tag:blogger.com,1999:blog-329552102024-02-21T07:04:35.925-08:00The Ethics Guru: Legal Ethics BlawgLegal Ethics Blog of James M. McCauley, Ethics Counsel, Virginia State Bar. Contains posts and resources for legal ethics and professional responsibility.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.comBlogger55125tag:blogger.com,1999:blog-32955210.post-35999061149899730152019-11-05T07:57:00.000-08:002019-11-05T07:57:05.236-08:00Lawyers Moving in Between Firms<br />
I just published a new article on the ethics issues when lawyers move in between firms. You can find it here: <a href="http://virginialawyer.vsb.org/publication/?i=625939&p=12&pp=1&view=issueViewer#{"page":"12","issue_id":625939,"numpages":"1">http://virginialawyer.vsb.org/publication/?i=625939&p=12&pp=1&view=issueViewer#{"page":"12","issue_id":625939,"numpages":"1</a>"}Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com4tag:blogger.com,1999:blog-32955210.post-36548815846121395302019-11-05T07:50:00.002-08:002019-11-05T07:50:57.526-08:00Recent Developments in 2019
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<span style="font-family: Calibri;">1.<span style="mso-spacerun: yes;"> </span>Amendments to LEOs
1750 (Compendium on Lawyer Advertising and Solicitation) and LEO 1872 (Virtual
Law Offices) were approved by the Supreme Court of Virginia (SCV).<o:p></o:p></span></div>
<br />
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<span style="font-family: Calibri;">2.<span style="mso-spacerun: yes;"> </span>The Virginia State Bar (VSB) just filed
a petition with the SCV to adopt changes to Rule 1.15 (Trust Accounts) to simplify
recordkeeping requirements and remove technical arcane language.<span style="mso-spacerun: yes;"> </span>The proposal was approved unanimously by
Council at the October meeting.<o:p></o:p></span></div>
<br />
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<span style="font-family: Calibri;">3.<span style="mso-spacerun: yes;"> Legal Ethics Opinions (LEOs). </span>LEOs 1890 (Compendium
Opinion on 4.2—contacts with represented persons was appr’d by Council by a
vote of 41-22; LEO 1891(Contacts with officers of governmental entities represented
by counsel) was approved by a vote of 53-8 with 5 abstentions.<span style="mso-spacerun: yes;"> </span>We will be filing a petition with the SCV
asking the Court to adopt these LEOs very soon.<o:p></o:p></span></div>
<br />
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<span style="font-family: Calibri;">4.<span style="mso-spacerun: yes;"> </span>The Ethics Committee (EC) is updating
and amending its LEO 1850 on outsourcing legal and law-related services.<o:p></o:p></span></div>
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<span style="font-family: Calibri;">5.<span style="mso-spacerun: yes;"> </span>The EC is working
on a LEO that will address a successor lawyer’s duty to communicate with the
client about the prior lawyer’s lien for fees for work performed up until the
time of discharge.<o:p></o:p></span></div>
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<span style="font-family: Calibri;">6.<span style="mso-spacerun: yes;"> </span>Effective Dec 1,
we will have a new rule 4.4(b) that will require lawyers who receive
inadvertently misdirected privileged documents to notify the sender, abide by
the sender’s instructions and not use the information, unless there is pending
litigation where the discovery rules will allow the receiving lawyer to seek a
court ruling on the use of such inadvertently sent information and waiver of
ACP.<o:p></o:p></span></div>
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<span style="font-family: Calibri;">7.<span style="mso-spacerun: yes;"> </span>The EC has been
working closely with Bar Counsel’s office to develop and anti-bias, anti-discrimination
rule, however, there is no consensus on what the rule might look like or whether
such a rule is even necessary in Virginia.<span style="mso-spacerun: yes;">
</span>26 states have adopted some language in their RPC to address this issue
but only 3 states have adopted versions of ABA MR 8.4(g) which has engendered
criticism by practitioners and academic commentators.<o:p></o:p></span></div>
Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-27747400404021455172015-11-24T12:54:00.000-08:002015-11-24T12:54:43.295-08:00Recent Developments in 20152015 was a busy year for the Virginia State Bar especially in the field of legal ethics and professional regulation. This year saw some significant rule changes adopted by the Supreme Court of Virginia:<br />
<ul>
<li>A new Rule 5.8 requiring notification to clients when a lawyer changes law firms. Rule 5.8. <a href="http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/new_rule_5.8">http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/new_rule_5.8</a></li>
<li>Amendments to Paragraph 10, Section IV of the Rules for Integration of the Virginia State Bar requiring Council and Supreme Court review of legal ethics advisory opinions issued by the Standing Committee on Legal Ethics. <a href="http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/amendments_to_paragraph_10_2015-10">http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/amendments_to_paragraph_10_2015-10</a> </li>
<li>Provision of legal services following determination of a major disaster. <a href="http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/provision-of-legal-services-following-determination-of-major-disaster">http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/provision-of-legal-services-following-determination-of-major-disaster</a></li>
<li>New Admission Rule for military spouses to practice in the Commonwealth. <a href="http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/military_spouse_provisional_admission_rule-022715">http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/military_spouse_provisional_admission_rule-022715</a></li>
<li>New amendments removing restrictions to admission by reciprocity, Rule 1A:1. <a href="http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/amendment_to_rule_1a1_reciprocity_admission_on_motion">http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/amendment_to_rule_1a1_reciprocity_admission_on_motion</a></li>
<li>Amendments to Rule 1.10 (Imputation of Conflicts). <a href="http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/rule-1-10-2014-01">http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/rule-1-10-2014-01</a></li>
</ul>
Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-32553239460532827352014-12-03T06:00:00.001-08:002014-12-03T06:00:50.892-08:00Is it Unethical to Call Another Lawyer Unethical?A new Iowa lawyer ethics opinion holds that a lawyer may not accuse another lawyer of being unethical for tactical or strategic reasons and must report another lawyer's misconduct to the state bar's professional regulatory authority. Here is a link to the opinion:<br />
<br />
<a href="http://205.209.45.153/iabar/ethics.nsf/e61beed77a215f6686256497004ce492/3c0643787f59f94987257d800003de39/$FILE/IA%20Ethics%20Op%2014-02.pdf">http://205.209.45.153/iabar/ethics.nsf/e61beed77a215f6686256497004ce492/3c0643787f59f94987257d800003de39/$FILE/IA%20Ethics%20Op%2014-02.pdf</a><br />
<br />
If a lawyer makes an allegation of misconduct on the part of another lawyer, he or she must report it to the state bar. Otherwise, the lawyer making the accusation has engaged in misconduct and is subject to discipline.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-55111336783168279182013-10-21T15:00:00.000-07:002013-10-21T15:00:35.675-07:00Supreme Court of Virginia Issues 4 opinions in 2013 involving lawyers disciplined by the Virginia State Bar
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<span style="font-family: Calibri;">A disciplined lawyer has an appeal of right to the Supreme
