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

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

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

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

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

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

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

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

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

To read the full opinion, click here.

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

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

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

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

To read the Ohio Supreme Court advisory opinion, click here

To read the Ohio Supreme Court proposed amendment, click here

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

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

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

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

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

Representing the Child and her Guardian: Conflict of Interest?

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

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

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

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

Click here to read the full text of the opinion.