998), the court highlighted the requirements for avoiding confusion regarding whether an individual is a licensed attorney in a state. The court held that individuals who are not admitted to that state’s bar may not use designations such as “General Counsel,” “Managing Counsel,” or “any other term implying [that] the individual is already admitted to the practice of law” unless the individual provides a disclaimer explaining that he or she is not licensed to practice law in that jurisdiction.

The respondent argued that the North Dakota Disciplinary Board failed to show that the out-of-state attorney actually practiced law while working at the firm because his activities of working as a lobbyist and assisting licensed attorneys with researching and drafting title opinions did not constitute the practice of law. However, the court rejected this argument, concluding that regardless of whether he actually performed work as an attorney Rule 5.5(d) makes it a violation to even represent to the public that the individual is admitted to practice law in the jurisdiction. Therefore, the violation occurred as a result of the firm’s press release, and by the attorney’s designation as a “staff attorney” in the state.

Thus, an attorney needs to make sure that his or her conduct does not constitute the practice of law in a state where he is not licensed. If an attorney is working in a state where he is not licensed, best practice for the firm and the attorney is to clearly disclose that the attorney is not a licensed attorney in that state. Such disclosures will serve to avoid allegations of the unauthorized practice of law.

For the full opinion click here.

Indiana Advisory Opinion on Reporting Child Abuse: Attorneys’ Obligations & Constraints

What happens when an Indiana lawyer learns, while representing a client, that a child is a victim of abuse or neglect? Must the lawyer make a report to the Indiana Department of Child Services or local law enforcement? The Indiana State Bar Association (“ISBA”) Legal Ethics Committee’s advisory conclusion is essentially, “it depends.”

In Formal Opinion 2 of 2015, the ISBA concluded that absent client consent, an attorney may not report information about suspected child abuse learned during a representation unless the lawyer believes it necessary “to prevent reasonably certain death or substantial bodily harm.” Notably, the ISBA cautioned that the Indiana Supreme Court is the final authority on both Indiana law and the professional conduct of Indiana lawyers.

Generally, under Indiana Rule of Professional Conduct 1.6(a), a lawyer may not “reveal information relating to representation
of a client . . . .” However, Indiana Code §§ 31-33-5-1 and 5 broadly require that any “individual who has reason to believe that a child is a victim of child abuse or neglect” to “immediately make an oral report to (1) the department [of Child Services] or (2) the local law enforcement agency.” Failure to report constitutes a Class B misdemeanor under Indiana Code §31-33-22-1(a). This broad statute does not exempt lawyers from the reporting requirement. As a result, there is a direct conflict between a lawyer’s ethical duty to keep silent and the apparent statutory duty to speak.

The committee expressed that constitutional, pragmatic and statutory reasons dictate that the lawyer’s duty of confidentiality is generally paramount over the general duty
to report. The committee reiterated that Indiana’s constitution gives the Indiana Supreme Court authority to regulate lawyers. This authority indicates that the Indiana Rules of Professional Conduct, which are promulgated by the court, “control over conflicting legislation.” After determining that Rule 1.6 generally trumps Indiana’s child abuse reporting statute, the committee concluded that, unless the client consents to disclosure, the rule forbids the attorney to report any abuse that does not come within the exception in Rule 1.6(b)(1) authorizing the disclosure of information necessary “to prevent reasonably certain death or substantial bodily harm.” Absent the client’s consent, mandatory reporting would undermine the “fundamental principle” that “the lawyer must not reveal information relating to the representation” because confidentiality is critical to encouraging clients “to seek legal assistance and to communicate fully and frankly” with lawyers.

Nevertheless, the committee held that lawyers must report information relating to child abuse or neglect if they believe it necessary “to prevent reasonably certain death or substantial bodily harm,” regardless of the client’s wishes. However, a lawyer may not report information of lesser harm without the client’s consent.

Although ISBA noted that Formal Opinion 2 of 2015 is advisory in nature and does not have the force of law, it is important for lawyers to obtain as much information as possible prior to disclosing information regarding possible child abuse. If the attorney does not have information that would lead him or her to be reasonably certain that death or substantial bodily harm was going to occur, the attorney could be potentially violating the rules of confidentiality.

Click here to access the full opinion.

Discriminatory Organizations: To Participate or Not To Participate?