Court of Virginia from the Disciplinary Board or a Three-Judge Court. <span style="mso-spacerun: yes;"> </span>However, it is not common for lawyer
discipline cases appealed to the Court to result in a written published
opinion.<span style="mso-spacerun: yes;"> </span>To see even one opinion issued
in a year is noteworthy, but to have four published cases in a year is quite
extraordinary. <span style="mso-spacerun: yes;"> </span>Three of the cases, (<i style="mso-bidi-font-style: normal;">Hunter, Zaug</i> and <i style="mso-bidi-font-style: normal;">Northam</i>) were handed down on the same day February 28, 2013.<span style="mso-spacerun: yes;"> </span><i style="mso-bidi-font-style: normal;">Livingston</i>
was issued on June 6, 2013.<o:p></o:p></span></div>
<br />
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<span style="font-family: Calibri;">What these cases have in common is that the Supreme Court of
Virginia dismissed charges of misconduct in all four cases.<span style="mso-spacerun: yes;"> </span>In addition, in all four cases there were
findings of misconduct at two hearing levels before each were appealed to the
Court.<span style="mso-spacerun: yes;"> </span>In other words, the VSB was the
prevailing party in all four cases before they were heard by the Court.<span style="mso-spacerun: yes;"> </span>In two of the cases, <i style="mso-bidi-font-style: normal;">Zaug</i> and <i style="mso-bidi-font-style: normal;">Northam</i>, the
Respondent attorney was completely vindicated and suffered no discipline.<span style="mso-spacerun: yes;"> </span>In <i style="mso-bidi-font-style: normal;">Hunter</i>,
the disciplinary sanction was upheld.<span style="mso-spacerun: yes;"> </span>In
<i style="mso-bidi-font-style: normal;">Livingston</i>, the matter was remanded
to the Board reconsider the appropriate sanction.<o:p></o:p></span></div>
<br />
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<span style="font-family: Calibri;">The standard of review applied by the Supreme Court of
Virginia in lawyer discipline cases is unlike that applied in criminal and
civil cases appealed to the Court.<span style="mso-spacerun: yes;"> </span>In
lawyer discipline cases, the standard of review is less deferential to the
tribunals in the proceedings below.<span style="mso-spacerun: yes;"> </span>The
VSB has the burden to prove by clear and convincing evidence that an attorney
violated the Rules of Professional Conduct. <i style="mso-bidi-font-style: normal;">Weatherbee
v. Virginia State Bar</i>, 279 Va. 303, 306, 689 S.E.2d 753, 754 (2010). In
reviewing the Disciplinary Board's decision, the Court “conduct[s] an
independent examination of the entire record.” <i style="mso-bidi-font-style: normal;">Williams v. Virginia State Bar</i>, 261 Va. 258, 264, 542 S.E.2d 385,
389 (2001); <i style="mso-bidi-font-style: normal;">accord Northam v. Virginia
State Bar</i>, 285 Va. 429, 435, 737 S.E.2d 905, 908 (2013). The Court reviews
the evidence and all reasonable inferences that may be drawn from the evidence
in the light most favorable to the VSB, the prevailing party. <i style="mso-bidi-font-style: normal;">El–Amin v. Virginia State Bar</i>, 257 Va.
608, 612, 514 S.E.2d 163, 165 (1999). The Court gives factual findings
substantial weight and view them as prima facie correct. <i style="mso-bidi-font-style: normal;">Id</i>. The factual conclusions are not given the weight of a jury
verdict, but they “will be sustained unless it appears they are not justified
by a reasonable view of the evidence or are contrary to law.” <i style="mso-bidi-font-style: normal;">Id.</i><o:p></o:p></span></div>
<br />
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<span style="font-family: Calibri;">Three of these cases (Zaug, Northam and Livingston)
demonstrate that the Court will examine the record closely for the findings of
fact made by the lower tribunals in the proceedings below in addition to an independent
review of the record for facts that support those findings.<span style="mso-spacerun: yes;"> </span>There must be specific findings of fact made
in the record to support each charge of misconduct.<span style="mso-spacerun: yes;"> </span>The Court will not independently make
findings of fact that are absent from the record. <span style="mso-spacerun: yes;"> </span>Thus, the failure of the lower tribunal to
make an finding of fact necessary to support a charge of misconduct, will
result in a reversal of that lower tribunal’s finding of misconduct.</span></div>
<span style="font-family: Calibri;"><div class="MsoNormal" style="margin: 0in 0in 10pt;">
</div>
<o:p><div class="MsoNormal" style="margin: 0in 0in 10pt;">
</div>
<div class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;">Hunter v. Virginia State Bar</b></div>
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;"><o:p><a href="http://www.courts.state.va.us/opinions/opnscvwp/1121472.pdf">http://www.courts.state.va.us/opinions/opnscvwp/1121472.pdf</a></o:p></b></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span><span style="font-family: Calibri;">In Hunter v. Virginia State Bar, the Respondent was a lawyer who published a blog that described his past successes in court as a criminal defense lawyer. The bar charged Hunter for violating an advertising rule that required a lawyer to use a disclaimer when advertising specific case results. Rule 7.2(a)(2). The bar also charged that Hunter breached his confidentiality duty to former clients by posting information detrimental and embarrassing to a client. Rule 1.6. For example, one of his posts disclosed that his former client "had tested positive for cocaine." Hunter stipulated that he did not obtain his clients' consent beforehand when he posted information about their cases.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
Hunter challenged the bar, arguing that his blog was not commercial speech so the bar could not use its advertising rules to regulate non-commercial speech, and any attempt to regulate non-commercial speech had to be tested under a "strict scrutiny" standard. In regard to the charged that he breached Rule 1.6, Hunter argued that his statements about his former clients were made in a public proceeding and were therefore not confidential, or, alternatively, that the bar's application of Rule 1.6 to his blog posts was an unconstitutional abridgement of his right of free speech.</div>
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The Supreme Court ruled that Hunter's blog was commercial speech and could be regulated by the bar if the statements or claims made were potentially misleading without the required disclaimer and affirmed the lower court's finding that Rule 7.2 was violated. On the Rule 1.6 charge, the court held that the bar's application of the rule to Mr. Hunter was unconstitutional, and dismissed that charge.<o:p> </o:p></div>
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<span style="font-family: Times New Roman;">
</span></div>
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;">Zaug v. Virginia State Bar</b></div>
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;"><o:p><a href="http://www.courts.state.va.us/opinions/opnscvwp/1121656.pdf">http://www.courts.state.va.us/opinions/opnscvwp/1121656.pdf</a></o:p></b></div>
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<span style="font-family: Times New Roman;">
</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
In Zaug v. Virginia State Bar, the respondent lawyer and her partner were defending a medical-malpractice action. On the day in which a
deposition was scheduled to occur (the deposition was to be covered by the respondent
attorney’s partner), Ms. Zaug accepted a call. It was one of the plaintiffs.
