Monday, June 21, 2010
The Kansas Supreme Court reversed a finding of criminal contempt against a county chief public defender who had refused to testify in response to the prosecutor's subpoena.
The public defender had represented a defendant in a first degree murder case. A client represented by the public defender's office in an unrelated case was incarcerated with the defendant. That client advised a public defender attorney of an intent to commit perjury at defendant's trial. The public defender advised the court of this (but did not identify the potential perjurer) and was granted leave to withdraw.
The prosecutor then dropped the charges. When charges were refiled, the prosecutor issued a subpoena to the public defender seeking to compel the disclosure of the other client's identity. There were seven public defender clients who were locked up with the defendant.
The court applied the Kansas Rule of Professional Conduct 3.8(e) governing subpoenas to defense counsel and held that the withdrawing public defender's
summary of her former client's expression of an intention to commit perjury...is the only evidence, and merely reed-thin circumstantial evidence, that the former client sought legal services from the public defender's office "in order to enable or aid the commission or planning of a crime or tort."
The summary did not waive the attorney-client privilege. Indeed, the public defender admitted that she had made disclosures in violation of the duty of confidentiality. The court held that the record failed to establish that the prosecution had no feasible alternative to obtain the information sought from defense counsel:
Although [the detective who testified at the contempt hearing] said he believed that there were no other possible avenues of investigation, as oral argument to this court demonstrated, it would have taken little time and less imagination to discern other directions and strategies more likely to lead to helpful information. Unless these directions and strategies were implemented and failed, the State did not demonstrate that there were no feasible alternatives other than to coerce [the public defender's] testimony.
Monday, June 7, 2010
The Nevada Supreme Court reversed a conviction for second-degree murder and related offenses due to the State's failure to properly respond to an issue raised on behalf of the appellant:
In this appeal, we have the duty to publicly reiterate the importance of submitting attentive appellate briefs and the unfortunate obligation to address the unforgiving consequences resulting from a respondent’s failure to respond to relevant issues raised on appeal. In his opening brief, appellant...Polk argues that his constitutional right to confrontation under the Sixth Amendment of the United States Constitution and Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527 (2009), was violated when the findings of a gunshot residue analyst who did not testify at trial and was not subject to cross-examination were admitted. In its answering brief, the State failed to directly address the Crawford and Melendez-Diaz issue or argue, alternatively, that any potential constitutional violation was harmless error. Polk argues in his reply that because the State failed to respond to Polk’s alleged constitutional violation, it effectively confessed error under NRAP 31(d). We agree and reverse and remand for a new trial.
The State failed to respond to a critical issue:
We recognize that the State filed a lengthy answering brief addressing Polk’s other issues on appeal; however, the State failed to address Polk’s argument that his constitutional right to confrontation under Crawford and Melendez-Diaz was violated. This is a significant constitutional issue that compels a response. The issue was clearly raised in Polk’s opening brief and reply brief, the argument regarding it collectively consisting of approximately four pages. Melendez-Diaz was decided on June 25, 2009. The State filed its answering brief six weeks later, on September 10, 2009. In Polk’s reply brief, he explicitly referenced the State’s failure to directly address the constitutional issue. Even after being notified of its failure to respond to the Crawford and Melendez-Diaz issue, the State failed to supplement its response and elected to wait until oral argument to address the constitutional issue or harmless error. Such appellate practice causes prejudice to Polk’s ability to adequately prepare for or respond during oral argument.
Accordingly, we grant Polk’s oral motion to exclude the State’s oral argument on the Crawford and Melendez-Diaz issues and disregard the State’s argument. Because the constitutional right to confrontation under Crawford and Melendez-Diaz was repeatedly raised throughout the appeal, but the State failed to address or even assert that any potential violation was harmless error, we invoke our authority under NRAP 31(d) and consider the State’s silence to be a confession of error on this issue.
Sunday, June 6, 2010
Wednesday, May 26, 2010
A recent admonition is summarized on the web page of the Massachusetts Board of Bar Overseers:
In June 2007, the respondent met with a long-standing client and her mother. The client informed the respondent that her mother was terminally ill and her death imminent. The two women informed the respondent that they had reached an agreement that they wanted the respondent to memorialize concerning a house the mother owned.
The respondent understood that his client had agreed to let her mother live with her and that the client would fund a trust for the children of the mother’s other daughter in return for the mother’s transfer of her home to the client. The mother’s home was then uninhabitable.