In Opinion No. 1 of 2015, the Indiana State Bar Association Legal Ethics Committee addressed the extent to which Indiana Rule of Professional Conduct 8.4(g) limits a lawyer’s participation as a leader of a nonprofit organization that discriminates through membership requirements (e.g. on the basis of religion, gender, race, etc.). That rule prohibits lawyers from “engag[ing] in conduct, in a professional capacity, manifesting…prejudice” based upon certain types of characteristics. Several other states, including Florida, have an anti-discrimination clause in their professional conduct rules guiding attorneys.

The main hurdle with which the Committee struggled was the lack of guidance from the Indiana Supreme Court on the definition of “professional capacity.” The Committee first reviewed the six Indiana cases that have applied Rule 8.4(g) and then reviewed a number of cases in which lawyers were disciplined for conduct that was unrelated to the representation of a client. It found that although the rule encompasses conduct in the course of representing a client, the rule’s reach goes well beyond that.

Having established that the bounds of Rule 8.4(g) extend beyond actions taken in a representative capacity, the Committee next turned to the question of how far those boundaries go. After an analysis of both the New Jersey Supreme Court’s interpretation of its own version of Rule 8.4(g) and Indiana’s Model Code of Judicial Conduct, the Committee decided that the rule is meant to catch only such conduct where the lawyer’s status as a lawyer is a relevant part of his or her role and where the conduct was intended or likely to discriminate. Further, even in such cases, the attorney may still be protected from the rule’s application, depending on the nature of the organization. That is because, in some types of organizations, the constitutional freedom of association may apply. The Committee noted that typically, smaller, more intimate organizations have been afforded greater protections of associations, whereas organizations whose goals involve other recognized freedoms have been afforded such protections only in more stringent circumstances.

In short, the Committee concluded the following: (1) mere legal representation of such organizations—without making discriminatory comments—is not a violation of the rule; (2) participation in a personal capacity is not a violation of the rule; and (3) participation where status as a lawyer is connected to the participation and where the lawyer intends to personally participate in activities that advance discriminatory policies may be a violation of the rule, depending on the nature of the organization and the lawyer’s role in it.

Ohio Attorney Suspended for Lack of Cooperation

An attorney in Ohio whose license has been suspended since 2013 was reminded just how important it is to cooperate with disciplinary authorities while facing his third disciplinary hearing in three years.  Despite being cleared by the Ohio Supreme Court on the underlying charges, which involved the Board of Professional Conduct’s finding of the mishandling of a criminal case and related fraudulent statements to the court, the attorney nonetheless was sanctioned for his failure to cooperate.

The attorney’s failure to cooperate with the Board’s investigation was evidenced by the attorney’s failure to promptly respond to three letters of inquiry. He replied to the first letter several weeks after the stipulated reply date, and did not reply to the subsequent letters. The attorney defended his failure to reply to the subsequent letters by claiming that the questions in the subsequent letters were not relevant to the rule cited in the first letter. He also argued that he was given insufficient time to respond. The Court rejected the arguments after the attorney admitted he was aware of his duty to cooperate with the Board.

The attorney received a six-month suspension and was taxed with costs.

Read the Supreme Court of Ohio’s Slip Opinion here, and the Board’s Overview here.

Attorneys May Use Crowd Funding To Finance Firm Expenses

“Go-fund-me” and other crowd funding resources have been steadily increasing in popularity as a means to fund a variety of activities from serious business ventures to Cancun vacations. Typically crowd funding is used in product development as a means to test the market. It therefore requires a large group of people raising large funds for that purpose.

Because of the great success many projects have had in using crowd funding as a source for their operations, recent law school graduates have inquired about the feasibility of using this tool to start their own firm.

Most recent law school graduates desiring to start their own practice are facing a mountain of student loan debt. As a result, these graduates are reluctant to take out additional loans to finance their first months of operation.

Crowd funding is marketed as a creative solution to avoid creating additional debt, but attorneys old and young must keep in mind the potential ethical limitations. According to the New York State Bar Association in their June 29th opinion, two methods of crowd funding create clear ethical violations under Rule 5.4: the royalty and equity models. Consequently, there are only two crowd sourcing models from which an attorney can benefit.