The lawyer took the call and asked the caller how she could help her.<span style="mso-spacerun: yes;"> </span>There were facts in the record from which one
could infer that Ms. Zaug knew right away that the caller was the represented
plaintiff.<span style="mso-spacerun: yes;"> </span>But the Court, doing an
independent review of the record and noting that there had not been a specific finding made by the lower court, concluded otherwise. <o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>After a very brief exchange, the caller became emotionally upset and went into how the lawsuit was affecting her family. She eventually told Zaug that she wanted to withdraw the suit and move on with their
lives. Zaug attempted to disengage politely, eventually ending
the call something like 60 seconds from when it began according to the testimony of an employee in Zaug's law firm.</div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>When the plaintiffs’ lawyer found out about this, she filed
a Bar complaint against the respondent, claiming that the defense lawyer had
wrongfully taken the call and spoken directly with a represented adverse party
about a matter involving the representation. The Bar issued a charge of
misconduct; a district committee found a <i style="mso-bidi-font-style: normal;">de
minimis</i> violation and dismissed the charge.<span style="mso-spacerun: yes;">
</span>The Bar relied on comment 3 to Rule 4.2 that indicates that the rule applies even when the represented person initiates the contact
with the lawyer, requiring the lawyer to terminate the communication <i style="mso-bidi-font-style: normal;">immediately</i> once the lawyer knows that
the communication is prohibited by the Rule.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>But a <i style="mso-bidi-font-style: normal;">de minimis</i>
dismissal is not a ruling in favor of the respondent, makes a finding of
misconduct and creates a disciplinary record.<span style="mso-spacerun: yes;">
Not happy with this outcome</span>, Ms. Zaug appealed, first to a three-judge panel (which affirmed the <i style="mso-bidi-font-style: normal;">de minimis</i> dismissal) and then to the
Supreme Court.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>The Court unanimously reversed and dismissed the charge
of misconduct. Citing duties of a lawyer to act professionally and civilly, the
court rejected the Bar’s application of the rule requiring that
Ms. Zaug<span style="mso-spacerun: yes;"> </span>immediately hang up on the
caller, but should allow time for her to disengage politely and civilly. <span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span></div>
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;">Northam v. Virginia State Bar</b></div>
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;"><o:p><a href="http://www.courts.state.va.us/opinions/opnscvwp/1121623.pdf">http://www.courts.state.va.us/opinions/opnscvwp/1121623.pdf</a></o:p></b></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
This case shows what happens when a conflicts check
fails. The attorney is a partner in a small firm on the Eastern Shore of Virginia. He was consulted by the Husband for
representation in a divorce, and met with the man and agreed to representation.
The next day, one of the lawyer’s partners met with the client’s wife, also to
evaluate representation in divorce proceedings.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
Obviously, two lawyers from the same firm cannot serve on
opposite sides of a divorce case (or any other kind of litigation, for that
matter). During a second meeting, the partner asked the wife if she knew who
her husband was consulting. <span style="mso-spacerun: yes;"> </span>She replied
“Northam something,” and the lawyer immediately went to his secretary and
learned that his partner had, indeed, met with the husband the day before. <span style="mso-spacerun: yes;"> </span>He thereupon told the wife that he couldn’t
represent her, so she got other counsel, who later raised the disqualification
issue.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>A bar complaint was filed because Northam refused to
withdraw from the husband's case.He continued to represent the husband. <span style="mso-spacerun: yes;"> </span>According to the Court’s view of the record, the
only information that he received from his partner was, “I think we have a
problem and I’m getting out.” The partner never told the first lawyer anything
that the wife had disclosed to him during the intake interview.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>The district committee found violations of three provisions:
conflict of interest, imputed disqualification, and declining or terminating
representation.<span style="mso-spacerun: yes;"> </span>Rules 1.7, 1.10 and
1.16. On appeal to the Bar’s disciplinary board, the respondent prevailed with
regard to the first and third charges, but the board affirmed the finding based
solely on the imputed disqualification (Rule 1.10), ordering an admonition
without terms. The lawyer appealed to the Supreme Court.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>This case is similar to the Court’s analysis of the record in the <i style="mso-bidi-font-style: normal;">Zaug</i> appeal – the majority reversed,
based on the absence of a specific factual finding by the lower tribunals
that the lawyer had actual (as opposed to constructive) knowledge of the fact
that his partner was disqualified. <span style="mso-spacerun: yes;"> </span>There
was testimony in the record from the partner that he had told the lawyer about
the purpose (though not the details) of his conversation with the wife, but the
Board’s findings of fact didn’t include a specific statement that the
respondent lawyer actually knew that his partner was prohibited from the
representation. Since the imputed disqualification rule requires actual
knowledge, the record fails to support the charge, so the judgment is reversed
and the disciplinary charge dismissed.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>One might wonder how the two lawyers didn’t
have a duty to follow up, and why they failed to ask more questions once they were aware that
there was “a problem.”<span style="mso-spacerun: yes;"> However, </span>that was not an issue or charge raised in this case.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>Justice Powell dissented, and her reasoning is that the
court reviews the record as a whole, not merely the Bar’s stated factual
findings, to see if the decision is supported; she would have affirmed the
Board’s decision based on the partner’s disclosure.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>Here is a specific statement of the majority’s holding that,
as raised by the Court in <i style="mso-bidi-font-style: normal;">Zaug, </i>establishes
an emerging standard of review in attorney disciplinary appeals: <o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>An attorney charged with a violation of professional
responsibility is entitled to findings of fact that contain a clear statement
of how the Board resolved disputed issues.<span style="mso-spacerun: yes;">
</span>The bar will need to make sure that the disciplinary tribunal makes
specific findings of fact necessary to support a rule violation or risk
reversal of a decision on appeal.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span></div>
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;">Livingston v. Virginia State Bar</b></div>
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<b style="mso-bidi-font-weight: normal;"><o:p><a href="http://www.courts.state.va.us/opinions/opnscvwp/1122144.pdf">http://www.courts.state.va.us/opinions/opnscvwp/1122144.pdf</a></o:p></b></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
The charges of misconduct in the case arose out a
prosecutor’s handling of a drug case.<span style="mso-spacerun: yes;">
</span>The defendant, Collins, was arrested after he purchased from an
undercover agent some 50 pills that Collins thought were Oxycontin.<span style="mso-spacerun: yes;"> </span>This offense occurred within 1000 feet of a
school and therefore triggered a separate and additional criminal charge.<span style="mso-spacerun: yes;"> </span>What Collins purchased were in fact
imitations of the actual prescription drug that were specially made for police
undercover operations.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>Collins was tried in a bench trial on two drug charge
indictments.<span style="mso-spacerun: yes;"> </span>After Collins moved to
dismiss both charges at the close of the Commonwealth's evidence and again at
the close of all the evidence, the parties filed with the trial court memoranda
addressing two issues: (1) whether Collins was guilty of possession with the
intent to distribute a controlled substance when he was unaware that the item
possessed was an imitation controlled substance; and (2) whether the
Commonwealth must prove that Collins actually intended to distribute the
imitation controlled substance within 1,000 feet of public school property.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>On the first issue Livingston conceded that it would be
error for the trial court to find Collins guilty because the pills he purchased
were an imitation controlled substance.<span style="mso-spacerun: yes;"> </span>Livingston
moved to amend the indictment but the trial court overruled the motion on the
basis that it was not timely.<span style="mso-spacerun: yes;"> </span>The Court
stated Livingston could reindict Collins if he thought it was appropriate.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>On the second issue, Livingston argued that the decision in <i style="mso-bidi-font-style: normal;">Toliver v. Commonwealth</i>, 38 Va.App. 27,
561 S.E.2d 743 (2002), was not controlling. He maintained that unlike the
defendant in Toliver, who was chased onto school property, Collins' purchase of
the imitation controlled substance and his subsequent statement to a police
officer that he could sell each pill for approximately $80 established that,
while within 1,000 feet of a public school, Collins possessed the pills and had
the intent to distribute them.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>Livingston subsequently presented a third indictment to a
grand jury, which charged that Collins “did manufacture, sell, give, or
distribute an imitation controlled substance which imitates a schedule I or II
controlled substance, namely, Oxycodone, in violation of” Code § 18.2–248.