The agreement that the respondent drafted called for the client to fund the trust within two years and had no practical means for enforcement. In addition, the agreement had no provision requiring the client to have her mother live with her or remedy for the mother if she did not. The client paid the respondent a minimal fee for drafting the agreement.
The respondent failed to clearly explain to the mother that he was not representing her interests. The mother reasonably believed that the respondent was providing legal services to her as well as to her daughter. The mother did not understand that, without a provision in the agreement requiring her daughter to have her live with her, her interest in living with her daughter or in having her daughter provide similar care was not protected. The respondent should have known that the client’s mother might have misunderstood his role as the client’s lawyer only, but he did not make reasonable efforts to correct her misunderstanding and did not advise her that the only advice he could give her was the advice to retain counsel.
By August 2008, a dispute arose between the client and her mother. The client’s mother was forced to move from the client’s home. In October 2008, the client sold the property. The client’s mother died in January 2009.
The respondent’s failure to explain his role sufficiently to the client’s mother when he reasonably should have known that she misunderstood his role in the matter violated Mass. R. Prof. C. 4.3(a).
This is kind of misconduct that should be covered in any law school ethics class. I'm sure most of us describe situations just like the one presented here in explaining the responsibility of an attorney to make clear who is or is not represented in a transaction. Where the non-client is elderly and infirm, there is the enhanced possibility for manipulation and abuse by the attorney and the client. (Mike Frisch)
Tuesday, May 25, 2010
The Ethics Committee of the South Dakota State Bar opines that a contingent fee may be charged in a contract action betwen domestic partners. Rule 1.5(d) prohibits such arrangement in domestic relations actions involving divorce, support or the value of a property settlement. The claims here do not fall within the prohibitions:
...since the desired recovery is based on a cash transaction for the purchase of real property, it is much more in the nature of an ordinary contract action than a domestic relations action. It is therefore not subject to the restrictions of Rule 1.5(d) and a contingent fee is permissible.
Monday, May 24, 2010
The South Carolina Supreme Court held that the State may not directly appeal an order disqualifying an assistant solicitor. The facts:
The defendant in this case...was charged with the murder of his ex-wife...as well as one count each of first-degree burglary and possession of a firearm during the commission of a violent crime and three counts of assault with intent to kill.
An assistant solicitor in Clarendon County was assigned to prosecute the case. Defense counsel...moved to disqualify the individual assistant solicitor based on the fact that the husband of the assistant solicitor had represented Wilson in his divorce from the murder victim just sixteen months before the alleged murder, and the brother-in-law of the assistant solicitor had represented Wilson at his bond hearing on the criminal charges.
The circuit court granted the motion for disqualification. The State appeals from this pretrial order, arguing the circuit court applied an incorrect legal standard in granting the motion for disqualification.
The court concluded:
We hold the policy implications present in Hagood, i.e., the right of a party to retain counsel of his or her choosing and the development of an attorney/client relationship, are not compelling factors when considering the disqualification of an assistant solicitor. The reasons the Court articulated in Hagood as justification for allowing the direct appeal are not present here, as the State has no substantial right that has been invaded, and the State's ability to appeal has historically been limited in criminal matters.
The appeals in which this Court has considered the issue of disqualification of either one solicitor or an entire solicitor's office have been appeals arising after the defendant's conviction, as they are in the posture of the defendant raising the issue as a ground for reversal. This is consistent with the general rule that a defendant may not appeal until after he is convicted and sentenced. We see no justification for extending different treatment to the State so as to allow direct appeal of this pretrial order. (citations omitted)
Wednesday, May 12, 2010
Posted by Alan Childress
Thanks again to the excellent generosity of the Section on Professional Responsibility of the AALS, which generosity and excellence we have noted before, we provide to you the latest issue of the newsy Newsletter. Download Spring_2010_PR_Newsletter. It has lots of substantive law and rule changes, all dealing with legal ethics, as well as calls for papers and conferences in the field. This issue includes a brief article on the judge as Facebook friend, an issue that Mike on this blog has also raised here (Florida) and here (South Carolina).
Friday, April 2, 2010
From the Attorney e-Newsletter of the Supreme Court of Pennsylvania's Disciplinary Board's March 2010 issue:
Also, 12 attorneys paid their annual fees with checks marked as drawn on a trust or escrow account, prompting an immediate inquiry from Disciplinary Counsel. Eighty-seven paid with checks drawn on insufficient funds; four of which were still outstanding at press time. Not smart.
