Thursday, February 13, 2014

DOJ Sends Critical Letter to Louisiana Supreme Court re its Bar Admission Process

Dane Ciolino (Loyola-New Orleans, Law) has blogged on the recent letter of warning the DOJ sent the state's supreme court and chief disciplinary counsel about the civil and disability rights of its applicants. The 10-page, supported letter is linked by Dane here. As he quotes it:

[W]e find that Louisiana’s attorney licensure system discriminates against bar applicants with disabilities by: (1) making discriminatory inquiries regarding bar applicants’ mental health diagnoses and treatment; (2) subjecting bar applicants to burdensome supplemental investigations triggered by their mental health status or treatment as revealed during the character and fitness screening process; (3) making discriminatory admissions recommendations based on stereotypes of persons with disabilities; (4) imposing additional financial burdens on people with disabilities; (5) failing to provide adequate confidentiality protections during the admissions process; and (6) implementing burdensome, intrusive, and unnecessary conditions on admission that are improperly based on individuals’ mental health diagnoses or treatment.

Dane adds, "The irrational methods and procedures Louisiana uses to evaluate the character and fitness of bar applicants have long been questionable. It is refreshing to see that someone else has noticed and may—and can—do something to fix them."

My ethics classes have been watching these C&F issues bubble up lately in this state, including complaints to and involvement by the Department of Justice Civil Rights Division. One student recounts the tale of a friend whose admission was granted conditionally in such a way that her name is published with all the history and conditions. Anyone googling her will quickly find that she self-reported her emotional issues and read the bar's detailing of that and its specific treatment conditions. Had they just admitted her there'd be no public record of her mandatory disclosures on her bar application; by granting conditional admission and publishing it, all the world gets to essentially read her candid C&F form.

This is no way to act professionally when the bar is supposed to be the gatekeeper of professionalism! I agree with Dane that the involvement of the DOJ may stir some serious introspection with the bar apparatus and Court to make its procedures and disclosure comply with the civil rights of the applicants. (Thanks to Lauren Michel and Alston Walker for sending me Dane's link, as well as other students.) [Alan Childress]

February 13, 2014 in Bar Discipline & Process, Professional Responsibility | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 29, 2014

Ethics Of Private Adoptions

A recent opinion from the District of Columbia Bar Legal Ethics Committee:

Lawyers who represent clients, whether birth parents or prospective adoptive parents, in private or independent adoption proceedings in the District of Columbia must ensure their conduct conforms to the D.C. Rules of Professional Conduct. Private adoptions frequently give rise to a number of significant ethical obligations, not the least of which are duties arising under conflict of interest rules, that the lawyer must squarely address with his or her client or clients, often at the onset of the representation. In many instances, a lawyer will be required to obtain the informed consent of one or more clients, and in some circumstances that of former clients, regarding certain aspects of the representation, in order to commence or continue representation. Private adoption practitioners should be particularly mindful of ethical duties attendant to communications with unrepresented persons, as well as duties of confidentiality owed to both current and former clients.

(Mike Frisch)

January 29, 2014 in Clients, Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, January 2, 2014

No Sanction For Paralegal Firm Switch Notice Violation

Sanctions imposed on plaintiffs' counsel in a medical malpractice case were vacated by the Connecticut Supreme Court.

The problem at issue was a paralegal who left the defendants' law firm and went to work for the plaintiffs' firm a year later. Defendant counsel sought assurances that the paralegal would not share information about the case. The sought-after assurances were not forthcoming.

The defense then sought disqualification.

The trial court denied the motion, finding that the paralegal had been properly screened but that the plaintiffs' counsel failed to comply with screening notice requirements. As a sanction, counsel was ordered to pay counsel fees for the motion.

The court here agreed that the notice obligation had been breached but found "no useful purpose in  remanding the case" for a fee calculation would be served.

The fees incurred for the motion were paid by the defendant's insurance carrier and collection had not been sought. (Mike Frisch)

January 2, 2014 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 31, 2013

Immigration Advice To Criminal Defendant Deemed Sufficient

From the web page of the Tennessee Supreme Court, reporting on a December 23 opinion

The Tennessee Supreme Court today upheld the conviction of a man who said he wasn’t aware that his guilty plea would result in his deportation or adversely affect his future eligibility to return legally to the United States.

In 2011, Juan Alberto Blanco Garcia, an alien illegally residing in the United States, pled guilty to the felony of neglect of a child under six years of age. With the aid of an interpreter in court, Blanco Garcia said he understood the charges, the sentence possibilities and that his guilty plea was made freely and voluntarily.  The trial court did not advise the defendant of the immigration consequences of the plea or inquire whether his attorney had done so. 