The donation model appears to be the most promising. In this case an individual can essentially give money towards a venture with the clear understanding that their donation in no way entitles them to an interest in the business. There are no ethical limitations relating to this model, so long as attorneys make it clear to donors that they receive nothing in return for their donations. There are valid questions relating to how effective a tool this might be in garnering funds, but at the very least a lawyer does not have to worry about violating any codes of conduct.

The reward model is the second available option. In exchange for his donation, a donor would receive informational pamphlets that report the progress of the firm or the lawyers’ performance of pro bono work for a third-party non-profit legal organization. Attorneys who opt to use this model have to ensure that materials are only distributed for educational purposes (i.e. newsletters, blogs, or client alerts) so as not to trigger advertising sanctions under Rule 7.1.

Also, an attorney must avoid offering legal advice in distributed materials to avoid potential malpractice exposure. As it relates to the promise of performing pro-bono hours for a third party organization, an attorney must condition his agreement on being competent in the subject matter and not subject to a conflict of interest.

As a whole, crowd funding is not a perfect tool with which to establish a new private practice. Attorneys must ensure that investors do not receive a share in the law firm’s revenue or an interest in the firm. Nevertheless, for young attorneys, crowd funding can be considered at best as a colorful option to circumvent additional loans as they embark on their exciting careers. With that said, “Go fund me!”

To read full opinion click here.

Do Consultation Fees Create An Attorney Client Relationship?

On August 25, 2015 the North Dakota Supreme Court decided that a consultation fee alone does not form an attorney-client relationship; it is merely a factor that may indicate its creation. Alone, the fee creates only a potential client relationship with an attorney. Without this distinction, the attorney in Kuntz v. Disciplinary Board of the Supreme Court of North Dakota would have been in violation of North Dakota Rules of Professional Conduct Rule 1.7 (Conflict of Interest) and Rule 1.9 (Duties to Former Client).

This case arose from a client, the father in a child custody matter, claiming his attorney violated her ethical duties. The client retained the attorney and later learned that approximately one year prior to commencing representation, the attorney had consulted with the child’s maternal grandfather, who had paid the attorney a $100 fee for the consultation. There was no further contact between the maternal grandfather and the attorney. The client felt there was a conflict of interest as the attorney had previously met with a family member of the opposing party for a consultation with respect to custody arrangements for the same child.

The attorney advised the court that she always charges a $100 fee for initial consultations, and in each meeting she makes clear to the potential clients that the consultation does not form an attorney-client relationship. Her notes from the meeting with the grandfather showed no exchange of legal advice or collection of confidential information, supporting the attorney’s assertion that she met her responsibilities under North Dakota Rules of Professional Conduct Rule 1.18 (Duties to Potential Client).

After reviewing the case de novo on the record and noting that violations must be established by clear and convincing evidence, the North Dakota Supreme Court found only a potential client relationship between the attorney and the grandfather despite the fee. As a result, Kuntz had not violated any conflict of interest rules. The court held that the “existence of a lawyer-client relationship depends on the particular circumstances of the case, including the conduct of the parties, the circumstances of the consultation, the nature of information exchanged, and any agreements between the parties.”

To read the full opinion, click here.

Taking a Menopause Jab at Opposing Counsel: A Definite “Don’t”

A U.S. District Court judge was unamused by a jab an attorney made at opposing counsel during litigation this past March. After a female attorney complained about the temperature in a room where 16 attorneys were participating in a deposition, a male attorney remarked aloud, “You’re not getting menopause, I hope.” After a motion for sanctions was filed against the attorney who made the offensive remark, the judge expressed his negative view of the offending attorney’s conduct.

The judge called the attorney‘s comment “discriminatory in nature.”

“Because menopause occurs only in women, and predominantly in middle-aged women…a comment suggesting that a woman may be menopausal singles her out on the basis of gender and age.”

The judge ruled that the attorney’s statement was a violation of ABA Model Rule 4.4 (Respect for Rights of Third Persons). “The public nature of [the male attorney’s] comment combined with the personal and private nature of menopause leads the Court to conclude that the comment was made to embarrass [the female attorney] and was not intended to serve any other purpose.”

Attempts to ridicule opposing counsel are unfortunately nothing new in the legal profession. Citing a 2015 ABA report, the judge noted that “inappropriate or stereotypical comments” made by opposing counsel are one cause for the under-representation of women in lead trial attorney roles.