Collins moved to dismiss that indictment on the basis of, among other things,
double jeopardy. At the hearing on the motion, and in proceedings thereafter, Livingston
kept describing the charge in the third indictment as “possession with intent
to distribute” even though the indictment charged a different offense, i.e.,
“manufacture, sell, give, or distribute.” Livingston never moved to amend the
third indictment to charge possession with the intent to distribute, and the
trial court granted Collins' motion to dismiss it.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>Livingston challenged the trial court's judgment dismissing
the third indictment in an appeal to the Court of Appeals of Virginia. The
Court of Appeals dismissed the appeal because Livingston failed to file a
timely petition for appeal. In his “brief” filed in the Court of Appeals,
Livingston again incorrectly referred to the charge in the third indictment as
“possession with intent to distribute” while at the same time quoting the
charge in the indictment verbatim.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>The VSB charged Livingston with incompetence under Rule 1.1
in the conduct of the case against Collins for charging Collins with possession
with intent to distribute Oxycontin when Livingston knew that the pills Collins
purchased were an imitation controlled substance.<span style="mso-spacerun: yes;"> </span>The VSB also charged that Livingston violated
Rule 3.8(a) for maintaining a charge Livingston knew was not supported by
probable cause.<span style="mso-spacerun: yes;"> </span>VSB further alleged that
Livingston was “incompetent and obtained an indictment not supported by
probable cause when he obtained the third indictment” because Livingston knew
there was no evidence that Collins actually manufactured or distributed the
pills. Furthermore, the VSB claimed that Livingston repeatedly and incorrectly
referred to the third indictment as charging possession with the intent to
distribute. The VSB also charged that Livingston was “incompetent” when he
filed the petition for appeal late. Finally, the VSB alleged that Livingston
“maintained an argument that was frivolous in objecting to the substitution of
the words ‘imitation controlled substance’ “ for the word “ ‘marijuana.’ “<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>As to the second indictment, during the district committee
hearing, Livingston admitted that he had not read the <i style="mso-bidi-font-style: normal;">Toliver </i>decision until after Collins’ attorney had discussed the
case in his brief to the trial court.<span style="mso-spacerun: yes;">
</span>Livingston also acknowledged that he could not prove where Collins
intended to distribute the pills but argued that Collins’ possession of them
within 1000 feet of school property was sufficient and that he did not have to
prove that Collins intended to distribute the pills within the prohibited
school zone.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>With regard to the third indictment, evidence produced at
the hearing showed that Livingston instructed his staff to prepare an
indictment for possession with intent to distribute an imitation controlled
substance, did not review the indictment before he presented it to the grand
jury and did not realize that his repeated references to the charge as
possession with intent to distribute were wrong and that the indictment
presented a different offense, until the VSB served charges of misconduct.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>The District Committee found that Livingston violated Rules
1.1 (competence), 3.1 (frivolous positions) and 3.8(a)(charge not supported by
probable cause) and imposed a public reprimand with terms.<span style="mso-spacerun: yes;"> </span><o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>Livingston appealed the District Committee’s determination
to the VSB Disciplinary Board, which affirmed and imposed the same sanction.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span>In this case, Livingston conceded that he made three
“mistakes” in his prosecution of Collins: (1) reaching an incorrect legal
conclusion about the law of factual impossibility and thus erroneously charging
Collins with possession with the intent to distribute the actual controlled
substance; (2) obtaining the third indictment for distribution of an imitation
controlled substance rather than for possession with the intent to distribute
and failing to recognize that mistake during the trial and on appeal; and (3)
missing the deadline for filing the petition for appeal in the Court of
Appeals.<a href="http://www.blogger.com/null" name="footnote_ref_5"></a><a href="http://caselaw.findlaw.com/va-supreme-court/1633604.html#footnote_5"><span style="font-size: x-small;"><span style="color: blue;"><span style="mso-bookmark: footnote_ref_5;"><sup>5</sup></span><span style="mso-bookmark: footnote_ref_5;"></span></span></span></a><span style="mso-bookmark: footnote_ref_5;"></span>
Livingston asserted, however, that while these mistakes might constitute
negligence, they do not rise to the level of clear and convincing evidence of
incompetent representation in violation of Rule 1.1.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
The Court disagreed with Livingston and found no error in
the Board’s conclusion that Livingston had violated Rule 1.1, finding that
Livingston failed to provide the “thoroughness and preparation reasonably
necessary for the representation” of his client, the Commonwealth.<span style="mso-spacerun: yes;"> </span>Even if an attorney has the necessary legal
knowledge and skill, “thoroughness and preparation” require the “[c]ompetent
handling of a particular matter,” which includes “inquiry into and analysis of
the factual and legal elements of the problem and use of methods and procedures
meeting the standards of competent practitioners.” Va. Sup.Ct. R., Part 6, §
II, R. 1.1, cmt. 5.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
Livingston obtained three indictments against Collins. Each
was based on factual and/or legal errors due not to mere negligence, but to his
failure to analyze the evidence and the elements of the charges he brought
against Collins. And, without checking the accuracy of the charge in the third
indictment, which contained the wrong criminal offense, he presented the indictment
to a grand jury and pursued it in the trial court and also on appeal when he
filed the untimely petition for appeal. It is not necessary to determine
whether any one of these acts of misconduct alone would violate Rule 1.1. In
this case, viewing the record in its entirety, there is clear and convincing
evidence that Livingston failed to provide competent representation to his
client in the prosecution of Collins.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
The Court dismissed the remaining charges under Rules 3.1
and 3.8(a) finding that the Board’s finding on those charges were in
error.<span style="mso-spacerun: yes;"> </span>The Court vacated the Board’s
order and remanded the case to the Disciplinary Board to determine the
appropriate sanction based on the Rule 1.1 violation.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
One observation shared by some lawyers regarding this
decision is that because Livingston was so incompetent in his prosecution of
the drug charges against Collins, the VSB could not prove, to the Court’s
satisfaction, the charges under Rules 3.1 and 3.8(a). This is because the VSB
could not prove the requisite <i style="mso-bidi-font-style: normal;">sciente</i>r
or <i style="mso-bidi-font-style: normal;">mens rea</i> to support those charges,
i.e., that Livingston <i style="mso-bidi-font-style: normal;">actually knew</i>
that those charges were not supported by probable cause.<o:p></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Times New Roman;">
</span></div>
</o:p><div class="MsoNormal" style="margin: 0in 0in 10pt;">