Before he entered the plea, however, Mr. Blanco Garcia’s attorney told him that he would be deported based on his status as an illegal alien and the guilty plea. The attorney also told Mr. Blanco Garcia that the guilty plea could adversely affect his future eligibility to return legally to the United States, but she advised him to consult an immigration lawyer for more specific information about the issue.

After his conviction, Mr. Blanco Garcia filed a petition alleging that his attorney was ineffective and his plea involuntary because he was not informed of the future immigration consequences of the guilty plea.

The Supreme Court determined that the attorney fulfilled her obligation of effectively representing Mr. Blanco Garcia by advising him that he would be deported upon pleading guilty and that the guilty plea could have future adverse immigration consequences.  The Court explained that this general warning was sufficient because federal law did not clearly and succinctly describe the effect Mr. Blanco Garcia’s guilty plea would have on his future eligibility to return legally to this country. 

As to Mr. Blanco Garcia’s claim that his plea was unknowing and involuntary, the Court declined to decide whether the federal or state constitution requires courts to advise a person pleading guilty of the immigration consequences of the guilty plea.  The Court explained that, even assuming the trial court’s failure to advise Mr. Blanco Garcia of the immigration consequences of his plea amounted to constitutional error, the error was harmless because Mr. Blanco Garcia’s attorney had already informed him of the immigration consequences of his plea.

Read the Opinion in Juan Alberto Blanco Garcia v. State of Tennessee, authored by Justice Cornelia Clark.

(Mike Frisch)

December 31, 2013 in Clients, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Monday, October 28, 2013

Awardees of Zacharias Prize announced

Samuel Levine of Touro Law Center and chair of the prize committee has announced that the "winners have been selected for the fourth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  The Prize will be awarded to Dana Remus, for Out of Practice: The Twenty-First Century Legal Profession, 63 Duke Law Journal __  (2013).  An Honorable Mention will be awarded to Norman Spaulding, for The Privilege of Probity: Forgotten Foundations of the Attorney-Client Privilege, 26 Georgetown Journal of Legal Ethics 301 (2013). The awards will be presented in January at the Section Breakfast of the AALS Section on Professional Responsibility." [Alan Childress]

October 28, 2013 in Professional Responsibility, Teaching & Curriculum | Permalink | Comments (0) | TrackBack (0)

Thursday, September 5, 2013

Bruce Green on the Lawyer's Independence

Recently posted to SSRN is a new paper by Bruce Green (Fordham), entitled Lawyers’ Professional Independence: Overrated or Undervalued? It is an article for the Akron Law Review. Here is a summary:

This article explores the concept of lawyers’ "professional independence" in the literature of the U.S. legal profession. It begins with some reflections on the conventional meanings of professional independence, which encompasses both the bar’s collective independence to regulate its members and individual lawyers’ independence in the context of professional representations, including independence from clients, on one hand, and independence from third parties, on the other. The article suggests that the professional conduct rules are overly preoccupied with protecting lawyers’ professional independence from the corrupting influences of other professionals. The article then turns to an aspect of professional independence that has largely dropped out of lawyers’ discourse but that deserves more attention, namely, lawyers’ independence from the courts. This includes: (1) freedom to criticize judges; (2) freedom to disobey arguably unlawful court orders; and (3) freedom to resolve certain ethical dilemmas for oneself, as a matter of professional conscience. The article maintains that as the bar has become strongly identified and allied with the judiciary, motivated by the interests in securing judicial protection from other government regulation and in securing the bar’s own institutional influence over individual lawyers, the bar has ignored this understanding and redefined professional independence consistently with a strong judicial role in regulating lawyers.

[Alan Childress]

September 5, 2013 in Abstracts Highlights - Academic Articles on the Legal Profession, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Monday, May 20, 2013

Mandatory Pro Bono Proposed For New Jersey Bar Admission

The New Jersey Supreme Court has asked for comments on a report of a Working Group that calls for mandatory pro bono as a condition for admission in the Garden State.

The report identifies three primary goals: increase pro bono hours for underserved populations, give admittees real-life experience and "instill in future attorneys a desire to continue pro bono work throughout their legal career - the habit of doing good."

Query: does forced service really meet the last articulated goal?

The report calls for 50 hours of required service. (Mike Frisch)

May 20, 2013 in Professional Responsibility | Permalink | Comments (3) | TrackBack (0)

Monday, April 15, 2013

Georgia Upholds Right To Conflict- Free Defense Counsel

The Georgia Supreme Court has issued an opinion approving the conclusion of the State Bar Formal Advisory Opinion Board concluding that it is impermissible for attorneys employed in the circuit public defender office to represent co-defendants when a single lawyer would be prohibited from doing so.

