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.
The American Bar Association released Formal Opinion 476, which addresses whether a lawyer can withdraw from a civil case because a client failed to pay the lawyer’s fees, without jeopardizing the duty of confidentiality and balancing this with information that the Court would need to consider granting a lawyer’s motion to withdraw. Withdrawal from a case in any instance invokes ABA Model Rule 1.6—Confidentiality of Information—however, lawyers may choose to withdraw from a case under Rule 1.16(b): Declining or Terminating Representation.
Failure to pay a lawyer’s fees is one reason a lawyer may withdraw from a civil litigation matter under 1.16(b)(5). A lawyer cannot go too in-depth and disclose confidential client information in motions for withdrawal, but previous opinions and Comment 16 to Rule 1.6 permit a lawyer to advise the court that “professional considerations” require withdrawing from the case.
Trial court judges also have to be aware of this balancing act between confidentiality and withdrawal because of unpaid fees. Judges have wide discretion in ruling on such motions. Along with considering the lawyer’s reasons, judges must consider the Court’s calendar and how the withdrawal will impact the parties to the case. Withdrawal motions are less problematic in earlier stages of litigation when these factors (along with the reasons the lawyer provides) are considered; when the case is further along and the trial is approaching, it falls more to the judge’s discretion.
In order to avoid breaching confidentiality when withdrawing over unpaid fees, a lawyer could vaguely reference “professional considerations” with no client information and persuade the court that more is not necessary. Or, if needed the lawyer may submit information deemed reasonably necessary by the court to minimize disclosure if it is appropriate. Lawyers and judges must cooperate in order to protect client confidentiality in motions for withdrawal.
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.
In the first decision of its kind in the state, a California appellate court may have opened the door to extending attorney-client privilege to a litigant’s public relations team.
On March 15, in Behunin v. Superior Court Los Angeles County, a three-judge panel took the position that a public relations firm hired to advise on strategy or to influence media coverage of a litigant could be protected under attorney-client privilege, in the same manner as a third-party expert or other litigation consultants. The court emphasized, however, that extending the privilege is contingent upon the litigant’s ability to prove that the information shared with the public relations firm was “reasonably necessary” from a legal standpoint.
In the case, the court held that a businessman involved in litigation with Charles R. Schwab over the fallout of an unsuccessful real estate venture could not use attorney-client privilege to protect the information shared between his attorney and a public relations firm hired to create a website in support of his case. Significantly, the panel reasoned that “without some explanation of how the communications assisted the attorney in developing a plan for resolving the litigation, [the Plaintiff] would not be able to show such communications were reasonably necessary to accomplish [the Public Relations firm’s] purpose in representing Behunin.”
Read the full opinion here.
Recently, the New York State Bar Association (N.Y.S.B.A.) Committee on Professional Ethics held that a public defender may not represent a client in the court where another public defender is a part-time judge because to do so would violate the public defender’s duties under Rule 8.4(f)—Misconduct.
Rule 8.4(f) prohibits a lawyer from causing a judge to violate his or her own ethical obligations under the Rules of Judicial Conduct not to “permit his or her partners or associates to practice law in the court in which he or she is a judge.”
In the inquiry before the N.Y.S.B.A., the attorney was a member of a public defender office and lived in an area where City Court judges serve on a part-time basis. These part-time judges are also permitted to practice law. Another member of the public defender office was a part-time judge in the City Court.
In reaching its opinion, the Committee reasoned that if the associated part-time City Court judge does not take steps to prevent other lawyers who are part of the same public defender’s office from practicing before the City Court, then the other public defenders—on their own initiative—must decline to make appearances or withdraw altogether.
To read the entire opinion, click here.