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.
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.
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 refuse to represent someone who wishes to sue a church of your religion violates 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 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.
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.
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):
- Reviewing industry standards and appropriate safeguards;
- Investigating whether the provider has implemented reasonable security precautions;
- Investigating the provider’s reputation and history;
- Inquiring as to whether the provider has experienced any breaches of security;
- Requiring an agreement;
- Requiring that all data is appropriately backed up;
- 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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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, http://www.jimadler.com/lawyers/jim-adler.
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.
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 “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.
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.
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.
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.
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.
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.
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.
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  and  of the rule.
Comment  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  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.
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.
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.
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:
- It is communication made by or on behalf of the lawyer;
- The primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain;
- The LinkedIn content relates to the legal services offered by the lawyer;
- The LinkedIn content is intended to be viewed by potential new clients; and
- 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
“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.
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.
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.
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.
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.
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. 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.
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.
 American Bar Association, 2014 Legal Technology Survey Report, available at http://www.americanbar.org/groups/departments_offices/legal_technology_resources/publications.html