Accordingly, the court decided that the violating attorney was to pay his opposing counsel’s reasonable attorneys’ fees of $1,000 for bringing the motion and complete a continuing legal education course on professional conduct.

For more information click here. To read the full opinion click here.

Emerging Technologies & EDiscovery: Redefining the Competent Lawyer

Future Law Office 2020, a report issued by Robert Half, contains a survey in which 350 attorneys were asked which issue would have the biggest impact on the practice of law in the next five years. Emerging technologies was the issue that garnered the most votes. Furthermore, 44 percent of the respondents identified eDiscovery as the main issue driving legal departments to work more closely with IT specialists.

Is your law firm up to speed on technology and eDiscovery? Emerging technologies are not only a trend, but also are becoming a matter of competence. In fact, recent sanctions imposed on the Defendants and their attorneys in a case in the U.S. District Court for the Southern District of California reminds us of the legal implications of poor handling of eDiscovery. HM Elecs., Inc. v. R.F. Techs., Inc., 2015 BL 254876, No. 3:12-cv-02884-BAS-MDD (S.D. Cal. Aug. 7, 2015).

In HM Elecs. Inc, the Plaintiff—a manufacturer of drive-thru headset systems—brought forth various claims against the Defendant—a repairmen of drive-thru headset systems—for trademark infringement and unfair competition and interference by the Defendant. During the course of the case, several discovery disputes arose, most notably related to the failure to properly and timely produce documents as required. The Plaintiff filed a joint motion alleging that Defendant intentionally withheld and destroyed highly relevant electronically stored documents (“ESI”), among other allegations.

The Court granted the Plaintiff’s request for reasonable attorneys’ fees and costs incurred as a result of Defendants’ eDiscovery misconduct pursuant to Rules 26(g)(3) and 37, and for not paying close enough attention to the misconduct of its clients. The court sanctioned discovery practices by the Defendant such as (1) signing certifications of discovery stating that certain documents didn’t exist, even though they did; (2) attorneys did not property craft and implement a litigation hold; (3) emails were sent to employees instructing them to destroy relevant documents; (4) massive amounts of data withheld by the used of limited search terms; and (5) failure to produce more than 375,000 pages of electronically stored information (“ESI”) until after close of discovery due to vendor error.

Thus, failure to be proactive in acquiring competence in emerging technologies and specifically in eDiscovery may result in a costly lesson that not only takes a financial toll on a lawyer and his client, but also may tarnish the reputation and career of the lawyer.  In other words, being a technophobe is becoming risky business for lawyers practicing law in the digital age.

To read the survey, click here.

To read the opinion, click here.


To Err is Human: When Must a Lawyer Disclose an Error to a Client?

On July 17, 2015, the North Carolina State Bar Ethics Committee (“Committee”) issued a 2015 Formal Ethics Opinion 4, discussing when it is appropriate for an attorney to disclose potential malpractice to a client.

The opinion begins with an explanation of the distinction between professional malpractice and professional misconduct, the former being a lawyer’s error under the applicable standard of care, which could subject the lawyer to civil liability. The North Carolina Committee acknowledges that even a generally competent lawyer may make a mistake and then proceeds to analyze the responsibilities that ensue.

Relying on analysis from a Colorado Ethics Opinion and a New York State Ethics Opinion, the North Carolina Committee advises that the decision to disclose an error to a client is governed by an attorney’s duty of communication pursuant to Rule 1.4. The obligation of disclosure of an error depends upon where it falls on the spectrum of possible errors as well as the circumstances under which the error is discovered. With respect to the spectrum, errors range from those that are material and clearly prejudice the client’s interests, which should always be reported, to those that are easily corrected or negligible and do not need to be revealed to the client.

A mistake that falls within the grey area of the spectrum must be examined in terms of the attorney’s duty to keep the client reasonably informed about his legal matter. For example, if the error will result in financial loss to the client, substantial delay in achieving the client’s goals, or a significant disadvantage to the client’s legal position, the error must be disclosed. When in doubt about the duty to disclose, the Committee advises that it is best that an attorney err on the side of disclosure.

