Client Due Diligence is described in the August 2010, ABA adoption of the Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing, which defines Client Due Diligence as (1) identifying and verifying the identity of each client; (2) identifying and verifying the identity of anyone ultimately controlling the client; and (3) obtaining enough information to understand a client’s circumstances, business, and objectives.

The opinion acknowledges that the importance of risk-based controls may differ depending upon the identity of a client and the nature of the representation.  However, the opinion suggests that the best practices goal is for lawyers to develop an increased awareness and an intake and monitoring process for dealing with high-risk situations.  The opinion concludes that,

“When in a lawyer’s professional judgment aspects of the contemplated representation raise suspicions about its propriety, that lawyer’s familiarity with risk-based measures and controls will assist in avoiding unwitting assistance to unlawful activities. Indeed, the usefulness of the Good Practices Guidance is an example of the declaration in the Model Rules that “[t]he Rules do not … exhaust the moral and ethical considerations that should inform a lawyer….”

In the Texas case, William Scott Youkers was sentenced to eight years in prison for assaulting his girlfriend. Youkers filed a motion for a new trial based in part upon the trial judge’s Facebook friendship with his girlfriend’s father and a communication on the social media site between the two men. The girlfriend’s father had sent a message to the judge asking the judge to be lenient in sentencing Youkers. The judge responded to the message by explaining that it was an impermissible ex parte communication and that he would not engage in such a discussion with the father. The judge informed the parties and filed a copy of the Facebook exchange in the court file. Youkers’ motion for a new trial,based partially upon this evidence, was denied by the trial court. Youkers appealed the denial of a new trial.

The appeals court affirmed the denial of a new trial and ruled that the friendship was permissible in this case because the judge and father had no special relationship in real life and the judge refused to respond to the father’s communication, choosing instead to file the communication in the court file and inform the parties.  The court cited the recent ABA Opinion 462 concerning judges on Facebook (see our prior post about the opinion here) and Judge Gena Slaughter and John G Browning’s article, Social Networking Do’s and Don’ts for Lawyers, in support of the proposition that judges should not be entirely prohibited from using social media sites. However, the court was quick to point out that judges should always remember their duty to remain unbiased and impartial.

Fast forward to 2013…Michael Morton has been released as a result of DNA litigation and a Public Information Act request that revealed that the prosecution withheld exculpatory evidence during the original trial.

Ken Anderson, now a state court judge, has been arrested after being served with a warrant, which was issued because a Court of Inquiry, convened by the Texas Supreme Court at the request of the Morton’s attorneys, found sufficient evidence to require Anderson to answer for the alleged criminal conduct that resulted in the wrongful conviction and imprisonment of Michael Morton for 25 years.

In issuing a warrant for Judge Anderson’s arrest, Texas Judge Louis Sturns opined, “This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence.”

To read more, click here and here.

The opinion distinguishes texting from impermissible, potentially coercive real time communication and analogizes texting to sending an email solicitation. The opinion also notes that a text message should not create any cost to the recipient, should not be sent to a minor and must be in compliance not only with attorney advertising rules, but also with applicable state and federal communication regulations.

Some of the disclaimer language required by the attorney advertising rules in Ohio is quite long for a text message, such as the language, which must be sent if someone has recently be injured in an accident. It is important to note that, unlike other states that require a thirty day waiting period before contacting an accident victim, Ohio permits contact with a victim within thirty days; however, the following “Understanding Your Rights” statement must be included regardless of whether the contact is via text message: THE SUPREME COURT OF OHIO, WHICH GOVERNS THE CONDUCT OF LAWYERS IN THE STATE OF OHIO, NEITHER PROMOTES NOR PROHIBITS THE DIRECT SOLICITATION OF PERSONAL INJURY VICTIMS. THE COURT DOES REQUIRE THAT, IF SUCH A SOLICITATION IS MADE, IT MUST INCLUDE THE ABOVE DISCLOSURE.

Whether sending all of the additional disclosure language in a text message defeats the goal of a streamlined texting advertising campaign remains to be seen, but clearly technology has provided yet another vehicle to drive in the controversial world of attorney advertising.

Click here to read the full opinion.

South Dakota recognizes a problem that other states may also face with an overwhelming proportion of their attorney population residing in urban areas while a significant portion of the population reside in rural areas. Only two percent of lawyers nationwide practice in rural areas while close to 20 percent of the population resides in such areas. Access to legal services in rural areas is an issue that lawmakers continue to confront. While it remains to be seen whether South Dakota’s approach will be successful or adopted in other states, it is clear that at least one state is taking note of the shortage of lawyers in rural communities.

Click here to read more about the need for legal relocation.

Westlaw’s Terms and Conditions highlight the consequences of using the service for commercial purposes and inform the student of the company’s right to collect all charges incurred. Besides the economic penalties associated with abusing the free service, there are also a variety of ethical implications to consider.

The Utah Ethics Advisory Committee opined that a lawyer violates the Rules of Professional Conduct when he or she “encourages or participates in a law student’s violation of the student’s contractual obligation to the electronic research service.” Under Rule 5.3, a lawyer has a duty to supervise his or her non-lawyer assistants and ensure that their behavior is in compliance with the rules. Further, using the students’ research services in this way is theft, and is, therefore, a violation of Rule 8.4(b). The Committee concluded by stressing the dishonest nature of this type of act, which would also constitute a violation of Rule 8.4(c).

So, students avoid the ethical and financial repercussions of the improper use of your Westlaw and LexisNexis accounts . . . If an employer requests that you use your free service at work, you can protect yourself and your boss by clicking on the links above and providing the support for your need to decline the request.

After being charged with violating her client’s confidentiality under Georgia’s Rule 1.6, the attorney conceded the violation, filed a petition for voluntary discipline and sought a Review Panel Reprimand, which is the mildest form of reprimand in Georgia. The Office of the General Counsel of the Bar and the special master in the case recommended the Review Panel Reprimand to the Georgia Supreme Court; however, the Georgia Supreme Court, in a per curiam opinion, rejected the recommendation. The court notes that although it “has not been faced with a violation of Rule 1.6 by means of internet publication,” three other tribunals have handed out harsher sanctions than a reprimand in analogous cases. In those cases, attorneys in Illinois and Oregon posted confidential and personal client information on a blog and a listserv, but not necessarily in response to client criticism. The Georgia Court does not suggest a specific sanction so the ultimate resolution of this case is unclear—it is clear, however, that responding to client criticism via the Internet is probably not the way to go regardless of where you reside.

To read the opinion, click here, and to read more commentary on the case, click here.