The court found that the board's opinion was correct in light of the constitutional right to conflict-free counsel and the construction of Georgia's ethical rule concerning imputed conflicts. (Mike Frisch)

April 15, 2013 in Professional Responsibility | Permalink | Comments (1) | TrackBack (0)

Saturday, January 12, 2013

Confidentiality Issues When Former Client Claims Ineffective Assistance

A recently issued opinion of the District of Columbia Bar's Legal Ethics Committee deals with the issue of confidentiality when a former client claims ineffective assistance of counsel:

When a former client challenges a criminal conviction or sentence on the grounds of ineffective assistance of counsel (“IAC”), D.C. Rule 1.6(e)(3) permits the lawyer to disclose client confidences and secrets only insofar as reasonably necessary to respond to the client’s specific allegations about the lawyer’s representation. Where appropriate, the lawyer should take steps, such as seeking a judicial protective order or entering into an agreement with the prosecutor, to limit the use of such disclosures to the IAC proceeding.

The committee's conclusion:

D.C. Rule 1.6(e)(3) permits a defense lawyer whose conduct has been placed in issue by a former client’s ineffective assistance of counsel claim to make, without judicial approval or supervision, such disclosures of information protected by Rule 1.6 as are reasonably necessary to respond to the client’s specific allegations about the lawyer’s performance. Even so, a lawyer should reflect before making disclosures of protected information to prosecutors, courts, or others. A lawyer’s confidentiality obligations to her former client are broader than the attorney-client privilege. Although the former client’s claim likely waives the evidentiary privilege, that alone does not eliminate the broader confidentiality obligation owed under Rule 1.6. Nor does the limited “self-defense” exception to confidentiality in Rule 1.6(e)(3) open the door to unlimited disclosures to prosecutors, courts or others of protected information. The rule allows a lawyer to disclose protected information only to the extent “reasonably necessary” to respond to “specific allegations” by the former client. Reasonableness is a fact-bound issue about which others may later disagree. Lawyers who are uncertain about the permissibility of disclosing protected information in response to an IAC claim should consider seeking independent advice or judicial approval of the disclosure.

(Mike Frisch)

January 12, 2013 in Clients, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Friday, December 28, 2012

Probation Revocation Ineffective Assistance Claim Remanded

The Kansas Supreme Court has held that a defendant in a probation revocation proceeding is entitled to the effective assistance of counsel.

The case involved allegations of a conflict in interest. The attorney who represented the defendant also served as the victim's guardian ad litem. He briefly noted the conflict in a proffer to the probation revocation court. No objections were lodged and the court did not conduct any inquiry.

The court here remanded for either a fresh revocation hearing with conflict-free counsel or a hearing into whether the conflict created an adverse effect on the representation. (MIke Frisch)

December 28, 2012 in Clients, Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 23, 2012

"Pure Hearts And Empty Heads"

The Delaware Supreme Court has affirmed a trial court holding applying an objective standard to the determination whether a Rule 11 violation has taken place.

The court extended an earlier decision "to bar judges from sanctioning attorneys except where the attorney's conduct prejudically disrupts the administration of justice in a particular case."

The trial court had issued two sua sponte orders to show cause to an attorney concerning his representations to the court in representing a client in an asbestos suit. A $25,000 penalty was imposed on the attorney.

The court here reaffirmed the objective standard: "Delaware demands more from attorneys than pure hearts and empty heads."

However, the trial court did abuse its discretion in imposing sanction. The first contempt order involved his incorrect citation of a case, where he relied on a faulty memory; the second a failure to make a "thorough" argument.

Neither lapse rose to a sanctionable level: "The practice of law imposes many informal penalties on attorneys who do not make thorough arguments. Rule 11 sanctions are not among them."

The court vacated the sanction, noting that its holding "is not intended to leave a judge confronted with an attorney's problematic behavior without recourse. The Office of Disciplinary Counsel is well equipped to investigate attorneys and recommend appropriate action."  (Mike Frisch)

October 23, 2012 in Bar Discipline & Process, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Thursday, August 30, 2012

Attorney May Appeal Denied Motion To Withdraw As Counsel

The Maryland Court of Special Appeals has held that an attorney may appeal an interlocatory order denying his motion to withdraw as counsel. The court held that the denial of the motion was an abuse of discretion and remanded the case to the Circuit Court with instructions to grant the attorney's motion.

The case involved unpaid legal fees and a motion filed five weeks before a scheduled trial.