After making the decision to disclose, an attorney may retain representation of the client unless there is a Rule 1.7 conflict of interest issue. When disclosing the error to a client, the lawyer must candidly explain the important facts surrounding the error, including the circumstances under which it occurred and its effect on the lawyer’s continued representation of the client. The lawyer must not advise the client about a potential malpractice claim, but the lawyer can recommend that the client seek independent legal advice.

Judges on Facebook: Exercising First Amendment Rights or Violating the Judicial Canons?

There is no doubt that since the inception of Facebook in 2004, various other social media networks have sprung up allowing people to share and exchange information instantly. As of the second quarter of 2015, Facebook had nearly 1.49 billion monthly active users.[1] Originally a social networking website geared towards college students, Facebook has grown to market its services to people of all ages, backgrounds, and professional occupations. As social media continues to become a part of people’s everyday lives, many have predicted that this is a long-term trend that will be continuously refined so that people turn to interacting and behaving online as they do in their everyday lives. But with this dependency on online social networking comes potential consequences that can affect many groups of people, including the legal profession.

The American Bar Association reported in its most recent Legal Technology Survey that about 62% of law firms maintain social networks. This can include, for example, LinkedIn, Facebook, Twitter and Instagram. In fact, 78% of individual lawyers maintain one or more social networks, and spend on average 1.7 hours per week using these sites for professional purposes.[2]

But what about in the courtroom? Is it ethical for a judge to use social media to comment and express his or her opinion on a case unfolding in the judge’s courtroom? Unfortunately for one District Court judge in Texas, Facebook updates about a trial over which she was presiding resulted in a reprimand by the State Commission on Judicial Conduct.

This story began during the criminal jury trial of State v. David M. Wieseckel, which was held in Judge Michelle Slaughter’s court. The defendant, Wieseckel, was charged with unlawful restraint of a child for allegedly keeping a 9-year-old boy in a wooden enclosure.

Judge Slaughter’s social media saga began a few days before the commencement of the trial when she posted on her Facebook page: “We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning”. However, it wasn’t until after the first day of testimony when Judge Slaughter posted several comments on her Facebook page that ethical issues allegedly emerged.

The following are the Facebook comments that led defense counsel to file a motion to recuse Judge Slaughter from the case:

“Opening statements this morning at 9:20 am in the trial called by the press ‘the boy in the box’ case.”

“After we finished Day 1 of the case called the “Boy in the Box” case, trustees from the jail came in and assembled the actual 6”x 8’ box inside the courtroom!”

“This is the case currently in the 405th!” [This post included a link to a Reuters article entitled “Texas father on trial for putting son in a box as punishment”].

The issue raised about these comments was that the box to which she referred had not yet been admitted into evidence at the trial.

As a result of these comments, defense counsel filed motions to recuse Judge Slaughter from the case and for a mistrial and she was removed from the Wieseckel case. The case was transferred to another court and the judge in that court granted the defendant’s motion for mistrial. Judge Slaughter’s behavior was criticized on social media despite her argument that she made her comments with the intention of promoting transparency and to encourage individuals to come watch the proceedings.

The State Commission on Judicial Conduct (Commission) did not share the Judge’s perspective. After considering the relevant standards of judicial conduct, including Canon 3B(10) of the Texas Code of Judicial Conduct and Canon 4A, the Commission concluded that Judge Slaughter’s comments “went beyond providing an explanation of the procedures of the court” and instead “highlighted evidence that had yet to be introduced at trial”. Further, the Commission stated that “Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the case”.

On April 20, 2015, the Commission issued a Public Admonition and Order of Additional Education to Judge Slaughter requiring her to obtain four hours of instruction, with a mentor and in addition to her required judicial education, on the proper and ethical use of social media by judges.

Judge Slaughter appealed the sanction to a special court of review based upon First Amendment claims. On July 20, 2015, Justice Charles Kreger of the 9th Court of Appeals, Justice Gina Benavides of the 13th Court of Appeals, and Justice John Bailey of the 11th Court of Appeals heard arguments and evidence in the trial de novo. The crux of Judge Slaughter’s argument is that this particular proceeding is going to chill the exercise of the right to free speech as the matters that occur within the courtroom are of public concern. The Court of Appeals has not yet issued its decision.-This case is a prime example of the tension between the First Amendment and the judicial canons that may arise when the judiciary engage in social media however well-intentioned.


[2] American Bar Association, 2014 Legal Technology Survey Report, available at