And footnote 2 itself is classic: " The ethical equivalent of a 'Please kick me' sign."
Couldn't make this stuff up if we tried. Hat tip to my buddy Scott Unger for this one.
(Posted by Nancy Rapoport.)
Wednesday, March 24, 2010
The web page of the District of Columbia Bar reports this rule change:
The District of Columbia Court of Appeals has adopted amendments to the rules governing the Interest on Lawyers’ Trust Accounts recommended by the D.C. Bar Board of Governors.
The amendments, which go into effect on August 1, make participation in the IOLTA program mandatory for D.C. Bar members who receive IOLTA-eligible funds, except when a lawyer is otherwise compliant with the contrary mandates of a tribunal, or when the lawyer is participating in and compliant with trust accounting rules and the IOLTA program of the jurisdiction where the lawyer is licensed and principally practices.
The court also adopted interest rate comparability provisions for banking institutions in which Bar members are permitted to hold client funds.
The revisions amend Rule 1.15 of the D.C. Rules of Professional Conduct and delete Rule 1.19 and Appendix B to the rules. Some provisions of former Rule 1.19 and Appendix B were moved to Rule 1.15 and to a new Section 20 to Rule XI of the D.C. Court of Appeals Rules Governing the District of Columbia Bar.
The revised rules are intended to boost funds distributed by the D.C. Bar Foundation to local legal service providers by increasing revenue from D.C. IOLTA and interest paid by banks on funds held in these accounts. The revisions also provide greater clarity to the trust account ethics rules.
A proposal addressing monitoring of D.C. Bar members’ participation in the IOLTA program by the Bar Foundation was not forwarded to the court but reserved for further study by the D.C. Bar Regulations/Rules/Board Procedures Committee.
The Board of Governors sent its recommendations to the court in September 2009, and the court published the recommendations for a public comment period. The recommendations were based on the work of the Bar Foundation and the Bar’s Rules of Professional Conduct Review Committee that began in 2006.
For more information on the revised rules, contact legal ethics counsel Hope C. Todd at 202-737-4700, ext. 3231, or Saul Singer at 202-737-4700, ext. 3232, or by e-mail at email@example.com. For information on how to set up an IOLTA, visit www.dcbarfoundation.org.
Friday, March 12, 2010
The Nebraska Supreme Court affirmed the dismissal of legal malpractice and related claims brought against the former attorney of a company that performed radiology services. The attorney was corporate counsel to Radiology Services from 1995 to 2003. Her father was a senior official of the company and there was concern that he had a drinking problem. After he left the company, the father sent letters to entities that did business with the company and it was alleged in this lawsuit that three clients stopped doing business with the company after the letters were received.
The complaint alleged that the attorney had improperly assisted her father in retirement negotiations with the company (he was the president at the time) and had misused the company's confidential trade secrets.
The court found that the trial court had properly concluded that, viewed in the light most favorable to the company, there was insufficient evidence to establish legal malpractice or misuse of trade secrets by the company's former counsel. (Mike Frisch)
Friday, March 5, 2010
The Massachusetts Supreme Judicial Court affirmed the denial of a motion for new trial in a case that involved an undisclosed previous intimate relationship between defense counsel and a prosecutor who was not involved in the case (the "ADA"). The defense attorney also had dated the trial prosecutor many years before the trial.
The key facts:
While he was representing Stote, Walsh and the ADA attended a concert together in late March, 1999, and began dating, seeing each other on weekends, until approximately April, 2000. When this relationship began, Walsh had already prepared and filed Stote's first motion. During the course of Walsh's relationship with the ADA, the first motion was denied after a nonevidentiary hearing, and Walsh prepared and, possibly, filed Stote's appellate brief.The affidavits of Walsh and the ADA reveal the following facts about the nature of their relationship. The ADA attests in her affidavit that she and Walsh did not live together at any time during their relationship. Walsh similarly attests that they lived separately. The ADA also states that she does not know whether the relationship was "monogamous." Although neither affidavit states whether the relationship was sexual, we can safely assume that it was, given that the relationship lasted more than one year, the participants were mature adults, neither of them has denied it, and the ADA's reference to a "monogamous" relationship implies as much. The ADA further states that Walsh did not bring legal work to her home, did not to her knowledge receive telephone calls at her home regarding legal matters, and did not discuss Stote's case with her or disclose confidential information to her. She states that, while she and Walsh were seeing each other, they did not "substantively" discuss their "respective legal concerns" and that their work did not "overlap in any respect." Although she was aware that Walsh was working on "an appellate brief," she did not know of its contents, and "even if" she knew the defendant's name "at that time," she did not know anything about Stote's case until she read our 2000 opinion, which was issued after the relationship ended. Walsh similarly attests that he did not discuss Stote's case or appeal with the ADA and that he did not disclose any confidential information to her. Shortly after the relationship ended, according to the ADA's affidavit, Walsh began living with another woman whom he later married.
