Florida Amends Bar Rules to Make Pro Bono Work More Accessible for Lawyers

On November 20, 2017, the Florida Supreme Court amended Florida Rule 4-1.2 and adopted Rule 4-6.6 to make it easier for lawyers to volunteer their services to legal aid organizations and pro bono clients.

In its order, the Florida Supreme Court noted that it is not always feasible for a lawyer providing short-term limited legal services through an organization to “systematically screen for conflicts of interest as is generally required before undertaking a representation.” Newly adopted Rule 4-6.6 directly addresses that issue, and states that a lawyer who provides short-term limited legal services to a client “under the auspices of a program sponsored by a nonprofit organization, court, government agency, bar association or an American Bar Association-accredited law school” will not be held to the standard conflicts of interest rules, barring two exceptions.

Specifically, the new rule states that a lawyer providing “short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: (1) is subject to Rules 4-1.7 and 4-1.9 (a) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 4-1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 4-1.7 or Rule 4-1.9(a) with respect to the matter.”

Among the amendments to Rule 4-1.2 are additions to the language of the rule that the Supreme Court wrote will “[exempt] a lawyer who gives advice in a short-term limited legal services program under new Bar Rule 4-6.6 from the requirement that a client’s informed consent to representation limited in objectives or scope must be in writing.” The Court also wrote that the new rules are intended to encourage lawyers to volunteer their services; thereby increasing access to justice “at a time when legal aid funding and staff cannot accommodate all individuals who need legal representation.”

The Florida Supreme Court’s order on the changes went into effect on November 20, 2017. Read the full order here.

D.C. Court of Appeals Out-of-State Lawyers Prohibition Challenged

On September 15, the National Association for the Advancement of Multijurisdictional Practice (NAAMJP) filed a writ of certiorari petition appealing a D.C. Circuit Court of Appeals decision affirming local rules that bar out-of-state attorneys from practicing before Washington, D.C.’s federal court if they are not admitted to the bar where their law firm is based. NAAMJP argues that these rules are discriminatory and “deliberately sidestep the rule of law and binding precedent.”

The petition argues that D.C.’s licensing scheme (which allows D.C. licensed attorneys to have a principal office anywhere, but requires attorneys licensed elsewhere to be admitted in the state where they maintain their principal office) amounts to illegal discrimination against out-of-state attorneys. According to the petition, similar local rules exist in 60 percent of federal district courts.

An amicus brief filed with the court points to a 1987 Supreme Court decision, Frazier v. Heebe, in which the Supreme Court held that a New Orleans federal district court bar admission rule was invalid because it “arbitrarily” discriminated against out-of-state attorneys. The brief reasons that the bar admission rules of the D.C. district court arbitrarily discriminate against lawyers from other jurisdictions by requiring them, but not D.C. lawyers, to have a law office in a state where they are admitted to practice.

To read the petition for writ of certiorari, click here.

For an article on the matter, click 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.

To Shred, or Not to Shred: That is the Question – Nebraska Permits Attorneys to Shred Physical Files

The Nebraska Supreme Court’s ethics committee has released an advisory opinion permitting attorneys to destroy physical copies of a client’s closed file so long as it is preserved in electronic form. However, the opinion advises that before a physical file may be digitized and subsequently destroyed, attorneys should consider:

  • the availability and cost of physical and electronic storage space,
  • ease of access to documents,
  • the potential need for original documents in future litigation,
  • preservation of client confidentiality, and
  • any other considerations that are pertinent to the contents of that file.

The advisory opinion was issued in response to a legal services organization’s question regarding whether digitally storing scanned images in lieu of physical storage would satisfy the Nebraska Rules of Professional Conduct, which require attorneys to preserve client files for a period of five years after termination of representation. However, the rules do not indicate whether lawyers are required to preserve those files in physical form. With the release of this opinion, the ethics committee has clarified that with the new advances in technology, it is no longer reasonable OR practical to keep physical or paper copies of every client’s files and thus allowed for the digitizing of files.

Find the full opinion here.

All Hands on Deck – Texas Welcomes Out of State Attorneys In Harvey Aftermath

Last week the Texas Supreme Court issued an order that permits licensed attorneys from other states to provide legal services to the victims of Hurricane Harvey through legal aid or pro bono programs. The order was one of a series of emergency orders aimed at alleviating the legal chaos sure to be left in the wake of the storm.

Though customarily, attorneys may only practice law in states where they are officially licensed, the Texas Supreme Court, empowered by Texas Statute 81.061, is permitting out-of-state attorneys to practice law in Texas for the next six months. The order requires that out-of-state attorneys register with the State Bar of Texas and agree to abide by the Texas Disciplinary Rules of Professional Conduct.

The order also allows attorneys displaced by Hurricane Harvey to practice in Texas remotely as if they were located in their home jurisdiction.

To read the emergency order issued by the Supreme Court of Texas click here.