</div>
</span><div class="MsoNormal" style="margin: 0in 0in 10pt;">
</div>
Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-42236878889633605612013-10-21T13:55:00.000-07:002013-10-21T13:55:17.290-07:00CHANGING LAW FIRMS or “BREAKING UP IS HARD TO DO”: ETHICAL ISSUESHere is a link to a recent article I've written regarding lawyer mobility, that covers the ethics issues when lawyers move from one law firm to another.<br />
<br />
<a href="http://www.vsb.org/docs/valawyermagazine/changing-firms-2013-10.pdf" target="_blank">http://www.vsb.org/docs/valawyermagazine/changing-firms-2013-10.pdf</a>Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-17933013172809476252013-08-09T12:34:00.000-07:002013-08-09T12:34:22.180-07:00Is "Ghostblogging" Ethical For Lawyers?<em>IS “GHOST BLOGGING” UNETHICAL: IS IT UNETHICAL FOR A LAWYER TO USE A “GHOST WRITER” TO POST INFORMATION ON THE LAWYER’S BLOG OR WEB SITE?</em><br />
<em>An emerging practice in marketing professional services on the Internet is the use of professional marketing agencies that contract to create, set up and place content on the professional’s blog that he or she uses to market their professional services. For lawyers, the propriety of using a “ghost blogger” to write and post content on the lawyer’s blog is a recent hot topic for legal ethicists.</em><br />
<em>While other professionals may be permitted to use “ghost bloggers,” the informal consensus is that lawyers may not, primarily because of the lawyer advertising rules and rules prohibiting deceit or dishonesty. See Rules 7.1 and 8.4(c). Essentially, holding out another’s work product as one’s own is deceptive. While there is absolutely nothing wrong with using outside and creative talent to craft a blog, a lawyer that uses a “ghost blogger” without a disclaimer, to publicly advertise the lawyer’s engagement with and competence in a particular area, violates Rule 7.1’s prohibition against misleading statements or claims in public communications about the lawyer or the lawyer’s services.</em><br />
<em>Lawyers often use blogs to discuss recent developments in the law and breaking news in their area of practice. Some lawyers use blogs to provide legal information to clients, former clients, potential clients and members of the general public that might be interested in the lawyer’s area of practice. Lawyers that outsource this work to a non-lawyer and do not review their work before it is posted also do a grave disservice to the members of the public that may visit the lawyer’s blog. When lawyers outsource work or services to non-lawyers, lawyers have an ethical obligation to ensure that that the non-lawyer’s conduct or work conforms to the lawyer’s professional obligations. LEO 1850 (2010). Similarly, when lawyers rely on non-lawyers to develop their marketing over the Internet, lawyers have an ethical duty to review that work product to ensure it is compliant with the lawyer advertising rules, before it is posted on the lawyer’s blog.</em><br />
<br />
<em>While the lawyer may have paid the “ghost blogger” for permission to post content on the blog without attribution—thereby ruling out a charge of plagiarism—there remains the risk that without an appropriate disclaimer or attribution, blog visitors will reasonably assume that that the thoughts and ideas expressed are those of the lawyer’s when in fact that is not the case. Passing off someone else’s writing or ideas as one’s own, in a marketing vehicle designed to induce potential clients to hire the lawyer is not only unethical, but a bad way to initiate a professional relationship that is supposed to be built on trust. When the means used to solicit the client are deceptive, this does not bode well for the ensuing professional relationship. Candor and trust are essential characteristics of a lawyer’s practice.</em><br />
<em></em><br />
<em>Lawyers may understandably be too busy to create their own marketing ideas, statements and claims and certainly have good reasons to engage a marketing professional to assist them with web page and blog content. Provided there is honesty or transparency in the means by which this is done, there is nothing improper about using the work product of another.</em><br />
<em></em><br />
<em>James M. McCauley, VSB Ethics Counsel (July 19, 2013)</em>Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com2tag:blogger.com,1999:blog-32955210.post-74044626940116134762013-04-17T08:34:00.001-07:002013-04-17T08:39:36.349-07:00<h2>
Changes to Lawyer Advertising Rules Approved by the Supreme Court of Virginia Effective July 1, 2013</h2>
<em>by James M. McCauley, Ethics Counsel</em><br />
<br />
Effective July 1, 2013, the Supreme Court of Virginia has approved amendments to Rules 7.1-7.5 of the Rules of Professional Conduct. The amendments move specific examples of lawyer advertising statements or claims from the body of rules to the comment sections. They also remove unnecessary and redundant language.<br />
Here is how the approved amendments change the current rules.<br />
<ul>
<li> The terms “fraudulent” and “deceptive” are removed from Rule 7.1. A communication that is “false or misleading” violates the rule.</li>
<li> The disclaimer required for advertising specific or cumulative case results has been removed from Rule 7.2—which has been eliminated in its entirety—and is now Rule 7.1(b). The disclaimer shall: <ul>
<li> (i) put the case results in a context that is not misleading; (ii) state that case results depend upon a variety of factors unique to each case; and (iii) further state that case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.</li>
<li> The disclaimer shall precede the communication of the case results.</li>
<li> When the communication is in writing, the disclaimer shall be in bold type face and uppercase letters in a font size that is at least as large as the largest text used to advertise the specific or cumulative case results and in the same color and against the same colored background as the text used to advertise the specific or cumulative case results.</li>
</ul>
</li>
<li> Other than specific or cumulative case results, examples of statements or claims considered to be “false or misleading” have been taken out of Rule 7.1 and placed in the comments. Former subparagraphs (1)-(4) were deleted.</li>
<li> Comment [1] to Rule 7.1 was substantially rewritten to describe the types of communications subject to regulation under Rule 7.1and to exclude other forms of non-commercial speech.</li>
<li> Rule 7.2 was eliminated in its entirety, although the specific and cumulative case results disclaimer requirement is now Rule 7.1(b) and provisions in Rule 7.2 regulating written solicitation and paying others to recommend a lawyer have been incorporated within Rule 7.3.</li>
<li> Rule 7.3 addresses in-person and written solicitation of potential clients. The amendments to Rule 7.3 remove the current <em>per se</em> prohibition of in-person solicitation in personal injury and wrongful death cases. Effective July 1, 2013, in-person <em>and written </em>solicitation will be improper only if: <ul>
<li> the potential client has made known to the lawyer a desire not to be solicited by the lawyer; or</li>
<li> the solicitation involves harassment, undue influence, coercion, duress, compulsion, intimidation, threats or unwarranted promises of benefits.</li>
</ul>
</li>
<li> Rule 7.3 also regulates payment or rewards to persons for recommending employment, prohibiting a lawyer from giving anything of value to a referral source except that the lawyer may: <ul>
<li> pay the reasonable costs of advertisements or communications permitted by this Rule and Rule 7.1;</li>
<li> pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service (note that the lawyer referral service must be a <em>non-profit </em>entity);</li>
<li> pay for a law practice in accordance with Rule 1.17; and</li>
<li> give nominal gifts of gratitude that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer's services.</li>