The ADA's affidavit also indicates that she did not participate in the preparation of the Commonwealth's brief in Stote's appeal. The trial prosecutor, in her affidavit, attests that she alone wrote the Commonwealth's opposition to Stote's first motion and, later, the Commonwealth's appellate brief without the assistance of anyone in the district attorney's office, other than submitting the brief to her superiors for approval. The trial prosecutor further states that she did not discuss any aspect of the Stote case with the ADA.
Although, in accordance with the single justice's decision, we do not consider whether Stote is entitled to a new trial due to any alleged conflict of interest arising from Walsh's previous relationship with the trial prosecutor, some facts concerning that relationship are relevant to our decision. In 1979 and 1980, Walsh and the trial prosecutor dated, but lived separately. Their dating relationship ended amicably in 1980, some seventeen years before Stote's trial. Walsh and the trial prosecutor maintained a cordial and professional relationship thereafter. Both Walsh and the trial prosecutor eventually went on to marry others, in Walsh's case, as stated above, after his relationship with the ADA ended.
The court concludes:
Stote argues on appeal that, because of Walsh's relationship with the ADA, Walsh failed to argue that he was burdened by a conflict of interest at trial arising from his previous intimate relationship with the trial prosecutor, depriving Stote of the effective assistance of appellate counsel. We disagree. First, the judge found that the intimate relationship between Walsh and the trial prosecutor had ended seventeen years before Stote's trial and gave rise to no actual conflict of interest. Second, as to any potential conflict of interest arising from Walsh's relationship with the trial prosecutor, the judge pointed out that Walsh "had no hesitation whatsoever in lambasting [the trial prosecutor] for her alleged transgressions at trial" and concluded that "Walsh vigorously represented the defendant both at trial and on appeal." Much of our opinion in Stote's direct appeal is devoted to disposing of Walsh's charges concerning the trial prosecutor's conduct of the trial.
Stote also argues that Walsh, as his trial counsel, deprived him of effective assistance due to various failures and omissions at trial, such as failing to investigate and develop certain evidence that would have supported Stote's defense. Due to the limited scope of review authorized by the gatekeeper, this claim is properly before us only to the extent that it might establish material prejudice arising from Walsh's relationship with the ADA...Accordingly, to obtain relief on this basis, Stote would have to show not only that the asserted failures at trial constituted ineffective assistance of counsel (that is, that if these asserted failures had been raised in Stote's direct appeal, the conviction would have been reversed), but also that the relationship with the ADA was what prevented Walsh from raising such claims in the direct appeal. Whatever the merits of the former element, Stote cannot establish the latter. Stote offers no reason to believe that, but for the relationship, Walsh would have raised these issues and thereby accused himself of ineffective assistance. Put another way, supposing that Walsh had not been involved in a relationship with the ADA or anyone else in the district attorney's office and that he was therefore under no potential conflict of interest, he nonetheless would not have argued in the direct appeal that he deprived Stote of effective assistance at trial. In these circumstances, the relationship did not affect the arguments raised in Stote's direct appeal. Stote has not shown that any potential conflict of interest arising from his attorney's relationship with the ADA resulted in any material prejudice to him.
