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

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

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

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

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

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

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

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

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

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

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

To read the full opinion, click here.

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

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

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

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

Find the full opinion here.

Nebraska Lawyers Get the Green Light to Accept Bitcoin

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

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

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

Read the full opinion here.

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

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

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

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

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

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

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