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.

The American Bar Association (ABA) Offers Access to “Cybersecurity” Insurance

This addition comes after the increasing number of firms that have fallen victim to hackers. The purchase and retention of cybersecurity insurance would assist lawyers in following 2012 changes to Model Rule 1.1 Competence found in the Rule’s comments.

The ABA amended comment 8 to Model Rule 1.1 to state, “lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology (emphasis added).”

Since 2012, approximately 38 states have made similar changes to their rules. Nonetheless, even without an official rule change, there is a growing national consensus that lawyers must understand benefits and risks associated with technology in order to remain competent.

The new cybersecurity insurance offered by the ABA covers expenses needed to deal with network extortion, income loss, and forensics associated with cyber breach; liability protection if a third party is affected; defense costs; and expenses for fines and/or penalties. The ABA also announced that firms can add services to prevent network incidents and mitigate damage via identifying risks and providing fraud consultation, credit monitoring, and identity restoration services.

Read the full article, click here.

Trusting Your Colleagues with Fees: ABA Opines on Lawyers Splitting Fees

The ABA Standing Committee of Ethics and Professional Responsibility recently opined that when one lawyer receives a fee that is to be shared with a lawyer (or lawyers) at another firm (or firms), the fee for the other lawyer(s) should be placed in trust in accordance with Model Rule 1.15.

Rule 1.5(e) allows a division of fees among lawyers in different law firms if the division fairly represents the services provided by each lawyer, the client agrees to the agreement, the agreement is confirmed in writing, and the total fee is reasonable. When multiple lawyers have entered into a Rule 1.5 agreement, the lawyers who do not receive the initial payment are considered to be a “third persons” under Rule 1.15.

Rule 1.15(a) states that a lawyer “shall hold property of . . . third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.”

Thus, the receiving lawyer must deposit the funds that belong to the other participating lawyer(s) into a trust account. The receiving lawyer must also inform the other lawyer(s) of the receipt of the funds, and promptly deliver to the other lawyer(s) their portion of the fee.

To read the full ABA 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.

Alaska Bar Association: Use of “Web Bugs” is Unethical

Alaska Bar Association recently advised that the use “web bugs” to track e-mail communications with opposing counsel violates The Alaska Code of Professional Conduct. Opinion 2016-1, describes “web bugs” as Internet surveillance tools that may inform e-mail senders of the following information:

  • whether and when the e-mail and/or attachments were opened;
  • how long recipients reviewed the e-mail and/or attachments;
  • how many times the e-mail and/or attachments were opened;
  • whether and when the e-mail and/or attachments were forwarded; and
  • the rough geographical location of the recipient.

The Opinion explains that web bugs may allow the sending lawyer to determine the undisclosed location of the opposing party or to gain insight into which sections of a settlement draft are most important to the opposing side based upon how much time is spent on various pages of a document.

Concurring with New York State Bar Association’s Opinion, the Alaska Opinion concludes that “web bugs” “impermissibly and unethically interfere with the lawyer-client relationship and the preservation of confidences and secrets,” required by Rule 1.6- Confidentiality. Thus, the Opinion advises that the use of web bugs is unethical, dishonest, and a violation of Alaska Rules of Professional Conduct Misconduct Rules 8.4(a) and 8.4 (c). Moreover, the opinion states that “even the disclosed use of a tracking device when communicating with opposing counsel” is impermissible.

To read the full opinion, click here.