</ul>
</li>
<li> Rule 7.3’s regulation of written solicitations has been simplified with regard to the “ADVERTISING MATERIAL” labeling requirement. </li>
<li> Rule 7.4 regulates claims of specialization and expertise and the current rule is substantially unchanged by the amendments.</li>
<li> Rule 7.5 is substantially unchanged with the exception of a new Comment [3] that states that lawyers should practice using the official name under which they are licensed or seek an appropriate and legal change of name from the Supreme Court of Virginia. The lawyer’s use of a name other than the lawyer's name on record with the Virginia State Bar may be a misleading communication about the lawyer's services to the public in violation of Rule 7.1.<a href="http://www.courts.state.va.us/courts/scv/amendments/2013_0415_rules_7_1_7_5.pdf" target="_blank">http://www.courts.state.va.us/courts/scv/amendments/2013_0415_rules_7_1_7_5.pdf</a></li>
</ul>
Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-40738918373453219322012-11-28T15:09:00.000-08:002012-11-28T15:09:08.283-08:00Legal Ethics--It's complicatedMany lawyers believe that they can conduct a law practice ethically following their sense of what is morally "the right thing to do." Relying on what their mother taught them and the "smell test" they think that ethical matters can be handled intuitively. Of course, lying, cheating and stealing are obvious ethical breaches, but legal ethics has evolved into a body of law as complex as civil procedure and other courses law students take. Some of the rules are counter-intuitive. Not long ago I attended a marketing seminar for lawyers where the speaker, a lawyer, proudly spoke of her practice of sending small gifts as "tokens of appreciation" to persons that brought clients to her firm. The Virginia Rules of Professional Conduct prohibit this and I had the CLE sponsor sent a message out to the attendees bringing this to their attention. See Va. Rule 7.3(d).<br />
<br />
Recently I took a call from a lawyer that wanted to move to disqualfy a law firm that was adverse to the caller's client and had recently hired an associate from a very large firm. The associate's former law firm had represented the caller's client in a related matter while the associate worked there. The associate was not even aware that the caller's client had been a client of his former law firm, had no knowledge of the matter handled by his former law firm nor any personal involvement. I informed the caller that there was no conflict of interest and no basis to file a motion to disqualfiy the firm. He responded, "Really? That can't be right." I explained that conflicts are imputed under Rule 1.10 to other lawyers associated in a law firm, but the rules are different when lawyer move between firms.<br />
<br />
More examples can be cited but the bottom line is that lawyers have to read, understand and know the rules and they cannot "go with their gut."Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-29563408194852555682012-11-01T11:40:00.000-07:002012-11-01T11:40:29.114-07:00Lawyers Need to be Aware of Fake ReviewsI did an interview for the ABA Journal that was published in August 2012. See ABA Journal, August 2012 at pp. 24-25. The topic of interest was the discovery of several incidents of online reviews of lawyers and law firms purporting to have been written by clients. Random Google searches of firms revealed "five star" reviews of various law firms created by persons who claimed to be clients of the law firm. Contacting the reviewers for verification is not possible. Google has acknowledged that bogus reviews are a problem but Google does not create reviews. Lawyers who hire marketing firms to boost their image and ratings online must ensure that the consultant is not using improper or deceptive practices, including manufacturing fake reviews about the quality of the lawyer's services. In the interview, I advise that lawyers who advertise and use the Internet to marker their services have an ethical duty to periodically Google their name and see what's out there. Lawyers should be monitoring and policing what others say about them.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com1tag:blogger.com,1999:blog-32955210.post-4868354104123879402012-05-15T08:03:00.001-07:002012-05-15T08:03:39.819-07:00Bad Ethics Rules that Need to be Incinerated!This is a 6 min presentation on YouTube by Will Hornsby on some of the most ridiculous ethics rules adopted in some states:<br />
<br />
<a href="http://www.youtube.com/watch?v=dqo_2JwzgUc&list=PLF236BD0804ED6416&index=5&feature=plcp">http://www.youtube.com/watch?v=dqo_2JwzgUc&list=PLF236BD0804ED6416&index=5&feature=plcp</a><br />
<br />
Enjoy.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-46524826479699465162012-04-18T10:20:00.001-07:002012-04-18T10:21:49.170-07:00ABA Nixes Proposal to Allow Non-Lawyers to Own Law FirmsABA COMMISSION ON ETHICS 20/20 WILL NOT PROPOSE CHANGES TO ABA POLICY PROHIBITING NONLAWYER OWNERSHIP OF LAW FIRMS CHICAGO, April 16, 2012-At its April 12-13 meeting in Washington, D.C., the ABA Commission on Ethics 20/20 decided not to propose changes to ABA policy prohibiting nonlawyer ownership of law firms.<br />
<br />
<br />
Co-Chairs Jamie S. Gorelick and Michael Traynor said, "Since its creation in 2009, the commission has undertaken a careful study of alternative law practice structures. Based on the commission's extensive outreach, research, consultation, and the response of the profession, there does not appear to be a sufficient basis for recommending a change to ABA policy on nonlawyer ownership of law firms."<br />
<br />
By June 2011, the commission had publicly rejected certain forms of nonlawyer ownership that some other countries currently permit, including multidisciplinary practices, publicly traded law firms, and passive, outside nonlawyer investment or ownership in law firms.<br />
<br />
After further consideration and study, on Dec. 2, 2011, the commission released for comment a discussion draft describing a limited form of court-regulated, nonlawyer ownership of law firms. It would have allowed nonlawyers, who were employed by a law firm and assisted the firm's lawyers in the provision of legal services, to have a minority financial interest in the firm and share in its profits. The discussion draft reflected an approach that was similar to but more restrictive than the structure permitted by the District of Columbia for more than 20 years.<br />
<br />
"The commission considered the pros and cons, including thoughtful comments that the changes recommended in the discussion draft were both too modest and too expansive, and concluded that the case had not been made for proceeding even with a form of nonlawyer ownership that is more limited than the D.C. model," Gorelick and Traynor said.<br />
<br />
Although it will not propose any changes to ABA policy on nonlawyer ownership of law firms, the commission will continue to consider how to provide practical guidance about choice of law problems that are arising because some jurisdictions, including the District of Columbia and a growing number of foreign jurisdictions, permit nonlawyer ownership of law firms.<br />
<br />
"These are current problems that need pragmatic attention," Gorelick and Traynor said. "The commission previously released draft proposals on these issues, and will decide at its October 2012 meeting whether to submit formal proposals to the ABA House of Delegates for consideration in February 2013. Meanwhile, the commission welcomes additional comments on the previously released drafts."<br />
<br />
The ABA Commission on Ethics 20/20 was created in 2009 and charged with performing a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.<br />
<br />