The court here held that there was no injustice to the client; rather, denying the motion was an injustice to the attorney:

...the circuit court's order, effectively compelling [the attorney] to continue representing [the client], without reasonable likelihood of compensation, imposed an unreasonable financial burden on him.

(Mike Frisch)

August 30, 2012 in Clients, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Monday, August 20, 2012

Call for Nominations of Papers for Zacharias Prize in Legal Ethics

From Samuel Levine (Law, Touro) comes this announcement/reminder of a worthy award honoring the very worthy memory of Fred Zacharias:

Submissions and nominations of articles are now being accepted for the third annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. To honor Fred's memory, the committee will select from among articles in the field of Professional Responsibility with a publication date of 2012. The prize will be awarded at the 2013 AALS Annual Meeting in New Orleans. Please send submissions and nominations to Professor Samuel Levine at Touro Law Center:  

The deadline for submissions and nominations is September 1, 2012.

[Alan Childress]

August 20, 2012 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Saturday, August 11, 2012

Son May Represent Father In Divorce Against His Mother

The Nevada Supreme Court has held that the son of a divorcing couple is not disqualified from representing his father in the litigation:

This original petition for a writ of mandamus raises two novel issues regarding attorney disqualification: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney’s representation will constitute an appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7?  Because appearance of impropriety is no longer recognized by the American Bar Association, and we have not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer, we reject that conclusion when the alleged impropriety is based solely on a familial relationship with the attorney.  We also conclude that absent an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney, the nonclient parent lacks standing to seek disqualification under RPC 1.7.

The court reversed the trial court, which had disqualified the son.

The Las Vegas Review-Journal noted that the representation might be contrary to common sense, if not legal ethics. (Mike Frisch)

August 11, 2012 in Clients, Hot Topics, Professional Responsibility | Permalink | Comments (1) | TrackBack (0)

Saturday, July 7, 2012

No Law Firm Liability For Seizure Of Electronic Files From Opposing Party

The Utah Supreme Court has held that the judicial proceedings privilege applies to an attorney's course of conduct as well as to statements made in the course of litgation.

The law firm represented an employer who had sued a former employee for misappropriation of trade secrets and violation of a non-compete agreement. The firm sought and was granted a civil discovery court order authorizing its entry into the employee's home to seize electronic files from his computer and other electronic devices.

A firm attorney attended the execution of the order. The employee's fiancee (the employee was not there) objected. A second, ex parte order was obtained and she relented.

The employer-employee litigation settled. The employee did not raise the issue of the seizures in the litigation.

The employee then sued the law firm for on a variety of theories for the violation of his Fourth Amendment rights.

A lower court had applied res judicata principles based on the settled case and found the claims were barred.

Here, the court found res judicata inapplicable but nonetheless affirmed on the judicial proceedings privilege. The law firm had acted pursuant to a court order that had not been obtained by fraud or other improper means. (Mike Frisch)

July 7, 2012 in Law Firms, Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Thursday, June 14, 2012

Secret Recordings No Longer Inherently Unethical in Ohio

From the web page of the Ohio Supreme Court:

In  an advisory opinion issued last week, the Supreme Court of Ohio Board of  Commissioners on Grievances & Discipline found that a legal but secret  recording of a conversation by a lawyer is not inherently unethical. A previous  advisory opinion issued on the topic has been withdrawn because it found the  action to be misconduct.

The  board based its new approach on the American Bar Association (ABA) reversing  its position on the issue in 2001, case law from Ohio and other states, and a  “diminished expectation of privacy given advances in technology.”

Opinion  2012-1 centers on Rule 8.4 (c) (conduct involving dishonesty, fraud,  deceit, or misrepresentation) of the Ohio Rules of Professional Conduct.

The  advisory opinion includes several caveats for lawyers engaging in this  activity.

“Although  the Board is fashioning a new standard for surreptitious recording by Ohio  lawyers, the Board is not in any way indicating that a lawyer cannot be  disciplined for conduct involving such recording,” the opinion states.

“The  mere act of surreptitiously or secretly recording a conversation should not be  the impetus for a charge of misconduct. Instead, the totality of the  circumstances surrounding the recording must be evaluated to determine whether  a lawyer has engaged in conduct involving dishonesty, fraud, deceit, or  misrepresentation in violation of Prof. Cond. R. 8.4 (c).”

In  addition, the board noted it “agrees with the ABA’s general admonition against  surreptitious recording of client conversations.” The board found that lawyers  generally should not record their conversations with clients and prospective  clients without consent.

Read the complete text of the opinion.