Conclusion. We conclude that in the circumstances of this case, there was neither an actual conflict of interest nor a potential conflict that resulted in material prejudice in Stote's appeal. We remind members of the bar of their professional obligation under rule 1.7(b) to disclose to their clients any intimate personal relationship that might impair their ability to provide untrammeled and unimpaired assistance of counsel. Even if an attorney reasonably believes that he or she can continue to represent the client vigorously, the attorney should err on the side of caution by disclosing the relevant facts, which need not include the name of the third person, and asking whether the client consents to the representation.(citations and footnotes omitted)
The case is Commonwealth v. Stote, decided March 5, 2010.(Mike Frisch)
Sunday, February 28, 2010
A recent opinion of the Legal Ethics Committee of the District of Columbia Bar holds:
A lawyer representing an incapacitated person with a surrogate decision-maker should ordinarily look to the client’s chosen surrogate decision-maker for decisions on behalf of the client and accord the surrogate decision-maker’s choices the same weight as those of a client when the client is unable to express, or does not express, a contrary view. A lawyer may not substitute her judgment for the judgment of the surrogate decision-maker when the surrogate decision-maker is acting within the scope of the power afforded to her by law, was selected by the incapacitated person before becoming incapacitated, and is not engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner. If the surrogate decision-maker is engaged in conduct creating a risk of substantial harm or acting in a manner that would otherwise require a lawyer to withdraw from representation of a client acting in the same manner, then the lawyer may take protective action including seeking a substitute decision-maker. The lawyer may not withdraw because a withdrawal will substantially harm the client and no grounds for a prejudicial withdrawal under Rule 1.16(b) exist.
The opinion notes that such representation "can be difficult." (Mike Frisch)
Thursday, February 25, 2010
The District of Columbia Court of Appeals today amended a decision entered on February 4. The court remanded a criminal case where the trial court had erroneously denied a claim of ineffective assistance of counsel without an evidentiary hearing.
One notable aspect of the case is that both his trial and appellate counsel (one and the same person) and an attorney he retained to handle his appeal were later disbarred. The retained attorney never entered an appearence in connection with the appeal. Trial counsel moved forward with the appeal but did not raise issues concerning his own alleged ineffective assistance. (Mike Frisch)
Monday, February 22, 2010
Posted by Jeff Lipshaw
Anita Bernstein (Brooklyn, left) is a guest blogger over at our sister Torts Prof Blog and has an interesting take on whether and how to mix professional responsibility into the torts class. (HT: Sheila Scheuerman)
An ethics opinion issued this month by the Legal Ethics Committee of the District of Columbia Bar is summarized below:
The imputation of a temporary contract lawyer’s individual conflicts to a hiring firm under D.C. Rule 1.10 depends on the nature and extent of the lawyer’s relationship with the firm and the extent of the temporary lawyer’s access to the firm’s confidential client information. A temporary contract lawyer who works with the same firm sporadically on a few different projects, or on a single project for a longer period of time, would not be “associated with” the hiring firm if the firm does not have or otherwise create the impression that the temporary contract lawyer has a continuing relationship with the firm, and the firm institutes appropriate safeguards to ensure that the temporary contract lawyer does not have access to the firm’s confidential client information except for the specific matter or matters on which he is working.
In addition, the temporary contract lawyer and the hiring firm must protect the confidentiality of all client information, and the firm must take appropriate steps to avoid obtaining the confidences and secrets the temporary contract lawyer learned during his former employment.
Monday, January 25, 2010
An attorney who had represented a criminal defendant at a trial in which the key witness (who made controlled drug purchases from the defendant) was also a client engaged in an impermissible conflict of interest warranting reversal of the conviction, according to a recent decision of the Kentucky Supreme Court. The attorney had represented the witness on charges that had led to probation and continued to represent the witness in probation revocation proceedings, where his testimony against the other client was relevant to the disposition.
When the defendant raised concerns prior to trial, the judge responded that the two matters were "unrelated." The defendant replied that it was his lawyer's other client who had "brung these charges against" him but could not articulate his concerns other than that his lawyer might have "bad thoughts" about him. The lawyer's response: " I defend everyone that I am appointed to represent equally."
At the trial, the lawyer attacked the credibility of the witness/client. On appeal, the court held that the trial judge had "confused prejudice resulting from the conflict with the conflict itself." The lawyer was confronted with the problem of helping one client at the expense of another. Trying to balance the competing interests was "a worse alternative, as it would require doing only half a job for both clients." There were also "subtler but no less real conflict[s]" due to the competing confidentiality interests of the two clients.
The court agreed with the defendant, who when asked how a conflict could exist, stated 'How could it not be a conflict of interest? "
Good question. (Mike Frisch)
Thursday, December 17, 2009
The New York Court of Appeals affirmed a conviction in the face of charges of conflicts of interest by one of two counsel in a criminal case. The court refers to counsel as "attorney number one" and "attorney number two." Mr. One was on the case from the start. Mr. Two joined the defense at trial. A wife of a key state witness accused Mr. Two of suborning perjury and bribery prior to the testimony of the witness. The matter was brought to the court's attention by the prosecutor.