Members of the commission include judges, law professors who specialize in legal ethics, practitioners (including former ABA, state bar and local bar presidents), and liaison members from the ABA Board of Governors, Center for Professional Responsibility, Task Force on International Trade in Legal Services, Standing Committee on Ethics and Professional Responsibility, and Young Lawyers Division.<br />
<br />
Co-chair Gorelick is a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C. Co-chair Traynor, of Berkeley, Calif., is a past president of the American Law Institute and currently chairs the institute's council.<br />
<br />Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com1tag:blogger.com,1999:blog-32955210.post-23551127265490756302011-09-28T08:56:00.000-07:002011-09-28T08:56:43.793-07:00The Nursery Rhyme LawyerHave you ever wondered what would happen if Jack and Jill or Humpty Dumpty sued for their personal injuries? Call the Nursery Rhyme Lawyer! Click on this link to hear his song:<br />
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<a href="http://video.thebillablehour.com/video/Throwing-Toasters-performs-Nurs">http://video.thebillablehour.com/video/Throwing-Toasters-performs-Nurs</a>#Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com2tag:blogger.com,1999:blog-32955210.post-61927601155265502862011-09-08T11:36:00.000-07:002011-09-08T11:36:03.658-07:00Most significant changes in the practice of lawA timely article in this week's issue (9/5/11) of the Virginia Lawyers Weekly (Dolan Publishing Co.), celebrating its 25th "Silver Anniversary" as a paper, covered interviews of prominent lawyers in our state who were asked to identify the most significant changes in the practice of law: Marketing and specialization, commercialization, and a substantial decline in jury trials were the top three.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-17264391438414895652011-08-02T06:59:00.000-07:002011-08-02T07:06:55.577-07:00New Rule 1.18 Adopted by Supreme Court of VirginiaThe Virginia State Bar's Standing Committee on Legal Ethics proposed that the Court adopt ABA MR 1.18 and the Court has adopted this rule effective June 21, 2011. Rule 1.18 addresses the ethical duties owed to a prospective client with whom a lawyer has communicated but has not agreed to represent that person. A prospective client is a person with whom the lawyer is willing to discuss the possibility of employment. The comments to the rule make clear that not all unilateral communications with a lawyer are protected, only those communications had with a reasonable expectation of forming a client-lawyer relationship. In that case, the communications are protected under the lawyer's duty of confidentiality under Rule 1.6, and the lawyer who has received significantly harmful information from a prosepective client may not represent a client adverse to that prospective client. However, the imputation of this conflict can be avoided if the tainted lawyer is screened from participating in any matter adverse to the prospective client and timely notice is given. It is believed that this new rule will help mitigate the practice by some people of "lawyer shopping" solely for the purpose of strategically disqualifying the lawyer or law firm because of an interview or other contact. At the very least the new rule should help law firms avoid an imputed disqualification when one of its lawyers has some communication with a prospective client.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-8943950522001371122011-07-20T09:24:00.000-07:002011-07-20T09:24:26.743-07:00Casey Anthony . . . Get Over it, people!The public lynching of Casey Anthony, her lawyer, Jose Baez (a/k/a "sleazeball defense lawyer") and the jury that sat through this trial is despicable and needs to stop. Guilty as Casey Anthony may appear to the general public, the jury did its job correctly by acquitting her of murder because the government did not have a case. Her lawyer did what he was supposed to do and so did the jury. How about complaining about the prosecutor for putting on a case that needed more investigation and work? The sad part about all of this bloodlust for Casey Anthony in the media is that these same people would want the same criminal justice system to work for them if their life or libery was on the line. Finding Casey Anthony guilty of first degree murder on the flimsy evidence the prosecution had would be a travesty and miscarriage of justice, even assuming she committed the crime. The answer is for the police and prosecution to prepare their case before bringing it to trial, not bashing the defense or the jury on the perception that Casey Anthony "got away with murder." We cannot disregard or begrudge the constitution, burden of proof and procedure safeguards afforded any citizen charged with a crime just because we don't like the result in a highly publicized case. Let's put things in perspective and get over it, folks.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-75462080567473056032011-04-25T14:23:00.000-07:002011-04-25T14:23:55.295-07:00New Rule Encourages Pro Bono Work By Corporate CounselThe Supreme Court of Virginia approved April 15, 2011, effectively immediately, a proposed amendment to Supreme Court Rule 1A:5, Corporate Counsel & Corporate Counsel Registrants, which allows Virginia corporate counsel admitted in States other than Virginia to do pro bono work. This proposal came at the recommendation of the Joint Virginia State Bar and Virginia Bar Association Corporate Counsel Pro Bono Task Force (Task Force), with the hope of increasing the number of lawyers eligible to provide pro bono public services while ensuring that such lawyers are subject to adequate professional guidelines regarding competence in the handling of such matters. <br />
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The approved changes also revise paragraph (g) of the rule in three respects: (1) removes the requirement for Part I corporate counsel registrants to participate only in pro bono programs operated and controlled by any Virginia licensed Legal Aid Society; (2) removes the requirement that the Part I corporate counsel work under the “direct supervision” of a legal aid lawyer or a pro bono volunteer who is a regular active member of the Virginia State Bar; and (3) removes limitations on the specific services that can be performed by the corporate counsel volunteer. These changes broaden the scope of appropriate pro bono legal services for specific clients over other legal aid services, thereby creating additional opportunities for pro bono services for Part I corporate counsel. Even though the approved changes eliminate the provisions in the Rule pertaining to supervision, Part I corporate counsel are required by Rule 1.1, like all lawyers who practice law in Virginia, to serve their clients competently and have an ethical duty to make sure they received proper and sufficient training to handle a pro bono matter.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-48693811807472232832011-04-25T14:14:00.000-07:002011-04-25T14:14:51.048-07:00New Article Published on Lawyer Websites and BlogsThe April 2011 issue of <em>The Virginia Lawyer </em>has my latest article on lawyer websites and blogs and the ethics issues that arise out of their use. Check it out!<br />
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<a href="http://www.vsb.org/docs/valawyermagazine/vl0411-consultus.pdf">http://www.vsb.org/docs/valawyermagazine/vl0411-consultus.pdf</a>Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-20549288542959497792011-03-02T08:17:00.000-08:002011-04-25T14:15:28.892-07:00New Article Published on Cloud Computing"Cloud Computing--Silver Lining or Ethical Thunderstorm for Lawyers" is published in <em>The Virginia Lawyer </em>(Feb. 2011)<br />
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Check it out!<br />