(Mike Frisch)

June 14, 2012 in Ethics, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 12, 2012

Keeping Old Client Files

A recent Nebraska Ethics Advisory Opinion overrules an earlier opinion regarding retention/disposal of client files. The new opinion relies on changes in the rules of conduct.

The opinion concludes that client files may be destroyed five years after the end of the representation. The attorney is obligated to make reasonable efforts to contact the client before the files are discarded, which may include Facebook and Goggle searches. If there are documents of value, it may be appropriate to hire a private investigator or attempt to contact the client by publication.

The effort required to contact the client is "proportionate with the value and importance of the file materials..." (Mike Frisch)

June 12, 2012 in Clients, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 11, 2012

Call for scholarly submissions for annual Fred Zacharias Prize

Honoring the memory of a professional responsibility leader and a nice person, this prize is for current scholarship. Last year's recipient noted here. Thanks to Sam Levine for the new notice:

Submissions and nominations of articles are now being accepted for the third
 annual Fred C. Zacharias Memorial Prize for Scholarship in Professional
 Responsibility. To honor Fred's memory, the committee will select from among
 articles in the field of Professional Responsibility with a publication date
 of 2012. The prize will be awarded at the 2013 AALS Annual Meeting in New
 Orleans. Please send submissions and nominations to Professor Samuel Levine
 at Touro Law Center: The
 deadline for submissions and nominations is September 1, 2012.

[Alan Childress]

April 11, 2012 in Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Monday, March 19, 2012

The Off Chance

A Delaware Superior Court judge imposed a $500 sanction on an attorney who sent an associate to conduct a deposition in a Delaware action prior to the pro hac vice admission of the associate.

The action involves allegations arising out of the death of an undergraduate who had attended a college fraternity function and died of acute alcohol poisening.

There have been numerous depositions. The deposition at issue had been difficult to schedule. The partner (who was admitted for the case)  had a conflicting obligation to appear before the Department of Homeland Security. The associate went in his stead.

The judge found that the associate could not properly participate without first being admitted. The court had "little doubt" that a timely motion for admission would have been granted and found no prejudice from the associate's participation.

The sanction was imposed on the supervising partner. The court declined to strike the associate's examination of the witness and closed with this thought:

On the off chance that counsel for any of the moving defendants wish to pursue this [unauthorized practice] issue, they should file an appropriate complaint with the Office of Disciplinary Counsel.

(Mike Frisch)

March 19, 2012 in Associates, Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 13, 2012

Pennsylvania Limited Scope Arrangement Opinion

From the web page of the Pennsylvania Disciplinary Board:

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Professional Guidance Committee of the Philadelphia Bar Association have collaborated to produce Joint Formal Opinion 2011-100, regarding limited scope arrangements.

The Committees define “limited scope arrangements” to include two kinds of activities – unbundled legal services, in which a lawyer is engaged only to perform particular activities rather than undertake comprehensive representation of the client, and undisclosed representation, commonly referred to as “ghostwriting,” in which a lawyer prepares legal material for the client’s use but does not undertake direct representation of the client with a court or opposing party.

The opinion notes that limited scope arrangements are generally permissible under the Rules of Professional Conduct, and indeed are specifically contemplated in many of the rules.

The opinion notes that the comment to RPC 1.2 states that a limitation on representation must be reasonable under the circumstances. The fact that the representation is limited does not relieve the lawyer of the normal duty of competence and preparation under RPC 1.1. Second, the lawyer must be sure that the client has exercised informed consent to the limitation on representation. Informed consent is defined in RPC 1.0(e) as “consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” From the Restatement of the Law Governing Lawyers, the Committees drew five safeguards:

  • a client must be informed of any significant problems a limitation might entail, and the client must consent;
  • any contract limiting the representation is construed from the standpoint of a reasonable client;
  • the fee charged by the lawyer must remain reasonable;
  • any change made, an unreasonably long time after the representation begins must meet the more stringent test for post inception contracts or modifications; and
  • the terms of the limitation must be reasonable under the circumstances.

The Committees provide a list of Rules of Professional Conduct which the lawyer entering into a limited scope engagement should consider:

Finally, after an extensive examination of rules, court decisions, and ethics opinions nationwide, the Committees conclude that the lawyer engaged in limited scope representation is not under an obligation to disclose his or her role to either opposing parties or to a tribunal. The Committees note that there is quite a bit of divergent thought on these issues.

This short summary is no substitute for reading the 31-page analysis through which the Committees reach their conclusion, and the lawyer considering such employment would be wise to study the opinion firsthand.

(Mike Frisch)

March 13, 2012 in Current Affairs, Professional Responsibility | Permalink | Comments (0) | TrackBack (0)