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.

Privileged PR? Not This Time, Says California Court

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.

Public Defenders and Part-time Judges: Duties under the Misconduct Rule

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.

Zealous Advocacy Gone Too Far: Louisiana Attorney is Disbarred for Repeated “Shocking Disregard” of Obligations

In a recent per curium opinion, the Louisiana Supreme Court found an attorney to have permanently forfeited his ability to practice law in the state due to “a panoply of serious professional violations.” The Court stated, among other things, that the attorney “filed unsupported and duplicative pleadings, using offensive and abusive language, and has made baseless challenges to the authority, competency, and integrity of the federal court.”

This opinion finalizes a saga of repeated challenges stemming from a federal class action suit brought by the lawyer on behalf of victims of Hurricane Katrina. The lawyer’s behavior was a byproduct of his displeasure of a change in the court’s administration of Hurricane Katrina cases, and its assignment of a committee to coordinate the proceedings. With the record being “replete with [the attorney]’s vile and racially-derogatory communications made to members of the judiciary and bar,” the Louisiana Supreme Court found the attorney to lack the “moral fitness to practice law” in the state.

As a result, the Court adopted the state’s disciplinary board’s recommendation to permanently disbar the lawyer. This melee between the lawyer and the courts is an illustration of when zealous advocacy goes awry, fostering a complete disregard of the cornerstones of professionalism.

To read the full opinion, click here.

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.