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<a href="http://www.vsb.org/docs/valawyermagazine/vl0211_consultus.pdf">http://www.vsb.org/docs/valawyermagazine/vl0211_consultus.pdf</a>Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-59807531659701972062010-11-05T06:12:00.000-07:002011-04-25T14:16:55.564-07:00Proposed Florida Bar Opinion Requires Lawyers to Scrub Hard DrivesA recent proposed advisory opinion by the Florida Bar warns lawyers of their ethical duty to see that old hard drives are sanitized to protect client information from falling into the hands of unauthorized third parties. See Proposed Opinion 10-2 (Sept 24, 2010) found at <a href="http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/04F704C626B79C2E852577AB006FD349/$FILE/10-02%20PAO.pdf?OpenElement">http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/04F704C626B79C2E852577AB006FD349/$FILE/10-02%20PAO.pdf?OpenElement</a><br />
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Hard drives or memory sticks are used in copying and fax machines as well as computers. Lawyers that lease copiers or dispose of these machines without sanitizing the hard drive leave client information vulneralble to the mischief of third parties that mine and harvest such information to commit identity theft. The proposed opinion would require lawyers to obtan assurances from third party vendors that the hard drive will be sanitized to protect client information.<br />
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It remains to be seen how a lawyer can exercise control over third party vendors and whether lawyers should be disciplined for failing to obtain that assurance from the vendor. For example, what assurance can a lawyer get when he asks a hotel clerk to make copies of a client's documents? ABA Model Rule 5.3 was not written to address a lawyer's responsibility for conduct of non-lawyers that are not under the direct supervisory authority of the lawyer. This is why ethical breaches by persons to whom a task or matter has been outsourced by a lawyer, and the outsourcing lawyer's exposure under Rule 5.1 or 5.3 is a problematic issue. A lawyer does not exercise supervisory authority over third parties not employed by the lawyer or his/her firm.<br />
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The opinion also raises a question whether lawyers should be subject to discipline if a third party finds the lawyer's laptop, flash drive, cell phone or other device containing client information that is not encrypted or password protected. While it is one thing to advise lawyers on best practices regarding the use of technology, it is an entirely different matter to hold a lawyer subject to discipline for not adopting these best practices.<br />
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It will be interesting to see how this opinion reads when it is finally adopted.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com1tag:blogger.com,1999:blog-32955210.post-23502185906601658862010-11-03T07:30:00.000-07:002011-04-25T14:17:36.179-07:00Prosecutors May Advise Police to Communicate with Represented DefendantEffective November 1, 2010, the Supreme Court of Virginia approved the Virginia State Bar’s Rule 4.2 Task Force’s proposed amendment to Comment [5] of Rule 4.2 of the Rules of Professional Conduct to address the situation in which a defendant who is in custody, formally charged, and represented by counsel waives his rights under <em>Miranda v. Arizona</em> and wants to give a statement to a law enforcement officer without his counsel present.<br />
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The question addressed by the task force was: “If the law enforcement officer seeks legal advice from a commonwealth’s attorney regarding whether the officer may obtain a statement from the defendant under these circumstances, may the commonwealth’s attorney advise the police officer without violating Rule 4.2?<br />
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Rule 4.2 had previously prohibited a lawyer from communicating with a person the lawyer knew to be represented by counsel unless the counsel for the represented person consented or the communication was authorized by law. <br />
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Rule 8.4 (a) states that a lawyer cannot violate a professional rule through the agency or actions of another. A reading of the rule led to the conclusion that the commonwealth’s attorney could not ethically advise law enforcement officers to proceed with the custodial interview without notice to or consent from the accused’s lawyer. <br />
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The task force determined that the defendant’s waiver of his right to have his lawyer present when the accused desires to talk to a law enforcement officer presents a constitutional legal issue on which the commonwealth’s attorney should be permitted to give advice without fear of violating the cited rules. The amendment to Rule 4.2, Comment [5] clarifies that the commonwealth’s attorney can advise the law enforcement officer regarding the legality of an interrogation or the legality of other investigative conduct. The amendment to Comment [5] does not, however, authorize the commonwealth’s attorney to script or mastermind the police’s interrogation of the defendant.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-71654169847174982372010-10-18T10:27:00.000-07:002010-10-18T10:27:40.731-07:00California Bar Goes After Prosecutors for MisconductThe California state bar discipline process, led by recently-appointed Chief Trial Counsel Jim Towery, is investigating 130 prosecutors who had been identified in a report by the Innocence Project and Santa Clara University law professors on instances of wrongful conviction. It is not known how far these cases will go back, but this is a rather significant development in the field of lawyer regulation.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com0tag:blogger.com,1999:blog-32955210.post-29000681114771010272010-08-05T07:26:00.000-07:002010-08-05T07:26:36.496-07:00Access Virginia State Bar's Ethics Hotline By E-MailLawyers may now access the Virginia State Bar's Legal Ethics Hotline via e-mail simply by clicking on a blue button. Here is a link to that page: <a href="http://www.vsb.org/site/regulation/ethics/">http://www.vsb.org/site/regulation/ethics/</a><br />
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This will help reduce the "phone tag" on the traditional phone service. To reach the hotline by phone and request legal ethics advice dial 804-775-0564.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com3tag:blogger.com,1999:blog-32955210.post-10112035962084202962010-08-05T07:23:00.000-07:002010-08-05T07:28:12.783-07:00Members Can Download Legal Forms at VSB WebsiteVirginia Bar members may now fill out and download many routine pleadings and forms. To get to the forms, log in as a VSB member. Click on the “Forms and Downloads” button which takes the user to a page with a “Supreme Court of Virginia Forms” heading at the bottom.<br />
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The Supreme Court website has a link to some of the same forms, but most of the forms on the Supreme Court site are ones that must be signed by a pro se litigant or an attorney.Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com1tag:blogger.com,1999:blog-32955210.post-7168147614590678102010-03-15T13:42:00.000-07:002010-03-15T13:45:11.509-07:00Prosecutors in Daryl Atkins Case Face Disciplinary ChargesTwo lawyers involved with the prosecution of the famous capital murder case against Daryl Atkins face charges of misconduct alleging that they coached a co-defendant witness and withheld exculpatory information from the lawyers defending Atkins. To read more follow this link--<br />
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<a href="http://valawyersweekly.com/blog/2010/03/15/york-prosecutors-face-bar-discipline/">http://valawyersweekly.com/blog/2010/03/15/york-prosecutors-face-bar-discipline/</a>Ethics Guruhttp://www.blogger.com/profile/01132568775722205728noreply@blogger.com3