Bar Admission Rule Challenge Joins String of Defeats

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

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

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

Read the entire decision and its implications here.

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

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

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

For the full opinion, click here.

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.

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

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

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

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

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

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

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

For the full opinion, click here.