The trial court allowed Mr. Two to stay in the case. Mr. One cross-examined the witness. Mr. Two handled the direct of the defendant. The defendant was convicted on weapons charges, acquitted of kidnapping and got a hung jury on attempted murder charges, which were later dismissed.
The court here concluded that the resolution of a conflict of interest is a mixed question of law and fact. The defendant was "fully informed of the potential conflict." There was record support for the trial court's conclusion "that defendant failed to establish that the conflict operated on the defense."
There is a dissent:
Where a defendant claims that his lawyer was conflicted, but the record contains no evidence of a conflict, that evidence must be supplied in a post-trial motion. But here, the record shows both the conflict and an error by the trial court in dealing with it, as the majority essentially concedes (...to address the issue on the record "surely would have been the better practice"). For me, the only difficult issue is what remedy for this error defendant is entitled to. I am prepared to hold that he is not entitled to a new trial, but only to a hearing on the issue of how, if at all, the apparent conflict affected his representation. But I find the majority's holding that he is entitled to no remedy indefensible. (citations omitted).
Friday, December 11, 2009
The State of Washington Court of Appeals, Division III, has reversed an order disqualifying counsel for two persons injured in a one-car rollover accident. The court that ordered disqualification had found that the lawyer was a necessary witness. The court here concluded that the lower court had applied the wrong legal standard, citing the findings required for disqualification in a prior case:
[A] motion for disqualification must be supported by a showing that the attorney will give evidence material to the determination of the issues being litigated, that the evidence is unobtainable elsewhere, and that the testimony is or may be prejudicial to the testifying attorney's client.
The issue arose in an interpleader action filed by an insurer that issued an uninsured motorist policy. When the injured clients objected to the proceeding, the insurance company sued their lawyer for third-party malpractice and sought to remove the lawyer. The disputed issue was whether insurer or the lawyer was responsible for foot-dragging delay.
The court here did not rule out the possibility of disqualification on renewed consideration of the issues and proper standard after a hearing. (Mike Frisch)
Thursday, December 3, 2009
"Deciding an issue of first impression," the Maryland Court of Special Appeals has held that the parents in a termination of parental rights case are entitled to effective assistance of counsel. In the matter, the Office of the Public Defender was appointed to represent the parents who faced the loss of parental rights in guardianship and adoption proceedings. The attorney filed an untimely objection. The court struck the late objection and granted guardianship to the Department of Social Services.
The court held that the right to counsel in termination cases embraces a right to effective assistance. The late filing was ineffective representation. The matter was remanded to permit the objection to be considered on its merits. (Mike Frisch)
Tuesday, December 1, 2009
From the web page of the California Bar Journal:
After nine years of work by its Rules Revision Commission, the State Bar Board of Governors has approved 35 revisions of the California Rules of Professional Conduct on issues ranging from lawyers as third-party neutrals and fees to communication with a represented person and competence.
“Approving the first batch of new Rules of Professional Conduct is an important step towards finalizing the process,” said Michael Marcus, chair of the Discipline Oversight Committee. “All California lawyers owe a debt of gratitude to the Rules Revision Commission for its years of hard work.”
For easier reference, the numbering of all the new rules are being changed to conform to the numbering system and subject area of the ABA Model Rules of Professional Conduct.
At its November meeting, the Board of Governors approved rule revisions that:
- Require an attorney serving as a third-party neutral to explain the difference between an advocate and third-party neutral to someone unlikely to be aware of the distinction. (Rule 2.4)
- Retain California’s current standard prohibiting, for disciplinary purposes, an “unconscionable fee.” The commission had been considering adopting the ABA’s standard that prohibits an “unreasonable fee.” (Rule 1.5)
- Follow the ABA Model Rule that expands ex parte communication to include all represented “persons.” The current rule applies only to a represented “party.” (Rule 4.2)
- State that a lawyer shall not intentionally, recklessly or repeatedly fail to perform legal services with competence. The rule defines “competence” in any legal service as applying the diligence, learning, skill and mental, emotional and physical ability reasonably necessary for the performance of such service. (Rule 1.1)
Proposed rules dealing with sex with a client and conflicts of interest were referred back to the commission for further work. Proposed rules on reporting the egregious behavior of another attorney and business transactions and adverse interests were tabled until the January meeting for further discussion.